Congo-Kinshasa: Does Ntaganda Deserve the Maximum Sentence At the ICC?

Bosco Ntaganda
opinion

Does Bosco Ntaganda deserve the maximum sentence the International Criminal Court (ICC) can hand down? The court's prosecutor wants the former rebel commander jailed for 30 years, while a lawyer representing victims wants judges to lock him up "in perpetuity."

For its part, the defense argues that although the 45-year-old was convicted for many crimes of high gravity, the limited level of his participation in the crimes warrants a sentence lower than 30 years in prison.

Defense lawyer Stéphane Bourgon argues that individuals previously sentenced to life imprisonment, or to terms longer than 20 years, committed far graver crimes than those for which Ntaganda was convicted last July. He claims those individuals had a more direct involvement in committing the crimes relative to Ntaganda.

According to Article 77(a) of the court's statute, a convicted person may be imprisoned for a period not exceeding 30 years. Meanwhile, Article 77(b) states that a term of life imprisonment may be imposed when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.

Bourgon says the trial chamber found that, in one of two military operations over which it convicted Ntaganda, there were 11 murders, an unspecified number of other killings, and six rapes. He adds that, in the second operation, in which Ntaganda had less involvement, the judges found that there were 62 murders, nine rapes, an unspecified number of other rapes, and four attempted murders.

He argues that, in determining Ntaganda's sentence, judges should study how other international courts and tribunals assessed the gravity and the sentences imposed for various crimes. Accordingly, the defense submitted at the sentencing hearing the following cases from the International Criminal Tribunal for the former Yugoslavia (ICTY) of individuals it says committed much graver crimes and had a greater degree of participation and intent than Ntaganda, but received a life sentence or lower.

In the case of Vujadin Popović and others involving a Srebrenica execution, where 5,336 murders found [PDF] beyond a reasonable doubt, plus a finding of genocide, a life sentence was imposed.

In the case against Milomir Stakić, judges determined that there were 1,500 murder victims. Stakić's initial sentence of life was reduced to 40 years.

Dragomir Milošević, who commanded the Sarajevo forces for the siege of Sarajevo, was sentenced to 33 years - reduced to 29 years on appeal - yet judges found that over a 15-month tenure as commander in Sarajevo, at least 95 persons were killed, and that in one month only of the 15, there were 70 people killed.

Stanislav Galić, also for the siege of Sarajevo, where thousands of people were injured and hundreds of civilians killed, was initially given a 20-year sentence, which was then increased to life imprisonment on appeal.

Milan Lukić, found to have been a direct perpetrator in the killing of 132 persons, was given a life sentence.

At a sentencing hearing last month, the prosecution sought a 30-year prison sentence for Ntaganda. It said this sentence would be proportionate to the extreme gravity of the convicted crimes and reflect the degree of Ntaganda's culpability as a direct perpetrator of murder and persecution; and as an indirect perpetrator of several other crimes. The defense has countered that Ntaganda was found guilty for killing one person himself and ordering the killing of four others.

Victims' lawyer Sarah Pellet asked judges to hand Ntaganda 18 years for conscripting children, 18 years for enlisting children, 20 years for involving children in armed conflict, 20 years for rape, and 30 years for sexual slavery of child soldiers.

Another lawyer for victims, Dmitri Suprun, proposed a minimum of 20 years for each individual crime convicted, except for murder, rape, and sexual slavery, for which he suggested an individual sentence of 30 years. He proposed a life sentence, noting the extreme gravity of Ntaganda's crimes, existence of several aggravating circumstances, and the need to punish and dissuade similar crimes.

Suprun said deterrence is particularly relevant today for hundreds of thousands of civilians in Ituri and North Kivu, "who many years on are still suffering very seriously from the multiple crimes committed by rebel military groups similar to those of the UPC/FPLC in conditions of complete impunity."

Having been convicted of the largest number of crimes at the ICC so far (a total of 18), and some of the gravest, Ntaganda will likely receive a sentence higher than any handed out by the ICC.

Thomas Lubanga was sentenced to 14 years following conviction as a co-perpetrator in enlisting and conscripting children under the age of 15 and using them in hostilities. Germain Katanga was handed 12 years for murder, attack against a civilian population, destruction of property and pillage during one attack on a single village, which lasted one day. His sentence was reduced by three years and eight months due to his cooperation with the court and after he expressed remorse for his crimes.

Meanwhile, Ahmed Al Faqi Al Mahdi, who convicted on his own guilty plea, received a nine-year prison sentence over his conviction on the single war crime of destroying historic and religious monuments. Jean-Pierre Bemba, who had been convicted on five counts of rape, murder, and pillaging, was sentenced to 18 years but his conviction was overturned on appeal.

Article 110(3) provides that when a person has served 25 years of a life imprisonment, the court shall review the sentence to determine whether it should be reduced. Reasons for reductions include cooperation with the court's investigations and prosecutions, and assistance in enabling the enforcement of court judgements and orders in other cases, including in locating assets subject to orders of fine, forfeiture, or reparation.

Bourgon says "equality of sentences" is very important and should the trial chamber consider the possibility of imposing a life sentence on Ntaganda, this would remove discretion from ICC judges to adjudicate and punish crimes that are more serious and of much larger scale.

Judges will deliver the sentence on notice. Ntaganda is meanwhile appealing his conviction.

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