Child Soldiers in Congo

On Wednesday 14 March, Trial Chamber I of the International Criminal Court (ICC) delivered the Court’s first verdict. In a unanimous decision the three judges convicted Thomas Lubanga Dyilo of the war crimes of conscripting, enlisting, and using children under the age of 15 to participate actively in hostilities.

The defense has 30 days to appeal the verdict. A separate hearing will be held by the Trial Chamber to decide on the sentence for Lubanga and in another hearing the Chamber will  establish the principles that are to be applied to reparations for victims.

Lubanga is the former leader of the Union of Congolese Patriots and its rebel militia who operated in the district of Ituri, a region rich in mineral reserves, in the northeastern part of the Democratic Republic of the Congo. His militia, which recruited children, some as young as nine, to take part in brutal ethnic fighting, carried out widespread killing, rape, and torture of many thousands of civilians throughout the district for a number of years in the early 2000s.

Although Lubanga could have been charged with several other serious crimes, the prosecutor focused exclusively on the recruitment and use of children in armed conflict, which are war crimes under Article 8 of the ICC Statute.

In its judgment which made several important findings the Trial Chamber was able to rely upon the case law of the Special Court for Sierra Leone which charged all nine of its original defendants, including former Liberian president Charles Taylor, with the crime of recruiting and using children in armed conflict and has already convicted four defendants of this crime.

The Trail Chamber concluded that the crimes of conscription and enlistment were committed as soon as the child joined an armed group, with or without compulsion. This implies that any use of children in an armed conflict, due to its coercive circumstances, is prohibited irrespective of whether parents or children themselves support the involvement of the child.

In addition, the Trial Chamber found that the crime of using children to participate actively in hostilities also included activities of the children involved in support roles to the combatants. The crucial factor under these circumstances is whether the support role exposed the child to real danger as a potential target. The combination of the child’s support and this level of consequential risk, according to the Chamber, meant that the child was actively involved in the hostilities despite its absence from the immediate scene of the hostilities.

 Another important aspect of the case was the direct involvement of victims, including former child soldiers, in the trial. The ICC Statute was the first to include provisions on the rights of victims to participate fully in the trial proceedings. During the course of the trial, a total of 129 victims participated through their legal representatives. They were authorized to make submissions to the judges, introduce evidence, and question witnesses on specific issues. The contributions of the victims played a major role in the trial. For the first time, the victims were able to express their views and concerns at various stages of the proceedings.

The trial, however, has also been severely criticized by many for its long duration, the way in which the prosecution conducted  the initial investigation, procedural  conflicts, and the limited scope of the indictment against Lubanga. Nevertheless, at the end of the day this first conviction shows that the ICC can, even in a difficult situation, bring those who commit crimes against international law to justice.

The ICC judgment firmly establishes the use of children in armed conflict as an international crime and also focuses renewed attention on the many thousands of children still used in various other conflicts in the world.

According to Human Rights Watch, children are currently recruited and used in armed conflict in at least 15 countries and territories: Afghanistan, Burma (Myanmar), Central African Republic, Chad, Colombia, Democratic Republic of Congo (DRC), India, Iraq, Occupied Palestinian Territories, Philippines, Somalia, Sri Lanka, Sudan, Thailand, and Uganda.


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