Convener's Comment: The Sentencing of Thomas Lubanga Dyilo by the International Criminal Court

By John Washburn

The Lubanga verdict and sentencing decision have aroused considerable controversy and some inaccurate media coverage. This short briefer will give you background and talking points on the sentence to use immediately with questioners and for speaking. (Refer to our earlier Background Paper and Talking Points on the verdict.) We do not yet know whether there will be appeals. We will update you if appeals are made and again when appellate decisions are announced. Meanwhile we are doing a complete analysis of the verdict to give you a full picture of this history-making first ICC trial for your use over a longer time.

Background

Stories and comment about the verdict and sentence have focused on: the shortness of the sentence; only a single charge having been brought against Lubanga; the criticism of the Prosecutor in the decisions; and the slow progress of the trial.

The sentence was for 14 years. With six years off for time in detention, Lubanga will serve only eight years. The press has said that the European countries in one of whose prisons Lubanga is likely to serve may apply their own rules to reduce his remaining time to be served to only three or four years. Agreements between the ICC and countries offering their prisons all specify that they may not modify sentences.

Reliable reports by witnesses and victims had made it clear that the situations Lubanga had participated in almost certainly included a number of additional war crimes, especially sexual violence. The Prosecutor also vigorously referred to crimes of sexual violence in his opening and closing statements. There has been vocal disappointment that nonetheless the Prosecutor and the Pre-Trial Chamber had charged him only with the single crime of the recruitment of child soldiers and that the trial court seems not to have taken sexual violence into account in the sentencing.

It has taken six years since the ICC took custody of Lubanga to complete his trial.

Explanations

In arriving at the sentence of 14 years, the Court balanced off the gravity of the crime, the degree of the defendant's involvement, aspects that made the way the crime was committed especially bad, and circumstances in the status and behavior of the defendant that should affect his sentence. The Court decided that the crime was especially serious, but that Lubanga did not order, but participated in carrying out a plan which required, the recruitment of child soldiers. It gave credit to him for full cooperation during the trial and for having to endure the stress and delay caused by the Prosecutor's mishandling of evidence.

The Rome Statute requires the Court's sentences to be reduced by time served in detention. This is a common provision in the criminal law of many countries. The Statute also provides that only the ICC may reduce sentences. No country where Lubanga may be imprisoned can itself shorten his sentence.

The Prosecutor chose to use evidence immediately available to start prosecution and trial. That evidence supported only the charges of recruiting and using child soldiers. Although there was considerable testimony and statements in Court about widespread sexual violence against recruited child soldiers, the Trial Chamber decided that although the evidence proved that Lubanga shared responsibility for the recruitment, it did not establish that he was aware of the sexual violence. It is important to note that the Court did not decide whether or not Lubanga actually knew about sexual violence; it only said that the evidence offered was insufficient to prove that.

The trial judges severely criticized the Prosecutor in both the verdict and the sentencing decision. They made clear that his behavior in attempting to withhold evidence from the defense on the ground that it came from confidential sources and his handling of the issue of sexual violence had endangered the completion of the trial and its fairness to the defense.

As with anything done for the first time, this prosecution and trial encountered many surprises, gaps and new questions. These included numerous appeals, motions and trial court decisions on procedural and technical questions. Two appeals by the Prosecutor against trial court decisions to either require him to disclose evidence to the defense or to release Lubanga were especially time consuming.

Important Takeaways

- The sentence of 14 years resulted for a balancing by the Court of the established seriousness of the crime, Lubanga's indirect responsibility for it, and his cooperative and respectful conduct in the trial in the face of its length and delays. The Statute requires that sentences be reduced by time in detention.

- There was no charge of sexual violence against Lubanga, only a single charge of recruiting child soldiers. Although sexual violence frequently came up during the trial, the trial court said that there was no evidence that Lubanga knew that it was happening extensively during the recruitment.

- The trial court forced the Prosecutor to reveal improperly withheld evidence and refused to allow him to make his assertions of sexual violence a substitute for a formal charge and adequate evidence. It is clear that the ICC, contrary to American opponents' claims, will discipline prosecutors and hold them to account in trials.

- The case was delayed by the need for decisions, motions and appeals for the first time on unexpected technical and procedural gaps and surprises. A key outcome on this aspect of the trial is whether future trial courts will accept these decisions as settled precedents.