Friday, September 29, 2023

The ICC Appeals Chamber confirms verdict

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Mr Lubanga in ICC Courtroom

The ICC Appeals Chamber confirms the verdict and the sentence against Thomas Lubanga Dyilo.

The Appeals Chamber of the International Criminal Court (ICC) delivered in open session on December 1,  its judgments on Mr Lubanga’s appeal against the verdict issued by ICC Trial Chamber I, that Mr Lubanga was guilty of the enlistment, conscription and use in hostilities of children under the age of fifteen. The Appeals Chamber issued simultaneously its judgment on the appeals of the Prosecutor and Mr Lubanga against the sentence imposed by the Trial Chamber. The Appeals Chamber confirmed, by majority, the verdict declaring Mr Lubanga guilty and the decision sentencing him to 14 years of imprisonment.

During the open session, Judge Erkki Kourula, Presiding Judge in this appeal, read a summary of the Appeals Chamber judgments.

The Appeals Chamber rejected Mr Lubanga’s allegations that the proceedings were unfair and found that Mr Lubanga did not substantiate several grounds of appeal he raised. The Appeals Chamber established, with respect to factual errors, that it would not assess the evidence anew, but would intervene only if the Trial Chamber’s assessment of fact was found to be unreasonable. In applying this standard, the Appeals Chamber rejected, among others, the alleged errors in the Trial Chamber’s findings relevant to the age of the child soldiers.

With respect to the alleged legal errors regarding Mr Lubanga’s individual criminal responsibility, the Appeals Chamber confirmed the Trial Chamber’s approach that a co-perpetrator must make an essential contribution and does not need to personally and directly commit the crime.

With respect to the Prosecutor’s and Mr Lubanga’s appeals against the Sentencing Decision, the Appeals Chamber held that a Trial Chamber enjoys broad discretion in determining a sentence. The Appeals Chamber rejected all the grounds of appeal raised by the Prosecutor and Mr Lubanga, finding that the sentence was not disproportionate to the gravity of the crimes and reflected Mr Lubanga’s culpability for the crimes for which he was convicted. Accordingly, the Appeals Chamber confirmed the total sentence of 14 years.

Judge Sang-Hyun Song adopted a partly dissenting opinion in relation to the appeals against the verdict and the sentence. While agreeing with the majority’s decisions to reject the appeals, he disagreed with the Trial Chamber’s holding that the “enlistment”, “conscription” and “use to actively participate of in hostilities” of individuals under the age of fifteen are three separate crimes. Regarding sentencing, he found that the Trial Chamber should not have imposed three separate sentences for three crimes, but only one sentence for one crime.

Judge Anita Ušacka adopted a dissenting opinion with regard to Mr Lubanga’s appeal against the verdict. She respectfully disagreed with the decision of the majority of the Appeals Chamber to confirm the Conviction Decision, which she would have reversed on the grounds that (i) the charges of which Mr Lubanga was ultimately convicted were not sufficiently detailed, and (ii) it was not established beyond reasonable doubt that the children conscripted, enlisted or used in hostilities by the UPC/FPLC were under the age of fifteen. Accordingly, she also disagreed with the conclusions of the majority with respect to sentencing.

Both judges read summaries of their opinions during today’s open session.

Appeals Chamber judgments against

a)      The Conviction Decision and dissenting opinions;

b)     The Sentencing Decision and dissenting opinion

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