In this guest post from the International Justice Monitor, Olivia Bueno of the International Refugee Rights Initiative (IRRI), in consultation with Congolese activists, reports on the possibility of Thomas Lubanga’s early release. He has served two-thirds of his sentence for child soldier war crimes.
As this is the first hearing of its kind at the ICC, it is difficult to predict what the ICC will decide. Among the key issues informing the decision will be whether or not Lubanga has demonstrated good behavior, whether he has expressed remorse or taken action on behalf of victims, as well as the likely impact of his release on the community. (For a fuller discussion of the legal issues involved, see “Will ICC Judges Grant Lubanga Early Release?”.)
The defense has argued that Lubanga should be released because of his good behavior, because his family connections suggest he will reintegrate easily, and because his return will not destabilize the situation in Ituri. The defense further argues that the situation in Ituri is now calm and that any potential threat presented by Lubanga would be undercut by his intention to continue his studies at the University of Kisangani, rather than returning to Bunia.
The victims have argued that “as long as Mr. Lubanga maintains his current attitude, his release and return to the region could reignite tension between the communities, and even within his own community.” A victims’ advocate opposed to the reduction of Lubanga’s sentence argued that living in Kisangani was “practically the same thing” as living in Bunia and doubted that this would help reduce any risks attendant to his return.
The prosecution has similarly argued that the situation on the ground remains sensitive and that Lubanga could destabilize the situation. The prosecution further claims that it has evidence that Lubanga may be involved with witness tampering.
There is significant disagreement about the extent to which Lubanga’s return would affect security on the ground. Some fear Lubanga’s return and others argue that the situation has stabilized and that Lubanga’s return could actually reinforce peace.
For those that fear Lubanga’s return, there is concern that this will inflame the communities that fought against the Hema and that it will make victims, witnesses, and intermediaries more vulnerable. In the words of one activist, “the proposed liberation of Lubanga for unknown reasons risks undermining all the gains of peace in Ituri, creating other sources of tension and risking reprisals for the victims and intermediaries.” A lawyer in Bunia seconded this fear, saying “the country is still not stable, it is probable that after getting out of prison he will come and engage his former fighters in activities to destabilize Ituri.” Others have expressed concern that upcoming elections, anticipated in November, will cause tensions―which they argue could be exacerbated by Lubanga’s presence.
Others disagree with this assessment and argue that the situation in Ituri is now calm. In the words of one activist, “the context on the ground has changed. No one wants to see war return. Before, the war could happen because the Ugandans and Rwandans were involved, there was a revolution going on and weapons were circulating freely. Now the situation has changed, and so has the psychology of the people.”
Moreover, some argue that Lubanga’s return could actually help consolidate peace. The Fondation Verité, Pardon et Reconciliation has called on the ICC to “take into account that there is now a dynamic of reconciliation in Ituri among all the communities; the release of Thomas Lubanga would be a detonator that could reinforce this dynamic.” Others are more reserved, but nonetheless view Lubanga’s possible release as an opportunity. Justice, Democracy and Development has argued that bringing “together around a table of reconciliation Thomas Lubanga, Mathew Ngudjolo, Yves Kahwa and all the other fighters who have been held in prolonged detention without trial in Kinshasa would be a strong signal to the population, to the youth and to the victims to disarm spirits and consolidate mutual pardon.”
It is important to remember that for many in his community, Lubanga is seen as a hero and a critical force in saving the Hema from genocide. In this context, some welcome the return of this leadership. A professor speaking in support of Lubanga said “since Ituri has become a province enjoying administrative authority we would like our leader to return to come and pursue a political mandate for the development of our entity because many Iturians believe in him as a man of honesty.”
Others argue that Lubanga has changed during his time in prison. A local religious leader argued that Lubanga had become a new man, intelligent and social. It is unclear, however, on what they are basing this assessment, since it would seem that there has been limited opportunity to observe him directly.
A similar argument was made by the defense (see here, Annex 3), admitting into evidence a letter from a group of pastors from Ituri who stated that “We have noted that the release of Chef Kahwa was greeted with joy by all the communities. The return of M. Thomas Lubanga will be, in the same way, a great joy and an important factor for reconciliation. His return will contribute to political, economic and social stabilization.”
Asked to react to the pastors’ statement, activists on both sides of the debate responded with skepticism, pointing out that the signatories were nearly exclusively Hema. In the words of one, “why don’t they say anything about Ngudjolo? He is in prison, why don’t they say anything about that?” (Ngudjolo was arrested on his return to the DRC, but his current whereabouts are less clear.) Another activist sympathized with the overall analysis, agreeing that Lubanga’s return was unlikely to cause violence but said that the pastors had overstated the case. “I am sure that the Hema will celebrate Lubanga’s return, it would be foolish to think that all the communities would do so,” the activist said.
Some are open to considering that Lubanga could return, but argue that he ought to be required to make some sort of undertaking of good behavior beforehand. An NGO, Action Citoyenne pour la Justice et les Droits Humains, argued that there should be “a public and written undertaking before the court and the nation that he will commit himself to the promotion of peace and reconciliation before he can benefit from clemency from the court.” A women’s association argued that Lubanga should “present public apologies to all the women and children of the DRC and of Ituri in particular before he can benefit from a reduction in his sentence.”
Procedural flaws in Lubanga’s trial were also cited as a factor both in favor of and against a shortening of his sentence. One local resident argued that Lubanga’s sentence should be reduced because of the flaws in the case, stating that the prosecutor had committed a number of missteps and that a reduction in the sentence could be a type of reparation for this injustice. It is worth noting, however, that from the court’s perspective, any procedural flaws were dealt with in the primary proceedings, and are not among the factors being considered in assessing whether Lubanga will be released early.
On the other side, a representative of victims argued that it was unacceptable that Lubanga’s sentence should be reduced before the issue of reparations for victims is resolved. In the words of this activist, “the leaders of armed groups dragged before the ICC are coming back to Ituri after sadistic judgments that have taken into account neither the ultimate aspirations of victims, nor reparations.”
Some activists on the ground may be frustrated in part because the routine nature of the sentence review is not well understood (although the practice of reducing sentences for good behavior is familiar in the Congolese context) and also because this review is happening so shortly after the final decision in the case was made. Due to the long period of his pre-conviction detention and his relatively short sentence, Lubanga’s sentencing review is happening just eight months following the appeals decision on his case. In the words of one advocate who has worked with victims, “how many times is his case going to be reviewed?”
Other concerns revolve around the appropriateness of the proposed revision of the sentence. A Congolese NGO, L’Association pour la Promotion des Drois des Enfants Associés aux Forces et Groupes de l’Ituri, argued that “this release could send a bad signal … it risks giving an impression of banalization and of losing the dissuasive effect of the sentence in regards to other criminals.”
With opinions on the ground so divided, the decision facing the chambers is unenviable. Regardless of what decision is made, a section of the population is going to be unhappy. If the court decides to release Lubanga early, it is essential that strong measures are taken to protect, and reassure, victims and witnesses who will feel more vulnerable as a result.
This commentary was written by Olivia Bueno of the International Refugee Rights Initiative (IRRI), in consultation with Congolese activists. The views and opinions expressed here do not necessarily reflect the views and opinions of IRRI or of the Open Society Justice Initiative.
This post originally appeared in the International Justice Monitor.
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