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