Breaking: Lubanga Convicted by the ICC

by Kevin Jon Heller

From AllAfrica.com:

Today, International Criminal Court (ICC) judges in The Hague delivered the Court’s first verdict—a finding of guilt against former Congolese warlord Thomas Lubanga.

Prosecutors accused Lubanga of the war crimes of conscripting, enlisting, and using children under the age of 15 years for combat purposes while he served as political head of the Union of Congolese Patriots (UPC) rebel group in the Ituri region of the Democratic Republic of Congo (DRC). Lubanga denied all allegations against him, insisting that he gave orders for children not to be involved in combat and that prosecutors had influenced witnesses to lie against him.

The ICC judges ruled that the prosecution proved beyond reasonable doubt that Lubanga is guilty of the crimes charged. Judge Adrian Fulford, Presiding Judge of the Trial Chamber, in delivering the verdict said that there was reasonable evidence to believe that Lubanga was involved in a recruitment drive for his UPC rebel group and that such drive included conscripting children and using them for combat purposes. The judges also found that Lubanga personally used children as his bodyguards.

The judges agreed with the defense on allegations that the prosecution had delegated its investigations to local intermediaries in the Democratic Republic of the Congo and that these intermediaries manipulated and influenced some witnesses to lie against Lubanga. The evidence of these prosecution witnesses were in doubt and were therefore disregarded by the judges. On the strength of other prosecution evidence, including a video footage of Lubanga addressing children at a UPC training camp, the judges found that Lubanga is guilty of the charges against him.

The verdict is not particularly surprising: the evidence against Lubanga was overwhelming, and the OTP — for reasons that still have never been adequately explained — declined to bring more serious charges against him, even though he had been facing murder and torture charges in the DRC.  It is good news, though, that the verdict was unanimous; more than one insider predicted that Judge Fulford would dissent.  (Note, though, that there is a separate opinion by Judge Fulford and a dissenting opinion on a point of law that does not affect Lubanga’s criminal responsibility by Judge Benito.)

Of course, no ICC prosecution would be complete without at least something that makes Luis Moreno-Ocampo look bad.  The OTP handled the intermediaries terribly, at one point raising the specter of Lubanga being released.  I’m glad that the Court did not take such a drastic step — but I’m also glad that it acknowledged that the intermediaries deliberately encouraged witnesses to perjure themselves.  That is a clear indication the judges took the defense’s arguments seriously.

Lubanga’s sentence will be imposed at a later date.  Most articles say that he could receive a life sentence, but I don’t think that’s true.  According to Article 77 of the Rome Statute, the maximum penalty for an ordinary crime is 30 years imprisonment, with a life sentence being possible only “when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.”  To sentence Lubanga to life imprisonment for a crime that does not even require death would set a very bad precedent; if recruiting child soldiers is so grave as to justify a life sentence, what international crime would deserve a lesser sentence?

In any case, it’s very unlikely that Lubanga will receive even the maximum sentence for an “ordinary” crime. A good friend has guessed that he will be sentenced to 10 years; I’m guessing 15.  Readers, shall we start a pool?  The winner will receive an official OJ coffee mug — on the condition that the blog ever commissions one.

Congratulations, ICC!

PS. You can download the judgment here — all 650+ pages of it.

http://opiniojuris.org/2012/03/14/breaking-lubanga-convicted-by-icc/

7 Responses

  1. It is pretty incredible just how many gaffes the trial had – and how many times this day was in danger of never coming because of the prosecution playing fast-and-loose with the law. Anyhow, I think any assessment of the ruling will have to wait for sentencing. If Lubanga’s sentenced to 10 years, he’ll walk in three (he’s served 7 already). Things are tense, from what I gather, in Eastern DRC and people are waiting on the sentence. So before anyone goes celebrating the justice of this verdict, let’s wait and see what sentence is delivered. That being said, hopefully this shifts the discussion on the conscription and use of child soldiers away from the distilled and diluted understanding offered by ‘Kony2012′.

  2. Hear, hear.

  3. I would like to see time served, but it will probably be closer to what you and Mark are saying.

    Kevin, I find you a little lenient on the judges when you say that they listened to the defense. Big deal that the Prosecutor got yet another slap on the wrist. We need to see some more from the judges when faced with such conduct from the OTP. As much as I think that the ICTY is a little trigger-happy with the contempt proceedings, I’m thinking that the ICC judges consider that articles 70 and 71 are just there for decorative purposes. It’s about time they used them!

    Other than that, I’ve read through a little more than half of the judgment (it’s length is ridiculous…) and am posting comments on the various issues in a more or less systematic way on my blog (first and second post). Opinio Juris readers should feel free to butt in with comments of their own.

  4. Kevin, I’d have to agree on the 10-15 years estimate. The judges will want to give themselves room to move for future sentencing decisions, so certainly won’t go all out on this sentencing, even though it is the first one- especially given that it is only one charge! I’ll go with 12 years, including time served, giving Lubanga another 5 years in prison. They won’t want him out too quickly, as to have him released only a year or two after the verdict would damage the ICC’s credibility- sentencing a war criminal only to release him almost immediately!? Something tells me that the Congolese don’t want to see Lubanga ‘back on the streets’ just yet…

  5. @Mel – just on your last point, I really don’t think Lubanga would go back to the DRC regardless of the sentence. When he was first arrested in the country, he faced charges for (if I remember correctly) rape and murder. If he went back, I would imagine they’d arrest him immediately, especially given the fact that the ICC’s charges are myopically focused on his conscription and use of child soldiers.

  6. Dov, there might be a disciplinary proceeding under the blanket concerning Steven Kay QC in the Kenyan Uhuru Kenyatta case. His – IMO severe – public transgression was all over the papers. But it would belong before the disciplinary committee rather than before a chamber.
     

  7. The Washington Post reports that Ocampo says he is going to seek “close to the maxium sentence”…
    And yet again, the accusations of politicisation of the Court…

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