Yesterday the ICC issued its first sentencing judgment. It sentenced Thomas Lubanga Dyilo to 14 years imprisonment for the crimes of conscripting and enlisting children under the age of 15 years into the FPLC and using them to participate actively in hostilities within the meaning of Articles 8(2)(e)(vii) and 25(3)(a) of the Statute from early September 2002 to 13 August 2003. The OTP issued a statement that can be accessed here. After studying the judgment, the OTP will make a decision on whether to appeal the sentence or not. This judgment is very important in that it lays the ground for other judgments at the ICC under Article 76 of the ICC Statute.
The full text of the judgment is available here (52 pages). Judge Odio Benito wrote a separate and dissenting opinion since she disagreed with the Majority’s decision to the extent that, in her view, it disregarded taking properly into account as aggravating circumstances the damage caused to the victims and their families, particularly as a result of the harsh punishments and sexual violence suffered by the victims of these crimes (see her 12 page dissent from page 40 of the judgment onwards).
In establishing the proper sentence to be imposed the majority considered as relevant factors: 1) the gravity of the crime; 2) the large-scale and widespread nature of the crimes committed; 3) the degree of participation and intent of the convicted person; and 4) the individual circumstances of the convicted person (paras. 45-56). As part of the aggravating circumstances the Chamber dealt with the issues of harsh conditions in the camps and the brutal treatment of the children (paras. 57-59); sexual violence (with some strong words of criticism towards the former Prosecutor for failing to apply to include sexual violence or sexual slavery at any stage during these proceedings – paras. 60-76); commission of the crime when the victims are particularly defenceless (paras. 77-78); discriminatory motives (paras. 79-81). The Chamber found that no aggravating factors were established by the OTP. As mitigating factors put forward by the Defence the Chamber considered necessity, peaceful motives and demobilisation orders (paras. 83-87); and his cooperation with the Court (paras. 88-91).
In explaining the legal framework applicable to sentencing, the Chamber held as follows (para. 29):
The legal framework applicable to the sentencing stage of the proceedings, applying Article 21(1) of the Statute, is set out in Articles 23, 76, 77, 78 and 81(2)(a) of the Statute and Rules 143, 145 and 146 of the Rules, and it is to be noted that none of these provisions limit the factors that are properly to be considered during sentencing to those described in the Confirmation Decision. Instead, Article 76(1) of the Statute establishes that when considering the “appropriate” sentence, the Trial Chamber “shall take into account the evidence presented and submissions made during the trial that are relevant to the sentence”. Pursuant to Article 76(2) of the Statute, the Chamber “may on its own motion, and shall, at the request of the Prosecutor or the accused, hold a further hearing to hear any additional evidence or submissions relevant to the sentence […]”. In the judgment of the Chamber, the evidence admitted at this stage can exceed the facts and circumstances set out in the Confirmation Decision, provided the defence has had a reasonable opportunity to address them.
Importantly, the Chamber did not follow the submission of the Prosecution that aggravating factors be established on a ‘balance of probabilities’, but demanded that they be proved by the Prosecution ‘beyond a reasonable doubt’ (paras. 32-33). The Chamber held that mitigating circumstances are to be established on a balance of probabilities (para. 34).
As expected, credit was given for the time already served by Lubanga since since his arrest on 16 March 2006.
