Lubanga’s sentencing may interest ICC Four

FOUR Kenyans facing charges at the ICC have every reason to keenly observe the historic sentencing of the first convict of the court, Thomas Lubanga Dyilo, today. Lubanga, who was found guilty of conscripting child soldiers and using them to commit international crimes last March was charged under the same mode of individual criminal responsibility as the Kenyans. The four- Deputy Prime Minister Uhuru Kenyatta, former cabinet secretary Francis Muthaura, Eldoret North MP William Ruto and journalist Joshua Sang – are charged under Article 25 (3) (a) just like Lubanga.

Lubanga's trial judges have already developed five point test for this Article which Prosecutor Fatou Bensouda wants employed in the Kenyan case but with modifications. Article 25 (3)(a) says. “A person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the court if that person commits such a crime, whether as an individual, jointly with another or through other person, regardless of whether that other person is criminally responsible.

Bensouda is not however satisfied with this one element of Article 25 (3) and wants it stretched to include (b) and (d) which nails persons who order, solicit or induce the commission of such a crime which in fact occurs or is attempted. Though charged with war crimes under Article 8 (the Kenyans are charged with crimes against humanity under Article 7), Lubanga had less counts than the Kenyans. Lubanga had two counts of war crimes which essentially boils into one- enlisting child soldiers.

The first count entailed conscripting children under the age of 15 into national armed forces or using them to participate actively in hostilities. The second count- which is what convicted him- is conscripting children under age 15 into armed forces or groups or using them to participate actively in hostilities.

In contrast, Kenya's suspects have more than three counts to their crimes against humanity charge. Uhuru and Muthaura have five counts (murder, persecution, deportation, rape and other inhumane acts) each while Ruto and Sang have three counts (murder, deportation and persecution) each.

Technically, Uhuru and Muthaura stand higher chances of conviction than Ruto and Sang. “The Lubanga case is very instructive in Kenya in terms of the command responsibility structures therein. The organ adjudicating it is the same and its applying the same statute,” Dr. James Gondi of International Centre for Transitional Justice told the Star yesterday. He said despite the different settings, there is also a “concurrent trend” between the Kenyan and Lubanga cases in terms of the organizational and systematic setting of the abuses.

Lubanga's charges were confirmed by the court in January 29, 2007. Trial started in January 2009 almost two years later. The trial was delayed twice over disclosure issues. He was eventually convicted by judges Adrian Fulford (United Kingdom), Elizabeth Odio Benito (Costa Rica) and René Blattmann (Bolivia).