On his last day of appearance in court before International Criminal Court (ICC) judges hand him a sentence, convicted war criminal Thomas Lubanga told judges that he is peacemaker, and they should not look at him as a "warlord" while handing him a sentence.
On Wednesday, while the prosecutor asked judges to sentence the accused to 30 years in jail, the defense presented two more witnesses, who described Mr. Lubanga as a peacemaker and a leader that loved children and did not deserve a severe sentence for the crimes over which he has been found guilty.
"I never could have stooped to such a low level to commit an act which is contrary to all values that are dear to me," said the former Congolese militia leader at his sentencing hearing.
Mr. Lubanga added, "I feel deeply saddened when in your judgement I am portrayed as one who sought to dominate Ituri [province]. The question must be asked: what would power have served me in this vast cemetery that was Ituri at the time, Ituri which had no future? … I took responsibility not for power, not for money, but for peace."
On March 14, 2012, Mr. Lubanga was convicted of committing the war crimes of enlisting and conscripting of children under the age of 15 years into the Patriotic Force for the Liberation of Congo (FPLC) and using them to participate actively in hostilities in an armed conflict in the Ituri region of the Democratic Republic of Congo. The crimes were committed between September 1, 2002 and August 13, 2003.
Mr. Lubanga did not testify in his own defense, and Wednesday was the first time he has directly addressed the court.
The defense said that prosecution failures had led to undue delays to the trial, which breached the rights of the accused to be tried fairly and expeditiously. Defense lawyer Marc Desalliers asked judges to "take into consideration the breach of the fundamental rights of Mr. Lubanga as it comes to its determination" of the sentence.
Noting that Mr. Lubanga had been in detention for six years by the time he was convicted, the defense referred to two incidents when judges suspended proceedings and ordered the release of the accused. These two stays of proceedings, the defense argued, were caused by the failure of the Office of the Prosecutor (OTP) to honor its obligations and together lasted eight months.
The defense also recalled that judges in their ruling had rejected the evidence of all nine prosecution witnesses who testified as former child soldiers in the FPLC and its political wing – the Union of Congolese Patriots (UPC), the groups the accused led. Moreover, it was not adequate to use physical appearance to tell the age of the children who served in these groups, as prosecution witnesses had done, argued lead defense counsel Catherine Mabille.
Ms. Mabille said that as the judges considered the sentence to hand down to the first man convicted by the ICC, it was necessary to ask whether the number of children under 15 years who served in the FPLC was known. "What do we know about the number of children that were forcibly enlisted or the number that actually took part in hostilities?" she asked, and added that it was uncertain how many they were, although judges had to consider this as part of the "extent of the crime" in sentencing Mr. Lubanga.
In his submissions, ICC prosecutor Luis Moreno-Ocampo asked judges to hand the accused a 30-year prison sentence. However, if Mr. Lubanga apologized and advocated peace, reconciliation, and reintegration of former fighters in Ituri, the prosecution would then recommend a sentence of 20 years.
The prosecutor said, "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 [could] refuse his orders. For that reason, Thomas Lubanga was involved in each child recruitment, in each use of children in hostilities."
Before the start of sentencing submissions, the defense called two witnesses: Sifa Magayi Alite, a former protocol officer in the UPC president's office, and Augustin Bongo Malobi, a former bodyguard to Mr. Lubanga. Both gave testimony via video-link from Congo and testified without the use of protective measures.
Ms. Alite said Mr. Lubanga was a pacifist who brought different ethnic groups together in order to end the conflict in Ituri. While denying that there were child soldiers among the accused's bodyguards, she said there were nine children who lived in his compound, but none of them took part in any military activities. She said those children were brought to the UPC leader's residence by one of his commanders after their parents had been killed or had gone missing. She estimated the children were aged five to 12 years.
In addition, Ms. Alite stated that a woman belonging to the Lendu ethnic group, which prosecutors say the UPC – dominated by the Hema group – targeted, stayed at Mr. Lubanga's residence on the accused's instructions. This woman had been apprehended by UPC fighters along with some Lendu men. When Mr. Lubanga interrogated the captives, he found all of them were innocent. While the men were set free and went their way, the lady asked to stay in the UPC president's residential complex, and she was allowed to stay until Mr. Lubanga's group was kicked out of town by an opposition group.
Mr Lubanga said he was shocked when judges pronounced the guilty verdict again him. He said he was "saddened, confused to note that after three years of trial, we haven't been able to unmask the exaggerations, lies, and masquerades."
If he was indeed a warlord and had used children in the UPC, he wondered, how come none of the 8,000 members of the UPC who had served as a child soldier had come forward to testify?
Defense counsel Jean-Marie Biju-Duval asked judges to recall the very difficult circumstances under which Mr. Lubanga became head of UPC. He said at the time, Mr. Lubanga's community was threatened with extermination and the armed forces organized by Hema were to provide defense to the group to secure its very existence.
"Crimes were committed before UN. It was the Congolese Srebrenica – like 10 Srebrenicas," he said, referring to the Bosnian village where an estimated 8,000 persons were massacred during July 1995. "Men, women, and children were massacred without the UN intervening, and it was in this context that the FPLC was formed."
Mr. Biju-Duval said handing Mr. Lubanga a severe sentence as demanded by the prosecutor would not serve to end impunity. This, he said, was because Mr. Moreno-Ocampo had "guaranteed immunity" to big players in the Ituri conflict who should have been the ones prosecuted rather than Mr. Lubanga. He named these as the presidents of Congo (Joseph Kabila), Rwanda (Paul Kagame), and Uganda (Yoweri Museveni).
"Amongst the leaders involved in Ituri, he is the least guilty of all," concluded Mr. Biju-Duval.
Presiding Judge Adrian Fulford said the sentence will be pronounced at a separate hearing in due course.
The Hague
