The Early Release of an ICC Convict: the Groundbreaking Lubanga case

When on 1 December 2014 the Appeals Chamber upheld the decision of Trial Chamber I to condemn Thomas Lubanga Dyilo to 14 years of imprisonment for the enlistment and conscription of children under the age of 15, the Congolese warlord, who had already gone down in history as the first person transferred to the International Criminal Court, became also the first war criminal to serve a final sentence given by the international tribunal. At the time, he had already served 8 and a half years in the ICC’s custody since his arrest: a period that the TC decided to deduct from the sentence (see para. 108 of the 10 July 2012 Decision on sentence), with the effect that he would have been released on March 2020. In the next months, Lubanga could set another record, becoming the first person to be granted an early release under the ICC Statute.

In fact, in compliance with para. 3 of Article 110 of the Rome Statute, having Mr Lubanga served two thirds of those 14 years, on 14 July 2015 his Defence team submitted a request to the ICC, seeking a reduction of the sentence (and therefore an early release of the convict).

In particular, the plea is based on mixed legal and factual grounds:

1) a constant practice of the international criminal tribunals;
2) Mr Lubanga’s willingness to cooperate with the Court;
3) the possibility of a successfull resettlement in Kisangani, a city which is more than 800 km away from the Ituri region (where he committed the crimes), and where he would pursue doctoral studies in order to understand psycho-sociological determinants of conflicts and to help Ituri and other parts of the DRC to deal with the related issues that caused conflict – as Lubanga affirmed in the 21 August review hearing;
4) the individual circumstances of Mr Lubanga, who was arrested in Congo on 13 August 2003 and placed under house arrest until his transfer to a detention centre in Kinshasa and later to The Hague (meaning that his pre-trial detention lasted 8 years and 9 months);
5) the convinct’s good conduct during his detention;
6) the fact that an early release wouldn’t give rise to any social instability in the region affected by his crimes.

On the other hand, between 29 June and 14 August the Office of the Prosecutor filed different documents, opposing the request on both legal and factual grounds.
First of all, the OPT affirms that Lubanga “has not shown ‘early and continuing willingness’ to cooperate with the Court in its investigations and prosecutions”; furthermore, since he hasn’t genuinely dissociated from his crimes, his conduct in detention doesn’t establish “a ‘clear and significant change of circumstances’ sufficiently justifying a reduced sentence” and he hasn’t demonstrated that “following early release, he could be resocialised and successfully resettled”.

On the contrary, as a consequence, his early release may threaten the region’s social stability and adversely impact the victims and their families. Even more troubling, as to the assessment of the convict’s conduct and the decision to grant a reduction of the sentence, are the notices filed on 29 June and 20 August, containing information on Mr Lubanga’s alleged participation in a scheme of witness interference in the case against Bosco Ntaganda. In particular, in the Prosecutor’s view there are reasonable grounds to believe that “he may have used his ability to communicate from the ICC Detention Centre to disseminate confidential information and interfere with Prosecution witnesses”.

Under Art. 110, para. 4 of the Rome Statute, three are the factors to be taken into account in order to grant the reduction of the sentence:
a) the willingness of the convict to cooperate with the Court in its investigations and prosecutions;
b) his/her voluntary assistance in enabling the enforcement of the judgements and orders of the Court in other cases;
c) other factors establishing a clear and significant change of circumstances sufficient to justify that reduction, as provided in the Rules of Procedure and Evidence.

The latter provision has been complemented by Rule 223 of the Rules of Procedure and Evidence, which identifies 5 further criteria: a) the conduct of the person while in detention, when it shows a genuine dissociation from the crimes; b) prospect of the resocialization and successful resettlement of the sentenced person; c) a risk assessment concerning the social instability that could follow the release; d) the actions taken for the benefit of the victims by the sentenced person and the impact of the release on them; e) individual circumstances, such as the worsening of mental or physical health or the advanced age.

As seen, the parties’ arguments seem to substantially rely on two different grounds: Lubanga defense team having demonstrated the existence of some “other factors” that could establish the required change of circumstances, whereas the OTP raised issues concerning interferences with other cases which could by themselves justify the dismissal of the request (demonstrating Lubanga’s lack of willingness to cooperate with the Court) – but that to date have not been considered sufficient either to charge him or to order monitoring of his telephone’s calls (as rebutted by the defense).

Therefore, as already stressed by International Justice Monitor, even after a careful review of the criteria for the reduction of sentence “there does not appear to be a clear answer” as to what the judges will rule in the case. Having said that, I would like to emphasize some further reasons to believe that the Appeals Chamber decision could turn out as a landmark precedent.

First of all, in the para. 91 of the cited 2012 sentence decision the Trial Chamber I conceded that Mr Lubanga “was respectful and cooperative throughout the proceedings, notwithstanding some particularly onerous circumstances”, which included the failures by the OTP “to disclose exculpatory material, which in turn resulted in a stay of the proceedings and a provisional order to release Mr Lubanga” and “to comply with the Chamber’s disclosure orders, leading to a second stay of the proceedings and a second provisional order releasing Mr Lubanga”.

Secondly, in several cases the ICTY granted the early release, “notwithstanding the gravity of her crimes”, any time the convict had served two-thirds of the sentence and had demonstrated the existence of “substantial evidence of rehabilitation” (see, among others, Plasvic and Krajisnik).

On the other hand, notwithstanding Lubanga’s affirmations concerning the intention to relocate with his family to Kinsagani and to somehow contribute to reconciliation in the Ituri region, victims’ lawyers argued that since he has persistently denied his responsibility for the crimes for which he was convicted and has never apologized and expressed regret for those conducts (before the 21 August hearing), his release could give rise to social instability.

In conclusion, provided that in Lubanga case both legal and factual grounds can justify any outcome, it seems to me that the most important task assigned to the ICC judges is to provide a first interpretation of Art. 110 of the Rome Statute. In fact, having recalled that under Art. 21 any application of the law “must be consistent with internationally recognized human rights” and that the offender’s rehabilitation could be invoked in this context, a fair assessment of the specific circumstances of these cases can only be reached by means of the preliminary identification of a hierarchy (and the weight) of the factors to be taken into account in order to grant the reduction of a sentence.