The International Criminal Court (ICC) prosecutor says the sexual crimes, which were “routinely” committed by soldiers commanded by Thomas Lubanga, should be one of the factors judges should consider to hand him a “very severe joint sentence.” The fact that Mr. Lubanga was an educated person and had the powers to stop the use of child soldiers but instead encouraged their participation in armed conflict should also be among the aggravating factors, according to a sentence request prosecutor Luis Moreno-Ocampo filed on May 14, 2012.
Mr. Lubanga is the first person to be found guilty by the ICC since its founding in 2002. On March 14 this year, judges found him guilty of three war crimes of conscripting, recruiting, and using child soldiers in an armed conflict in the Ituri region of the Democratic Republic of Congo (DRC). Sentencing hearings will take place on June 13.
“Thomas Lubanga was in supreme control of the UPC/FPLC. He had every opportunity through the one year period to stop the commission of the crimes, yet he did not,” noted the prosecutor, referring to the Union of Congolese Patriots (UPC) and the Patriotic Forces for the Liberation of Congo (FPLC). “Instead he visited training camps delivering speeches and only attempted to take measures to demobilize, which were not successful, when under pressure. His pre-meditated criminal actions, undertaken with extreme brutality and malice, with full knowledge of the vulnerability of those subjected to them, merit a severe joint sentence.”
The prosecutor contended that the gravity of the three crimes charged, the extent of the aggravating factors for the crimes, and the lack of mitigating factors “justify the imposition of three separate high sentences and a very severe joint sentence.”
Mr. Moreno-Ocampo also submitted that the evidence of sexual violence and rape ought to be considered as an aggravating factor at sentencing. It argued that even though Mr. Lubanga was not convicted of these acts, there would be no prejudice to incorporating them for sentence. “The chamber permitted the introduction of this evidence. The defense was sufficiently on notice that these activities occurred in the context of UPC/FPLC child conscription and enlistment and use; in fact, it cross-examined witnesses on this evidence,” argued the prosecution.
Moreover, the prosecutor submitted that the evidence above on sexual violence shows that the harms committed were gender-based, and should be considered an aggravating factor. He added, “The evidence reveals that sexual violence was routinely inflicted on the girl child soldiers – rape and sexual abuse were an integral part of their horrific experience at the hands of the UPC/FPLC … female recruits were raped by their trainers and commanders, irrespective of their age. It was common practice for the UPC/FPLC high ranking officials to use young girls as domestic servants in their private residences.”
Following an appeal by victims, trial judges on July 14, 2009 ruled that it was possible to add new charges to those Mr. Lubanga faced. However, on December 8, 2009, appeals judges ruled that charges of sexual slavery and cruel treatment did not have the possibility of being added to the case against Mr. Lubanga.
In their ruling, Judges Adrian Fulford (Presiding), Elizabeth Odio Benito, and René Blattmann stated that evidence demonstrated that mainly girls, were used by UPC/FPLC commanders to carry out domestic work and that girl soldiers were subjected to sexual violence and rape. Witnesses specifically referred to girls under the age of 15 who were subjected to sexual violence by UPC/FPLC commanders, the judges said. They added, however, that sexual violence did not form part of the charges against the accused, and the chamber had not made any findings of fact on the issue, particularly as to whether responsibility was to be attributed to the accused.
Article 77 of the Rome Statute spells out the possible penalties for persons convicted by the ICC. These include imprisonment not exceeding 30 years and life imprisonment in cases of “extreme gravity” and where “the individual circumstances of the convicted person” warrant. In addition to imprisonment, the court may order a fine or “a forfeiture of proceeds, property and assets derived directly or indirectly from that crime.”
Article 78 provides that in determining the sentence, the court shall take into account such factors as the gravity of the crime and the individual circumstances of the convicted person. This article adds that when a person has been convicted of more than one crime, judges shall pronounce a sentence for each crime and a joint sentence specifying the total period of imprisonment.
In determining the appropriate sentence, Rule 145 of the Rules of Procedure and requires the court to consider and balance numerous other factors, including the culpability and degree of participation of the convicted person, the circumstances of the person and the crimes, the harm caused to the victims and their families, and appropriate aggravating and mitigating factors.
While Mr. Moreno-Ocampo does not mention the number of years prosecutors would like Mr. Lubanga handed, he refers to similar cases where those convicted received long jail terms. He gives the example of the sentencing of Issa Hassan Sesay, Morris Kallon, and Augustine Gbao at the Special Court for Sierra Leone, which considered the following aggravating factors in relation to the child soldier crimes: the scale and brutality, the vulnerability of victims, the number of victims, and the impact on victims and degree of suffering. For these crimes, notes the prosecutor, Sesay and Kallon were sentenced to 50 years and 35 years of imprisonment respectively. He also notes that in the Prosecutor v Charles Ghamkay Taylor, the prosecution was requesting 75 years for child soldier crimes.
The prosecutors also noted that Mr. Lubanga was “well-educated, possessing a degree in psychology that allowed him to understand the gravity of depriving children of the care of their families and their education. He was a leader of the community. These factors, coupled with his supreme authority over the UPC/FPLC, only exacerbate his criminality.”
The defense has up to May 28, 2012 to make its sentencing submissions. At the public hearing on sentence, the prosecution will make its oral submissions, followed by the legal representatives of the participating victims, and finally the defense.