Tuesday, July 10, 2012

Thomas Lubanga Sentenced to 14-Year Term

Today, Trial Chamber I of the International Criminal Court sentenced Thomas Lubanga Dyilo to 14 years of imprisonment. Unless appealed, he will serve eight years in prison. (photo courtesy of the ICC's webpage) The full judgment is available here.
In March, Lubanga was found guilty (post on that here) of the war crimes of conscripting and enlisting children under the age of 15 and using them to actively participate in military hostilities in the Democratic Republic of the Congo. Heralded as a milestone, the judgment also inspired commentary over issues such as the reception of the judgment in the DRC and how long Mr. Lubanga’s sentence should be for a relatively narrow conviction.
Another major source of debate arose regarding the appropriate extent of victim reparations (see, e.g., here and here, as this trial is seen as a test case for the ICC’s reparations scheme. This debate will continue, however, as the Court did not render a decision on reparations today. Although it was originally scheduled for today, the Chambers indicated late last week that the reparations decision would be delivered “in due course.”
This marks the first sentence handed down by the ICC. According to Article 78 of the Rome Statute:
1. In determining the sentence, the Court shall, in accordance with the Rules of Procedure and Evidence, take into account such factors as the gravity of the crime and the individual circumstances of the convicted person.
2. In imposing a sentence of imprisonment, the Court shall deduct the time, if any, previously spent in detention in accordance with an order of the Court. The Court may deduct any time otherwise spent in detention in connection with conduct underlying the crime. 
The sentence must be proportionate to the crime committed and must reflect Mr. Lubanga’s culpability (ICC RPE, Rule 145(1)(a)). In deciding the appropriate sentence, the Trial Chamber had to consider aggravating and mitigating circumstances (ICC RPE, Rule 145(1)(b)), the circumstances of Mr. Lubanga and the gravity of the crime.
During the sentencing hearing, Mr. Lubanga told the judges that he acted in the interests of peace, not power or money. His defense counsel, noting that he’d been in detention by the ICC for six years, argued that the exact number of children in his militia was unknown, which would impact the judges’ deliberation of the “extent of the crime.” Moreover, the defense spread the blame for atrocities in the DRC to regional presidents, who, the defense contended, should have been prosecuted instead of Mr. Lubanga. The prosecution, however, argued that Mr. Lubanga bears the greatest responsibility for the crimes and should be sentenced to 30 years imprisonment—or less, if he gave a genuine apology to his victims. (photo courtesy of the ICC's webpage on the case)
The Chamber noted that it took into account the preamble of the Rome Statute, which provides that the most serious crimes of concern to the international community must not go unpunished. The Chamber considered that the crimes are “undoubtedly very serious crimes” that involved compulsion and exposing vulnerable children to danger. The principle historical reason underlying the prohibition of child soldiers is to protect children from the danger of armed conflict and to protect their psychological and physical wellbeing, the Chamber noted.
In reaching its decision, the judges considered the harm to the victims and the degree of participation of Mr. Lubanga, among other factors. The Chamber determined that the practice of enlisting and conscripting and using child soldiers was “widespread.” The Chamber also reasoned that although Mr. Lubanga was aware that the crimes would occur, and that he understood the seriousness of the crimes, he had not “meant” to commit them.
The Chamber did not take any aggravating circumstances into account. It reasoned that the prosecution had not demonstrated that the individual punishments of child soldiers were the responsibility of Mr. Lubanga. Furthermore, the Chamber harshly criticized the former Prosecutor Luis Moreno Ocampo for his contradictory position regarding evidence of sexual violence. Although the Chamber noted there were several ways it could have considered such evidence in determining a sentence, it found that there was insufficient evidence to prove, beyond a reasonable doubt, there was a link between sexual violence and Mr. Lubanga. Furthermore, the Chamber found that any motive of discrimination against female child soldiers could not constitute an aggravating circumstance. The judges also found that the young age of the child soldiers was not an aggravating circumstance given that it also defined the crime.
Given the persistent recruitment of children, Mr. Lubanga’s stated goal of achieving peace was not considered a mitigating circumstance. However, the Chamber commended his notable cooperation with the ICC, especially, it noted, considering the two provisional releases and misleading and inaccurate public statements given by the OTP. This was considered a mitigating factor in his favor.

By a majority, Trial Chamber I sentenced Lubanga as follows:
► 13 years for conscripting children under the age of 15 into the UPC
► 12 years for enlisting children under the age of 15 into the UPC; and
► 14 years for having used children under the age of 15 to participate actively in hostilities.
Given the joint sentence, the total term of imprisonment will be 14 years, minus the six years that Mr. Lubanga spent in detention at the ICC. The Chamber could have imposed a fine in addition to a term of imprisonment, or, if justified by the extreme gravity of the crimes and the individual circumstances of Mr. Lubanga, a life sentence (Rome Statute, Art. 77). The sentence can be appealed, separately from the judgment.
Judge Odio Benito disagreed with the decision to the extent that it disregards the damage to the victims and their families, especially with regards to the commission of sexual violence and harsh punishments received by the children, and considered that Mr. Lubanga should be sentenced to 15 years of imprisonment.

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