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ICC Prosecutor, Victims Continue to Oppose Lubanga’s Early Release

The prosecutor of the International Criminal Court (ICC) has opposed a possible early release for Thomas Lubanga, the first person convicted by the court, who is currently serving a 14-year prison sentence. Similarly, the victims of Lubanga’s crimes have asked judges not to shorten his jail term.

In a submission to the ICC appeals chamber considering a possible reduction of the sentence, prosecutor Fatou Bensouda stated that Lubanga does not deserve early release. “The gravity of the crimes for which he was convicted—the enlistment, recruitment, and use of children under the age of 15 to participate in hostilities, which exploited the vulnerability of the victims—require that he serves the full term of his 14-year sentence. He should remain in detention,” stated the prosecutor.

In a separate submission, victims’ lawyer Paolina Massidda stated that Lubanga’s early release would have an impact on victims’ safety and well-being, “which will prevent them from accessing reparations programs.” Massidda added that victims also fear that Lubanga’s possible presence in Ituri, a province of the Democratic Republic of Congo, reinforces animosity between communities and stigmatizes victims in the eyes of community members who still support the former militia leader.

Article 110 of the court’s founding law, the Rome Statute, provides for a sentence review when a convicted person has served two-thirds of their sentence. Lubanga was convicted in 2012 over the use of child soldiers during ethnic conflict in Ituri and as of July 16, 2015, he had served two-thirds of his sentence, which made him potentially eligible for early release. After judges declined to reduce his sentence in September 2015, they directed that the next review should be conducted in two years.

Bensouda and Massidda’s submissions followed an order by judges last August for parties to the trial to file submissions as to whether there had been any significant change in circumstances since the first review. The submissions had to address Lubanga’s willingness to cooperate with the court in its investigations and prosecutions, and his voluntary assistance in enabling the enforcement of the judgments and orders of the court in other cases, including those that may benefit victims.

According to defense lawyer Catherine Mabille, judges should grant Lubanga early release because he has met the conditions for reduction of his sentence. She argues that Lubanga has always cooperated with the court, and recently offered to personally participate in the reparations program. Furthermore, Mabille said Lubanga has proposed the organization of a public traditional ceremony where he would listen to victims and offer them his apology.

However, echoing her submissions during the first review, Bensouda argues that Lubanga’s “belated offer” to meet the victims does not show that he has genuinely dissociated from his crimes or that he has taken significant action to benefit the victims. She added that the effects of his interference with potential witnesses in Bosco Ntaganda’s trial had continued after the conclusion of the first review.

In a September 21 response, Mabille dismissed as unsubstantiated the prosecution assertion that Lubanga could interfere with witnesses in the Ntaganda case. She said that, two months ago, Trial Chamber VI lifted all restrictions on Lubanga’s communications after a review of his recorded telephone conversations found no evidence that he was interfering with witnesses.

Meanwhile, Massidda and three victims’ lawyers have written to defense lawyers, faulting Lubanga for failing to change his attitude towards victims, or to apologize or express an understanding of their situation.  They said Lubanga’s attitude was in stark contrast with that of other persons convicted by the court, who took the initiative to contact victims and publicly apologize to them through a press release or video recording well before their release was in sight. Among the two cases cited by the lawyers was that of Germain Katanga, also a former Congolese militia leader.

The victims’ lawyers said an initiative by Lubanga similar to that of Katanga would reassure the victims about his attitude toward them, lessen their fears, and promote reconciliation between communities.

The prosecutor dismissed Lubanga’s proposal to meet with victims as insufficient, noting that Lubanga still does not acknowledge his own culpability for conscripting and enlisting children and using them in hostilities. She, too, contrasted this attitude with that of Katanga, who withdrew his appeal against conviction, filmed an apology that was handed to communities in Congo, and accepted the judges’ findings on his role and conduct in the crimes of which he was convicted.

Judges are expected to rule on the sentence review in the coming weeks.