The International Criminal Court's sentencing on July 10, 2012, of Congolese rebel leader Thomas Lubanga to 14 years in prison for recruiting and using child soldiers sends an important message about the gravity of this crime, Human Rights Watch said.
The trial underscores the urgency of arresting Lubanga's co-accused, Bosco Ntaganda, and of prosecuting other crimes, including murder and rape, committed by his militia, Human Rights Watch said. Ntaganda continues to forcibly recruit children in eastern Democratic Republic of Congo.
"Lubanga's 14-year sentence demonstrates that recruiting and using child soldiers is a grave war crime that will be punished," said Géraldine Mattioli-Zeltner, international justice advocacy director at Human Rights Watch. "The International Criminal Court is putting military commanders around the world on notice that sending children into war could put them behind bars for a good while."
Lubanga is the former president of the Union of Congolese Patriots (UPC), a Congolese rebel group implicated in numerous grave human rights abuses. He was convicted by Trial Chamber I of the International Criminal Court (ICC) on March 14 of recruiting, enlisting, and using child soldiers in Ituri district in eastern Congo in 2002 and 2003. Human Rights Watch had urged the ICC Office of the Prosecutor to bring a broader set of charges against Lubanga to reflect the range of crimes committed by his troops in Ituri, including ethnic killings, torture, pillage, and widespread rape.
In announcing the sentence against Lubanga - the first sentence handed down by the ICC, Presiding Judge Adrian Fulford stated that the recruitment and use of child soldiers are "undoubtedly serious crimes that affect the international community as a whole." He said that the "vulnerability of children means that they need to be afforded particular protection" from the risks associated with warfare. Fulford recalled expert testimony during the trial about the psychological trauma for child soldiers who have been exposed to violence, separated from their families, and deprived of an education.
Judge Fulford said that the court considered a number of other factors in reaching its sentence. These included "the nature of the unlawful behavior and the means employed to execute it," "the degree of participation and intent" of the defendant, as well as his age, education, and personal circumstances, and several aggravating and mitigating circumstances that had been put forward by the parties. Under the Rome Statute, which created the ICC, the judges have discretion to determine sentences.
The court did not accept any of the aggravating factors put forward by the prosecution. It declined to consider sexual violence against girl child soldiers under 15 as an aggravating circumstance in the sentencing because the prosecution failed to prove the prevalence of the crime and Lubanga's responsibility for it. The court noted in strong terms that the prosecution had not brought charges of sexual violence against Lubanga.
As a mitigating circumstance in the sentence, the court said that Lubanga had been respectful and cooperative during his trial, "notwithstanding some particularly onerous circumstances," including two stays of the proceedings due to the prosecution's failure to disclose evidence to the defense and to comply with court orders to disclose other information. The court did not find it appropriate to impose a fine against Lubanga given that he is indigent.
Lubanga was sentenced to 13 years for conscripting children under 15, to 12 years for enlisting them, and to 14 years for using them to participate actively in hostilities. The joint sentence is 14 years.
Both the prosecution and the defense can appeal the sentence if they consider that it is not proportionate to the gravity of the crimes for which Lubanga was found guilty. In accordance with the Rome Statute, the judges ordered that the six years already spent by Lubanga in detention be deduced from the sentence.
The ICC's public information and outreach unit should make all necessary efforts to explain Lubanga's sentence to communities most affected in eastern Congo, Human Rights Watch said.
"That the judges did not follow the prosecutor's call for the maximum penalty of 30 years in no way diminishes the gravity of recruiting child soldiers," Mattioli-Zeltner said. "Lubanga's sentence is an important step forward, but meaningful accountability for the atrocities in Ituri demands, evidence permitting, the prosecution of officials in Congo, Rwanda, and Uganda who armed, financed, and directed the militias that carried out widespread massacres, torture, and rape."
Ntaganda, Lubanga's co-accused, remains at-large. Ntaganda was chief of military operations in Lubanga's UPC in Ituri and has been wanted by the ICC since 2006 on charges of recruiting and using child soldiers in hostilities in 2002 and 2003. Ntaganda left Ituri and moved to North Kivu province, eastern Congo, where he has continued to be involved in grave human rights violations. In 2009, as part of a peace settlement involving his then-rebel group, he was made a general in the Congolese army.
In March, however, Ntaganda deserted the Congolese army and began a new rebellion. Human Rights Watch documented his renewed involvement in the recruitment of boys in North Kivu - the very crime for which he is wanted by the ICC - in April and May. On May, 15, 2012, the ICC prosecutor requested a second arrest warrant against Ntaganda for murder, pillage, and rape allegedly committed while he was with Lubanga's UPC in Ituri. Seeking additional charges against Ntaganda is an important step to bring justice for the victims of other horrific crimes committed by Lubanga's militia, Human Rights Watch said.
On June 29, a United Nations group of experts published a report with an addendum that described Rwandan military officials providing Ntaganda and his rebels, known as M23, with weapons, ammunition, and recruits. In the past week, M23 has taken control of several towns and villages in Rutshuru territory, eastern Congo.
"Rwanda should take seriously the ICC's conviction of Thomas Lubanga and the arrest warrant for his co-accused, Bosco Ntaganda," Mattioli-Zeltner said. "The Rwandan government should immediately take action to stop any and all support by its military to an ICC war crimes suspect and work with the Congolese government to bring Ntaganda to justice at the ICC."
July 1 was the 10th anniversary of the International Criminal Court. While some critics have noted that the court has only convicted one person in its first decade, the court's docket extends well beyond this case with another trial completed and awaiting verdict, another one under way, and two more to start in coming months.
The Office of the Prosecutor has investigations open in seven situations and has brought 15 cases involving 28 people, among whom three are sitting or former heads of state. The ICC needs full cooperation from countries around the world to ensure that outstanding arrest warrants are executed so that it can carry out its justice mandate, Human Rights Watch said.