International Justice Monitor

A project of the Open Society Justice Initiative

Lubanga Sentence To be Delivered on July 10

On July 10, International Criminal Court (ICC) judges will deliver the sentence for Thomas Lubanga, who was last March found guilty of the war crimes of conscripting and recruiting children under the age of 15 years and using them in armed conflict.

In a scheduling order issued on June 29, 2012, judges Adrian Fulford (presiding), Elizabeth Odio Benito, and René Blattmann announced that the delivery would be made in open court at 9.30 a.m. Mr. Lubanga, who led the Union of Congolese Patriots (UPC), is the first man to be tried and convicted by the ICC.

At his sentencing hearing on June 13, Mr. Lubanga maintained his innocence, reiterating that his involvement with the UPC was aimed to stem killings in his home region of Ituri and that he always opposed the recruitment and use of child soldiers.

However, prosecutor Luis Moreno-Ocampo said Mr. Lubanga deserved a severe punishment because of the gravity of the crimes he was convicted of and the lack of any mitigating factors. He asked judges to hand the accused a 30-year prison sentence. Notably, Mr. Ocampo said that if Mr. Lubanga apologized and advocated peace, reconciliation, and reintegration of former fighters in Ituri, the prosecution would recommend a sentence of 20 years.

Article 77 of the Rome Statute spells out the possible penalties for persons convicted by the Court. 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.”

In determining the sentence, the Court takes into account such factors as the gravity of the crime and the individual circumstances of the convicted person. Moreover, in imposing a sentence of imprisonment, the court deducts any time previously spent in detention in accordance with an order of the court. Mr. Lubanga has been in detention at the ICC detention facility in Scheveningen since March 2006.

Furthermore, Rule 145 of the Rules of Procedure and Evidence provides that in determining the appropriate sentence, court shall 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.

Mr. Lubanga’s trial opened on January 29, 2009. In their ruling, judges said they were satisfied that the accused and his co-perpetrators agreed to, and participated in, a common plan to build an army for the purpose of establishing and maintaining political and military control over Ituri. As a result of the implementation of this common plan, said the judges, boys and girls under the age of 15 were conscripted and enlisted into the UPC and its armed wing between September 1, 2002 and August 13, 2003.

“The UPC/FPLC used children under the age of 15 to participate actively in hostilities including during battles. They were used, during the relevant period, as soldiers and as bodyguards for senior officials including the accused,” concluded the judges.