The trial of the Congolese militia leader Thomas Lubanga Dyilo finally opened in The Hague yesterday. He is charged on six counts of recruiting and using child soldiers in the civil war in the Democratic Republic of Congo.

Those listening to the opening statement of the ICC Prosecutor, Luis Moreno Ocampo, might have been forgiven for thinking that Lubanga was also being charged with the crimes of “kill, pillage and rape,” which numerous witnesses describe as having been committed by his forces (both the child soldiers and others). In fact, he is not. The words are simply colouring on the case for public consumption.

Perhaps the reason why the Prosecutor chose to emphasize these crimes against humanity alongside the crimes for which Lubanga is actually standing trial is that when Lubanga was spirited away from the Congolese prison where he was incarcerated, he was actually facing charges of genocide and crimes against humanity. During the campaigns conducted by Lubanga’s Union of Congolese Patriots from 1999-2003, many hundreds of people were reportedly massacred, and among Congolese at least, these mass killings are considered graver crimes than the recruitment of child soldiers. In an article in the current issue of the Journal of International Criminal Justice, Prof. William Schabas comments on this irony: “It would appear that the ICC has removed Thomas Lubanga from jeopardy before the criminal tribunals of his own country for crimes that are more serious than those for which he is being prosecuted in The Hague.” Schabas correctly notes that there were worries about the adequacy of the Congolese prosecution and also a fear that Lubanga might be released, and that prosecuting him for something at the ICC was a better option than seeing him acquitted or released at home. But, noting the DRC government’s cooperation with the international community on a host of governance and security issues, surely the option was open of pushing for a better trial within a domestic legal system that was at least functioning. Schabas notes, “As for Lubanga himself, he must be delighted to find himself in The Hague facing a prosecution for relatively less important offences concerning child soldiers rather than genocide and crimes against humanity.”

The Lubanga case is historic. It is the first trial to open before the judges of the ICC. It is a historic precedent for prosecuting for the international crime of recruiting child soldiers, and–as the Prosecutor so eloquently explained, that is a crime that has irreparably scarred the lives of those children as well as the communities they came from and those where they were deployed as part of the Lubanga’s forces. Let us hope the trial itself becomes a victory for justice. But, for many Congolese, the question remains, is Lubanga being tried for the most heinous crimes which he may have committed?