Lubanga Sentenced to Fourteen Years

Lubanga Sentenced to Fourteen Years

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…

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Eugene Kontorovich

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. 

Stuart Ford

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.

Stuart Ford

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.

Non liquet
Non liquet

“[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.  


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… Read more »