In a December 3, 2012 application, International Criminal Court (ICC) prosecutor Fatou Bensouda asked appeals judges to raise the 14- year jail sentence for Thomas Lubanga, who last March became the first person to be convicted by the court. She did not recommend the number of years he should be given.
The prosecutor considered the 14 years to be "manifestly inadequate and disproportionate to the gravity of the crime." She argued that this sentence failed to give sufficient weight to the gravity of the crimes against children and the extent of the damage caused to victims and their families.
Moreover, the prosecutor claimed that the sentence failed to give sufficient weight to Mr. Lubanga's unlawful behavior, his degree of participation, and the means used to commit the crimes.
On March 14, 2012, Trial Chamber I presided over by Judge Adrian Fulford found Mr. Lubanga guilty as a co-perpetrator of recruiting, conscripting, and using child soldiers in the armed wing of the Union of Congolese Patriots (UPC). The judges found that these children were actively used in an armed conflict during 2002 and 2003 in the Ituri region of the Democratic Republic of Congo.
The former militia leader was sentenced to 14 years in jail, but since he had been in court detention for six years at the time of the sentencing, he will only have to serve around eight years. In determining the July 10, 2012 sentence, judges stated that they took into consideration the degree of participation of the convicted person; the degree of intent; the circumstances of manner, time, and location; and the age, education, social and economic condition of the convicted person.
Furthermore, judges took into account Mr. Lubanga's behavior and conduct throughout the trial which lasted nearly three years. They noted that "he was respectful and cooperative throughout the proceedings, even during times of unwarranted pressure."
In her appeal, the prosecutor claimed that besides failing to give sufficient weight to the gravity of the crimes, the trial chamber made two additional errors that should result in the upward revision of the sentence. First, it failed to consider as an aggravating circumstance the abuse of the authority and trust held by Mr. Lubanga.
Second, the majority of trial judges "erroneously required the Prosecution to prove Thomas Lubanga's criminal responsibility for aggravating factors for the purposes of sentencing to the same standard as if he were being convicted of those factors." As a result of this error, the prosecutor said, the majority refused to find that cruel treatment and sexual violence were aggravating factors that should increase the sentence.
Regarding the effect of Mr. Lubanga's crimes on victims, she noted that the child victims were particularly vulnerable and defenseless, they were separated from their families and communities, and their schooling was interrupted. Furthermore, they were "exposed to violence and fear; some were killed in battle, others wounded; during their military service, these former child soldiers abused drugs and alcohol and thereafter they suffered from post-traumatic stress disorder, depression, disassociation and suicidal ideation."
Ms. Bensouda stated that throughout a one year period, Mr. Lubanga made decisions on recruitment policy, actively supported recruitment initiatives, and personally encouraged children to join the army. She added that not only did he fail to cooperate with local and international actors on child protection to disarm or demobilize children under the age of 15, the group he led actively sought to impede their mission. She said Mr. Lubanga was even found to have used a "significant number" of children under the age of 15 in his own personal bodyguard unit, meaning his role was extensive.
The prosecutor also claims trial judges failed to take into consideration that the army included children as young as five and that Mr. Lubanga and other militia members "mounted pressurized recruitment campaigns" to force families to surrender their young children to the UPC armed forces.
While pointing to the inadequate sentence Mr. Lubanga received, the ICC prosecutor referred to sentences that the Special Court for Sierra Leone handed two individuals convicted of child soldier crimes. She said Issa Hassan Sesay, formerly a senior commander of the Revolutionary United Front (RUF), received a 50-year jail sentence, while Morris Kallon, also a commander in the group, received 35 years. Ms. Bensuouda's predecessor, Luis Moreno-Ocampo, had sought a 30-year jail term for Mr. Lubanga.
Mr. Lubanga's defense has lodged appeals against the conviction and the 14-year prison sentence. The defense has requested permission to provide additional evidence in support of the appeals.