Making Invisible Children Visible: An Appraisal of the Lubanga Decision

Abstract

In 2012, the International Criminal Court (ICC) delivered decisions concerning the atrocities perpetrated by Thomas Lubanga Dyilo, a former rebel leader active in the Ituri Province of the Democratic Republic of Congo (DRC). ICC’s Pre-trial Chamber I accused Thomas Lubanga Dyilo of being co-perpetrator of the crime of enlisting and conscripting children under the age of 15 years old into his army and using them to participate in hostile activities, which amounted to three counts under two different enumerated war crimes. As the first case adjudicated by the ICC, it not only addressed the human rights crisis which threatens children in the DRC, but also created a legal precedence for the charge of war crime and the mode of responsibility. The decisions of The Prosecutor v. Thomas Lubanga Dyilo established a jurisprudential milestone for international criminal law and stressed some challenges that the ICC will have to face in making future decisions. Taking Lubanga’s ICC trial as its premise, this essay addresses issues pertaining to child soldiers. First, the history of child soldiering in the DRC will be examined by exploring the background of the Lubanga case, including the social context of the conflicts in the DRC. Second, the circumstances of the case and the legal reasoning behind the decision will be summarized, specifically highlighting the legal controversies surrounding the ruling and the establishment of a reparation system for child soldiers involved in the case. Finally, the criticisms and influence of the Lubanga decision will be assessed.