12 June 2012

Congo-Kinshasa: Lubanga Defense to Call Two Witnesses At Sentencing Hearing

Photo: ICC-CPI/Hans Hordijk
Thomas Lubanga at his first appearance before the ICC in March 2006.

At his sentencing hearing on Wednesday this week, former Congolese militia leader Thomas Lubanga will produce two witnesses to provide testimony that he hopes could convince judges to hand him a lighter sentence. The witnesses will testify via video link from the Democratic Republic of Congo (DRC).

In a ruling dated June 11, 2012, International Criminal Court (ICC) trial judges granted the accused permission to call the two witnesses, as well as to introduce two documents. The judges said those documents "are potentially relevant to his evidence, given they tend to prove his civil status and age at the time of the events in question."

One of the documents is potentially relevant to the issue of whether Mr. Lubanga spent a period of time in custody in DRC before being transferred to The Hague. The defense argues that the time the accused spent in custody in the Congolese capital before being transferred to the ICC detention center should be deducted from any sentence of imprisonment that is imposed, pursuant to Article 78(2) of the Rome Statute. In permitting the defense to introduce this document into evidence, judges noted that the final determination of its probative value and relevance would be determined in due course.

The sentencing hearing for Mr. Lubanga - who was last March found guilty of three war crimes - will be held this Wednesday, with the prosecution making submissions first, followed by legal representatives of victims and finally the defense. Last week, the defense asked judges for permission to present evidence during the sentencing hearing, and suggested to call the two witnesses.

The defense submitted that the first proposed witness, DOl-0039, would give evidence on initiatives by Mr. Lubanga to establish peace in Congo's Ituri region at the height of the conflict, the assistance provided by the accused to all ethnic groups between 2002 and 2003, and the scope of the relevant crimes. The second witness, DOl-0040, would provide evidence on the assistance Mr. Lubanga gave to various ethnic groups, as well as on the scope of the charges.

Judges ruled that the evidence of the two proposed witnesses was prima facie relevant to the issues that are to be addressed during the sentencing hearing, pursuant to Article 78(1) of the Statute and Rule 145 of the Rules of Procedure and Evidence. "Their testimony is potentially of assistance as regards the various aggravating or mitigating factors relevant to the sentence to be imposed," the judges stated.

Article 78 (1) provides that in determining the sentence, the court shall take into account such factors as the gravity of the crime and the individual circumstances of the convicted person. Article 78 (2) states, "In imposing a sentence of imprisonment, the court shall deduct the time, if any, previously spent in detention in accordance with an order of the court. The court may deduct any time otherwise spent in detention in connection with conduct underlying the crime."

In determining the appropriate sentence, Rule 145 requires the court to consider and balance numerous other factors, including the culpability and degree of participation of the convicted person, the circumstances of the person and the crimes, the harm caused to the victims and their families, and appropriate aggravating and mitigating factors.

Prosecutors did not oppose the defense request to call the two witnesses at the sentencing hearing but objected to introduction of documentary evidence that they considered irrelevant to the case. Legal representatives of victims opposed the admission of any additional evidence, as they considered that this could substantially alter the subject matter of the sentencing hearing. In their submission, they stated that any additional evidence would need to be tested, including by way of rebuttal witnesses called by the prosecution.

Furthermore, the legal representatives submitted that the new testimony may affect the interests of the victims and suggested that they should be permitted to request leave to examine the relevant witnesses.

In a sentence request filed last month, the ICC prosecutor asked judges to hand down a "very severe" sentence to the former rebel leader who they say conscripted, recruited, and used child soldiers in the armed wing of the Union of Congolese Patriots (UPC) political group that he led. The crimes were reportedly committed during the armed conflict in Congo's Ituri region.

It is anticipated that legal representatives and the prosecution will question the two witnesses during the sentencing hearing that is scheduled to last two days.

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