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Lubanga Seeks to Present New Evidence in Appeal Against ICC Conviction

On December 3, 2012, Thomas Lubanga, the Congolese militia leader who last March became the first person to be convicted by the International Criminal Court (ICC), filed an appeal against his conviction and the 14 year jail sentence handed to him by trial judges.

Mr. Lubanga’s lawyers told the www.lubangatrial.org website that he has asked appeals judges for permission to present additional evidence as part of the bid to have the conviction quashed.

The trial – the first handled by the court since its formation in 2002 – started on January 26, 2009. The verdict was delivered just over three years later, on March 14 this year. Mr. Lubanga is appealing the conviction, the 14 year prison sentence, and the principles handed down by trial judges for determining reparations to victims.

Judges found him guilty of recruiting and conscripting children under the age of 15 and actively using them in an armed conflict in the Ituri region of the Democratic Republic of Congo.

They concluded that between September 1, 2002 and August 13, 2003, leaders of the Union of Congolese Patriots (UPC) and its armed wing, the Patriotic Force for the Liberation of Congo (FPLC), recruited young people, including children under the age of 15, both voluntarily and coercively. The judges also found that Mr. Lubanga was the president and commander-in-chief of the group and that he had child soldiers among his bodyguards.

At the time of his sentencing, Mr. Lubanga had been in court detention for six years, meaning that he would only have to serve a little under eight years. He would also not make any reparations to victims as court found him to be indigent.

The defense lawyers did not disclose the grounds of appeal or the additional evidence to be presented, as the appeals document was filed confidentially. A redacted version of the appeals brief is expected to be made public by the court later this month.

Mr. Lubanga’s trial has set precedents for the ICC – the world’s first permanent court set up to try war crimes, crimes against humanity, and genocide – including on the participation of victims in proceedings, reparation procedures, and quite likely, the court’s appeal processes.

On November 30, 2012, appeals judges allowed the Lubanga appeals brief to exceed the 100 page maximum, stating that because this was the first appeal directed against a decision under article 74 of the Rome Statute, it “might raise complex and novel issues.” Furthermore, given the length of the Conviction Decision, there were “exceptional circumstances” that justified the extension of the page limit.

The French version of the Conviction Decision is 686 pages, said the defense in their application for an extension to the page limit, noting further that closing briefs filed by parties and participants were also lengthy.

Article 81 of the Rome Statute, the court’s founding law, deals with appeals. It provides that a convicted person can appeal on any of these four grounds: procedural error, error of fact, error of law, or “any other ground that affects the fairness or reliability of the proceedings or decision.”

Meanwhile, a sentence may be appealed by the prosecutor or the convicted person on the ground of disproportion between the crime and the sentence. In Mr. Lubanga’s case, Prosecutor Fatou Bensouda is also appealing the jail term, which she wants raised. At the sentencing hearing last June, former Prosecutor Luis Moreno-Ocampo asked judges to hand down a maximum 30 year jail term but added that the prosecution was ready to recommend a lower sentence if the accused apologized and promoted reconciliation in Ituri.

Mr. Lubanga’s appeal grounds are not likely to lie far from the arguments made by his team at the start of the defense case back in January 2010 or even the address he made at the sentencing hearing. Mr. Lubanga did not testify in his own defense, and his address at the sentencing hearing was the first time he personally addressed the court. He denied the charges and said all he did was in pursuit of peace rather than money or power.

The determination by trial judges that all nine prosecution witnesses, who testified as former child soldiers under Mr. Lubanga’s militia, were unreliable is likely to feature prominently in the appeal. In fact, on the day Mr. Lubanga’s defense case opened, his lawyers vowed they would prove that all those individuals were never child soldiers. Rather, the defense argued, these individuals, as well as their parents or guardians, had been coached to lie to the court.

In their verdict, trial judges faulted the prosecution for having delegated its investigative responsibilities to intermediaries, noting that “a series of witnesses have been called during this trial whose evidence, as a result of the essentially unsupervised actions of three of the principal intermediaries, cannot safely be relied on.”

Judges accordingly withdrew the right of six dual status witnesses to participate in the proceedings and did not rely on the testimony of three other victims who testified, as their accounts were found to be unreliable. Judges concluded that there was a risk that three intermediaries “persuaded, encouraged, or assisted witnesses to give false evidence.”

Article 83 (2) provides that if the Appeals Chamber finds that the proceedings appealed from were unfair in a way that affected the reliability of the decision or sentence or that the decision or sentence appealed from was materially affected by error of fact or law or procedural error, it may issue a reversal or an amendment or order a new trial before a different trial chamber. The Appeals Chamber may also refer a factual issue to the original trial chamber for it to determine the issue or may itself call evidence to determine the issue.

Mr. Lubanga has always maintained that he was merely the UPC’s political figurehead with no say in military matters and that during the brief period when it was in his powers to demobilize child soldiers, he tirelessly did so in very difficult circumstances. However, judges found Mr. Lubanga was in charge of the militia and that he was part of the common plan to recruit child soldiers.

The trial was stayed twice – in 2008 and in 2010 – after the prosecution failed to honor its disclosure obligations. This, too, is an issue Mr. Lubanga could to mention as a procedural error that denied him the right to a fair and expeditious trial while also depriving his defense of the opportunity to investigate certain matters and question prosecution witnesses on those matters.

The defense has previously stated that while it did not contest the fact that there were child soldiers in the UPC/ FPLC, the number of those soldiers was not known, thus, the scope of the crime was not established. It also stated at the sentencing hearing that reliance on video footage, visual assessments, and documentation to judge the age of soldiers who served in UPC was erroneous, as “appearances are deceptive.”

On the eve of the sentencing hearing, Mr. Lubanga called two witnesses who testified that he worked for the pacification of Ituri, bringing warring ethnic groups to reconciliation meetings he spearheaded. That, too, is a line the appeal is likely to advance. Like all other arguments, prosecutors are certain to oppose it vehemently as they seek a longer sentence for Mr. Lubanga.