On March 14, 2012, the International Criminal Court (ICC) convicted its first defendant: Thomas Lubanga Dylio. [1]
The ICC’s three-judge Trial Chamber unanimously concluded, after a lengthy trial, that he was guilty beyond a reasonable doubt as a co-perpetrator of the war crimes of conscripting and enlisting children under the age of 15 and using them to participate in an internal armed conflict in 2002-2003 in the Democratic Republic of the Congo (DRC). At the time Lubanga was the President of a rebel group, the Commander-in-Chief of its military wing and its political leader.
At a hearing to be held on April 18th the Trial Chamber will consider the length of his sentence and the principles to be used in establishing reparations for the victims of these crimes. The ICC’s Prosecutor has said that his office will seek a sentence close to the maximum of 30 years under Article 77(1)(a) of the Court’s Rome Statute. It is anticipated that Lubanga will appeal his conviction and sentence to the ICC’s Appeals Chamber.
The Trial Chamber’s judgment also harshly criticized the Prosecutor for negligence in delegating investigations to unreliable intermediaries who had encouraged certain witnesses to give false testimony that had compelled the Court to exclude any reliance on their testimony.
The U.N.’s High Commissioner for Human Rights said this verdict “represented the coming of age of the [ICC] . . . and . . . [sent] a strong signal against impunity for such grave breaches of international law that will reverberate well beyond the D.R.C.”
The U.S. had similar words of commendation. The White House said the decision demonstrated that “the international community is united in its determination to end the repugnant practice of using child soldiers.” The U.S. Department of State noted that the conviction highlighted the “paramount international concern” over “the brutal practice of conscripting and using children to take a direct part in hostilities” and puts “perpetrators and would-be perpetrators of [such conduct] on notice that they cannot expect their crimes to go unpunished.”
Comment: ICC Sentences Lubanga to 14 Years Imprisonment
On July 10, 2012, the ICC’s Trial Chamber I sentenced Thomas Lubanga Dyilo to a total period of 14 years of imprisonment with credit for time served since March 2006.
The Chamber’s Presiding Judge said that it had considered the gravity of the crimes in the circumstances of this case, with regard, inter alia, to the extent of the damage caused, and in particular “the harm caused to the victims and their families, the nature of the unlawful behavior and the means employed to execute the crime; the degree of participation of the convicted person; the degree of intent; the circumstances of manner, time and location; and the age, education, social and economic condition of the convicted person.
The judge said that Lubanga’s crimes of conscripting and enlisting children under the age of 15 and using them to participate actively in hostilities, are undoubtedly very serious crimes that affect the international community as a whole.
The judge indicated that the Chamber also reflected certain other factors involving Mr Lubanga, namely his notable cooperation with the Court and his respectful attitude throughout the proceedings.
One of the Chamber’s three judges issued a dissenting opinion saying that the sentence disregards the damage caused to the victims and their families, particularly as a result of the harsh punishments and sexual violence suffered by the victims of these crimes.
ICC, Press Release: Thomas Lubanga Dyilo sentenced to 14 years of imprisonment, (July 10, 2012),
http://www.icc-cpi.int/NR/exeres/3EABAD63-FC6B-448A-9614-5BA2AECF10CF.htm.
Comment: More Details about ICC’s Sentencing of Lubanga
As reported in the last comment to this post, Mr. Lubanga was sentenced to 14 years less the six years already served in pretrial detention. Thus, he only has eight years left to serve. Moreover, this “may be further reduced because of a common practice of releasing well-behaved prisoners after they have served two-thirds of their sentence; in Mr. Lubanga’s case, that would free him in about 3 1/2 years.”
The presiding judge, Judge Fulford from the U.K., identified several mitigating circumstances that lead to the relatively mild sentence of 14 years. One, as previously mentioned, was Lubanga’s cooperation with, and respect for, the Court. This cooperation was especially significant, said Judge Fulford, because it occurred in “particularly onerous circumstances, which included:
• the prosecution gathered an extensive quantity of evidence under confidentiality agreements (Article 54(3)(e) of the Statute) leading to a failure to disclose exculpatory material, which in turn resulted in a stay of the proceedings and a provisional order to release Mr Lubanga;
• b) the prosecution repeatedly failed to comply with the Chamber’s disclosure orders, leading to a second stay of the proceedings and a second provisional order releasing Mr Lubanga; and
• c) the prosecution’s use of a public interview, given by . . . [a lawyer of the Office of the Prosecutor] to make misleading and inaccurate statements to the press about the evidence in the case and Mr Lubanga’s conduct during the proceedings.” (¶ 91.)
The dissenting judge thought the sentence should have been at least 15 years. (I could understand a dissent if the judge thought the sentence should be much closer to what the prosecution sought, but I find it difficult to comprehend dissenting over 15 versus 14 years.)
The prosecution had sought the maximum sentence of 30 years, and in response to the decision, the Office of the Prosecutor said it was “studying the Judgment in detail and will consider whether or not to appeal. The Prosecution is also expecting to hear the judges’ decision on reparations in order to ensure the victims of Lubanga’s crimes see the full scale of justice.”
Simons, International Criminal Court Issues First Sentence, N.Y. Times (July 10, 2012), http://www.nytimes.com/2012/07/11/world/europe/international-criminal-court-issues-first-sentence.html?_r=1&hp; ICC, Decision on Sentence [of Thomas Lubanga] pursuant to Article 76 of the Statute (July 10, 2012), http://www.icc-cpi.int/iccdocs/doc/doc1438370.pdf; ICC, Statement: Office of the Prosecutor on Lubanga sentence (July 10, 2012),
http://www.icccpi.int/menus/icc/press%20and%20media/press%20releases/ otpstatement100712.