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Defense Pleads for Lubanga’s Early Release; Victims’ Lawyers Disagree

Thomas Lubanga’s lawyers recently sought his early release from International Criminal Court (ICC) detention, arguing that, if released, the former leader of the Union of Congolese Patriots (UPC) would contribute to peace and reconciliation in Congo’s restive Ituri district. However, lawyers representing victims responded that conditions to support his early release are lacking, partly because Mr. Lubanga has continued to deny the crimes for which he was convicted.

Catherine Mabille, the lead defense lawyer, said Mr. Lubanga wants to relocate with his family to Kisangani, 800 kms from Bunia, where the crimes he was convicted of were committed. Lubanga plans to enroll at his alma mater, Kisangani University, for post-graduate studies in psychology, his lawyers stated. In annexures to the defense filing, the university has confirmed that Mr. Lubanga is qualified to enroll, and a senior staff member of the university has committed to supervise his studies.

Ms. Mabille argued that settling far from Bunia negated the risk of Mr. Lubanga’s release causing social instability in his former home town. She also said there was no evidence to suggest that the social stability of Kisangani could be affected if Mr. Lubanga settled there.

But according to victims’ lawyers Luc Walleyn and Franck Mulenda, Mr. Lubanga has not only persistently denied his responsibility for the crimes for which he was convicted, but has also denied the fact that these crimes were committed at all. They argued that his possible release and return to the Ituri region could revive tensions and create a risk of resumption of armed conflict and new war crimes.

Article 110(4) of the Rome Statute provides that once an accused person has served two-thirds of his sentence, a review should be conducted to determine whether the sentence can be reduced. As of this month, Mr. Lubanga has completed two-thirds of his 14-year prison sentence, which was handed down in 2012 for enlisting, recruiting, and using children under 15 years old in armed conflict.

Under Rule 223 of the court’s Rules of Procedure and Evidence, one of the factors judges consider in reviewing the sentence is “the conduct of the sentenced person while in detention, which shows a genuine dissociation from his or her crime.” Judges also assess the prospects for the resocialization and successful resettlement of the sentenced person.

According to victims’ lawyers, in a July 2, 2015 letter, the victims suggested to the defense various positive actions Mr. Lubanga could undertake, even during his detention, to promote social stability and reconciliation in Ituri. These included developing a proposal on his participation in the reparations program, taking public positions that reassure victims, acknowledging publically that the UPC recruited children under the age of 15, and expressing regret for the crimes.

The victims also urged Mr. Lubanga to ask former members of his armed militia and the general population of Ituri to work with officials of the Trust Fund for Victims in implementing the reparations plan and to refrain from any negative attitude against beneficiaries of this program. The victims’ lawyers said apologizing and expressing regret by Mr. Lubanga could constitute a form of remedy for the victims, since such a gesture could reduce tensions in Ituri.

However, Ms. Mabille countered that although Mr. Lubanga had not admitted guilt, he had always shown a strong will to cooperate with the court. She also argued that the absence of admission of guilt can not in itself be an obstacle to the reduction of his sentence or his release.

Ms. Mabille further argued that the fact that a convicted person is married and has children, as well as the fact that he has kept ties with his family, are factors in favor of release. Mr. Lubanga, who has no prior convictions, is married with eight young children and is the guardian of another child, she said. Since his detention at the ICC in March 2006, Mr. Lubanga has maintained “almost daily contact” with his wife and children, his lawyer stated. They regularly visited him, he continued to participate in the children’s education, and the family was supportive of his possible release, said Ms. Mabille.

The defense also presented a letter signed last month by eight pastors from Bunia (see here, Annex 3), stating that Mr. Lubanga’s release would be an important factor in reconciliation and political stability in Ituri. The letter states that the release of former Congolese militia leaders Kahwa Panga Mandro and Mathieu Ngudjolo were greeted with joy and did not cause any problems between the Hema and Lendu ethnic groups in Ituri.

The defense also referred to observations submitted by the Registrar on July 3, 2015, stating that Mr. Lubanga was respectful of the rules of the detention center and behaved well to other inmates, staff, and administration of the centre.

Mr. Lubanga’s sentence review hearing was initially scheduled for July 16 but was pushed to August 21 after he asked the court’s presidency to disqualify Judge Silvia Fernández de Gurmendi from the Appeals Chamber handling the review.