On August 21, 2015, the International Criminal Court (ICC) will hear arguments about whether to grant Thomas Lubanga early release from imprisonment. In March 2012, Trial Chamber judges found Lubanga guilty of the enlistment, conscription, and use of children under the age of 15 for combat purposes during the conflict in the Ituri region of the Democratic Republic of the Congo (DRC). He was sentenced to a total of 14 years of imprisonment. Both his conviction and sentence were upheld on appeal in December 2014.

A three-judge panel of the Appeals Chamber will decide whether Lubanga must serve his full sentence or if he can return to DRC after completing two-thirds of his sentence. Lubanga, the former leader of the Union of Congolese Patriots (UPC) militia group, was the first person to be tried at the ICC, and his conviction has been hailed as a landmark in international justice. The judgment set a high threshold for the protection of children involved in armed conflict, even if they are not present on the battlefield, and brought much needed attention to the plight of child soldiers.

Lubanga has been in detention at the ICC since March 2006. His entire time in detention, including the three years spent awaiting the January 2009 start of his trial, is considered time already served on his sentence. This means that as of July 2015, he had completed two-thirds of his sentence. Under the law of the ICC, when a prisoner has served two-thirds of his sentence, the court must review the sentence to determine whether the prisoner should be released early.

It is difficult to predict how the ICC will decide this case. Lubanga is the first person to be convicted and sentenced by the ICC, so there is no direct precedent that the panel of judges can rely on. While other international criminal tribunals, mainly the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), operate under a presumption in favor of early release, and have granted early release to the vast majority of prisoners, it is not clear if the ICC will adopt this custom. Additionally, the ICC must evaluate the prisoner on a range of criteria that can often weigh in opposite directions: some in favor of early release and others against it. There is no mathematical formula that judges can use to balance these conflicting factors and there is no jurisprudence indicating how the criteria should be interpreted. Unsurprisingly, the history of other international tribunals with similar provisions suggests that these decisions may be highly subjective and inevitably hard to predict.

According to the Rome Statute and the court’s Rules of Procedure and Evidence, seven criteria must be taken into account. Under Article 110(4) of the Rome Statute, judges shall review:

• The early and continuing willingness of the person to cooperate with the Court in its investigations and prosecutions;
• The voluntary assistance of the person in enabling the enforcement of the judgements and orders of the Court in other cases, and in particular providing assistance in locating assets subject to orders of fine, forfeiture or reparation which may be used for the benefit of victims; or
• Other factors establishing a clear and significant change of circumstances sufficient to justify the reduction of sentence, as provided in the Rules of Procedure and Evidence.

The other factors listed under Rule 223 of the Rules of Procedure and Evidence include:

• The conduct of the sentenced person while in detention, which shows a genuine dissociation from his or her crime;
• The prospect of the resocialization and successful resettlement of the sentenced person;
• Whether the early release of the sentenced person would give rise to significant social instability;
• Any significant action taken by the sentenced person for the benefit of the victims as well as any impact on the victims and their families as a result of the early release;
• Individual circumstances of the sentenced person, including a worsening state of physical or mental health or advanced age.

The first criterion deals with the prisoner’s willingness to cooperate with the court. This factor weighs strongly in Lubanga’s favor. In his sentencing hearing, the judges specifically referenced his “notable cooperation” and found him respectful throughout the trial process.

The second factor, which looks primarily to whether the prisoner has helped locate criminal assets in order to compensate victims, does not weigh in favor of or against Lubanga. Lubanga himself was declared indigent. However, this may be irrelevant if he still did nothing in his power to assist the court in locating other assets. (In the recent Appeals Chamber decision on reparations, judges found that despite a defendant’s indigence, he would remain liable for reparations as a result of his conviction.)

The third criterion focuses on “the conduct of the sentenced person while in detention,” and judges could look at whether his actions have demonstrated remorse for the crimes. By all accounts, Lubanga has been friendly and very well-behaved in prison. There are some reports that he has even befriended other prisoners from rival ethnic groups. However, throughout his trial and appeal, Lubanga has not demonstrated remorse. He has consistently denied responsibility for the crimes he was convicted of, which has been a negative factor at other tribunals. For example, in the ICTY case of Prosecutor v. Mlado Radić, one of the reasons judges did not commute Radić’s sentence was because of “his denial of having committed rape and sexual assault” despite having good behavior while in detention. Even at his appeals hearing last year, Lubanga said it was “incomprehensible” that the judges found him guilty.

The fourth and fifth factors look to whether the prisoner could be successfully resocialized and resettled and whether the release would give rise to “significant social instability.” These factors may weigh in favor of Lubanga’s early release. Long-term ICC trial monitor Wakabi Wairagla, who reported on the Lubanga proceedings, has noted that Lubanga’s wife and children are in Ituri, and he could be “quite easily reintegrated” back into society. Furthermore, communities in Ituri have voiced support for Lubanga, and he has considerable political backing at home. Lubanga’s lawyers, supported by civil society declarations, have argued that his release will actually contribute to peace and reconciliation. Lubanga’s defense also points out that Lubanga plans to settle in Kisangani, capital of the Province Orientale, located more than 800 km away from Bunia. They claim that this distance would prevent social instability. Lubanga’s defense has added that the Ituri region is now stable, and that the Hema and Lendu communities have overcome their conflicts.

However, lawyers representing some of the victims who participated in the trial have contended that victims fear that Lubanga’s release could revive tensions among members of the communities, leading to a new conflict and commission of further crimes. Nick Elebe ma Elebe, DRC Country Manager for the Open Society Initiative for Southern Africa, says it is likely that Lubanga will play an active role in Ituri politics if he is released.  The national elections (presidential and legislative) are not scheduled until November 2016, but it is likely that campaigning will start soon and be ongoing. Judges would have to make a determination on whether Lubanga’s release would increase social instability in light of his potential involvement in politics and the 2016 elections.

The sixth criterion focuses on whether any significant action has been taken by the sentenced person for the benefit of the victims as well as whether the early release would have any impact on the victims and their families. Although Lubanga has referred to himself as a peacemaker and has stated a commitment to reconciliation efforts in Ituri, victims’ legal representatives argued that some of the victims who participated in the Lubanga trial are also participants in the Bosco Ntaganda trial and that they fear that Lubanga’s release could negatively impact that case as witnesses could fear reprisals. In addition, the victims’ lawyers noted that they have proposed a number of actions that Lubanga could undertake in relation to reparations and toward reconciliation, but have to-date received no response from the defense.

The last factor looks to individualized humanitarian considerations that weigh in favor of release. Typically, this factor is used to facilitate the release of very old or sick prisoners. At 54, Lubanga is relatively young, and reportedly in good physical and mental health. This factor should have little impact on the judges overall assessment.

The prosecution’s arguments regarding the possibility of an early release were made confidentially. However, the defense reveals that the prosecution opposes the release in part because liberating Lubanga only six months after the appeals judgment would be against the interests of justice.

After reviewing the criteria for early release under the laws of the ICC, it is uncertain what the judges will rule in Lubanga’s case. On balance, there does not appear to be a clear answer based on information available to the public. However, if the ICC does adopt a presumption in favor of early release similar to the ad hoc tribunals, among the factors that weigh against Lubanga, his failure to admit to wrongdoing and his potential negative influence on the stability of the region, both politically and in the reconciliation process, could be serious enough to override that presumption.