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
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:
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.
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
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
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
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
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
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?