War Crimes—ICC Detainee No. 1

The International Criminal Court (ICC) is open for business. Over the weekend, for the first time, an individual accused of international crimes under the Rome Statute was arrested, transferred, and jailed under the authority of the ICC Office of the Prosecutor (OTP).

Thomas Lubanga Diylo was arrested initially in March 2005 on national criminal charges and was detained in the Congolese capital of Kinshasa until last week.^[1] Today, Mr. Lubanga made an initial appearance in what was an historic first public hearing at the ICC.^[2] Currently, Mr. Lubanga is the only guest of the ICC’s new detention center and is the first beneficiary of the Court’s work in preparing a 12‑cell block in the Dutch‑owned Haaglanden prison in Scheveningen.^[3] The ICC had planned for its first guests to be 5 Ugandan leaders of the Lord's Resistance Army (LRA) for whom the first ICC arrest warrants were issued last November.^[4] So far, no arrests have been made in that investigation—one of the leaders is believed to have been killed in battle and the four others have evaded capture.^[5]

Mr. Lubanga is reputed to be the founder of a Congolese rebel group called the Union of Patriotic Congolese, a former militia now organized as a political party. He is alleged to have committed acts criminalized under Article 8 of the Rome Statute as war crimes.^[6] Specifically, Lubanga will be tried for his role in the alleged forced recruitment of child soldiers.^[7]

Ironically, although he has entered an appearance in open court, Lubanga has not yet been fully and formally indicted. The Court will confirm the precise charges at the next hearing, scheduled for June 26, 2006.^[8] Chief Prosecutor Luis Moreno‑Ocampo has hinted that the indictment could be expanded to include additional allegations of criminal conduct.^[9]

At the today’s hearing, Mr. Lubanga confirmed his identity, entered his occupation as “politician,” was informed of his rights before the Court, and waived a reading of the charges.^[10] Belgian attorney Jean Flamme entered objections that the arrest warrant was not sufficiently specific and that no hearing had been held in the Congo prior to Mr. Lubanga’s arrest for international criminal charges and his transfer to the custody of the international court. ^[11]

Although the ICC arrest warrant was issued on February 19, 2006, it was held in secret until Mr. Lubanga’s airplane left Congolese airspace this past Friday.^[12] In a press release that afternoon, the OTP stated that the arrest of Mr. Lubanga was part of a “phased approach and this warrant is but the first in a series,” of warrants to be issued pursuant to OTP investigations into activities in the Ituri region of the Congo.^[13] The investigation began in June 2004 after the situation was referred to the ICC by the Democratic Republic of the Congo in March 2004.^[14]

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[1] Wendel Broere, Congo Hands First Suspect to Hague Court, Reuters [hereinafter Reuters], Mar. 17, 2006.
[2] Press Conference: Decision to Hold First Public Hearing, ICC Press Release ICC-CPI-20060302-126-En , Mar. 18, 2006. See also Media Advisory: First Appearance before the Pre-Trial Chamber I of Mr, Thomas Lubanga Dyilo, ICC Press Release ICC-CPI-20060302-127-En, Mar. 20, 2006.
[3] Reuters supra note 1.
[4] Anthony Deutsch, Prosecutor: Int’l Court Should Be Faster, Associated Press [hereinafter AP], Mar. 18, 2006.
[5] Id.
[6] Rome Statute, Art. 8. This article criminalizes various conduct “committed as part of a plan or policy or
as part of a large-scale commission of such crimes.”
[7] Reuters supra note 1. Under the Rome Statute, art. 8(2)(b)(xxvi), the intended victims are children under the age of 15.
[8] Anna Mudeva, ICC Hears Its First Suspect on War Crimes Charges, Reuters, Mar. 20, 2006.
[9] AP supra note 4.
[10] Id.
[11] Reuters supra note 1.
[12] AP supra note 4.
[13] Issuance of a Warrant of Arrest against Thomas Lubanga Dyilo, ICC Press Release ICC‑OTP‑20060302‑126-En, Mar. 17, 2006.
[14] Id.