The International Criminal Court today sentenced Congolese militia commander Thomas Lubanga to fourteen years for conscripting and enlisting child soldiers. The sentence was a long time coming. Lubanga became the ICC's first prisoner in March 2006, when he was transferred from the custody of the Congolese authorities to The Hague.
The court's decision was as notable for the harsh words directed at former ICC prosecutor Luis Moreno-Ocampo--who completed his nine-year term last month--as for its discussion of Lubanga's crimes. The prosecutor had sought a 30-year sentence for Lubanga and urged the judges to consider aggravating circumstances, including the frequent sexual abuse of female recruits to Lubanga's militia. Judge Adrian Fulford refused:
The Chamber strongly deprecates the attitude of the former Prosecutor in relation to the issue of sexual violence. He advanced extensive submissions as regards sexual violence in his opening and closing submissions at trial, and in his arguments on sentence he contended that sexual violence is an aggravating factor that should be reflected by the Chamber. However, not only did the former Prosecutor fail to apply to include sexual violence or sexual slavery at any stage during these proceedings, including in the original charges, but he actively opposed taking this step during the trial....As a result, in the view ofthe Majority, the link between Mr Lubanga and sexual violence, in the context of the charges, has not been established beyond reasonable doubt. Therefore, this factor cannot properly form part of the assessment of his culpability for the purposes of sentence.
The issue of whether the prosecutor charged Lubanga with too narrow a range of crimes has hung over the case from the beginning. But the stiff arm accorded the court's first prosecutor reflects years of tension between his office and the judges assigned to the case. In the ruling, Fulford rehashed a litany of disputes that arose in the course of the trial, and which twice led the judges to order that the charges against Lubanga be dismissed (those orders were overturned on appeal).
That tension had something to do with the personalities involved, but it was also an important exercise in defining the court's internal power balance. The ICC, after all, is a hybrid creation that draws on multiple legal traditions. The question of whether the court would be an American-style system dominated by the prosecutor or whether the judges would take an active role managing cases, as in most continental systems, had to be answered. The sentencing decision is a potent reminder that the judges have been willing and eager to defend what they see as their prerogatives.
If the Lubanga sentencing reflects the court's internal power struggle, it also raises the question of how much difference the institution makes on the ground. The court has devoted substantial investigative resources to eastern Congo; Lubanga is just one of several militia commanders in the court's custody. But almost a decade after the court fixed its gaze on the region, it remains conflict-prone. Human rights abuses are endemic. In the last few weeks, forces under the command of Bosco Ntaganda, who has been indicted by the court, have clashed repeatedly with government troops and are threatening to march on Goma, the regional capital. Reports from the region suggest that both rebel and government forces are roughing up the civilian population. According to Reuters, nearly 20,000 have fled into neighboring Uganda in the last week.
The Lubanga case is historic for the ICC; whether it matters much for Congo is less clear.
David Bosco reports on the new world order for The Multilateralist.