Art. 8(2)(b)(xxvi), Art.8(2)(e)(vii), Art. 25(3)(a)
▪ Enlisting child soldiers under 15 years as a war crime
▪ Lubanga was President and Commander in Chief of the armed wing of Union Patriotique du Congolais. Thomas Lubanga was said to have participated in the conscription of child soldiers and they were enlisted as bodyguards for several high commanding officers especially between September 2002 and 13 August 2003, during the armed conflict in Ituri.
▪ Many victims recounted commission of sexual crimes against young girls however majority refused to adjudge whether this would be included within using children to actively participate in hostilities. This technical conflict arose since Prosecurtion failed to include it in the charges and the Trial and Appeal Chambers decided not to include crimes associated with sexual violence in the case.
▪ A major question was whether child could consent to participation whereas court said consent is not a valid defence.
▪ There was an agreement or common plan between the accused and at least one other co-perpetrator that, once implemented, will result in the commission of the relevant crime in the ordinary course of events. The accused made an essential contribution towards executing common plan
▪ Thomas Lubanga Dyilo: was found guilty of crimes of conscripting and enlisting children under the age of fifteen years into the FPLC and using them to participate actively in hostilities within the meaning of Articles 8(2)(e)(vii) and 25(3)(a) of the Statute from early September 2002 to 13 August 2003.
▪ Factual allegations potentially supporting sexual slavery are not referred to at any stage in the Decision on the Confirmation of Charges. Therefore this made evidence irrelevant for the purposes of the Article 74 Decision save as regards providing context. Therefore, the Chamber has not made any findings of fact on the issue, particularly as to whether responsibility is to be attributed to the accused.
▪ Criminal liability in this context is “not limited to those who physically carry out the objective elements of the offence, but also includes those who, in spite of being removed from the scene of the crime, control or mastermind its commission because they decide whether and how the offence will be committed. It is not necessary that the accused physically perpetrated any of the elements of the crimes or that he was present at the crime scene
▪ Convicted and Reparations proceedings
Read the full judgment here.