Establishing Legitimacy for the ICC: The Prosecutor v. Thomas Lubanga Dyilo

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The United Nations first recognized the need to establish an international criminal court over fifty years ago. The periodic efforts of the international legal community finally culminated on July 17, 1998, with the adoption of the Rome Statute of the International Criminal Court. The treaty entered into force on July 1, 2002, and is currently joined by 121 countries – notably excluding the United States, China, and Russia.[1]

The International Criminal Court (ICC) is the “first permanent, treaty based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community.”[2] The ICC has jurisdiction over crimes of genocide, crimes against humanity, war crimes, and crimes of aggression.[3] The ICC’s goals are to “achieve justice for all, end impunity, help end conflicts, remedy the deficiencies of ad hoc tribunals, take over when national criminal justice institutions are unwilling or unable to act, and deter future war criminals.”[4]

To date, sixteen cases in seven situations have been brought before the ICC for adjudication.[5] The ICC rendered its first verdict earlier this year in The Prosecutor v. Thomas Lubanga Dyilo, a landmark case in several respects. This case provided legal scholars the opportunity to evaluate the ability of the ICC to legitimately carry out its mission, especially in context to technical setbacks the prosecution faced during the historic proceedings.

On March 14, 2012, the Trial Chamber unanimously found Thomas Lubanga Dyilo guilty of enlisting and conscripting children to actively participate in internal armed conflict hostilities between September 2002 and August 2003.[6] As commander in chief of the Patriotic Force for the Liberation of the Congo (FPLC), Lubanga recruited child soldiers to fight in some of the most gruesome tribal warfare in Africa.[7] On July 10, 2012, the Trial Chamber sentenced him to fourteen years of imprisonment.[8]

The ICC criticized and voiced concerns over flaws in the prosecution’s investigation throughout the six-year case. The proceedings were stayed on two separate occasions, once in 2008 over the prosecution’s failure to disclose potentially exculpatory evidence obtained through statutorily authorized confidentiality agreements[9] and once in 2010 over the prosecution’s refusal to disclose the identity of an intermediary.[10] The Rome Statute was the first treaty to allow the victims of atrocities to participate in international criminal proceedings, and it is primarily within this context that due process was jeopardized.[11] Specifically, the prosecution relied heavily on intermediaries – individuals and organizations working in the field acting as liaisons between the ICC and the Congolese people – to contact witnesses and gather evidence.[12] There was reason to speculate that the intermediaries improperly convinced victims to submit false testimony.[13]

In the written judgment, the Trial Chamber fortified “the necessity and practice of working with intermediaries in the field [by acknowledging the “serious security and other constraints under which the investigation operated”], and at the same time identified the specific failings of the [p]rosecution in its negligent supervision of intermediaries and failure to verify the evidence obtained.”[14] The ICC ultimately recognized the importance of bringing justice to the victims subjected to Lubanga’s war, especially as a court of last resort.[15] The direct participation of 129 victims, including former child soldiers, in the Lubanga trial sent a powerful global message.[16]

At the same time, the stays demonstrated that the ICC is committed to upholding the defendant’s right to a fair trial, an integral component of a legitimate judicial system. The ICC clarified the disclosure rule[17] and proposed draft guidelines on intermediaries to remedy the procedural complications.[18] As one scholar noted, “A fair trial of Thomas Lubanga [was] an essential step in attaining an effective and legitimate ICC. In light of the ICC’s treatment of the case against Thomas Lubanga, the ICC has taken a step in the proper direction to demonstrate to the international community that it is a legitimate judicial institution.”[19]

[1] Marlise Simons, International Criminal Court Issues First Sentence, N.Y. Times, July 10, 2012,

[2] About the Court, International Criminal Court,

[3] Rome Statute of International Criminal Court art. 5, July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute].

[4] Sara Anoushirvani, The Future of the International Criminal Court: The Long Road to Legitimacy Begins with the Trial of Thomas Lubanga Dyilo, 22 Pace Int’l L. Rev. 213, 214 (2010).

[5] Situations and Cases, International Criminal Court,

[6] Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment, ¶ 1 (March 14, 2012), (PDF) [hereinafter Lubanga Judgment].

[7] The war crimes were committed in the context of the Ituri conflict, which was an internal armed conflict between the Hema and Lendu ethnic groups over control of gold mines in the Congo. Press Release, Human Rights Watch, DRC: ICC’s First Trial Focuses on Child Soldiers (Jan. 23, 2009), available at According to the United Nations, over 60,000 civilians were slaughtered in the Ituri conflict. Id.

[8] Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on Sentence, ¶ 99 (July 10, 2012), (PDF) [hereinafter Lubanga Sentence]. Six years were deducted from the sentence to account for time already served in detention. Id. ¶ 101.

[9] Article 54(3)(e) of the Rome Statute allows the prosecution to “[a]gree not to disclose, at any stage of the proceedings, documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents.” Rome Statute, supra note 3, art. 54(3)(e).

[10] Lubanga Judgment, supra note 6, ¶ 10.

[11] Article 68(3) of the Rome Statute states that “[w]here the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.” Rome Statute, supra note 3, art. 68(3).

[12] Women’s Initiatives for Gender Justice, Lubanga Judgment – The Prosecution’s Investigation and Use of Intermediaries, The Lubanga Trial (Aug. 20, 2012),

[13] Id.

[14] Id.

[15] “Victims of the atrocities committed in the DRC oppose the release of Lubanga, arguing that if Lubanga is released without ever being tried, the sense of the people of the country that the perpetrators of grave crimes . . . will be undermined or destroyed; sequentially it will cultivate a sense of impunity on the part of the perpetrators of grave crimes.” Anoushirvani, supra note 4, at 230 (internal quotations omitted).

[16] Alison Cole and Kelly Askin, Thomas Lubanga: War Crimes Conviction in the First Case at the International Criminal Court, 16 Am. Soc’y Int’l L. Insights 12 (March 27, 2012), available at

[17] Judith Armatta, Chamber Clarifies Disclosure Rule, The Lubanga Trial (Feb. 8, 2011),

[18] Cole and Askin, supra note 15. The member countries will review the draft guides at the ICC Assembly of States Parties meeting in November 2012. Id.

[19] Anoushirvani, supra note 4, at 239.

Posted by Mary Scott Kennedy (Mary Scott) on Fri. March 22, 2013 3:12 PM
Categories: International Human Rights

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