12 August 2017

Congo-Kinshasa: Judges to Conduct Another Review On Reducing Lubanga's ICC Sentence

Photo: ICC-CPI
Thomas Lubanga Dyilo court for his sentencing hearing on July 10.

Judges at the International Criminal Court (ICC) have initiated a second review on the possible reduction of the prison sentence of Thomas Lubanga, the first person to be tried and convicted by the court.

The upcoming review follows an initial review conducted in 2015, when judges declined to reduce the sentence, which could have resulted in an early release for the former Congolese rebel leader. At the time, the judges determined that there were no factors in favor of Lubanga's release, having found no evidence that he had genuinely dissociated from his crimes. Furthermore, the judges ruled that there was no indication of any significant action taken by Lubanga for the benefit of victims of his crimes.

Lubanga was convicted in Mach 2012 over the use of child soldiers in the Union of Congolese Patriots (UPC) militia. In July 2012, the Court sentenced Lubanga to 14 years imprisonment. Prior to sentencing, Lubanga had been detained at the ICC detention center in The Hague since March 2006. Since December 2015, he has been serving his sentence from a prison in his home country, the Democratic Republic of Congo.

Article 110 of the court's founding law, the Rome Statute, provides for a sentence review when a convicted person has served two-thirds of his sentence. As of July 16, 2015, Lubanga had served two-thirds of his sentence, which made him potentially eligible for early release.

When judges declined to reduce his sentence in September 2015, they determined that the next review would be conducted in two years. According to Article 110(5), when the court determines in its initial review that it is not appropriate to reduce the sentence, another review shall be conducted at a later time.

In an order issued this week, appeals judges asked Lubanga, the prosecution, victims' lawyers, the Registrar, and the Congolese government to make written submissions on the possible reduction of Lubanga's sentence. The judges stated that the review would be limited to judges' consideration of "whether there has been any significant change in circumstances since the date of the first sentence review decision." Accordingly, any submissions should only address the period since the decision on the first sentence review in 2015.

The submissions should relate to Lubanga's willingness to cooperate with the court in its investigations and prosecutions and his voluntary assistance in enabling the enforcement of the judgments and orders of the court in other cases, including those that may benefit victims.

The Congolese government and the Registrar have to file submissions by September 4. Lubanga, the prosecution, and the legal representatives for victims have a deadline of September 11. The defense, the prosecution, and the victims' lawyers will submit written responses to other parties' filings by September 18. Judges will thereafter issue the decision "as soon as possible."

In an address to judges who conducted the initial review of his sentence, Lubanga pleaded to be granted early release, promising to promote reconciliation and announcing plans to do doctoral studies into the psycho-sociological determinants of conflicts in Congo.

In its submissions, the prosecution said Lubanga did not qualify for early release because he had not cooperated with the court and was completely indifferent to victims during the trial and after. He further failed to show dissociation from the crimes he was convicted of, as evidenced in allegations of witness interference in the case against Bosco Ntaganda.

Judges at the ICC have previously conducted a sentence review for the former Congolese rebel commander Germain Katanga whose 12-year prison sentence was reduced by three years and eight months in November 2015. Katanga was to be released from ICC detention in January 2016. However, in December of 2015, Katanga and Lubanga were both transferred to Congo and Katanga has since been on trial in a local court for crimes different from those for which he was found guilty at the ICC. In reducing Katanga's sentence, the ICC judges noted that he had decided not to appeal his judgment and accepted the ICC's verdict and sentence. They also found that Katanga's genuine dissociation from his crimes and his early and continuing cooperation with the court warrant a "substantial" reduction of his sentence.

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