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August 2, 2012

Can we accept the 14 year sentence against Thomas Lubanga? Isaline Wittorski looks at how the Chamber reached this figure

By Isaline Wittorski

On 10 July 2012, Thomas Lubanga Dyilo was sentenced to 14 years imprisonment, of which he has already served six years.[1] This is the first sentence issued by the International Criminal Court (ICC), and given the limited charges prosecuted in the case, it is perhaps not surprising that the sentence was lower than one might expect for a warlord responsible for war crimes in Eastern Democratic of Congo. Lubanga was convicted in March, as a co-perpetrator, for the war crimes of conscripting and enlisting children under the age of 15 and using them to actively participate in hostilities in 2002-2003 in the Democratic Republic of Congo.[2]

In arriving at the sentence, the Trial Chamber first noted the limited international jurisprudence in relation to sentencing for such crimes. Only the Special Court for Sierra Leone had dealt with child recruitment before and handed down four sentences ranging from 7 to 50 years imprisonment.

The Chamber took into account the gravity of the crimes and the damage they caused. It noted the severe and long-lasting physical, psychological and social damage caused to the children. It detailed the risk of being wounded or killed and of ending up with a traumatic stress disorder, drug abuse, and the loss of opportunities to gain “civilian life skills”.

Most significantly, as noted by Judge Elizabeth Odio Benito in her dissenting opinion, no mention was made of the damage caused to the victims and their families as a result of harsh punishments and sexual violence. The Chamber did not consider these aspects as aggravating factors, and instead provided a disappointing ruling that they had not been proven beyond reasonable doubt. The Judges also found that the attribution of inhuman treatment or sexual violence to Lubanga himself had not been established. The ability of the Chamber to take these factors into consideration was certainly restricted by the Prosecution’s failure to charge the accused with sexual violence and to introduce evidence on this issue during the sentencing hearing.

In arriving at the final sentence, the Chamber considered the following issues in balance:

• the widespread involvement of children in the hostilities;
• Lubanga’s position of authority and the fact that while Lubanga did not mean to conscript and enlist children under the age of 15, he was aware that this would occur;
• Lubanga’s age, education, social and economic condition; and
• Lubanga’s notable cooperation with the Court and respectful attitude throughout the proceedings in the face of their length and delays.

Many lessons can be drawn from this first case, particularly the negative impact of such limited and gender blind charging from the outset. The reparation decision, which might better address victims’ concerns, is yet to come. The ICC Prosecutor has recently decided to seek new charges against Lubanga’s co-accused, Bosco Ntaganda, notably for rape and sexual slavery.[3] The Chamber has granted the application. This will hopefully prove to be a first but crucial step towards a better reflection of the harm suffered by victims in the Ituri conflict.

[1] Decision on Sentence pursuant to Article 76 of the Statute, 10 July 2012, ICC-01/04-01/06-2901, http://www.icc-cpi.int/iccdocs/doc/doc1438370.pdf

[2] Judgment pursuant to Article 74 of the Statute, 14 March 2012, ICC-01/04-01/06-2842, http://www.icc-cpi.int/iccdocs/doc/doc1379838.pdf

[3] Second Corrigendum of the Public Redacted Version of Prosecutor’s Application under Article 58 filed on 14 May 2012 (ICC-01/04-611-Red), 16 May 2012, ICC-01/04-611-Red-Corr2, http://www.icc-cpi.int/iccdocs/doc/doc1413826.pdf

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