Trial Chamber I of the International Criminal Court sentenced Thomas Lubanga Dyilo to fourteen years in prison, less the time from his surrender to the ICC (on March 16, 2006) until today. He was convicted of conscripting and enlisting children under the age of fifteen and using them to participate in hostilities in the Ituri region of the Democratic Republic of the Congo.
The prosecution argued that the Chamber was required to take into consideration facts and circumstances beyond those in the charges, while the defense argued that the matters the Chamber could take into account were limited by the Decision on the Confirmation of Charges. The Chamber concluded that evidence admitted for consideration at the sentencing stage could exceed the facts and circumstances set out in the confirmation decision, provided the defense had a reasonable opportunity to address that evidence.
The prosecution asserted that aggravating factors should be based on a “balance of probabilities” test, while the defense argued that aggravating factors must be proved beyond a reasonable doubt. The Chamber had to establish the standard of proof for the purpose of sentencing, since the Statute and Rules do not provide guidance. The Chamber concluded that, since aggravating factors could have a significant effect on the length of Mr. Lubanga’s sentence, those factors must be established beyond a reasonable doubt.
The Chamber concluded that the standard of proof for mitigating factors should be the “balance of probabilities” standard.
In assessing the gravity of the crime, the Chamber noted that conscripting and enlisting children under age fifteen and using them to participate in hostilities are very serious crimes that affect the international community as a whole.
The Chamber stated that, in accordance with Rule 143, it considered the gravity of the crimes in the circumstances of this case, with regard to the extent of the damage caused, in particular “the harm caused to the victims and their families, the nature of the unlawful behavior and the means employed to execute the crime; 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”.
With respect to the “circumstances of manner, time, and location” of the crimes, the Chamber had concluded in its Judgment that the evidence established beyond a reasonable doubt the recruitment of young people, including children under fifteen, was widespread, that a significant number of children were used as military guards and as escorts for senior commanders, and that children under fifteen were used in hostilities.
With respect to the degree of participation and intent of the convicted person, the Chamber did not conclude that Mr. Lubanga intended to conscript and enlist children under fifteen and use them in hostilities; rather, the Chamber concluded that he was aware that this would occur.
In considering the individual circumstances of the convicted person, the Chamber noted that Mr. Lubanga is intelligent and well-educated and would have understood the seriousness of the crimes of which he was convicted. The Chamber viewed the “marked level of awareness on his part” as a relevant factor for sentencing.
The Chamber found no aggravating factors in the case.
The Chamber accepted as a mitigating factor Mr. Lubanga’s respectful attitude and cooperation with the Court throughout the proceedings, despite some onerous circumstances.
