Lubanga Sentenced to Fourteen Years

by Kevin Jon Heller

Thomas Lubanga Dyilo, the first person convicted at the ICC, has been sentenced to fourteen years in prison.  From the Court’s press release:

Today, Trial Chamber I of the International Criminal Court (ICC) sentenced Thomas Lubanga Dyilo to a total period of 14 years of imprisonment. The Chamber, composed of Judge Adrian Fulford, Judge Elizabeth Odio Benito and Judge René Blattmann, also ordered that the time from Mr Lubanga’s surrender to the ICC on 16 March 2006 until today should be deducted from this sentence. Mr Lubanga Dyilo was found guilty, on 14 March 2012, of conscripting and enlisting children under the age of 15 and using them to participate in hostilities in the Ituri region in the Democratic Republic of the Congo, from 1 September 2002 to 13 August 2003.

Readers can find an excellent summary of the decision at IntLawGrrls here.  Fourteen years seems about right given the relatively unserious nature of the war-crimes charges against Lubanga (compared to things like murder and rape), although the sentence no doubt comes as a disappointment to the OTP, which asked for 30 years.  Lubanga’s six-year incarceration means that he will be a free man at a relatively young age; in fact, pursuant to Article 110(3) of the Rome Statute, the Court will review his sentence for possible reduction in just five years.

Scholars and NGOs have consistently criticized Moreno-Ocampo for not charging Lubanga with more serious crimes.  Indeed, because Lubanga was facing much more serious charges in the DRC — genocide and crimes against humanity, including murder — I cite his case in a recent article as a primary example of why the ICC’s “same conduct” test for complementarity is counterproductive.  The traditional defense of Moreno-Ocampo’s decision was that the conscription and enlistment charges were relatively easy to prove, making it likely that the trial would result in a quick and unproblematic conviction.  As regular readers know, reality proved to be far messier (see, for example, here and here).

I wonder whether Moreno-Ocampo is regretting his decision not to pursue more serious charges…

http://opiniojuris.org/2012/07/10/lubanga-sentenced-to-14-years/

7 Responses

  1. To give some perspective on the 14 year sentence: a study I’ve just completed on sentencing of Somali pirates under international law finds that the average sentence in cases around the world is around 16 yrs. 

    If Lubanga is released after serving 2/3 of his sentence, he will have been jailed for less time than the ICC has been around. 

  2. Krstic got 35 years (after an Appeals Chamber reduction) for being criminally responsible for the deaths of 7-8 thousand and the forcible transportation of another 25 thousand. The average sentence at the ICTY (if convicted) was 17.4 years, but this also generally involved the deaths of dozens to hundreds of civilians.

    How does one compare that with 14 years for recruiting and using child soldiers?

    There is something wrong with the whole sentencing structure of international tribunals.

  3. Eugene,

    That’s a very cool project — I’m amazed you could get the data.  But I’m not surprised that pirates tend to get long sentences; domestic courts tend to impose considerably longer sentences than international courts, even when they are applying international law.  (Something I discuss at length in my sentence-based complementarity essay.

    Stuart,

    Yep, there is something wrong.  But I think the ICC got it right here — if 30 years is the maximum sentence for any crime, absent exceptional circumstances, it would have been retributive folly to follow the OTP and sentence Lubanga to 30 years for a crime that does not necessarily even involve physical violence.  If his charges deserved 30 years, what charges wouldn’t?  (And to be clear, I’m not suggesting you think Lubanga should have got more.)

  4. I don’t think I know yet what the optimal sentencing regime would be, but I asked my ICL students last semester what sentence Lubanga should get (after we read the judgment summary), and almost the entire class said life.  In fact, several students student said that anybody convicted of any form of genocide, CAH or war crimes should automatically get life.

    I was a bit taken aback at first, but I was hard pressed to come up with reasons my students found convincing for why any serious violation of ICL should not warrant a life sentence.

  5. “[F]or a crime that does not necessarily even involve physical violence”

    I don’t mean to be glib Professor Heller, but doesn’t the word “soldier” imply the substantial risk of being subjected to physical violence?

    The piracy comparison is interesting.  But I wonder what the typical sentence would be in domestic court for kidnapping one child and exposing him or her to bodily harm.  

  6. NL,

    I completely agree that being a child soldier can — and usually does — involve the risk of violence.  But the act of recruitment itself does not have to involve violence (although it often does).  That was my poorly expressed point.

  7. Professor Ford – I’m curious what sort of reasons you tried to give for this deserving less than life in prison.  Running through the standard rationales (at least that I remember learning two years ago)

    From a rehabilitation point of view it seems unlikely that someone who commits one of these crimes can be reformed and become a regular member of society again.  
    From an preventive point of view – they are likely enough to still have a power base after getting out and thus could revert to their old evil ways.
    From a deterrence point of view – the international tribunals don’t try too many cases and they each take a long time, so you’d want them to make a splash if they are going to really deter anything.  (I’m not saying the ICC is useless, but you have to admit it tries a relatively small number of crimes compared to domestic courts).
    From a retributive point of view – I think the comparison to domestic tribunals is useful here since that is how we can get a sort of “conversion factor” between crimes and punishment.

    It seems to me that any argument that the punishment should be less than life in prison must somehow rely on the special nature of international tribunals.  All I can think of is that maybe they have a harder time getting accurate evidence so you are worried that the conviction may be a false one – but that doesn’t seem very convincing to me (though please correct me if I’m missing something).

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