Case 1: Prosecutor v. Thomas Lubanga Dyilo (Hereafter Also Referred to as Lubanga)

Grover, Sonja C.

doi:10.1007/978-3-642-32501-4_3

Sonja C. Grover²

693 Accesses

Abstract

(1) Thomas Lubanga Dyilo was charged as co-perpetrator under Rome Statute Article 8(2)(b)(xxvi) (“Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law”) with conscripting and enlisting children under the age of 15 years into the FPLC (Patriotic Forces for the Liberation of Congo) and using them to participate actively in hostilities from early September 2002 to 2 June, 2003 and (2) as co-perpetrator under Rome Statute Article 8(2)(e)(vii) (“Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law”) with conscripting and enlisting children under the age of 15 years into the FPLC and using them to participate actively in hostilities from 2 June to 13 August, 2003. As co-perpetrator Lubanga is held to have made, at a minimum, a ‘substantial’ (though not necessarily ‘essential’) contribution to the common plan which involved the commission of the crimes charged (that is, the crimes charged could have occurred without his contribution but not without great difficulty). Note that the Trial Chamber in Lubanga as a result of a legal re-characterization of the facts found that the UPC/FPLC was engaged in an internal conflict from early September 2002 to 13 August, 2003.

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Notes

1.
Prosecutor v. Thomas Lubanga Dyilo, Decision on Confirmation of Charges (29 January, 2007).
2.
Note that the Pre-Trial Chamber considered that the FPLC was a national armed force even though non-State and that hence the elements of the war crime articulated at Rome Statute Article 8(2)(b)(xxvi) were met in regards to recruitment and use by a national armed force. (See Prosecutor v. Thomas Lubanga Dyilo Decision on Confirmation of Charges (29 January, 2007, p. 98, para 285)
3.
Rome Statute (2002).
4.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution closing brief (2011, pp. 36–37, para 65).
5.
Prosecutor v. Thomas Lubanga Dyilo Summary of the “Judgment pursuant to Article 74 of the Statute (14 March, 2012, p. 9, para 22).
6.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Statement (2011, p. 3, emphasis added).
7.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Statement (2011, p. 14, emphasis added).
8.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Statement (2011, p. 15, emphasis added).
9.
Geneva Conventions (1949).
10.
Grover (2012).
11.
Human Rights Watch (2003, pp. 21–22).
12.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Statement (2011, p. 15, emphasis added).
13.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution’s Reply to the Conclusions finales de la Défense (2011, p. 13, para 32).
14.
Convention on the Prevention and Punishment of the Crime of Genocide (1951).
15.
Charny (2009, pp. 36–37).
16.
Kuper (1981, p. 100).
17.
The facts regarding the transfer of children under 15 to the FPLC can, however, also be used to support Rome Statute (2002) Article 8 war crimes charges.
18.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Statement (2011, p. 75, para 179).
19.
IRIN (The humanitarian news and analysis service of the UN Office for the Coordination of Humanitarian Affairs) (2002).
20.
Grover (2012).
21.
Genocide Convention (1951).
22.
Genocide Convention (1951).
23.
Genocide Convention (1951).
24.
Grover (2012).
25.
Prosecutor v. Thomas Lubanga Dyilo, Closing Brief (2011, p. 72, para 175, emphasis added).
26.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution’s Reply to the Conclusions finales de la Défense (2011, p. 13, para 32).
27.
Prosecutor v. Thomas Lubanga Dyilo, Decision on Confirmation of Charges (2007).
28.
Rome Statute (2002).
29.
Prosecutor v. Thomas Lubanga Dyilo, Amicus brief of Coomaraswamy, R. (United Nations Special Representative of the Secretary-General on Children and Armed Conflict) (2008).
30.
Rome Statute (2002).
31.
The Rome Statute Elements of the Crime (2002) specifies that the term ‘children’, with respect to the crime of genocidal forcible transfer of children, refers to persons under the age of 18 whom the perpetrator knew or should have known were under the age of 18 years (Article 6(e)(5) and Article 6(e)(6)).
32.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Brief (2011, p. 79, para 191, emphasis added).
33.
Grover (2012).
34.
Prosecutor v. Thomas Lubanga Dyilo, Closing Statement (2011, pp. 3–4, emphasis added).
35.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Statement (2011, pp. 4–5, emphasis added).
36.
Prosecutor v. Thomas Lubanga Dyilo, Closing Statement (2011, p. 9).
37.
Prosecutor v. Thomas Lubanga Dyilo, Closing Brief (2011, p, 87, para 211).
38.
Rome Statute (2002).
39.
Prosecutor v. Thomas Lubanga Dyilo, Closing Statement (2011, p. 13, emphasis added).
40.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution closing brief (2011, pp. 17–18, para 31–32).
41.
Protocol Additional to the 1949 Geneva Conventions (Protocol I) (1977).
42.
Protocol Additional to the 1949 Geneva Conventions (Protocol II) (1977).
43.
Protocol Additional to the 1949 Geneva Conventions Relating to the Protection of victims of international armed conflicts (Protocol I, 1977, emphasis added).
44.
Protocol Additional to the 1949 Geneva Conventions Relating to the Protection of victims of non-international armed conflicts (Protocol II, 1977, emphasis added).
45.
Protocols Additional to the 1949 Geneva Conventions (Protocols I and II) (1977).
46.
International Committee on the Red Cross Commentary on Additional Protocol I to the 1949 Geneva Conventions (2005, emphasis added).
47.
Rome Statute (2002).
48.
Rome Statute (2002).
49.
Rome Statute (2002).
50.
Geneva Conventions (1949).
51.
Protocols Additional to the 1949 Geneva Conventions (Protocols I and II) (1977).
52.
Rome Statute (2002).
53.
Prosecutor v. Thomas Lubanga Dyilo, Decision on Confirmation of Charges (2007, p. 102, para 296).
54.
Prosecutor v. Thomas Lubanga Dyilo, Decision on Confirmation of Charges (2007, p. 105, para 304).
55.
Rome Statute (2002).
56.
Prosecutor v. Thomas Lubanga Dyilo, Decision on Confirmation of Charges (2007, p. 105, para 307).
57.
Rome Statute (2002).
58.
Prosecutor v. Thomas Lubanga Dyilo, Decision on Confirmation of Charges (2007, p. 107, para 313).
59.
The current author has argued here (in the introduction section) that all children – persons under age 18-are a ‘protected group’ under international law. See also Grover (2012, Chapter 1) on this issue.
60.
Prosecutor v. Thomas Lubanga Dyilo, Decision on Confirmation of Charges (2007, p. 105, para 308).
61.
Prosecutor v. Thomas Lubanga Dyilo, Decision on Confirmation of Charges (2007, p. 105, para 308).
62.
Prosecutor v. Thomas Lubanga Dyilo, Decision on Confirmation of Charges (2007, p. 105, para 308).
63.
Prosecutor v. Thomas Lubanga Dyilo, Decision on Confirmation of Charges (2007, p. 105, para 309).
64.
Prosecutor v. Thomas Lubanga Dyilo, Decision on Confirmation of Charges (2007, p. 106, para 311).
65.
Rome Statute (2002).
66.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution closing brief (2011, p. 40, para 74, emphasis added).
67.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution closing brief (2011, p. 10, para 11, emphasis added).
68.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution closing brief (2011, p. 65, para 151).
69.
Lubanga address. Cited in Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Statement (2011, p. 8).
70.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution closing brief (2011, p. 10, para 14, emphasis added). Recall that the current author has noted that there was evidence presented at trial that even children with quite poor health status, and/or weak physical strength and/or of very young age under 15 were forcibly transferred to Lubanga’s ‘military’ force such that the objective in forcibly transferring the children cannot be simply reduced to building the strength of the FPLC.
71.
Frulli (2001, p. 332).
72.
Under great pressure from the international community and NGOs in the field; Lubanga did release a small number of the FPLC child soldiers as a token gesture only as was revealed by credible testimony put on by the Prosecution at trial (i.e. See Prosecutor v. Thomas Lubanga Dyilo, Prosecution’s Reply to the Conclusions finales de la Défense (2011, p. 19, para 53)).
73.
Rome Statute (2002).
74.
Rome Statute Elements of the Crime (2002), Article 8(2)(b)(xxvi) and Article 8 (2)(e)(vii)(3).
75.
Rome Statute Elements of the Crime (2002).
76.
Grover (2012).
77.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution closing brief (2011, p. 65, para 153, emphasis added).
78.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Statement (2011, p. 11).
79.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution closing brief (2011, p. 65, para 155).
80.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Statement (2011, p. 33).
81.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Statement (2011, p. 28).
82.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Statement (2011, p. 29).
83.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution closing brief (2011, p. 93, para 221, emphasis added).
84.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Statement (2011, p. 12).
85.
Protocols I and II Additional to the 1949 Geneva Convention (1977).
86.
Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (2002).
87.
Rome Statute (2002).
88.
Rome Statute (2002).
89.
Prosecutor v. Thomas Lubanga Dyilo, Decision on Confirmation of Charges (2007, p. 106, para 311).
90.
Rome Statute (2002).
91.
This was evidenced in Lubanga as the ‘mistake of law’ defence was raised and failed abysmally.
92.
Rome Statute, Elements of the Crime (2002) Article 8 (2)(e)(vii)(3) and Article 8(2)(b)xxvi(3).
93.
Rome Statute, Elements of the Crime (2002).
94.
Rome Statute, Elements of the Crime (2002)Article 6(e)(5).
95.
Rome Statute (2002).
96.
Rome Statute (2002, Article 30, emphasis added).
97.
‘Children’ refers here to under 15s in regards to the Rome Statute war crime of recruiting and/or using children for active participation in hostilities and to under 18s in respect of the Rome Statute crime of the genocidal forcible transfer of children.
98.
Rome Statute (2002).
99.
Rome Statute Elements of the Crime (2002).
100.
Rome Statute, Elements of the Crime (2002)(Introduction: ‘Genocide’, emphasis added).
101.
The FPLC appropriation of children was accomplished through abductions and various other forms of direct and indirect coercion as well as exploitation of families’ and children’s desperate circumstances (the latter leading in instances to so-called ‘voluntary recruitment’). The children were forced to commit atrocities often also against their own families and others close to them in order to alienate the children from their families and communities. The children were, furthermore, indoctrinated using brutal techniques and treated inhumanely by the FPLC. These factors and many others underscore the objectively evident ‘manifest unlawfulness’ of the FPLC appropriation of children.
102.
Rome Statute (2002).
103.
The UPC/FPLC intended to appropriate a huge segment of the Hema child population permanently to its ranks with full knowledge that the loss of the children would be devastating to the general Hema population and destroy that group at least in part. The latter thus constitutes the ‘genocidal forcible transfer of children’.
104.
The child soldier victims of the FPLC genocidal forcible transfer were, as part of their assigned FPLC child soldier role, tasked to recruit other children into FPLC ranks, including under 15s, through abduction, other forms of coercion, lures etc. However, as themselves victims of genocide acting under extreme duress given their personal situation these ‘child soldiers’ cannot legitimately be held accountable for this conduct.
105.
The Prosecution in Lubanga relied in part on scientific evidence in determining the age of former child soldiers who testified at trial and establishing how old approximately they must have been at the time they were part of the FPLC.
106.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Statement (2011, p. 20).
107.
Rome Statute (2002).
108.
Recruitment and/or use by an armed group or force of children of any age for the purpose of their participating in the commission of international crimes (as was the situation with the FPLC) is in any case unlawful.
109.
Rome Statute (2002).
110.
Assuming that is that the armed force or group is lawful and abiding by the rules of war.
111.
Rome Statute (2002).
112.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Statement (2011, p. 19, emphasis added).
113.
Rome Statute (2002).
114.
The current author has argued that children who are the victims of such genocidal forcible transfer to an armed group or force perpetrating mass atrocities and/or genocide must be considered to retain their civilian status (See Grover 2012) notwithstanding the colloquial term ‘child soldier’ that, though not part of the legal lexicon, is most often applied to them.
115.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Statement (2011, p. 55, emphasis added).
116.
Carpenter (2000).
117.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Statement (2011, pp. 8–9, emphasis added).
118.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Statement (2011, p. 9, emphasis added).
119.
Rome Statute (2002, Article 6(b)(d)(e)).
120.
Rome Statute (2002, Article 7(g)(k)).
121.
Rome Statute (2002, Article 8(2)(b)(xxii) and Article 8(2)(e)(vi).
122.
Carpenter (2000, p. 444, emphasis added).
123.
Counsel with the ICC Office of the Prosecutor.
124.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Statement (2011, p. 22, emphasis added).
125.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Statement (2011, pp. 22–23).
126.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Statement (2011, p. 23, emphasis added).
127.
This constituted the crime of genocidal forcible transfer of children under Article 6(e) of the Rome Statute (2002).
128.
The Women’s Initiatives for Gender Justice (2011, p. 2).
129.
The Women’s Initiatives for Gender Justice (2011, p. 2).
130.
The Women’s Initiatives for Gender Justice (2011, p. 2).
131.
The Women’s Initiatives for Gender Justice (2011, p. 3, emphasis added).
132.
The Women’s Initiatives for Gender Justice (2011, p. 3).
133.
The Women’s Initiatives for Gender Justice (2011, p. 4).
134.
The Women’s Initiatives for Gender Justice (2011, p. 4).
135.
The Women’s Initiatives for Gender Justice (2011, p. 4, emphasis added).
136.
The Women’s Initiatives for Gender Justice (2011, p. 4, emphasis added)).
137.
The Women’s Initiatives for Gender Justice (2011, p. 4, emphasis added).
138.
The Women’s Initiatives for Gender Justice (2011, p. 5, emphasis added).
139.
The Women’s Initiatives for Gender Justice (2011, p. 5, emphasis added).
140.
Prosecutor v. Thomas Lubanga Dyilo, Appeal Court judgment December 2009 on Trial Chamber I July 2009 decision regarding legal re-characterization of the facts (2009, p. 33, para 91).
141.
Prosecutor v. Thomas Lubanga Dyilo, Appeal Court judgment December 2009 on Trial Chamber I July 2009 decision regarding legal re-characterization of the facts (2009, p. 33, para 91).
142.
Prosecutor v. Thomas Lubanga Dyilo, Appeal Court judgment December 2009 on Trial Chamber I July 2009 decision regarding legal re-characterization of the facts (2009, p. 36, para 99–100).
143.
Prosecutor v. Thomas Lubanga Dyilo, Appeal Court judgment December 2009 on Trial Chamber I July 2009 decision regarding legal re-characterization of the facts (2009, p. 34, para 93).
144.
Rome Statute (2002, Article 74(2), emphasis added).
145.
Rome Statute (2002, Article 61(9)).
146.
At the same time: “The Appeals Chamber found that Article 61(9) did not foreclose the possibility that a trial chamber can modify the legal characterization of the facts sua sponte” [as long as those facts and circumstances were already established as underlying the confirmed or amended charges]. Further, the Appeals Chamber held that any new charges based on new facts and circumstances would require a new confirmation hearing pursuant to Article 61(9) (See Senier, A., 2010, p. 3, emphasis added).
147.
Prosecutor v. Thomas Lubanga Dyilo, Appeal Court judgment December 2009 on Trial Chamber I July 2009 decision regarding legal re-characterization of the facts (2009, p. 34, para 94).
148.
Senier, A., (2010, p. 4).
149.
Rome Statute (2002).
150.
The Women’s Initiatives for Gender Justice (2011, p. 7, emphasis added).
151.
See Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgment Pursuant to Article 74 of the Rome Statute (14 March, 2012, pp. 287–288, para 630). Whether facts (factual allegations relating to each of the legal elements of the crime) were presented relating to cruel and inhuman treatment of the children in the Lubanga Decision on the Confirmation of Charges (29 January, 2007) is a matter for debate in that the very use of children in hostilities in any manner can be considered cruel and inhuman treatment per se especially when it is use by a group such as the FPLC engaging children to observe and participate in atrocity. Certainly the International Committee of the Red Cross considers that children’s involvement in hostilities constitutes inhumane treatment. Thus, arguably detailed evidence presented at trial regarding the tortuous and cruel conditions of FPLC training in the military camps should have been considered in rendering the final judgment and allowed for a legal re-characterization to support a charge of cruel and inhuman treatment.
152.
See Prosecutor v. Thomas Lubanga Dyilo Decision on the Confirmation of Charges (29 January, 2007).
153.
See Prosecutor v. Thomas Lubanga Dyilo Decision on the Confirmation of Charges (29 January, 2007, p. 82, FN 312).
154.
United Nations Organization Mission in the Democratic Republic of the Congo (MONUC) Special Report on Events in Ituri January 2002–December 2003 (16 July, 2004, p. 43, para 152, emphasis added).
155.
United Nations Organization Mission in the Democratic Republic of the Congo (MONUC) Special Report on Events in Ituri January 2002–December 2003 (16 July, 2004, p. 43, para 153, emphasis added).
156.
United Nations Organization Mission in the Democratic Republic of the Congo (MONUC) Special Report on Events in Ituri January 2002–December 2003 (16 July, 2004, p. 43, para 153, emphasis added).
157.
See Prosecutor v. Thomas Lubanga Dyilo Decision on the Confirmation of Charges (29 January, 2007, FN 323, p. 86).
158.
United Nations Organization Mission in the Democratic Republic of the Congo (MONUC) Special Report on Events in Ituri January 2002–December 2003 (16 July, 2004, p. 42, para 147, emphasis added).
159.
Prosecutor v. Thomas Lubanga Dyilo, Decision on Confirmation of Charges (29 January, 2007, p. 99, para 289).
160.
Additional Protocol II to the 1949 Geneva Conventions (1977).
161.
Human Rights Watch Report: Ituri: “Covered in Blood” Ethnically Targeted Violence in Northeastern DR Congo (2003, p. 47): “The UPC has even mobilized child soldiers who were demobilized by efforts of UNICEF…
162.
On the issue of cruel and inhuman treatment: For instance, one witness testified that while at the military training camp Commander Bosco threatened the children recruited by the FPLC with death should they try to escape (Prosecutor v. Thomas Lubanga Dyilo Confirmation of Charges Decision 29 January, 2007, p. 141, para 389). Other evidence concerned Lubanga, in person, during a speech at a military training camp in February 2003 urging the child soldiers to endure the admitted “suffering” involved FPLC training so as to be able to go to the frontlines and fight after completion of the very short period of training of two months or less (Prosecutor v. Thomas Lubanga Dyilo Confirmation of Charges Decision 29 January, 2007, p. 143, para 391) and evidence was accepted that the children some much younger than 15 were subject to “strict military discipline” [Prosecutor v. Thomas Lubanga Dyilo Confirmation of Charges Decision 29 January, 2007, p. 133, para 379 (vi)]. Lubanga’s knowledge of the details of what occurred with the child soldiers at these military training camps was referred to in Prosecutor v. Thomas Lubanga Dyilo Confirmation of Charges Decision 29 January, 2007, p. 153, FN 558, and p. 146, para 399). His knowledge of the use of children as bodyguards was also referred to (Prosecutor v. Thomas Lubanga Dyilo Confirmation of Charges Decision 29 January, 2007, pp. 143–144, para 393). The Pre-Trial Chamber relied on evidence of MONUC protection workers and NGOs who interviewed children at an FPLC training camp in March 2003 about their experiences there (Prosecutor v. Thomas Lubanga Dyilo, Confirmation of Charges Decision 29 January, 2007, p. 139, FN 513). There was also evidence relied on by the Pre-Trial Chamber regarding the use of active and former child soldiers aged mostly between 11-15 doing hazardous work in gold mines (forced labor) thus constituting cruel and inhuman treatment of these children as a continuing crime relating to their original recruitment for use by the FPLC (Prosecutor v. Thomas Lubanga Dyilo, Confirmation of Charges Decision 29 January, 2007, p. 81, FN 311). Further, there was evidence that Lubanga had appropriated the children permanently to the FPLC thus separating them from family and community indefinitely; this also constituting cruel and inhuman treatment of children. Lubanga and his co-perpetrators had no intention of releasing a majority or all of the FPLC children so as to forfeit the children’s forced labor as so-called child soldiers, sex slaves or in any other capacity (Prosecutor v. Thomas Lubanga Dyilo, Confirmation of Charges Decision 29 January, 2007, p. 89, para 256).
163.
The International Federation for Human Rights (FIDH). Interview with Patricia Viseur Sellers (international criminal lawyer and former Legal Advisor for Gender and a Prosecutor at the International Criminal Tribunal for the Former Yugoslavia). Sellers has pointed out that: “The Prosecutor could have amended the indictment [to include charges related to sexual violence and cruel and inhuman treatment] at anytime prior to trial or even at a reasonable moment during the presentation of the prosecution case …the Trial Court could have allowed the accused whatever time he needed to prepare his case in light of the additional charges [thus ensuring him due process]. That is fairly standard procedure at other international tribunals.” (16 March, 2012, p. 1).
164.
Prosecutor v. Thomas Lubanga Dyilo Trial Chamber I Clarification and further guidance to parties and participants in relation to the “Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court” (27 August, 2009).
165.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, pp. 273–274, para 600).
166.
International Law Professor Dov Jacobs of Leiden University has pointed out in a posting 10 December, 2009 that the reasoning of the Appeal Court in Lubanga that the Trial Chamber’s permitting new facts and circumstances to be considered circumvents Article 61(9) of the Rome Statute (2012) is not beyond criticism. Jacobs states that Article 61(9) mentions the Prosecutor’s role regarding new charges not new facts and circumstances and that the distinction between the two is difficult in practice. Jacobs states: “Indeed, what would be the point of a recharacterisation [of facts and circumstances] if it did not affect the charges? Even if the Trial judges were to recharacterise facts already contained in the charges , it would probably affect the charges themselves …Article 61(9) is a common law approach giving more discretion to the Prosecutor wheras regulation 55 is civil law inspired by giving more to the judges.”
167.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, pp. 259–260, para 567).
168.
Rome Statute (2002).
169.
The Prosecutor also opposed the victim’s application at Trial for a legal re-characterization of the facts and circumstances to allow for sexual slavery and cruel and inhuman treatment charges. Insofar as the Prosecutor held that the Trial Chamber would be encroaching on the powers of the OTP should such a hearing materialize; the current author is disagreed for the reasons explained.
170.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Statement (2011, p. 23).
171.
Note that the Trial Court indicated in its final judgement that sexual violence factors would be considered at the sentencing and reparation phase of the proceedings. (See Prosecutor v. Thomas Lubanga Dyilo), Final Trial Judgment Pursuant to Article 74 of the Rome Statute (14 March, 2012, p. 288, para 631).
172.
See also Prosecutor v. Thomas Lubanga Dyilo, Decision on Sentence Pursuant to Article 76 of the Statute (10 July, 2012).
173.
The Trial Court indicated in its judgement that children under 15, whether allegedly enlisted or conscripted, were both considered victims of the Article 8 war crimes relating to the recruitment and use of under 15s for active participation in hostilities. (Prosecutor v. Thomas Lubanga Dyilo), Summary Final Trial Judgment Pursuant to Article 74 of the Rome Statute (14 March, 2012, p. 9, para 23).
174.
In many instances these child soldiers were at once procurer (abducting females to serve as sex slaves for FPLC commanders) and/or rape victims and/or rape perpetrators themselves.
175.
Whether child soldier perpetrator or victim of FPLC sexual violence or both, such sexual violence serves to alienate the children from their families and communities and, hence, contributes to their genocidal forcible transfer to the UPC/FPLC.
176.
Even children who allegedly ‘enlisted’ in the FPLC (an arguable notion given the children’s overall coercive circumstances and desperate attempts to survive by joining the FPLC) did not bargain for the inhuman treatment they received during their ‘training’ and subsequently and the reality that they were now FPLC captives in essence unable to leave or, in most instances, to escape; relegated to the status of quite expendable child soldiers.
177.
Additional Protocol II to the 1949 Geneva Conventions (1977).
178.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Statement (2011, p. 54, emphasis added).
179.
Ocampo stated that the OTP viewed such sexual violence as part and parcel of the FPLC conscription process and not separable therefrom as reflected in the Prosecution’s case formulation. Hence, he did not charge Lubanga with sex crimes though evidence of such crimes was presented by the OTP in the case.
180.
The current author argues that sexual violence perpetrated against girl and boy so-called ‘child soldiers’ is a typical and systematic part of their appropriation to an armed group or force committing mass atrocities and/or genocide. Their appropriation by such armed forces or groups amounts, in fact, to the ‘genocidal forcible transfer of children’ thus rendering distinctions such as recruitment by ‘enlistment’ versus ‘conscription’ inapplicable and irrelevant.
181.
There still are in fact some locales globally where sexual violence perpetrated against a wife by her husband is viewed as lawful under certain circumstances.
182.
Office of the Prosecutors Closing Statements (25 August, 2011, p. 10).
183.
United Nations Organization Mission in the Democratic Republic of the Congo (MONUC) Special Report on Events in Ituri January 2002–December 2003 (16 July, 2004, p. 44, para 154, emphasis added).
184.
Rome Statute (2002).
185.
Rome Statute (2002).
186.
Recall that the girls of the FPLC generally performed combat and combat- related functions (such as spying, serving as bodyguards etc.) as well sexual services thus contributing to the perception that they were FPLC child soldiers just as were the boys in the FPLC ranks.
187.
‘Conscription’ is normally taken to mean ‘forced recruitment’ for the purpose of traditional soldiering functions. In the case of the FPLC, however, the boys and girls appropriated to their ranks were engaged in perpetrating mass atrocities and the girl FPLC soldiers also performed sexual services for the FPLC while the boy FPLC also procured sex slaves for the FPLC commanders and soldiers and were sometimes also themselves sexually victimized. Hence, the children of the FPLC were not engaged in ‘soldiering’ (though they were ‘active participants’ in the hostilities) and their induction process is not properly then characterized as ‘recruitment’ through ‘conscription’ or ‘enlistment’ for the purpose of child soldiering. Rather, the children were the victims of ‘genocidal forcible transfer’ to the FPLC. At the same time, however, the facts also support the war crimes charges involving conscription and use of under 15s for active participation in hostilities if ‘conscription’, in the context of the Lubanga case, is understood to refer to ‘forcible recruitment’ into an unlawful armed group and use in hostilities to participate as child civilians in perpetrating various international crimes that fall under ICC jurisdiction. (Enlistment is a term that is inapplicable in the context of these children’s genocidal forcible transfer to the FPLC).
188.
Rome Statute (2002).
189.
The genocidal acts referred to here are, for instance, related to preventing births (where the raped girl FPLC members could no longer bear children due to the physical damage caused by repeated and/or gang rapes by FPLC commanders and other members), or causing the girls severe mental and physical harm such that the girl children as a protected group are destroyed in part as are their Hema home communities and families.
190.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Statement (2011, p. 55, emphasis added).
191.
The term ‘child soldiers’, as previously noted, is not a technical term with a precise definition recognized in international humanitarian law.
192.
Prosecutor v. Thomas Lubanga Dyilo. Amicus Brief of Coomaraswamy, R. (United Nations Special Representative of the Secretary-General on Children and Armed Conflict), (2008, para 19).
193.
Prosecutor v. Thomas Lubanga Dyilo. Amicus Brief of Coomaraswamy, R. (United Nations Special Representative of the Secretary-General on Children and Armed Conflict), (2008, para 22–23).
194.
Prosecutor v. Thomas Lubanga Dyilo. Amicus Brief of Coomaraswamy, R. (United Nations Special Representative of the Secretary-General on Children and Armed Conflict), (2008, para 24).
195.
Prosecutor v. Thomas Lubanga Dyilo. Amicus Brief of Coomaraswamy, R. (United Nations Special Representative of the Secretary-General on Children and Armed Conflict), (2008, para 25–26, emphasis added).
196.
The term ‘child soldiers’ is used for convenience but as used by this author in the context of Lubanga refers to child civilian members of the FPLC who are victims of genocidal forcible transfer.
197.
Note that nothing in the Genocide Convention (1951) disallows the notion of autogenocide (See Forster (2011)).
198.
Prosecutor v. Thomas Lubanga Dyilo, Legal Representatives of the Victims Closing Statement (2011, p. 71, emphasis added).
199.
The current author has already noted that the FPLC appropriation of children for the purpose of their participation in perpetrating international crimes as FPLC child soldier members cannot be considered recruitment in the normal sense but rather constitutes the genocidal forcible transfer of children.
200.
Note also that in the ‘Second Report of the [ICC] Registry on Reparations’ (1 September 2011): “[T]he Registry specifically includes sexual violence as a type of harm caused as a result of child conscription.” (See ‘Women’s Initiatives for Gender Justice request for leave to participate in reparations proceedings’28 March, 2012, p. 10, para 25).
201.
The Trust Fund for Victims’ first report in the Lubanga case noted that “sexual violence was perpetrated widely against girl and boy soldiers during their conscription, enlistment and/or participation.” (See ‘Women’s Initiatives for Gender Justice request for leave to participate in reparations proceedings’28 March, 2012, pp. 9–10, para 24).
202.
Thus, though conscription as a child soldier and sexual violation of the FPLC children ‘recruited’ by the FPLC were highly correlated events, conscription per se did not cause the sexual violation (contrast this view with that of the Legal Representative of the Victims in Lubanga who stated at Trial “sexual violence is indeed the result of the enlistment” [by which this author takes her to mean ‘sexual violence is indeed the result of conscription and enlistment’ given the context of her entire submission] (See Legal Representative of the Victims Closing Statements, Prosecutor v Lubanga 25 August, 2011, p. 71).
203.
Prosecutor v. Thomas Lubanga Dyilo, Legal Representatives of Victims Closing Statements (2011, p. 75).
204.
The children were often recruited by the FPLC subsequent to essentially forced surrender by the parents, and frequently by means of abduction.
205.
Indeed, the concept of assent or consent is inapplicable in the context of the genocidal transfer of any person of the group to the perpetrator group.
206.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution closing brief (2011, p. 60, para 141, emphasis added).
207.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution closing brief (2011, p. 61, para 142, emphasis added).
208.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution closing brief (2011, p. 61, para 143, emphasis added).
209.
Pillay, N. (2009).
210.
Tosh, C. and Chazan, Y. (Eds.) (2008, p. 4).
211.
Recall that genocidal forcible transfer of victims to the FPLC through sexual violation did not necessarily include in all instances of these mass sexual atrocities the physical transfer of the child victims to the FPLC as child soldiers or sex slaves. Thus, non-Hema children were sexually victimized by the FPLC and so tainted forever as FPLC in the perception of their home communities even though these children were not physically transferred to the FPLC to join the ranks.
212.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution closing brief (2011, p. 85, para 207, emphasis added).
213.
Prosecutor v. Thomas Lubanga Dyilo, Decision on the Confirmation of Charges (2007, p. 99, para 289, emphasis added).
214.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution closing brief (2011, p. 91, para 215, emphasis added).
215.
Frulli (2001, pp. 332–333).
216.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Statement (2011, p. 10, emphasis added).
217.
There is dispute as to whether or not the Rome Statute (2002) contemplates the notion of ‘continuing crimes’. This author maintains that the Statute should be interpreted as doing so and that this is consistent with the purpose of the Statute and the ICC mandate to hold accountable those who commit the gravest of international crimes which generally are continuing crimes. Arguably the prohibition against the appropriation and use of other people’s children has been a part of customary law for some time. For a discussion of the matter of continuing crimes under the Rome Statute see Nissel (2004).
218.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Statement (2011, p. 10).
219.
Rome Statute (2002).
220.
Rome Statute (2002).
221.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Statement (2011, p. 10, emphasis added).
222.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Statement (2011, p. 35, emphasis added).
223.
Prosecutor v. Thomas Lubanga Dyilo, Office of Public Counsel for Victims Closing Statement (2011, p. 60).
224.
Prosecutor v. Thomas Lubanga Dyilo, Office of Public Counsel for Victims Closing Statement (2011, p. 60).
225.
The war crimes charged in Lubanga were nevertheless proper and viable as there is no requirement in regards such charges under the Rome Statute (2002) that the ‘recruitment’ and/or use of under 15s be by an armed group or force that in other respects abides by the customary rules of war and international humanitarian law.
226.
Prosecutor v. Thomas Lubanga Dyilo, Office of Public Counsel for Victims Closing Statement (2011, p. 61).
227.
Grover (2012).
228.
Rome Statute Elements of the Crime (2002).
229.
Rome Statute Elements of the Crime (2002).
230.
This author has argued elsewhere that the exclusion of Rome Statute jurisdiction over persons who were children (under age 18) at the time of committing the international crimes articulated in the Rome Statute (2002) was formulated as a general principle of Rome Statute criminal law and not simply a jurisdictional discretionary choice (See Grover 2012, pp. 76–79).
231.
Prosecutor v. Thomas Lubanga Dyilo, Office of Public Counsel for Victim Closing Statement (2011, p. 63).
232.
Prosecutor v. Thomas Lubanga Dyilo, Office of Public Counsel for Victim Closing Statement (2011, p. 63).
233.
Optional Protocol to the Convention on the Rights of the Child concerning children involved in armed conflict (2002).
234.
Committee on the Rights of the Child Concluding Observations on the Report of the DRC regarding its compliance with the Optional Protocol to the Convention on the Rights of the Child concerning children involved in armed conflict (2012, emphasis added).
235.
Committee on the Rights of the Child Concluding Observations on the Report of the DRC regarding its compliance with the Optional Protocol to the Convention on the Rights of the Child concerning children involved in armed conflict (2012).
236.
Committee on the Rights of the Child Concluding Observations on the Report of the DRC regarding its compliance with the Optional Protocol to the Convention on the Rights of the Child concerning children involved in armed conflict (2012).
237.
Committee on the Rights of the Child Concluding Observations on the Report of the DRC regarding its compliance with the Optional Protocol to the Convention on the Rights of the Child concerning children involved in armed conflict (2012).
238.
Committee on the Rights of the Child Concluding Observations on the Report of the DRC regarding its compliance with the Optional Protocol to the Convention on the Rights of the Child concerning children involved in armed conflict (2012).
239.
Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (2002).
240.
Coalition to Stop the Use of Child Soldiers (2011, p. 1).
241.
Coalition to Stop the Use of Child Soldiers (2011, p. 1).
242.
Coalition to Stop the Use of Child Soldiers (2011, p. 1, emphasis added).
243.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution’s Reply to the Conclusions finales de la Défense (2011, p. 3, para 3).
244.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution’s Reply to the Conclusions finales de la Défense (2011, p. 63, para 43.
245.
Prosecutor v. Thomas Lubanga Dyilo Final Trial Judgement Pursuant to Article 74 of the Rome Statute (14 March, 2012, pp. 529–530, para 1234).
246.
Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (OP-CRC-AC) (2002).
247.
United Kingdom of Great Britain and Northern Ireland Declaration articulating a reservation to OP-CRC-AC (Declaration made 7 Sept., 2000 and confirmed on ratification of the OP-CRC-AC 24 June, 2003).
248.
Watchlist on Children and Armed Conflict (Report by the Women’s Refugee Commission) (June, 2003, p. 1).
249.
In any case, international humanitarian law does not legitimize the recruitment and use of children of any age by any armed group or national armed force perpetrating grave international crimes as was the case for the FPLC in the period covered in Lubanga. While the Additional Protocol to the 1949 Geneva Conventions (Protocol I) (1977) does not absolutely prohibit the use of children of any age in an international conflict by a national armed force abiding by international law, by the same token it urges at Article 77(2) that States parties take all feasible measures not to use under 15s for direct participation in hostilities. The prohibition on recruitment of under 15s was incorporated but there was no express mention of refusing volunteers (See the ICRC commentary on Protocol I, Article 77(2)(1977). The DRC as party to the Rome Statute (2002) further was obligated not to use or recruit under 15s (the DRC ratified the Rome Statute 11 April, 2002).
250.
Prosecutor v. Thomas Lubanga Dyilo, Office of the Public Council for Victims Closing Statement (2011, p.60, emphasis added).
251.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution’s Reply to the Conclusions finales de la Défense (2011, p. 3, para 4, emphasis added).
252.
The current author not surprisingly supports the notion of an inviolable special protected status for children during armed conflict (international or internal) that would absolutely prohibit the recruitment or use of under 18s for active participation (direct or indirect) in hostilities by State or non-State armed entities.
253.
DRC ratified Protocol I and II Additional to the 1949 Geneva Conventions 3/06/1982 and 12/12/2002 respectively.
254.
Ratifications of the Optional Protocol to the Convention on the Rights of the child on the involvement of children in armed conflict (Status as of 31 May, 2012).
255.
Optional Protocol to the Convention on the Rights of the child on the involvement of children in armed conflict (2002).
256.
Non-State entities are not parties to the international human rights and humanitarian law treaties discussed. However, the treaties in articulating the legal concept of the special protected status of children have in fact codified an aspect of customary law with which non-State parties must comply.
257.
Grover (2012).
258.
Additional Protocols I and II to the 1949 Geneva Conventions (1977).
259.
For instance, Protocol I Additional to the 1949 Geneva Conventions (1977) requires States to recruit from the oldest first amongst persons under 18 but at least 15 years in age. This clearly suggests that recruitment of children 15 and older is not unreservedly endorsed under international humanitarian law and that the goal is to protect children generally; and with the youngest in any group receiving the most protection; particularly the under 15s.
260.
Protocol I Additional to the 1949 Geneva Conventions (1977).
261.
Protocol II Additional to the 1949 Geneva Conventions (1977).
262.
Optional Protocol to the Convention on the Rights of the child on the involvement of children in armed conflict (2002).
263.
Protocol II to the 1949 Geneva Conventions (1977), by implication, sets out the States Parties’ obligation to ensure that non-State armed groups respect children’s special protected status and do not recruit or use under 15s in hostilities. Further, as the Additional Protocols I and II to the 1949 Geneva Conventions have arguably achieved the status of customary law; non-States Parties are also bound by their provisions including that regarding the special protected status of children which notion in fact predates these treaties.
264.
The armed force is under those circumstances a criminal organization. Recruitment and use of persons of any age with the objective of committing systematic and widespread grave international crimes as alleged ‘military strategy’ is, of course, legally impermissible and that fact cannot be masked or justified with reference to a perceived national security threat. See also the prohibition on the recruitment and use of children under 15s in internal hostilities articulated in Protocol II Additional to the 1949 Geneva Conventions (1977) as well as the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (OPCRC-AC) (2002) which prohibits non-State parties from all recruitment and use of child soldiers (persons under 18) in any armed conflict.
265.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), (8 June 1977, emphasis added).
266.
Rome Statute (2002).
267.
Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (OPCRC-AC) (2002, Article 1).
268.
Rome Statute (2002).
269.
Rome Statute (2002).
270.
Rome Statute (2002).
271.
Grover (2012).
272.
Prosecutor v. Thomas Lubanga Dyilo, Defence Closing Brief (2011, p. 273, para 880).
273.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution’s Reply to the Conclusions finales de la Défense (2011, p. 19, para 52).
274.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution’s Reply to the Conclusions finales de la Défense (2011, p. 19, para 53, emphasis added).
275.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution’s Reply to the Conclusions finales de la Défense (2011, p. 20, para 55).
276.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution’s Reply to the Conclusions finales de la Défense (2011, p. 11, para 28).
277.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution’s Closing Brief (2011, p. 40, para 74).
278.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution’s Reply to the Conclusions finales de la Défense (2011, p. 13, para 32).
279.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution’s Closing Brief (1 June, 2011, p. 142, para 353).
280.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution’s Reply to the Conclusions finales de la Défense (2011, p. 14, para 36).
281.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution’s Reply to the Conclusions finales de la Défense (2011, p. 14, para 37).
282.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution’s Reply to the Conclusions finales de la Défense (2011, p. 23, para 65).
283.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution’s Reply to the Conclusions finales de la Défense (2011, pp. 14–15, para 39, emphasis added).
284.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution closing brief (2011, p. 39, FN 123).
285.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Brief (2011, pp. 65–66, para 154, emphasis added).
286.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Brief (2011, pp. 65–66, para 154, emphasis added).
287.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution’s Reply to the Conclusions finales de la Défense (2011, pp. 14–15, para 39, emphasis added).
288.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution’s Reply to the Conclusions finales de la Défense (2011, p. 16, para 43, emphasis added).
289.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution’s Reply to the Conclusions finales de la Défense (2011, p. 18, para 48).
290.
Prosecutor v. Thomas Lubanga Dyilo Summary of the “Judgment pursuant to Article 74 of the Statute (14 March, 2012, p. 9, para 23).
291.
Prosecutor v. Thomas Lubanga Dyilo Summary of the “Judgment pursuant to Article 74 of the Statute (14 March, 2012, p. 10, para 27).
292.
Prosecutor v. Thomas Lubanga Dyilo, Prosecution’s Reply to the Conclusions finales de la Défense (2011, pp. 16–17, para 45, emphasis added).
293.
Rome Statute, Elements of the Crime (2002, Article 6(e)(FN 5): “The term ‘forcibly’ is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment”.
294.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 398, para 912).
295.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 398, para 913).
296.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 398, para 913, emphasis added).
297.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, pp. 273–274, para 600).
298.
The Trial Court in Lubanga held that the conceptual distinction between conscription and enlistment is irrelevant when it comes to the recruitment of under 15s and the Rome Statute (2002) Article 8 war crime in regards to recruitment of under 15s. On the view here, children (persons under 18) appropriated by an armed force or group such as the FPLC committing systematic mass atrocity is considered genocidal forcible transfer and hence the conceptual distinction between conscription and enlistment is inapplicable in the context of this forced transfer.
299.
Prosecutor v. Thomas Lubanga Dyilo Summary of the “Judgment pursuant to Article 74 of the Statute (14 March, 2012, p. 9, para 23). This author has argued that these crimes are continuous beyond the point suggested by the Trial Court where children are appropriated and used by an armed force or group committing mass atrocity and/or genocide. This is the case given the long-term adverse effects of these traumatic experiences on the victims and the victims’ continued perceived identification with the perpetrator armed force or group and alienation from family and community.
300.
Note that on the analysis suggested there is no need to establish that girl child soldiers of the UPC/FPLC being sexually violated by UPC/FPLC commanders or others within the armed group constitutes a combat related function.
301.
The Women’s Initiatives for Gender Justice (2011, p. 4).
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, pp. 273–274, para 600).
302.
The children through such victimization lose their identity, become alienated from family and community and integrate into the FPLC.
303.
Oxford Dictionary Online (2012).
304.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 399, para 915, emphasis added).
305.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, para 1270, p. 547).
306.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, para 1270, p. 548, emphasis added).
307.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 282, para 619).
308.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 282, para 620, emphasis added).
309.
Sexual violence can be a vehicle for the genocidal forcible transfer of children to the perpetrator group as can recruitment of children as child soldiers to the armed group or force perpetrating systematic mass atrocities.
310.
Rome Statute (2002).
311.
Rome Statute (2002).
312.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 264, para 574–575, emphasis added).
313.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 264, para 575, emphasis added).
314.
Rome Statute (2012).
315.
It appears entirely arbitrary that the ICC Prosecutor makes a distinction between: (1) girl child soldiers who sexually service UPC/FPLC commanders and, in some cases, are also the commanders’ forced bush wives versus for instance (2) girl child domestics who work in the households of these commanders. The latter group of female children are also generally sexually violated. Furthermore, both groups of children are perceived by the perpetrators to be part of the UPC/FPLC support system though not necessarily in each case in relation to any clear direct support for the fighting per se and irrespective of any combat functions that they may or may not perform. Both child groups then are comprised of children who are the victims of genocidal forcible transfer to the perpetrator armed group and as such are contributing to the hostilities via the symbolic and propaganda value of their transfer.
316.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, pp. 266–267, para 579–582).
317.
Rome Statute (2002).
318.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 267, para 582, emphasis added).
319.
Note that Article 8 of the Rome Statute uses the expression “participating actively in hostilities” rather than the phrase “taking a direct part” used in Additional Protocol I to the Geneva Convention. That distinction according to the victim submission in Lubanga was intended to encompass a wider range of activities that children are prohibited from engaging in during armed conflict. (See Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 270, para 590).
320.
The Defence in Lubanga had argued that Article 8 of the Rome Statute in regards to the use for “active participation” in hostilities prohibition respecting children was intended to punish only those who use children (under 15s) for “direct participation” in hostilities (See Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, pp. 268–269, para 586).
321.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 272, para 597).
322.
Prosecutor v. Thomas Lubanga Dyilo Summary of the “Judgment pursuant to Article 74 of the Statute (14 March, 2012, pp. 9–10, para 24).
323.
Prosecutor v. Thomas Lubanga Dyilo Summary of the “Judgment pursuant to Article 74 of the Statute (14 March, 2012, p8, para 29). Of course it is the case that separate sex crimes charges were not put forward in Lubanga.
324.
Prosecutor v. Thomas Lubanga Dyilo Summary of the “Judgment pursuant to Article 74 of the Statute (14 March, 2012, p8, para 29).
325.
The current author contends that the term ‘child soldier’ is a misnomer since soldiers have an unqualified right to participate in armed hostilities while no such right exists for children and international law views children’s participation in hostilities as an anomaly to be discouraged (See Grover 2008, 2012). This author favours the expression “children associated with armed forces or groups”; a term that is increasingly coming to replace the term ‘child soldier’. However, the latter term is used here for ease of reference. (See Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 270, para 589, “Victims Submissions”).
326.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 267, para 582).
327.
Note that in Lubanga, the Trial Chamber held that : “the crimes of conscription and enlistment are committed at the moment a child under the age of 15 is enrolled into or joins an armed force or group, with or without compulsion.” (Prosecutor v. Thomas Lubanga Dyilo Summary of the “Judgment pursuant to Article 74 of the Statute (14 March, 2012, p. 9, para 23).
328.
Distinctions between (1) those children who ‘enlist’ and those who are ‘forced recruits’ and between (2) children assigned military roles versus children assigned non-military functions post-recruitment arguably may be possible when children are members of armed groups or forces that, as a matter of policy and practice, do adhere to international humanitarian law.
329.
Justice Robertson of the SCSL in his Dissenting Opinion in Prosecutor v Norman took the view that nullem crimen had been violated in prosecuting Norman for ‘recruitment’ of children. (See Dissenting Opinion of Justice Robertson in Prosecutor v Samuel Hinga Norman (31 May, 2004).
330.
SCSL Prosecutor versus Samuel Hinga Norman, Appeals Chamber, Fourth Defence Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment) Amicus Curiae Brief of the United Nations Children’s Fund (UNICEF) (21 January, 2004).
331.
Rome Statute (2002).
332.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, pp. 273–274, para 600).
333.
Vienna Convention on the Law of Treaties (1980). Article 31(1): “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”
334.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (14 March, 2012, p. 274, para 601).
335.
Rome Statute (2012): Article 21(3): “The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.” (emphasis added).
336.
Rome Statute (2012). Article 22(2):” The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.”
337.
Rome Statute (2002).
338.
Rome Statute (2002).
339.
Compare Article 31(1) Vienna Convention on the Law of Treaties (1980).
340.
Dissenting Opinion of Judge Odio Benito Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (14 March, 2012, pp. 2–3, para 6).
341.
Rome Statute (2012).
342.
Dissenting Opinion of Judge Odio Benito Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (14 March, 2012, p. 3, para 7, emphasis added).
343.
Dissenting Opinion of Judge Odio Benito Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (14 March, 2012, p. 6, para 15, emphasis added).
344.
Dissenting Opinion of Judge Odio Benito Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (14 March, 2012, p. 6, para 16, emphasis added).
345.
Dissenting Opinion of Judge Odio Benito Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (14 March, 2012, p. 7, para 20). Note that the current author holds that it is unnecessary and awkward; to say the least, to argue that the child recruits providing sex is an “essential support function to the armed group.” Rather, the sexual violence is better viewed as falling with the ‘use’ crime as a correlate of conscription and a vehicle for ‘genocidal forcible transfer of children’ to the armed group with such appropriation of children serving the military and propaganda objectives of the armed group as previously here discussed.
346.
The genocidal forcible transfer of children by the FPLC, it has here been argued, was also implemented through sexual violation of non-Hema children, mostly girls, who did not in fact become FPLC child soldiers as part of the FPLC ranks. Such sexual violation yet is embedded in the notion of conscription and use by an armed group or force perpetrating mass atrocities and/or genocide (inasmuch as these sexually violated girls are now considered tainted and hence on that account part of the enemy perpetrator group).
347.
Prosecutor v. Thomas Lubanga Dyilo Summary of the “Judgment pursuant to Article 74 of the Statute (14 March, 2012, pp. 9–10, para 24).
348.
Prosecutor v. Thomas Lubanga Dyilo Summary of the “Judgment pursuant to Article 74 of the Statute (14 March, 2012, pp. 9–10, para 24).
349.
Rome Statute (2012).
350.
Dissenting Opinion of Judge Odio Benito Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (14 March, 2012, p. 7, para 19).
351.
Rome Statute (2012).
352.
Dissenting Opinion of Judge Odio Benito Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (14 March, 2012, pp. 3–4, para 8).
353.
Dissenting Opinion of Judge Odio Benito Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (14 March, 2012, pp. 3–4, para 8, emphasis added).
354.
Dissenting Opinion of Judge Odio Benito Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (14 March, 2012, p. 6, para 16, emphasis added).
355.
Dissenting Opinion of Judge Odio Benito Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (14 March, 2012, p. 7, para 19, emphasis added).
356.
Dissenting Opinion of Judge Odio Benito Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (14 March, 2012, p. 5, para 14, emphasis added).
357.
This is not at all to suggest that Lubanga should not also have been charged with war crimes in relation to the systematic mass sexual victimization of women by the FPLC, particularly but not exclusively non-Hema women; a topic that is simply beyond the scope of the present work.
358.
If child sex slaves/child domestics/child’ bush wives’ appropriated by the FPLC and travelling with the FPLC are not regarded by the Majority in Lubanga as protected ‘child soldier’ high value ‘potential targets’ of the enemy (whether or not they were on the frontlines) then it is difficult to understand how the majority can conclude either that they were conscripted or enlisted within the ordinary meaning of the Article 8 Rome Statute notions of ‘conscription’ and ‘enlistment’ in an armed conflict situation.
359.
Rome Statute (2002).
360.
Rome Statute (2002).
361.
Vienna Convention on the Law of Treaties (1980).
362.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, pp. 274–275, para 601, citing a 2006 ICC Appeal decision in Situation in the Democratic Republic of Congo (see footnote 1766 of the Final Trial Judgment in Lubanga, 20 March, 2012, emphasis added).
363.
Rome Statute (2002).
364.
Rome Statute (2002, Preamble).
365.
Convention on the Rights of the Child (1990).
366.
International Covenant on Civil and Political Rights (1976).
367.
Convention on the Rights of the Child (1990).
368.
Convention on the Rights of the Child (1990).
369.
Convention on the Rights of the Child (1990)
370.
International Covenant on Civil and Political Rights (1976).
371.
Protocols I and II Additional to the Geneva Conventions (1977).
372.
Protocols II Additional to the Geneva Conventions (1977, emphasis added).
373.
Protocols I Additional to the Geneva Conventions (1977, emphasis added).
374.
The Trial Chamber in Lubanga made reference to prohibitions in various international human rights and humanitarian law instruments against the use of under 15s as an attempt not just to protect children from violence but also from trauma resulting from i.e. “separating children from their families.” (See Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 277, para 605). The Trial Chamber, however, did not consider how the latter might play into the occurrence not just of war crimes relating to the recruitment and use of child soldiers so-called but also the genocidal forcible transfer of children.
375.
For instance the Trial Court in Lubanga refers to Article 4(3)(c) of Additional Protocol II to the Geneva Conventions pertaining to an absolute prohibitions on recruitment and use of under 15s in hostilities (See Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 276, para 604).
376.
Rome Statute (2002).
377.
Note also that humanitarian agencies are increasingly coming to realize the importance for children’s welfare of keeping families together and reuniting separated families in times of armed conflict and in other emergency situations (i.e. See Doyle, J., 2010).
378.
The evidence in Lubanga however demonstrated, as will be recalled, that girl FPLC members most often performed both the duties of bush wives/sex slaves and those routine child soldier duties such as being a bodyguard for commanders, scouting etc. (See for instance Prosecutor v. Thomas Lubanga Dyilo, Amicus Brief of Coomaraswamy, R. (United Nations Special Representative of the Secretary-General on Children and Armed Conflict), (2008, para 25–26).
379.
Rome Statute (2002).
380.
Rome Statute (2002).
381.
Rome Statute (2002).
382.
Rome Statute (2002).
383.
Rome Statute (2002).
384.
Rome Statute (2002).
385.
The need for a broader interpretation of ‘protected group’ as stipulated in Article 6 of the Rome Statute was here previously discussed. Note that ‘ethnic group’ (included in the Rome Statute enumeration of protected groups) in fact implies cultural identity as expressed in language, tradition and other distinctive characteristics that distinguish the identified group from others.
386.
Appropriation of children by armed groups or forces committing mass atrocities and/or genocide refers here to recruitment and/or use of children (persons under age 18) for active participation in armed hostilities by such groups or forces.
387.
See also Grover (2012).
388.
Rome Statute (2002).
389.
As discussed, in Lubanga, no separate charges were advanced or confirmed in regards to specific war crimes or crimes against humanity such as rape that could have included also the children over 15 who were victims. Note that the crime against humanity of forcible transfer of a population (Article 7(d) of the Rome Statute) and unlawful transfer of a person or persons as an Article 8 Rome Statute war crime are not child- specific crimes unlike the genocidal forcible transfer of children (Article 6(e) Rome Statute (2002). Furthermore , “unlawful transfer” under the Article 7 and 8 Rome Statute provisions refer to “forced displacement” and hence does not entirely capture the conduct described in Article 6(e) pertaining to the forcible transfer of a child or children of the group to another group in terms of the meaning of ‘forcible transfer’.
390.
Rome Statute (2002).
391.
Such exclusion of protection for older children occurs in cases such as Lubanga where only Article 8 charges regarding the recruitment and use of under 15s are pursued as opposed to also charges pertaining to the genocidal forcible transfer of children (persons under age 18) to such an armed group or force perpetrating mass atrocities and/or genocide.
392.
Rome Statute (2002).
393.
Rome Statute (2002, Article 21(3), emphasis added).
394.
Rome Statute (2002).
395.
Rome Statute (2002, Preamble).
396.
Such a legal re-characterization of the facts already introduced in the Lubanga case to support the confirmed charges would, as discussed, fit the charge of genocidal forcible transfer of children and thus apply also to those children over 15 recruited and/or used for active participation in hostilities by the FPLC.
397.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 276, para 604).
398.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgment Pursuant to Article 74 of the Rome Statute (14 March, 2012, p. 276, FN 1770).
399.
Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (OPCRC-AC) (2002). Note that the DRC ratified OPCRC-AC 11 Nov, 2001.
400.
Rome Statute (2002 Article 8(2)(b)(xxvi) and Article 8(2)(e)(vii)).
401.
Convention on the Rights of the Child (CRC) (1990).
402.
Additional Protocol II to the 1949 Geneva Conventions (1977).
403.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, pp. 276–277, para 605, emphasis added).
404.
There is no suggestion here that charges should not also have been brought in relation to adult victims of the FPLC in regards to rape, forced pregnancy, cruel and inhuman treatment and various other war crimes and crimes against humanity applicable given the evidence in the case. The latter topic is simply beyond the scope of this work.
405.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 423, para 978).
406.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, pp. 424–425, para 981).
407.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 425, para 982).
408.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 425, para 982).
409.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 425, para 983).
410.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, pp. 425–426, para 984, emphasis added).
411.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 440, para 1021).
412.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 437, para 1015).
413.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 548, para 1271).
414.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 548, para 1271).
415.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 543, para 1262).
416.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 548, para 1270).
417.
Rome Statute (2012).
418.
Aptel, C. (18 March, 2012).
419.
The term “children associated with armed conflict” is useful also in including as ‘actively participating in hostilities’ children associated with armed forces or groups regardless the children’s roles with these armed forces or groups or the degree to which those armed forces or groups abide by international humanitarian and human rights law.
420.
Recall that there is in the DRC and in many African countries a very large child and youth population. Large numbers of these children are being used for active participation in hostilities in various of these states.
421.
This contrasts with the defence view in Lubanga that the Rome Statute war crimes provisions under which Lubanga was charged were focused on children under 15 who had more directly participated in the hostilities and that the provisions were directed to prohibiting the endangerment of the latter group only (See Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 269, para 587).
422.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, pp. 551–552, para 1277).
423.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 552, para 1278).
424.
Rome Statute (2002).
425.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 277, para 606, emphasis added).
426.
Rome Statute (2002).
427.
Conscription, enlistment and use for active participation in hostilities.
428.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, pp. 556–557, para 1287).
429.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 559, para 1290).
430.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 563, para 1299).
431.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 571, para 1321).
432.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, pp. 572–573, para 1323).
433.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 584, para 1345).
434.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, pp. 584–585, para 1346).
435.
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (2012, p. 585, para 1347).
436.
The FPLC, of course, also disregarded the Rome Statute (2002) prohibition against recruiting and using for active participation in hostilities under 15s.
437.
Although some children were killed by FPLC because they were too weak physically to complete military training and were made an example of, the FPLC had yet recruited them in the first instance consistent with their genocidal intent to appropriate indiscriminately three-quarters of the Hema child population.

Literature, Materials and Cases

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Cases

Prosecutor v Samuel Hinga Norman Dissenting Opinion of Justice Robertson in (31 May, 2004) (SCSL-04-14-AR72(E)) http://www.sc-sl.org/LinkClick.aspx?fileticket=z1qWROwTItg%3D&tabid=193. Accessed 23 Mar 2012
Prosecutor v. Thomas Lubanga Dyilo, Amicus brief of Coomaraswamy, R. (United Nations Special Representative of the Secretary-General on Children and Armed Conflict) (2008) http://www.un.org/children/conflict/_documents/AmicuscuriaeICCLubanga.pdf. Accessed 14 Jan 2012
Prosecutor v. Thomas Lubanga Dyilo, Appeal Court judgment, 8 December, 2009 decision on the ICC Trial Chamber I July, 2009 decision regarding legal re-characterization of the facts http://www.icc-cpi.int/iccdocs/doc/doc790147.pdf. Accessed 23 Jan 2012
Prosecutor v. Thomas Lubanga Dyilo (Trial Chamber I) Clarification and further guidance to parties and participants in relation to the “Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court” (27 August, 2009, pp. 6–7, para 8) http://www.iclklamberg.com/Caselaw/DRC/Dyilo/TCI/2093.pdf. Accessed 6 Jun 2012
Prosecutor v. Thomas Lubanga Dyilo, Decision on Confirmation of Charges (29 January, 2007) http://www.icc-cpi.int/iccdocs/doc/doc266175.PDF. Accessed 14 Jan 2012
Prosecutor v. Thomas Lubanga Dyilo, Decision on Sentence Pursuant to Article 76 of the Statute (10 July, 2012) http://www.icc-cpi.int/iccdocs/doc/doc1438370.pdf. Accessed 13 Oct 2012
Prosecutor v. Thomas Lubanga Dyilo, Defense Closing Brief of 15 July, 2011 http://www.icc-cpi.int/iccdocs/doc/doc1325997.pdf. Accessed 29 Jan 2012
Prosecutor v. Thomas Lubanga Dyilo, Defense Closing Statement of 26 August, 2011 http://www.icc-cpi.int/iccdocs/doc/doc1211991.pdf. Accessed 29 Jan 2012
Prosecutor v Thomas Lubanga Dyilo, Dissenting Opinion of Judge Odio Benito Final Trial Judgement Pursuant to Article 74 of the Rome Statute (14 March, 2012) http://www.icc-cpi.int/iccdocs/doc/doc1379838.pdf. Accessed 20 Mar 2012
Prosecutor v Thomas Lubanga Dyilo, Final Trial Judgement Pursuant to Article 74 of the Rome Statute (14 March, 2012) http://www.icc-cpi.int/iccdocs/doc/doc1379838.pdf. Accessed 20 Mar 2012
Prosecutor v Thomas Lubanga Dyilo, Joint Application of the Legal Representatives of the Victims for the Implementation of the Procedure under Regulation 55 of the Regulations of the Court, 22 May, 2009 http://www.icc-cpi.int/iccdocs/doc/doc712021.pdf. Accessed 21 Mar 2012
Prosecutor v. Thomas Lubanga Dyilo, Legal Representatives of Victims Closing Statements (25 August, 2011) http://212.159.242.181/iccdocs/doc/doc1210316.pdf. Accessed 14 Jan 2012
Prosecutor v. Thomas Lubanga Dyilo, Office of Public Counsel for Victims Closing Statement (25 August, 2011) http://212.159.242.181/iccdocs/doc/doc1210316.pdf. Accessed 14 Jan 2012
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Brief (1 June, 2011) http://www.icc-cpi.int/iccdocs/doc/doc1123809.pdf. Accessed 14 Jan 2012
Prosecutor v. Thomas Lubanga Dyilo, Prosecution Closing Statements (25 August, 2011) http://212.159.242.181/iccdocs/doc/doc1210316.pdf. Accessed 14 Jan 2012
Prosecutor v. Thomas Lubanga Dyilo, Prosecution’s Reply to the Conclusions finales de la Défense, 1 August, 2011. http://www.icc-cpi.int/NR/exeres/7A274DFF-7D95-424F-95B8-9EADF0CC6DA1.htm. Accessed 3 Feb 2012
Prosecutor v. Thomas Lubanga Dyilo Summary of the “Judgment pursuant to Article 74 of the Statute (14 March, 2012) http://micro5.mscc.huji.ac.il/~gharpaz/admins/uploads/lubanga_judgment_summary.pdf. Accessed 3 Jun 2012
Special Court of Sierra Leone (SCSL) Prosecutor versus Samuel Hinga Norman, Appeals Chamber, Fourth Defence Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment) Amicus Curiae Brief of the United Nations Children’s Fund (UNICEF) (21 January, 2004) http://www.unhcr.org/refworld/docid/49aba9462.html. Accessed 23 Mar 2012

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Faculty of Education, Lakehead University, Thunder Bay, Canada
Sonja C. Grover

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Grover, S.C. (2013). Case 1: Prosecutor v. Thomas Lubanga Dyilo (Hereafter Also Referred to as Lubanga). In: Humanity’s Children. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-32501-4_3

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