NOTE FROM EDITOR: Below is the address Luc Walleyn, Legal Representative of Victims in the case of Thomas Lubanga, gave at the June 13 sentencing hearing. Last March, Lubanga was found guilty of committing the war crimes of enlisting and conscripting of children under the age of 15 years into the Patriotic Force for the Liberation of Congo (FPLC) and using them to participate actively in hostilities in an armed conflict in the Ituri region of the Democratic Republic of Congo.
Mr. President, Your Honors,
Thank you for the opportunity to speak. Thank you for giving us the opportunity to speak on behalf of the victims in today’s deliberation and to be the voice that the Defense has again attempted to silence with its request from May 2nd, the voice that Mr. Lubanga never wanted anyone to hear – not at the time the offenses, not during the trial, and not now that the facts have been established.
It is the full right of any accused person to dispute their criminal responsibility, but when a convicted criminal continues to deny the victims’ suffering, it is distressing. In their remarks, the Defense alluded to the “intrinsic severity” of the offenses, and emphasized the care they took to avoid “minimizing” certain offenses, but in reality, their defense was built upon denials of the severity of the offenses, or the offenses themselves. According to the Defense:
– The enlistment of children under the age of 15 by the UPC was neither customary nor widespread;
– The number of children was minimal, and field witnesses who testified to the contrary had been influenced by “misleading evidence” and by a “misperception” that was disseminated without proper verification;
– Conscriptions were rarities, and the youth who testified about such things were liars, usurpers and false witnesses;
– Even demobilization organizations essentially welcomed underage children with false identification;
– And finally, the harsh conditions encountered in the camps, including “severe punishments” that at times degenerated into tortured death, should be considered in context.
Mr. President, Honorable Judges,
Our clients agreed to participate in these proceedings to oppose this account of events. So that the world, and specifically the Ituri population and their own parents would finally understand that the involvement of children in this conflict was extraordinarily severe.
It has certainly been said time and time again, that is what everyone does in this country, an army of kadogos [child soldiers] were responsible for liberating the Congo from dictatorial rule in 1997. It is true; however, it is inexcusable. But the kadogos demobilized in ‘97 did not see themselves as victims. Why would it be any different for the young veterans of the UPC? Could it be the entry into force of the Rome Statute, which aimed to put an end to these practices? Not entirely. The difference also lies in the fact that in Ituri, we don’t simply have a case of children taking up arms to defend their families. Here is a case of enlistment in very specific circumstances: forced recruitment, inhuman and degrading treatment in camps, humiliation, hunger, sexual assault and slavery, etc. These are the grievances our clients are protesting, the grievances that haunt their sleep, that are equally or even more painful than having been used as cannon fodder.
The Defense maintains that the aggravating factors mentioned in your verdict of 14 March could have been classified as war crimes. We fully agree with this position; however, the Court’s estimation that these offenses could not be admissible as specific charges should in no way imply that the offenses should be ignored as aggravating factors.
Contrary to certain national legal systems, the Rome Statute does not enumerate aggravating factors that are constitutive of the crime or that imply that an offense carry a greater penalty. Article 78(2) does not restrict the circumstances which the Court may take into consideration to those detailed in the indictment, contrary to Article 74(2) regarding the establishment of criminal responsibility in virtue of Article 74(2). On the contrary, Rule 145(1)(b) explicitly stating that the Court may take all pertinent considerations into account.
Admittedly, the Defense makes a valid point by arguing that aggravating factors must be attributable to the convicted person and not to third parties.
We have never contended that Mr. Lubanga whipped or executed children, locked young boys in damp pits or raped young girls. However, and independently of any responsibility that Mr. Lubanga was to assume as the commander of his troops, he had to know that by launching a campaign to recruit children of both sexes into a nonprofessional militia, in the midst of a multi-year civil war in the DRC, and by failing to give specific instructions to protect the children, the risk that defenseless children would be subject to mistreatment or sexual exploitation was more than likely.
Mr. President, Your Honors,
To impose a sentence is to rule on severity of the offences, before taking into consideration the condition of the individual who committed them.
The sentence sends a message to the victims, to the public at large, to those who are committing similar offenses today, and to the convicted offender. It can mean one thing, or another.
There have been international proceedings before ad hoc tribunals, and recently before the specialized courts in Cambodia, where the accused admitted the severity of the offenses, expressed regret and reached out to the victims. Unfortunately, that is not the case here.
After your conviction, one of our clients told us, “If Lubanga apologized, I could forgive him.” In our statements of May 14, and even before this date, we reached out to the accused and put forward proposals intended to facilitate reconciliation between his community and its youth. We received no response. It is in the name of these young people that we request that the sentence you impose reflect the Court’s acknowledgement of the severity of the offenses committed.
Thank you very much.