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Yesterday, the International Criminal Court handed down its Decision on Sentence pursuant to Article 76 of the Statute in the trial of Prosecutor v Thomas Lubanga Dyilo. The sentencing judgment follows the court’s Judgment dated 14 March 2012 in which it found Thomas Lubanga Dyilo guilty, as a co-perpetrator, of the charges of conscripting and enlisting children under the age of fifteen years into the UPC/FPLC and using them to participate actively in the Ituri region of the Democratic Republic of Congo.
Factors relevant to sentence
In determining the sentence, the Chamber considered the gravity of the crime, the large-scale and widespread nature of the crimes committed, the degree of participation and intent of Thomas Lubanga Dyilo, as well as aggravating or mitigating circumstances argued by the Prosecution and Defence. Taking these factors into account, the Majority pronounced a separate sentence for each of the three crimes for which Mr Lubanga had been convicted. These were as follows:-
- conscription of children under 15 years old – 13 years’ imprisonment;
- enlistment of children under 15 years old – 12 years’ imprisonment; and
- the use of children under 15 years old to participate actively in hostilities – 14 years’ imprisonment.
In addition, the Chamber pronounced a joint sentence specifying the total period of imprisonment as 14 years.
This seems a very short sentence for crimes that have such a devastating effect on the lives of children, especially when it is seen that sentences handed down by the Special Court for Sierra Leone for the use of child soldiers in active hostilities have included 50 year sentences and 35 year sentences. While there are many reasons to explain the short sentence, the key factor behind this relatively low sentence is likely to the somewhat low degree of participation and intent on the part of the Mr Lubanga, that was found by the Trial Chamber. It is notable in this respect that the trial judgement did not find that Mr Lubanga ‘meant to conscript and enlist boys and girls under the age of 15 into the UPC/FPLC and to use them to participate actively in hostilities… [but] was aware that, in the ordinary course of events, this would occur’.
Standard of proof adopted
In handing down its judgment, the Chamber made clear that it was prepared to consider evidence which exceeded the facts and circumstances set out in the Confirmation of Charges decision, provided that the defence has had a reasonable chance to address them. The Chamber also clarified that when considering aggravating factors it would adopt the ‘beyond reasonable doubt’ standard of proof and when considering mitigating factors it would adopt the ‘balance of probabilities’ standard.
Criticism of Prosecutor
At times in the judgement, the Chamber was extremely critical of the Prosecution, and in particular the former Prosecutor of the court. In response to the Prosecution’s argument that sexual violence should be considered as an aggravating factor, the Chamber did not mince its words, stating that it ‘strongly deprecate[s] the attitude of the former Prosecutor in relation to the issue of sexual violence’. In particular, the Chamber was explicitly critical of the fact that although the Prosecutor had repeatedly referred to sexual violence in his opening and closing submissions and again, in his arguments on sentencing, he had failed to apply to include either sexual violence or sexual slavery to the charges. Indeed, the court noted that the Prosecutor had explicitly expressed his opposition to the charges of sexual violence being added to the original charges, arguing that it would lead to unfairness to the accused.
In another open criticism of the Prosecutor, the Chamber noted that the Prosecutor had been given the chance to introduce evidence on the issue of sexual violence during the sentencing hearing but “had failed to take this step or refer to any relevant evidence that had been given at trial”. As a result of this failure, the Chamber said, the link between Mr Lubanga and the sexual violence had not been established beyond reasonable doubt.
The Chamber’s criticism of the Prosecutor continued in its examination of factors which might lead to a mitigation of the sentence for the accused. The Defence argued that the Mr Lubanga’s sentence should be reduced as a result of the repeated instances where the Prosecutor’s conduct affected the progress of the trial. The Chamber rejected this argument stating that these issues had been considered and rejected in an abuse of process motion which had been brought by the Defence. It affirmed that Mr Lubanga would not be materially affected by the delay in the trial which resulted, because any relevant period that he spent in detention would be deducted from his sentence.
However, the Chamber did find that Mr Lubanga’s notable cooperation in the fact of “some particularly onerous circumstances” did amount to mitigating circumstances. The Chamber listed these onerous circumstances as including: (i) the fact that the Prosecution had gathered information under confidentiality agreements which lead to a failure to disclose exculpatory material, and which lead to a stay of proceedings and a provisional order to release Mr Lubanga; (ii) the Prosecution repeated failure to comply with the Chamber’s disclosure orders, leading to a second stay of proceedings and a second provisional order releasing Lubanga; and (iii) the prosecution’s use of a public interview, given by a member of the Prosecution office, to make misleading and inaccurate statements to the press about the evidence in the case and Mr Lubanga’s conduct during the proceedings. According to the Chamber, the ‘conduct of the prosecution’ in this respect placed Mr Lubanga under “considerable unwarranted pressure”. Throughout these sections cited above, the Chamber’s frustration with the Prosecutor’s conduct of the trial is palpable.
Dissenting opinion of Judge Odio Benito
Judge Odio Benito produced a dissenting opinion in which she disagreed with the Majority’s decision to impose a differentiated sentence for the crimes of enlistment, conscription and use to participate actively in hostilities. She also disagreed with the Majority’s decision not to take into account the ‘extent of the damage caused, and in particular “the harm caused to the victims and their families” in its consideration of ‘gravity’.
On the one hand the sentencing judgment for Thomas Lubanga Dyilo is a proud moment for the International Criminal Court, as it marks the completion of its first case. But the Office of the Prosecutor (OTP) of the ICC will no doubt feel dismayed that its own conduct has been deemed to have impacted upon the severity of Lubanga’s sentence. Certainly, this is the last thing that any Prosecutor would want. Luckily for the office, much of the criticism seems to be levelled specifically at the former Prosecutor, Luis Moreno Ocampo, who has recently finished his term and been replaced by the former Deputy Prosecutor, Fatou Bensouda. Hopefully, with a new figure at the helm, it will be easier for the OTP to learn from the mistakes it made during the case, amend its ways and move on.
Yet while the sentence against Mr Lubanga is a powerful message that the recruitment of children is an international crime that will not go unpunished, it was a sobering coincidence to see how the rendering of judgment came on the same day as news that M23, a group rumoured to be allied to Bosco Ntaganda marched on Goma in the DRC. M23 broke away from the FARDC in late March 2012 and in an added twist of bitterness, is also accused of the using of child soldiers.
Bosco Ntaganda was the former Deputy Chief of the General Staff of the FPLC, the same group as Thomas Lubanga Dyilo. Bosco Ntaganda is wanted before the ICC on the same charges as Mr Lubanga: enlistment of child soldiers, conscription of child soldiers and use of child soldiers to participate actively in hostilities. Before his mutiny from the Congolese army in March 2012, Bosco Ntaganda was allowed to move freely in Goma despite the ICC arrest warrant against him. The continuing impunity for Bosco Ntaganda – and his continued involvement in the same crimes listed on his outstanding arrest warrant before the ICC – threaten the message achieved by the Lubanga trial and must not be allowed to continue.
The Prosecution announced in May 2012 that it is seeking to add charges against Bosco Ntaganda for (i) crimes against humanity of murder, persecution based on ethnic grounds and rape/ sexual slavery and (ii) war crimes of intentional attacks against civilians, murder, rape/ sexual slavery and pillaging.