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Judges Again Decline to Reduce Lubanga’s ICC Sentence

International Criminal Court (ICC) judges have once again declined to reduce the sentence for former Congolese rebel leader Thomas Lubanga, who is currently serving a 14-year prison term. Lubanga, the first person to be tried by the court, was convicted in 2012 over the use of child soldiers in an armed conflict in eastern Democratic Republic of Congo (DRC).

Earlier this month, Judges Silvia Fernández de Gurmendi, Howard Morrison, and Piotr Hofmański determined that since the initial review of the sentence two years ago, there had been no significant change in circumstances to warrant Lubanga’s early release.

Furthermore, the judges stated that they saw no reason to schedule a further review of Lubanga’s sentence, given that it expires on March 15, 2020. However, they added that Lubanga can still exercise his right under the court’s Rule 224(3) to apply for a new review. This rule permits the sentenced person to request a review at any time on the basis of a significant change in circumstances that justifies a sentence reduction.

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

In the first review held in September 2015, judges decided not to reduce Lubanga’s sentence after finding that there were no factors in favor of his early release. They found no evidence that he had genuinely dissociated from his crimes and also determined that Lubanga has not taken any significant action for the benefit of victims of his crimes. In the second review decision, made public in a November 3, 2017 ruling, judges ruled that there had been no changes in Lubanga’s cooperation with the court or in his actions to benefit victims.

In submissions two months ago, defense lawyer Catherine Mabille argued that Lubanga had met the conditions for early release. She stated that Lubanga had always cooperated with the court, had recently participated in the reparations program, and had proposed to organize a public traditional ceremony to listen to victims and apologize to them.

The prosecutor dismissed the proposed reconciliation meeting and added that Lubanga still does not acknowledge his own culpability for conscripting and enlisting children under the age of 15 years and using them to actively participate in hostilities.

Judges ruled that Lubanga’s conduct showed no genuine dissociation from his crimes that favored a reduction of his sentence. They said the proposed reconciliation meeting did not constitute a change in circumstances. “There is currently no indication as to if and when the proposal is to be put into practice,” noted the judges. “In other words, while there is a proposal, no action has yet been taken.”

Furthermore, judges said Lubanga’s active participation in the reparations proceedings could not be a factor in favor of reducing his sentence, since he participated in order to defend his interests.

The judges found no evidence that Lubanga provided voluntary assistance to the court. However, they disregarded prosecution submissions that Lubanga had interfered with witnesses in the Bosco Ntaganda trial.

In both the first and second sentence reviews, Lubanga fulfilled some of the factors that support early release. Both reviews found that, if released, there was a prospect for his resocialization and successful resettlement back home. Moreover, both reviews determined that there was no indication that Lubanga’s early release would give rise to significant social instability.

In November 2015, ICC judges reduced by three years and eight months the 12-year prison sentence for former Congolese rebel commander Germain Katanga, after noting that he had decided not to appeal his judgment and accepted the ICC’s verdict and sentence. The judges also cited Katanga’s genuine dissociation from his crimes and his early and continuing cooperation with the court.

Lubanga, who has served his sentence from Makala prison in the DRC since December 2015, said if released, he intended to undertake doctoral studies at a local university on the causes of conflict in his home country’s Ituri district. He expected that his research would contribute to peace-building in the restive country.