ICC Prosecutor’s address on the sentencing of Thomas Lubanga

13 June 2012

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The Prosecution will request a very severe sentence. Thomas Lubanga is guilty of enlisting and conscripting children under the age of 15 and using them in hostilities.

In 1998, more than 100 states from all over the world decided that this is one of the most serious crimes of concern to the international community as a whole.

The Judgment[1] recognized the fact that “children are particularly vulnerable [and] require privileged treatment in comparison with the rest of the civilian population.”

The sentence of the International Criminal Court will confirm this special protection and the gravity of the crime.

As a consequence, the Prosecution will request a sentence in the name of each child recruited; in the name of the Ituri community, including the members of the Hema community directly affected by the crimes, because they were living in fear that their children would be taken from them, but also in the name of the members of the Lendu and other communities attacked by Lubanga’s militia, and in the name of citizens concerned from all over the world and 121 states parties committed to end the impunity of these crimes and to contribute to their prevention.

The Prosecution requests the Chamber to impose a sentence of 30 years of prison to Mr. Thomas Lubanga.

The Prosecution will provide its reasons.

The gravity of the crime defines the gravity of the sentence. In a domestic prosecution each separate act committed against a child would call for a serious punishment. The International Criminal Court should not be more lenient. The seriousness of Mr. Lubanga’s crimes, crimes committed for almost a year against many victims calls for a very severe punishment.

In addition the Prosecution will consider four aggravating factors:

1. Lubanga bears the greatest responsibility for the UPC actions. He was the top leader, he approved and supervised the common plan. No one in his militia can refuse his orders. For that reason, Thomas Lubanga was involved in each child recruitment, in each use of children into hostilities.

2. Thomas Lubanga’s recruitment included particularly cruel treatment. Children were abducted, their families forced to accept the situation, instead of obeying their mothers children had to obey commanders. Children were trained by terror. They were trained to kill and to rape. The children were launched into battle zones where they were instructed to kill everyone regardless of whether they were men, women, or children, all were the enemy.

The harm produced by this cruel treatment continue even after demobilization. Those who didn’t die as soldiers, they have permanent physical effects or they have ongoing psychological trauma, all them still suffer.

In addition to these two aggravating factors, the Prosecution will like to highlight two aspects that should not be invisible. The crime of recruiting children as soldiers included as a fundamental aspect a gender discrimination, and fourth, the crime of recruiting children as soldiers denied these children and their generation of their right to education.

I will briefly elaborate on both aspects:

3. Embedded in the recruitment of girl soldiers was their special use as sex slaves. In the training camps, girl soldiers were the daily victims of rape by the commanders and soldiers.

The Prosecution chose not to charge this gender aspect as a separate crime because gender abuse is an essential part of the crime of recruiting girls as soldiers.

All the girls recruited would be raped and abused because they are girls.

As emphasized by Ms. Radhika Coomaraswamy in her amicus brief to this court, girl soldiers are too often invisible. "Wife" is the word used to make this crime invisible.

A severe sentence would ensure that the gender suffering of these girls and other girls will no longer continue to be invisible.

4. Finally, the special protection of children includes not only protection from violence and injuries, but also protection of their right to education. Victims and those close to them repeatedly identified the loss of education as their immediate reality and one of their greatest concerns.

The interruption, delay, and/or denial of education to child soldiers deeply affect their lives for ever. Other families did not send their children to the schools for fear of the recruitment. Schools were attacked. Mr Thomas Lubanga’s crimes affected the education system in its entirety.

The Prosecution cannot find any mitigating factor in order to reduce the sentence. Thomas Lubanga made a deliberate choice to use children in his militia. He knew he was breaking the basic rules that the world established to protect children. He tried to mislead and appease the international community. He pretended to demobilize, and then went to Rwampara to encourage the child recruits.

During the opening statement I put the defence on notice that the Prosecution anticipates to call for a severe punishment, very severe, close to the maximum. Today and for the reasons mentioned the Prosecution requests a 30 year prison sentence.

However, and before I conclude my presentation, the Prosecution would like to offer Mr Lubanga a last chance to mitigate his guilt. Today, or tomorrow, in this courtroom, Mr Lubanga can offer a genuine apology.

A witness today said he is a man of peace. Thomas Lubanga has to show that, if he is a man of peace, he can offer a genuine apology to the children recruited, to the Hema families, to the other Ituri communities, in particular the Lendu community.

He has to show genuine remorse. He has to help to prevent future crimes in Ituri.

He has to use his leadership and position of respect to promote peace, advocate for measures to unify and heal and improve injured communities, promote reconciliation and the reintegration of the child soldiers back into the communities, in particular the girls raped.

Finally, Thomas Lubanga has to promote educational efforts. The schools in Ituri should be rebuilt, the Ituri teachers should be able to present the International Criminal Court case of Mr Lubanga as the corner stone of a new comprehensive effort to establish lasting peace in Ituri.

This is the last chance for Mr Lubanga to try to remedy the harm he inflicted to all the affected communities. If he does that, if he seriously commit himself to work to prevent future crimes the Prosecution is ready to recommend a reduced sentence of 20 years.

^[1] Citation in Lubanga judgment in reference to the following provisions: “ICRC Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987), page 1377 at marginal note 4544; see also page 1379 at marginal note 4555.