Thursday, July 12, 2012

Lubanga Sentenced to Fourteen Years: What Should the ICC Learn From His Case?

On Tuesday, July 10, 2012, the International Criminal Court (ICC) sentenced Thomas Lubanga, a Congolese warlord, to fourteen years in prison for the war crime of enlisting child soldiers under the age of fifteen.  The verdict comes after a controversial six-year proceeding delayed by the failure to disclose potentially exculpatory information by the former ICC Prosecutor, Luis Moreno-Ocampo, as well as accusations of testimony fabrication at the hands of prosecutorial intermediaries.
The prosecution contended that Lubanga was the leader of UPC and FPLC, ethnic militia groups active in the Ituri region in 1999, and that he personally took part in recruiting and training children to be used in active armed combat.  The defense adamantly questioned whether any of the thirty-six prosecutorial witnesses were actually child soldiers conscripted by Lubanga.  In fact, many who testified in open session did not link Lubanga directly to the military command of the militia. The only witness thought to have been a child soldier conscripted by Lubanga rescinded his testimony before the court, stating that the testimony he was due to give had been fabricated with the assistance of an intermediary of ICC prosecutorial investigators.  The defense also denied criminal responsibility by arguing that Lubanga did not have an active military part and instead, implemented children demobilization measures.  The Trial Chamber unanimously found Lubanga guilty of conscription and enlistment, whether coercive or voluntary, and of using child soldiers.

 On June 13, 2012, Lubanga spoke for the first time during his trial at the sentencing hearing before the Court.  Whereas the prosecution addressed the issue of the appropriate terms of years – with Moreno-Ocampo seeking the maximum sentence – and whether alleged sexual violence towards the children should be considered by the Court, neither Lubanga nor his defense team addressed the same.  As each of the three defense counsel approached the podium, the focus was on mitigating circumstances and witness credibility.  When Lubanga addressed the Court himself, his speech concerned the issues of adequate proof prompting Judge Fulford to note to defense counsel that the verdict had already been passed down, and Lubanga’s words would have been better suited during the course of the trial.  Lubanga gestured toward the public gallery, stating, “These people were not there,” and that the people of his village would have been better suited to judge him. 

For a brief moment, his words seemed convincing and rang true -- why should a panel of three judges, completely removed from the situation and the people, judge a man against whom the evidence is circumstantial?  Yet, the gravity of the accusation rendered any kind of justification senseless.  Whether purposeful or accidental, Lubanga knew that there were child soldiers under his command, and the Court found that he utilized their services.  His failure to address the purpose of the hearing – the term of years he should spend imprisoned for the crimes he was convicted of – demonstrated not only that he did not believe himself to be guilty, but that he felt no remorse.  Moreno-Ocampo recommended a reduced sentence of twenty years if Lubanga would apologize for his actions. However, Lubanga did not seem to even entertain the thought.

Lubanga was the first person tried by the ICC since its inception in 2002 under the 1998 Rome Statute.  The ICC is the world’s first permanent court with jurisdiction over serious international crimes such as genocide, war crimes, and crimes against the humanity.  The ICC is revolutionary in its approach to victim participation and recognition of individual criminal responsibility.  There are currently fifteen cases in seven situations pending before the ICC.  The Lubanga case exemplifies the issues the Court will have to work out in order to prove most effective; however, as a Court of complimentarity, the greatest hurdle is one of recognition.  States not party to the Rome Statute are not subject to the Court’s jurisdiction unless they willingly submit or are ordered to by the UN Security Counsel under Chapter VII powers, which makes the ICC a “court of last resort.”  The Lubanga sentence demonstrates the willingness of the Court to try and convict international criminals, but the effectiveness of the Court is yet to be determined as it lies in the hands of the international community.

Elena Gekker
Blogger, Criminal Law Brief

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  1. Great blog Elena, hopefully this court will bring others to justice who have in the past, perhaps gotten away with crimes.

  2. Well, that's another interesting part of how the ICC was set up. It can only prosecute for crimes committed after the State signed onto the Rome Statute, with the earliest being 1998. Which, in essence, overlooks any crime committed prior to that which is not already under the jurisdiction of any of the ad hoc and hybrid tribunals. And the question of the efficacy of ICC still stands. The US still has not ratified the Statute. And a permanent member of the UNSC, it is doubtful that the US would ever issue a Ch. VII Resolution mandating ICC jurisdiction onto itself. And if one of the most powerful nations refuses ICC jurisdiction, it doesn't give much faith to the endeavor. Similar to, in many ways, Wilson and the League of Nations. However, the crucial difference is this case and the fact that the ICC has the support of many other States. It'll be interesting to see what happens in the next 10 or so years especially when more trials are occurring.