The Prosecutor v. Thomas Lubanga Dyilo

Court	International Criminal Court (Trial Chamber I), The Netherlands
Case number	ICC-01/04-01/06
Decision title	Decision on Sentence Pursuant to Article 76 of the Statute (Public)
Decision date	10 July 2012
Parties	The Prosecutor Thomas Lubanga Dyilo
Categories	War crimes
Links	Decision on Sentence pursuant to Article 76 of the Statute (Public)

Summary

The armed conflict in the Democratic Republic of the Congo opposed numerous tribes of different ethnicities in their struggle to gain power and territory, particularly over the Ituri province in the north-eastern part of the DRC, an area rich in natural resources such as gold and diamonds. One such group, the Union Patriotique des Congolais, was established in 2000 and appointed Lubanga as its chairman. He was also the commander in chief of the armed wing of the UPC, the Front Patriotique pour la Libération du Congo. This armed group was well known for its use of young children to participate in the hostilities, from fighting, to cooking, cleaning, spying, and being used as sexual slaves.

Lubanga was convicted by Trial Chamber I in the International Criminal Court’s first verdict for the war crime of conscripting, enlisting or using children under the age of 15 to actively participate in hostilities. He was sentenced to 14 years’ imprisonment on 10 July 2012, with credit for the 6+ years he had spent in detention in the Netherlands during his trial. In determining the appropriate sentence, the Court assessed the gravity of the crimes by considering the age and particular vulnerability of the victims. However, it also considered that Lubanga’s cooperation with the Court and respectful attitude even despite the Prosecution’s conduct merited mitigation.

Procedural history

In March 2004, the President of the Democratic Republic of the Congo (DRC) referred the situation in the State to the Prosecutor of the ICC.

On 10 February 2006, Pre-Trial Chamber I issued an arrest warrant for Lubanga for committing, as co-perpetrator, the war crime of enlisting and conscripting children under the age of 15 and using them to participate in hostilities as members of the armed group, the Force Patriotique pour la Libération du Congo.

On 16 March 2006, Lubanga was transferred to the ICC. The charges against him were confirmed on 29 January 2007 and the trial commenced on 26 January 2009.

Trial Chamber I delivered its verdict on 14 March 2012, convicting Lubanga of the war crime of conscripting and enlisting children under the age of 15 and using them to actively participate in hostilities.

The sentencing hearing was held on 13 June 2012 and Trial Chamber I delivered its verdict on 10 July 2012.

Related developments

Pursuant to the Rome Statute, those who have suffered injury or harm from a crime for which someone is convicted by the Court could receive restitution, compensation or rehabilitation.

Paolina Massidda, principal counsel of the ICC’s Public Counsel for Victims has said that reparations proceedings have begun with the judges requesting participants in the trial to provide observations on such matters as whether reparations should be awarded collectively or individually, to whom and how harm should be assessed (See IRIN, ‘DRC: Thorny Issue of Reparations for Lubanga’s Victims’, The Guardian, 12 April 2012; and ICC, Trial Chamber I: The Registrar’s Observations on Reparations Issues, 18 April 2012).

Both the Prosecution and Lubanga have a right to appeal. It is not yet clear whether either will do so. The Prosecution is currently weighing the merits of an appeal (see ICC, Office of the Prosecutor, ‘Statement of the Office of the Prosecutor on Lubanga Sentence’, 10 July 2012).

Legally relevant facts

In May 1997, President Kabila came to power in Zaire and renamed the state the Democratic Republic of the Congo (DRC). By the time of his assassination in 2001, at least ten conflicts ravaged the territory, with the majority taking place either in Ituri or in the district in which it is located (para. 70).

The conflicts in Ituri were initially economically motivated as the area is rich in resources (para. 71) until they progressed to ethnic hostilities between the principal tribes of the region, the Hemas and the Lendus (para. 74). Hemas were favoured by Belgium during its colonisation of the area, and remained the landowning and business elite (para. 74). Following an attempt by Hemas to evict Lendu inhabitants from their land, armed confrontation broke out. The Hemas received the support of the Ugandan army (UPDF), whilst the Lendus formed their own militias (para. 75).

The Union Patriotique du Congolais was created in 2000, with Lubanga as its President (para. 81). He remained commander-in-chief of its armed wing, the Front Patriotique pour la Libération du Congo (FPLC).

Lubanga is alleged to have conscripted, enlisted and used children under the age of 15 in the context of these hostilities (para. 91).

Core legal questions

What factors may be taken into account as part of the individual circumstances of the convicted person?
Can evidence related to sexual violence be taken into consideration as an aggravating factor despite that Mr Lubanga was neither charged with nor convicted of the crime of sexual violence?
To what extent does Lubanga’s cooperation with the court warrant mitigation at sentencing?

Specific legal rules and provisions

Articles 21(1), 76, 77, 78 and 81(2)(a) of the Rome Statute of the International Criminal Court.
Rule 145 of the Rules of Procedure and Evidence of the International Criminal Court.

Court's holding and analysis

Although Article 78(1) does not define the individual circumstances of the Accused that may be taken into consideration, the Chamber was guided by Rule 145(1)(c)’s reference to the age, education, social and economic condition of the convicted person (para. 54). Accordingly, Lubanga’s high level of intelligence and education meant that he would have had a marked awareness of the seriousness of his crimes (para. 55).

The Prosecution’s failure to charge Lubanga with rape or sexual violence does not preclude the Chamber from considering that activity in the determination of sentence. Pursuant to Rule 145(1)(c), it may be taken into account as evidence of the harm suffered by the victims, the nature of the unlawful behaviour and the circumstances in which the crimes were committed (para. 67). However, upon consideration of the evidence, the Majority concluded that the burden of proof could not be met (para. 74). Judge Odio Benito dissented (Dissenting Opinion of Judge Odio Benito, paras. 5-8).

The Chamber found that Lubanga’s respectful and cooperative attitude throughout the proceedings, notwithstanding the conduct of the Prosecutor including failure to disclose exculpatory material and his misleading public interview, is a mitigating factor (para. 91).

The Court sentenced Lubanga to 14 years’ imprisonment (para. 99) with credit for time served in the ICC’s Detention Centre in the Netherlands (para. 108).

Instruments cited

Rome Statute of the International Criminal Court, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 17 July 1998.
Elements of Crimes, Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First session, New York, 3-10 September 2002.