Written by: Regina Paulose
Hidden deep within the Rome Statute and the ICC Rules of Procedure of Evidence (RPE) are the sentencing guidelines for the ICC. These articles receive very little attention. This is most likely because there has been only one case which has reached the sentencing phase at the ICC. How the Chamber interprets aggravating factors and the challenges that lay ahead in the use of aggravating factors is the focus of my article this month.
Article 76 of the Rome Statute outlines the sentencing procedures of the ICC. A more detailed analysis of sentencing procedures takes place under the RPE, beginning with Article 145. From a cursory reading, there is a three step analysis a Judge must undertake. First, the determined sentence must be proportionate to the culpability. Second, Article 145(1)(b) allows the Court to consider “mitigating” and “aggravating” factors when considering the sentence. There are six potential aggravating factors:
(i) Any relevant prior criminal convictions for crimes under the jurisdiction of the Court or of a similar nature;
(ii) Abuse of power or official capacity;
(iii) Commission of the crime where the victim is particularly defenceless;
(iv) Commission of the crime with particular cruelty or where there were multiple victims;
(v) Commission of the crime for any motive involving discrimination on any of the grounds referred to in article 21, paragraph 3;
(vi) Other circumstances which, although not enumerated above, by virtue of their nature are similar to those mentioned.
Finally under Article 145(1)(c), the Court should also consider among other factors, the harm caused to the victims and the degree of participation by the defendant. Under Article 153 (3), the existence of one or more aggravating factors may justify a life sentence. The RPE does not elaborate the aggravating factors in any precise detail. How the Court interprets these factors will be largely determined by ICC decisions. At this juncture, the Lubanga judgment offers potential guidance.
On March 14th, 2012 the ICC convicted Thomas Lubanga Dyilo (Lubanga) of war crimes for conscripting or enlisting children for conflict in Ituri, Democratic Republic of Congo (DRC). Lubanga was the President of the Union des Patriotes Congolais (UPC) and was also the Commander in Chief of the military wing of the UPC, the FLPC. The Chamber found beyond a reasonable doubt that Lubanga contributed to a common plan to exercise military control in Ituri and a result of this common plan, conscripted and enlisted children under the age of 15.
Although Lubanga was found guilty of these specific crimes, in its decision, the Trial Chamber noted that many of the 129 victims alleged they had also suffered harm as a result of other crimes such as sexual violence and torture. The Chamber stated that these were not the “subject” of the charges which Lubanga stood trial. It is also worth noting that the Chamber granted these victims protective measures because of their vulnerability and their necessity to remain anonymous continued because they resided in areas near or in the conflict. This analysis also foreshadowed what was to happen during sentencing.
In the Sentencing decision, the Chamber crystalized (or perhaps muddied) how it utilizes aggravating factors. First, it seems that the Confirmation of Charges Hearing is crucial in order for the Prosecution to lay the groundwork for aggravating factors. In the Pre-Trial transcript, the Court Officer read the charges by the Prosecution, none of which indicated that sex crime were alleged to be an aggravator. The Chamber stated that Lubanga was not charged with the crime of “cruel treatment” and therefore consideration on how the child soldiers were punished would be “inappropriate” to treat “as aggravating circumstances evidence that was not expressly relied on in the Confirmation Decision.”
Second, the Chamber sought consistent argumentation with regards to aggravating factors during the course of the trial. The Chamber stated that the Prosecutor had made submissions during opening and closing but did not make submissions regarding sexual violence during the course of the trial. While the Chamber went on to find that Lubanga could not be found culpable for this aggravating factor, the Chamber seemed to emphasize that “the prosecution’s failure to charge Mr Lubanga with rape and other forms of sexual violence as separate crimes within the jurisdiction of the Court is not determinative of the question of whether that activity is a relevant factor in the determination of the sentence.” Instead the Chamber used Article 145(1)(c) but the analysis favored the defense. The Chamber mentioned that the Prosecution failed to provide any evidence of this matter during the sentencing hearing.
The Majority also argues some other notable points in the Sentencing Decision. Elements of the crimes themselves cannot be considered aggravating factors, which is in line with the Rome Statute. The age of the children who were below 6 could not be considered an aggravating factor because that was a factor in determining gravity. Therefore, it cannot count for both as an aggravator and to determine gravity. Finally, the alleged discriminatory actions towards girls by Lubanga would not fall under Article 145(2)(b)(v). The Chamber, however, fails to give examples of the “discrimination” it would consider. In totality, Lubanga was not found guilty beyond a reasonable doubt to have committed any of the aggravating factors.
Judge Benito issued a separate dissenting opinion (both in the trial and in sentencing) where she argued that sexual violence towards the children should be considered in Lubanga’s punishment.
There does seem to be some small tension with how the Court will handle aggravating factors. On one hand, if the Prosecution had charged the above mentioned crimes, it would not be considered an aggravator as it would constitute an element of the crime charged. In addition the Chamber has made it clear that factors that are used to determine gravity cannot be considered as aggravating factors. There is no further explanation as to what any of the factors mean, except that they do not mean what has been presented in the Lubanga case. On the other hand, the Court does make it clear that it does seek to promote fairness and notice for the defendants. Therefore, the Prosecutors must be diligent in presenting these kinds of factors at the Confirmation of Charges and consistently throughout trial. The real impact, of muddling of these factors, made it difficult for the Prosecutors in this case to support the sentence that they asked for (Prosecutor asked for nearly 30 years and Lubanga received around 7 years). Without any kind of procedural precision – the Prosecutors will have a difficult time in securing a sentence that genuinely reflects the gravity of the crimes before the Tribunal. Of course, from a defense perspective, clarity in this regard prevents the prosecution from shifting the case around and allows the defendant to be more than adequately prepared for what will happen at trial.
So while questions still linger about how this practice will continue at the ICC, it is hopeful that the next set of decisions from the ICC will shed more light on this subject, (assuming they are convictions) but the Lubanga judgment leaves much to be desired in terms of clarity with regards to aggravating factors and how the Court will utilize them for sentencing.
 ICC RPE Article 145(2)(b)
 ICC RPE Article 145(1)(c) states, “in addition to the factors mentioned in article 78, paragraph 1, give consideration, inter alia, to the extent of the damage caused, in particular the harm caused to the victims and their families, the nature of the unlawful behaviour and the means employed to execute the crime; the degree of participation of the convicted person; the degree of intent; the circumstances of manner, time and location; and the age, education, social and economic condition of the convicted person.”
 Lubanga Judgment para 16 and 32.
 Lubanga Judgment para 18
 Article 61(3) of the Rome Statute indicates that the defendant must be presented with the charges against him and the evidence that will be presented against the defendant. Presumably it would be within this document that aggravating factors would be presented. This Article is further elaborated on in RPE 121.
 Transcript of Confirmation of Charges Hearing: ICC-01/04-01/06-T-30-EN, November 9, 2006, Pre-Trial Chamber 1, Lines 10:16:42(7) – 10:42:12(22). See also Transcript ICC-01/04-01/06-T-48-EN, January 29, 2007, Pre-Trial Chamber I.
 Sentencing, para 58 citing ICC-01/04-01/06-2891-Red para. 83.
 Sentencing para 60
 Sentencing para 78
 Sentencing, Dissent, para 22