In an historic moment for the International Criminal Court (ICC), Thomas Lubanga became the first person convicted by the Court. Lubanga was found guilty of enlisting and conscripting child soldiers in an armed conflict on the side of the Union of Congolese Patriots (UPC) in the Democratic Republic of Congo and sentenced to fourteen years’ imprisonment. While both the defense and the prosecution are appealing the sentence, the ICC’s verdict and sentencing in Lubanga’s case is a landmark that monumentally bolsters the accountability of the court. However, a fight over the conviction and the sentencing procedure could have serious consequences for not only the other Congolese nationals currently still on trial at the ICC but also for all future cases brought against alleged perpetrators of war crimes.
Following Lubanga’s March 14, 2012, conviction, at the request of the defense and pursuant to the Rome Statute Article 76(2), the Trial Chamber held a separate sentencing hearing. On July 10, 2012, at the conclusion of the hearing, the ICC Trial Chamber I sentenced Lubanga. The time from Lubanga’s arrest on March 16, 2006, until the date of his sentencing was deducted from his sentence, resulting in less than eight years’ further imprisonment for his crimes. Lawyers on both sides of the judgment are not satisfied with the Chamber’s decision. On October 3, 2012, Lubanga’s lawyers filed both a notice to appeal the guilty verdict and a notice of intent to have his sentence canceled or reduced. On the same day, the prosecution likewise informed the Chamber of its intent to appeal the sentence seeking a harsher punishment.
In the Chamber’s sentencing decision analysis, it looked to the applicable articles of the Rome Statute as well as the Rules of Procedure and Evidence for guidance. Specifically, Article 76(1) of the Statute states that the Trial Chamber shall decide the appropriate sentence, taking into account “the evidence presented and [the] submissions made during the trial that are relevant to the sentence.” Article 77(1) allows for sentencing up to a maximum of thirty years except in cases when a term of life imprisonment is “justified by the extreme gravity of the crime and the individual circumstances of the convicted person.” Most importantly, Article 78 together with Rule 145 gives guidelines for determining sentences. Article 78(1) says the sentence must take into account “the gravity of the crime and the individual circumstances of the convicted person.” Rule 145(1)(a) and (b) state that the sentence must reflect the culpability of the convicted person and the Chamber needs to balance all of the relevant factors including aggravating factors and mitigating circumstances.
In applying these guidelines, the Trial Chamber identified six relevant factors that they took into account in determining Lubanga’s sentence: the gravity of the crime and resulting damage, the large-scale and widespread nature of the crimes, the degree of participation and intent of the convicted person, the individual circumstances of the convicted person, aggravating circumstances, and mitigating circumstances. The Trial Chamber found that while the involvement of children was widespread, the Chamber could not conclude beyond a reasonable doubt that a precise number or proportion of the recruits were under the age of fifteen. The Trial Chamber found that as President and Commander-in-Chief of the UPC, Lubanga encouraged children to enlist and even personally employed bodyguards under the age of fifteen. Additionally, the Trial Chamber determined that Lubanga, an intelligent and well-educated person, understood the seriousness of the crimes committed. The Trial Chamber considered several claims of aggravating circumstances presented by the prosecution, including punishment of the children while under Lubanga’s control, alleged sexual violence against the child soldiers, and commission of the crime when the victims were particularly defenseless, but each was dismissed. Finally, although the Trial Chamber accepted Lubanga’s cooperation with the Court as a mitigating factor, the Chamber dismissed the defense’s argument that Lubanga’s actions during the conflict were necessary to achieve demobilization and peace. Taking these factors into account, the Trial Chamber decided on a sentence of fourteen years.
Article 81 of the Rome Statute stipulates the grounds for appeal of a conviction or sentence. Lubanga may appeal his conviction on the grounds of procedural error, error of fact, error of law, or on a ground of unfairness or unreliability of the proceedings or decision. According to Article 81(2), however, either side may appeal a sentence if it is disproportionate to the crime. A reversal of Lubanga’s landmark conviction or a reduction of his sentence would likely raise human rights concerns about the ICC’s ability to achieve accountability for victims and to eliminate impunity. However, an increase in his sentence may also raise concerns of overly harsh punishments especially in setting precedent for future sentencing, including those for convictions for genocide and crimes against humanity.