Lubanga Sentenced to Fourteen Years

The first sentence of the International Criminal Court was handed down earlier this week. Thomas Lubanga was sentenced to fourteen years’ detention for child soldier offences. Judge Odio Benito, dissenting, would have imposed a sentence of fifteen years.

Service of the sentence is governed by article 110 of the Statute and Rules 223 and 224 of the Rules of Procedure and Evidence. Lubanga will be eligible for a reduction of his sentence once two-thirds of the term have been served. The Trial Chamber made very complimentary remarks about Lubanga’s behaviour during the trial, and everything would suggest him to be a model prisoner who will indeed be a fine case for release after two-thirds of the sentence is served. Accordingly, he would be released on or about 12 July 2015, that is, exactly three years from now.

Given that the judges at the ad hoc tribunals have fairly consistently rejected the notion that there is a hierarchy of offences in their statutes, it is interesting that the approach in this week’s decision is somewhat different. The judges seem to take the view that in the absence of significant mitigating or aggravating factors, a fourteen-year sentence is the appropriate term for such a crime. The Prosecutor, by the way, had asked for the maximum sentence of thirty years.

The Lubanga case is the first prosecution before a Court whose mission is to address ‘the most serious crimes of concern to the international community as a whole’. Imposition of the sort of sentence that domestic courts might give to a mid-level drug trafficker questions raise questions as to whether the case itself ever belonged before the Court at all. Here are some initial reflections:

1. Complementarity

As everyone knows, the International Criminal Court is to be complementary to national jurisdictions. When the arrest warrant was issued in February 2006, the Pre-Trial Chamber considered whether the Democratic Republic of the Congo was indeed willing and able to prosecute Lubanga. It concluded this to be the case. Lubanga had been in custody for many months in the Congo on charges of genocide and crimes against humanity. But then the Pre-Trial Chamber noted that he was not charged with child soldier offences, and concluded that the case was admissible.

This always seemed to be a rather artificial and mechanistic application of the Statute. After all, if the purpose of the exercise is to address impunity, why did the Court need to intervene if domestic courts were already pursuing a prosecution for serious international crimes. Indeed, genocide and crimes against humanity are arguably more serious than enlisting child soldiers. Is it really conceivable that a conviction for genocide would result in a fourteen-year sentence?

Lubanga did not contest his transfer to The Hague on grounds of inadmissibility. That has proven to be a rather wise decision. He avoided prosecution for genocide and crimes against humanity in the Democratic Republic of the Congo. Three years from now, he’ll be enjoying a rijstaffel and a Heinekin at a beachfront café in Scheviningen.

2. Gravity

At the same time as the Prosecutor was seeking the arrest warrant for Lubanga, on the child soldier charges, he issued a statement explaining why he did not think it appropriate to proceed with an investigation into atrocities committed by British troops in Iraq. Here is what he wrote:

After analyzing all the available information, it was concluded that there was a reasonable basis to believe that crimes within the jurisdiction of the Court had been committed, namely wilful killing and inhuman treatment. The information available at this time supports a reasonable basis for an estimated 4 to 12 victims of wilful killing and a limited number of victims of inhuman treatment, totaling in all less than 20 persons…

The number of potential victims of crimes within the jurisdiction of the Court in this situation – 4 to 12 victims of wilful killing and a limited number of victims of inhuman treatment – was of a different order than the number of victims found in other situations under investigation or analysis by the Office. It is worth bearing in mind that the OTP is currently investigating three situations involving long-running conflicts in Northern Uganda, the Democratic Republic of Congo and Darfur. Each of the three situations under investigation involves thousands of wilful killings as well as intentional and large-scale sexual violence and abductions. Collectively, they have resulted in the displacement of more than 5 million people. Other situations under analysis also feature hundreds or thousands of such crimes.

Taking into account all the considerations, the situation did not appear to meet the required [gravity] threshold of the Statute…

And child soldier offences warranting a sentence of fourteen years did meet this fabled gravity threshold? A single conviction of a single British soldier for a single wilful killing would have warranted sentence heavier than fourteen years.

The Lubanga sentence confirms the mythology of the International Criminal Court, whereby prosecutions in situations that threaten major powers are avoided while relatively insignificant cases in soft African targets attract the considerable resources of the institution.

3. Sexual assaults

There is a widespread view circulating by which the Lubanga trial did not deal with the real issue, which is sexual assault. Some critics will say Lubanga got off easily because of the Prosecutor’s reluctance to charge him with crimes of sexual violence. For the record, here is what this week’s decision says on the subject.

73. On the basis of the totality of the evidence introduced during the trial on this issue, the Majority is unable to conclude that sexual violence against the children who were recruited was sufficiently widespread that it could be characterised as occurring in the ordinary course of the implementation of the common plan for which Mr Lubanga is responsible. Moreover, nothing suggests that Mr Lubanga ordered or encouraged sexual violence, that he was aware of it or that it could otherwise be attributed to him in a way that reflects his culpability.

74. Although the former Prosecutor was entitled to introduce evidence on this issue during the sentencing hearing, he failed to take this step or to refer to any relevant evidence that had been given during the trial. As a result, in the view of the Majority, the link between Mr Lubanga and sexual violence, in the context of the charges, has not been established beyond reasonable doubt. Therefore, this factor cannot properly form part of the assessment of his culpability for the purposes of sentence.

4. The nature of child soldier offences

In determining the sentence, the Trial Chamber discusses the consequences on the lives of child soldiers in terms of disruption of family life, psychological damage and proneness to drug and alcohol addiction. It heard evidence from specialists who explained the harm done to children by their involvement in armed conflict.

This is a sensitive topic, and some may find the remarks that follow to be ‘politically incorrect’.

Don’t adult soldiers also suffer terribly from disruption of family life, psychological damage and proneness to drug and alcohol addiction? Is it really true that children suffer more, or in a special and unique manner, from being participants in armed conflict? I would like to know the answer to this based upon scientific research rather than clichés about vulnerable children.

In reality, it may well be that adult soldiers suffer more. Children are notoriously resilient. They can recover from abuse and transform their lives in behaviour in ways that adults cannot. Perhaps we are too uncritical in listening to experts, who are in fact child rights advocates, and their claims about the impact of war on child psychology.

To avoid misunderstanding, I am not suggesting that conscription and enlistment of children shouldn’t be prohibited. But I am inclined to think that conscription and enlistment of adults should also be a crime. Isn’t the logic the same?

5. Prosecutorial misconduct

The sentencing decision takes a bit of a gratuitous swipe at the Prosecutor, noting several instances of misconduct during the proceedings, including the famous interview by a senior official of the Office that was ‘misleading and inaccurate’. This is quite unique in criminal justice, to my knowledge. There is already considerable practice at the ad hoc tribunals where prejudice to the defendant by Prosecutorial behavior is taken into account in reducing sentence. But I am not aware of any situation where an inappropriate statement by the Prosecutor was considered a relevant factor in the reduction of the sentence.

6. Dissenting judgments in sentencing matters

Judge Odio Benito would have given Lubanga an extra year in prison. I suppose she was trying to make a point, but it seems rather silly to dissent on the quantum of such a sentence when only one year is concerned.

Sentencing dissents have always been a matter of some mystery. Dissents make sense on issues like guilt or innocence, or application of a legal norm, because there is an easy way to resolve a dispute in a three-judge panel. The majority prevails. And since the issue is always one of black or white, yes or no, there is inevitably a majority of two and a dissent of one.

But when sentence is concerned, what happens if the three judges each have different views? Suppose Judge Fulford had suggested Lubanga should get thirteen years, instead of fourteen. What then would have been the conclusion?

By insisting on her dissent, perhaps Judge Odio Benito effectively forced the other two judges to reach a consensus and thereby deprived them of the right to an individual opinion.

I’ve asked judges about this issue over the years, and they generally shrug their shoulders and say it is not a problem because two of the three always manage to agree. But if by some uncodified rule or practice two of the three judges must always reach consensus, why can’t we have an uncodified rule or practice by which all three have to agree?