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To Reduce or Not to Reduce Ntaganda’s 30-Year Prison Sentence

While International Criminal Court (ICC) appeals judges question whether to overturn or uphold Bosco Ntaganda’s conviction, they are separately considering the former militia commander’s appeal for reduction of his 30-year prison sentence, which he claims is excessive.

However, the prosecution and victims’ lawyers contend that Ntaganda does not deserve a shorter sentence, given the level of his participation in the war crimes and crimes against humanity for which he was convicted. Last November, Ntaganda was handed the harshest sentence ever by the court, following his conviction on 18-counts of-war crimes and crimes against humanity.

Ntaganda received the highest sentences for the crimes of murder and attempted murder (30 years) and persecution (30 years). The sentences imposed for other crimes were rape of civilians (28 years) and conscripting, enlisting and using children in armed conflict (18 years). For the rape of female child soldiers in the UPC militia, he received 17 years. Defense lawyers have suggested that Ntaganda’s overall sentence should not exceed 23 years.

“Victims express a preference for a life sentence and some of them expressed the view that a 30-year sentence would not be sufficient,” said Dmytro Suprun, a lawyer for some of the victims participating in the proceedings at the appeals hearing.

In the appeal, Ntaganda argues that trial judges failed to concretely assess his level of participation in committing the crimes and handed him a disproportionate sentence. Article 81(2)(a) of the court’s statute provides that a sentencing decision can be appealed on the ground of disproportion between the crime and the sentence.

The defense contends that in their sentencing decision, trial judges erred by failing to distinguish between Ntaganda’s degree of participation in crimes committed in the course of the two different operations in relation to which he was convicted. In the judgement, the judges said Ntaganda’s culpability for crimes committed during both operations was high, irrespective of whether he was in close physical proximity to where the crimes were physically carried out.

Defense lawyer Stéphane Bourgon said Ntaganda was far from the second operation when the crimes took place. According to him, Ntaganda had limited knowledge of and participation in that operation, which was where the most brutal crimes he was convicted of were committed, such as the murder of 49 people in Kobu town. He said judges were therefore wrong to conclude that since Ntaganda had a high degree of participation in the first operation, the same was true of the second operation.

“The trial chamber said Mr. Ntaganda was generally in contact with commanders in the field and was monitoring the second operation via the radio network. The problem is, we have no details of what type of overseeing or what he was doing to monitor,” noted Bourgon. He said trial  judges could not identify any examples of communications between Ntaganda and the commanders during that operation.

However, prosecution lawyer Nivedha Thiru countered that, as the commander in charge of military operations in the Union of Congolese Patriots (UPC) militia, Ntaganda’s contribution to the commission of crimes was vast and decisive. She said Ntaganda contributed significantly to crimes committed during the second operation as he planned and issued operational instructions for that operation.

“The sentence of 30 years reflects the extreme gravity of these crimes and Ntaganda’s substantial degree of culpability for them,” said Thiru. “He fails to show that the trial chamber committed any errors leading to a disproportionate sentence, or that its weighing and balancing of the relevant factors was unreasonable.”

According to the prosecution, while Ntaganda had disciplinary power and ensured that the chain of command was followed, he did not punish crimes his fighters committed against civilians from the Lendu ethnic group. Instead, he ordered his troops to commit crimes and he himself committed murder. Thiru said, “With his authoritative presence before his troops as their senior commander, he demonstrated with his own actions and directives how he intended them to behave when it came to Lendu civilians and showed them that he endorsed their criminal conduct.”

Victims’ lawyer Sarah Pellet said Ntaganda deserves a 30-year prison sentence as his crimes targeted numerous vulnerable children under 15 years of age, and the crimes remain a source of victimization for them 18 years later. She added that Ntaganda had never shown the slightest shred of remorse to the victims, nor had he attempted to compensate them. On the contrary, she said, Ntaganda had insisted throughout the proceedings that there was no child under the age of 18 in the UPC militia.

The defense has also faulted trial judges for failing to concretely assess Ntaganda’s “limited degree of participation” in the five sexual violence crimes he was convicted of. The defense contends that the conviction decision makes no finding that Ntaganda had any advance, contemporaneous, or subsequent knowledge of the rapes and sexual slavery of civilians or child soldiers or that he concretely contributed to the rapes.

While the chamber found that there were three child soldiers subjected to rape and sexual slavery, the defense argues that none of these victims was near Ntaganda at the time of the crimes, “or at virtually any other time.”

In its appeal against the sentence, defense lawyers also fault the trial chamber for rejecting all of Ntaganda’s mitigating circumstances, which they claim warranted a lesser sentence. They cite the judges’ alleged failure to recognize Ntaganda’s “substantial efforts” to reconcile Hema and Lendu communities in 2004 and to demobilize and integrate UPC forces into the national army.