Monthly Archives: July 2012

Breaking news: ICJ find that Senegal violated its obligation to investigate and prosecute Habré under the Torture Convention

Posted on July 20, 2012 | 1 comment
[Note: this post is based on the oral reading of the Judgment, so might be incomplete in parts. The Judgment was just released and can be found here]

Today, the International Court of Justice issued its Judgment in the case opposing Belgium and Senegal on whether Senegal is violating its international law obligations by not prosecuting, or, alternatively, not extraditing to Belgium former Chad President Hissène Habré. As shown by the history of the proceedings, and as is often the case at the ICJ, this is the end result of quite a long process between the two countries, that started in 2005. In addition, the question has been going on for even longer, essentially since Habré found exile in Senegal after having been removed from power in 1990. It should be recalled that Senegal did try to initiate proceedings in the early 2000s, but all charges were dropped because he was being prosecuted for international crimes (crimes against humanity among others, but also torture) that did not exist in Senegalese criminal law at the time. Moreover, when the AU called upon Senegal to prosecute Habré anyway in 2006, the country tried to implement new laws. However, Habré obtained an ECOWAS judgment saying that this would be contrary to the principle of legality.

  • Jurisdiction

Having first established jurisdiction based on the Torture Convention, the Court moved on to consider whether Belgium’s contention that Senegal had violated its customary international law duty to prosecute crimes against humanity, war crimes and genocide gave the ICJ jurisdiction. The Court found that at the time of the dispute, this was not an issue, so the judges excluded jurisdiction on this ground, which means that they did not make any findings on whether a State is under an obligation to prosecute non-nationals for crimes committed abroad, only on the interpretation of the Torture Convention, more particularly 2 of its provisions:

Article 6(2): “Such State shall immediately make a preliminary inquiry into the facts”.
Article 7(1): “The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.”

  •  Admissibility

Senegal also challenged Belgium’s standing to bring the case. The ICJ first discussed whether the simple fact of being a party to the Torture Convention gives standing. Having recalled the object and purpose of the Convention to end impunity for torture and all States have a common interest in fighting impunity. Obligations under the convention (notably under the above mentioned provision), apply irrespective of the nationality of the perpetrator or the victims, and all States have a legal interest in the respect of the obligations. It is therefore an obligation erga omnes partes, similar to the Genocide Convention. This common interest implies that every State can ask another State to put an end to violations of the Convention, so Belgium did have standing.

  • Substantive violations of the Torture Convention

The ICJ then moved on to the substance of the claims of violations of the Torture Convention by Senegal. The Court recalls preliminarily the obligation to criminalize Torture in national law and establish universal jurisdiction, as a prerequisite to the satisfaction of any duty to prosecute. Senegal’s adoption of such legislation in 2007 caused delay in the prosecution of Habré, and therefore affected its other obligations under the Convention.
As for the violation of Article 6(2), the preliminary investigation has for purpose to bring together elements on the alleged actions and conduct of the person. Senegal should have therefore requested more assistance from Chad and done more to investigate allegations against Habré. In light of the object and purpose of the convention, Sénégal should have established more systematically whether there were reasons to be believe that Habré had committed acts of Torture, and therefore violated its obligations under the convention to open a preliminary investigation under Article 6(2).
In relation to the violation of the duty to prosecute, the ICJ recalls that each State decides whether to proceed with a prosecution in conformity with its national laws, within the context of the obligations laid down before. The ICJ finds that Article 7(1) imposes a duty to initiate proceedings, irrespective of an extradition request from another State, as a consequence of the respect of Article 6(2). If there is an extradition request however, the duty to prosecute falls if the person is actually extradited. Extradition and Prosecution are not on the same level. Extradition is a mere option, whereas prosecution is an obligation. The prohibition against torture is a jus cogens norm, but duty to prosecute of the convention only applies to acts that intervened after the entry into force of the convention for a given signatory State. The ICJ therefore finds that the duty to prosecute only applies to Sénégal for acts before the 26 June 1987. After that date, however, the duty to prosecute applies.
The ICJ also summarily finds that the ECOWAS judgment is irrelevant for its evaluation.
Finally, Article 7(1) does not contain any timeframe, but the ICJ finds that proceedings must start within a reasonable time, especially in light of the object and purpose of the Convention to put an end to impunity for Torture. The Judgment therefore confirms the violation of Article 7(1).

As a remedy, this continued violation should be put to an end by the actual prosecution of Habré.

  • Some first thoughts 

Based on what I’ve heard, I don’t find the substance of the Judgment particularly surprising. It’s quite obvious that Sénégal did not respect its obligation to investigate and prosecute the acts of torture allegedly committed by Habré. It is interesting how the Judgment does seem to distinguish prosecution (seen as an obligation) and extradition (seen as a option). There is therefore no actual “duty to extradite”. Extradition is in effect a defense against any claim of a violation of the duty to prosecute. The other point is the question of the time frame (not) imposed by Article 7(1). I disagree with the reasoning of the judges, when they use the object and purpose of the convention to justify a “reasonable delay”. the teleological interpretation is often referred to abusively in my opinion, and I would have preferred an evaluation based on actual actions and intent of the State to genuinely comply with its obligations, in which time is but one component.

One difficulty that does remain is how Senegal is to implement this judgment, in light of the ECOWAS judgment of a few years ago. I think that the ICJ should have dealt with the substance of the ECOWAS Court reasoning, but even if the ECOWAS judgment was wrong, it remains an international decision that Sénégal should comply with, in the same way that it should comply with the ICJ judgment. The ECOWAS does leave room for flexibility for Sénégal to implement an ad hoc criminal procedure which might be compatible with the ICJ Judgment, but such compatibility is at this point merely speculative, and Belgium’s claim that the fact that Sénégal is now confronted with two conflicting international obligations is its own fault is beside the point. It might be true, but the fact remains that today, Sénégal still has to deal with the fact that implementing the ICJ judgment might violate the principle of legality recognized by another international court, and more importantly which is due to Habré (although I do think that the ECOWAS judgment made an incorrect reading of international law, even if I agree with them in theory). Some help from the ICJ on that point would have been welcome.

Where the Judgment might be a little more problematic is on its finding that any State party, irrespective of a particular interest in the case, can bring a claim before the ICJ based on the non-respect of the duty to prosecute torture. This finding is based on the alleged erga omnes partes nature of the obligation and the common interest of all parties to the convention that there should be no impunity for acts of torture. In effect, although the Judgment does not mention it, this reasoning seems to fall within the context of Article 48 of the ILC Articles on State Responsibility, which provides that:

1. Any State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if: (a) the obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or (b) the obligation breached is owed to the international community as a whole.

I tend to disagree with this reasoning, based on a moral rather than material imperative. Indeed, while the prevention of torture is certainly a legitimate common goal, the violation of the duty to prosecute, in my opinion, does not affect other State parties in the same way that, for example, the obligation not to pollute a river or the high seas might, justifying the erga omnes partes characterization. With the confusion between the material and moral dimension of an obligation, one can claim that all multilateral treaties, whether human rights treaties, or trade agreements, contain erga omnes obligations, because why would States collectively sign such a treaty without a shared collective interest that it should be respected by everyone, in the absence of a specific interest of any particular State? Moreover, not only is this reasoning too broad, in my opinion, from a legal point of view, it can have very practical consequences. Essentially, it means that the ICJ’s docket in the next few years could be swamped with claims by any State Party to the CAT against any other State Party to the CAT. Arguably, this might of course increase compliance with the Convention, but it could also become a litigation nightmare that I’m not sure the drafters had in mind (but specialists of the CAT can correct me if I’m wrong on this).

Finally, while I understand the reasoning of the Court on the customary law duties to prosecute, it is a pity to we do not have the ICJ’s substantial views on this. It might have brought some clarity to a contentious field, in the same way that the Germany v. Italy Judgment rightly put to rest this idea that alleged commission of international crimes removed head of State Immunity.

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Random Comments on the Mali Self-Referral to the ICC

Posted on July 20, 2012 | Leave a comment
As anybody following ICC activity most likely knows, Mali has referred its own situation to the ICC, as indicated by the OTP in a press release. I was not planning to particularly comment on this event, but after reading the excellent analysis from fellow bloggers Kevin John Heller, Mark Kersten and William Schabas, which I share to a large extent, I had a few thoughts of my own, as a reaction.

  • Another African Case
All three comment on the fact that this might not be a good idea to open yet another investigation in Africa, given the criticism that the Court has received in the past for this African trope. Certainly, there are countries in the world outside of the African continent which would have been deserving of an investigation. But generally, I still think, as I said two years ago (see here and here) that this criticism is widely exaggerated. 
First of all, it is difficult to “map” a coherent public opinion on this issue, whether from Africa or internationally. Some African leaders might make some noise occasionally, using the ICC as one among many tools to blame the West for everything that goes wrong in Africa, but then I hear victims’ groups asking for MORE investigations in African countries. In addition, Mark is right to point out that the AU “opposition” to the ICC is not as wholesale as sometimes presented. What the AU often criticises (and rightly so in my opinion), is the clear disregard for basic principles of international law, such as head of State immunity, that flows from UNSC referrals, not necessarily ICC activity in general. 
Second of all, overall, the fact remains there are not that many situations around the globe where the systematicity and gravity of the violence reaches the levels that takes place in the DRC, Uganda or CAR. Sri Lanka springs to mind spontaneously, probably Colombia might deserve less complacency, and Syria has obviously reached the level where if Libya deserves a UNSC Referral, it certainly does to. But generally, if you had to rank the worst crimes being committed around the world, it would be disingenuine not to recognize that African situations have ranked quite high up. 
Finally, there might be two Security Council referrals in Africa, but as recalled by William Schabas, there were three self-referrals (DRC, Uganda and CAR). In addition, if the Ivory Coast situation is technically a proprio motu investigation, the 12(3) declaration by the State (which is not a party to the Statute), resembles a self-referral in everything but name. Of course, one can raise questions on the actual decisions of the OTP to follow through on these referrals, as the others do, but on the point being considered here, it is difficult to say that the ICC is biased against Africa, when African countries are referring themselves to the Court!
  • The Problem with Self-Referrals
Which doesn’t mean that the self-referral practice does not raise difficulties of its own. As pointed out by the other bloggers, there are essentially two issues with this, both linked to the possible political manipulation of the Court by the States.
The first one is the limitation of the referral to the activity of the rebels. This kind of limitation can be damaging to the perception of impartiality of the Court. In this sense, I feel a similar unease at Fatou Bensouda shaking hands with the government representatives, even if it was more low key, than I did some years back when Ocampo was shaking hands with Museveni for the Uganda referral. That being said, it should be recalled that technically speaking, this limitation has no legal value. Indeed, a State refers a situation to the Court and it is then up to the Prosecutor to decide what crimes (including those committed by the government) to prosecute. In this sense, one can say that if there is an intent to manipulate the Court, it is the actual choices of the OTP that will show whether there is consent to be manipulated. Uganda and Ivory Coast are examples where it didn’t particularly bother the former Prosecutor to play along. Let’s see if the new Prosecutor has more reservations about this.
The second aspect is the idea that States get rid of the cases they do not want, even if they would be able to prosecute the perpetrators themselves. On this point I tend to agree with my fellow bloggers. It is not really in the spirit of complementarity for States to so easily delegate prosecutions to the ICC, when the end goal of the system, as least in the rhetoric, is that States be the first in line in the fight against impunity, with the ICC coming in when the system does not work, or is used to shield the perpetrators from actual justice. Such outsourcing is apparent in a number of situations. As Kevin has pointed out, Uganda clearly has the capacity to prosecute the LRA leaders, if only it could catch them (before they are all killed by infighting…). Also, one should remember that Lubanga was being held in custody for international crimes before being transferred to the ICC. Similarly, Ivory Coast explicitly announced throughout 2011 that they were not prosecuting international crimes against former president Gbagbo, to allow the ICC to do so and avoid admissibility problems, with the OTP kindly complying, whereas everybody else belonging to the pro-Gbagbo camp has since been indicted locally with war crimes, crimes against humanity and even genocide since. If that is not a case of manipulation, I don’t know what is.
But the fact remains that this is what the legal framework says. Complementarity in practice resembles nothing like the nice philosophy that is sold to us. It is a mere, non compulsory, procedural hurdle and actually more often than not resembles primacy. Moreover, the test is extremely narrow, contrary to what many people think. Kevin is right to remind us that inactivity, whatever the reason, defeats any admissibility challenge. In relation to that, I recall that one defendant (I think it was Lubanga) argued that allowing such inactivity to trump complementarity is de facto allowing States to violate their international law obligations to prosecute certain crimes. I found the challenge quite smart, but of course, the Judges decided otherwise, and found that the referral to the ICC was one way to satisfy this obligation. And even if there is activity, the very narrow “same person, same conduct” test, allows the ICC to intervene even when national prosecutions are ongoing, as the Lubanga case once again shows.While I have my reservations on the policy consequences of this framework, from a purely legal point of view, that is in my opinion the exact way to interpret the Statute. “Positive Complementarity” might be a nice PR catch phrase, but that is not how complementarity was drafted in the Statute (which is why I think that the OTP’s approach to Colombia is legally dubious, but that is a different issue).

  • Miscellaneous thoughts on “politics”, “legitimacy”, “perceptions” and other empty words
My fellow bloggers have pointed out the various issues that make them more or less cautious in relation to the referral, in terms of “political” credit or manipulation, “legitimacy”, or “perceptions”. While I enjoy having these discussions, I have to admit some caution of my own in using these terms, because I often do not know  how to use them. 
For example, the question of “politicization” puzzles me as an argument whichever way I look at it. Indeed, people claim all types of policy goals for international justice, beyond the core function of a criminal court which is to prosecute people, such as peace or reconciliation, which are broadly political goals. By doing so, they are themselves politicizing the Court in my opinion, so cannot really complain when it is politicized in a direction they do not like. From another perspective, I’ve never been convinced by the manichean dichotomy of law (=good) and politics (=bad), which is often at the heart of the argumentation of many activists, notably from the human rights fields, for example when they criticize the role of the Security Council in the ICC Framework. Law is the result of political choices, neither of them being intrinsically good or bad, and human rights are no less “political”, just because they have a diploma of universal morality. At the end of the day, who cares if States use the Court for political reasons? The ICC was set up to prosecute people, and that is exactly what it is doing (albeit not perfectly…). The ICC will never be able to prevent the political use of its work, whatever it does, in the same way that people use court rulings against other people in any national environment, even when the Court ruling is not initially meant to be used in that way.
Which brings me to my last point, on “legitimacy” and “perceptions”. For one, “legitimacy” is often unhelpful, because it is used as a static quality that an entity has or has not. But “legitimacy” is a relationship between the entity and a specific observer. It can be legitimate to some and illegitimate to others. The key being to identify the target constituency. But even when you do that, “legitimacy” is still hard to define because it is a function of expectations which are artificially created. For example, international justice is often blamed for not achieving certain goals (peace, reconciliation, reparation for victims), when this expectation should never have been created in the first place! And the worst part is that those to blame for this are the proponents of international justice themselves, who often oversell their humble family car as a formula one race car. Linked to this, there is often this illusion that legitimacy is a result of a rational equation between different objective factors, such as, for some, respecting the rights of the defense, or for others, prosecuting both sides of a conflict, or having judges from certain countries sit (or not sit) on the bench. But often, people will come to the issue with a preconceived idea of what they want, and, more importantly, what is good for them, and judge an institution by that standard, whatever it does. The ICTY was legitimate for croats when it prosecuted Serbs, but not when it prosecuted Gotovina. I might think that the ICC is illegitimate for convicting Lubanga despite the gross violations of the rights of the defense throughout the process, and his victims might think the ICC illegitimate because he was not sentenced to enough prison. At the end of the day, legitimacy is a totally unworkable concept from a methodological point of view. 
  • Bottom line
But I’m straying away from the topic. Bottom line, the self-referral is legal and it’s not the Prosecutor’s job to evaluate whether she is being manipulated politically, or whether she is perceived as legitimate by such and such constituency. She should do her job of prosecuting people correctly, because that is what she is paid for. If (and it’s a big “if”, given past performance of the OTP…) the work is done competently, then it is not her problem what the possible consequences might be. Let States take their responsibilities and put their money where their mouth is. If the Security Council wants the ICC to investigate Syria, it should help pay for it, and State parties should increase the budget of the Court (once it is established that the money is well spent). States created a Court to prosecute crimes, irrespective of political considerations, and if they are unhappy when it actually happens, they should have thought of it sooner (or even get rid of the Court). But it is not the Prosecutor’s job to do this balancing act between politics, diplomacy and accounting.
As I wrote this last paragraph, I realized that this is something Ocampo might have said (possibly in shorter sentences) and this means that this is two posts in a row where I feel sympathy for him. I fear I might be coming down with a break up syndrome, whereby, when a bad relationship ends, you suddenly remember only the good memories (also known as the graduation goggles). This is unlike me, and I hope I get over it soon…

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Posted in ICC, mali, referrals

The Lubanga Sentence (Part 2): Why the Ocampo Bashing is getting old

Posted on July 10, 2012 | 1 comment
There is no doubt that Luis Moreno Ocampo, the recently departed ICC Prosecutor, was to ICL commentators what George Dubya Bush was to liberal americans, an endless provider of material to write about. I have myself blogged extensively on his gaffes, legal blunders and media outings over the years. Ocampo has also received a number of significant rebukes from ICC Judges in a number of decisions, not least in the Lubanga case and, with the Sentencing Decision that was handed down today, The Trial Chamber made sure not to miss this new, and probably last, opportunity to pile things on him again. But I’m wondering if the Ocampo bashing is not getting a little old. I don’t think he can be blamed for everything that went wrong in the Lubanga trial, and it should not mask the fact that the Judges did not take the appropriate measures to ensure that he stayed in line. This is true for both aspects of the Chamber’s consideration of prosecutorial conduct.

  • The question of sexual violence

First of all, in relation to Ocampo’s stance on Sexual Violence, the Chamber has the following to say (§60):

The Chamber strongly deprecates the attitude of the former Prosecutor in relation to the issue of sexual violence. He advanced extensive submissions as regards sexual violence in his opening and closing submissions at trial, and in his arguments on sentence he contended that sexual violence is an aggravating factor that should be reflected by the Chamber. However, not only did the former Prosecutor fail to apply to include sexual violence or sexual slavery at any stage during these proceedings, including in the original charges, but he actively opposed taking this step during the trial when he submitted that it would cause unfairness to the accused if he was convicted on this basis. Notwithstanding this stance on his part throughout these proceedings, he suggested that sexual violence ought to be considered for the purposes of sentencing.

There is no doubt that Ocampo deserved some criticism for his charging strategy in the Lubanga case. As Kevin John Heller points out over at Opinio Juris, you have to wonder if he does not now regret some of the choices he made, and, as I have said in the past, it can be argued that he shot himself in the foot by putting sexual violence forward systematically while refusing to charge the crime.

However, the bottom line is that this is part of prosecutorial discretion under the legal framework of the ICC. Whatever one thinks of the policy, it was perfectly within Ocampo’s powers to limit the charges in this way. He did not “fail to apply to include sexual violence”. He exercised his legally granted discretion not to include these charges, and the judges should stop harking on about it, which is, beyond their own discretion. I find this “it’s not our fault, it’s his fault” discourse equally unprofessional.

Moreover, the requalification of charges mess that delayed the trial even longer was certainly not Ocampo’s fault. It was due to the Chamber’s (with Fulford dissenting) totally inappropriate use of Regulation 55 (which is, as I’ve argued elsewhere an ultra vires extension of the Chamber’s power to start with) and Ocampo was perfectly right to oppose it.

Finally, given the Chamber’s acknowledgement that sexual violence could indeed be considered for sentencing, the Judges apparently agreed with Ocampo on this issue, so their rebuke was not really called for.

Bottom line, the Judges are unhappy that Ocampo did not charge sexual violence and want to make clear that it’s not their fault. That is not their role and is not professional conduct.

  • The delays during the trial
Second of all, the Chamber recalls the several instances of prosecutorial misconduct, and recognises the fact that Lubanga was “respectful and cooperative throughout the proceedings, notwithstanding some particularly onerous circumstances” (§91). The Judges recall three particular instances: the non-disclosure of exculpatory material, the non-compliance with Chamber orders for disclosure of the names of intermediaries and a public interview made by Beatrice le Fraper who made “misleading and inaccurate statements to the press about the evidence in the case” (§91).
In relation to the last incident, I commented at the time, saying that, while maybe a little careless, the statements by le Fraper were wrongly considered to put the fairness of the trial at risk. In relation to the non-disclosure issues, I commented extensively (here and here) on the appalling conduct of the Prosecutor. But once that was said, what did the the Chamber do about it? The Appeals Chamber at the time explicitly told the Trial Chamber to initiate proceedings for misconduct, which was never done. They might even have initiated more serious contempt proceedings, warranted by the gravity of what happened, or the ASP could have decided to remove the Prosecutor. At the time, however, the President of the ASP, in a meeting in The Hague candidly said that this would never happen. 
So basically, nobody did anything about Ocampo, except give him symbolic slaps on the wrist, as was done in the Lubanga Judgment. As I said back then, there comes a moment where this is not enough. There comes a moment where the judges should have taken their responsibilities and used their powers under the Statute to sanction Ocampo. One could even argue that the only adequate remedy for this systematic prosecutorial misconduct would have been a permanent stay of proceedings and the release of Lubanga. And arguably, the Trial Chamber did pronounce a stay of proceedings twice, overturned both times by the Appeals Chamber. But the Trial judges missed a last opportunity to draw the logical consequence of the poor and unfair conduct of the proceedings: the judgment itself. Instead, they just frowned at the prosecutor once again. 
And now they present themselves as the knights in shining armor, commending Lubanga for his conduct when faced with “unwarranted pressure by the conduct of the prosecution during the trial” (§97), and deciding to consider this as a mitigating circumstances. For me, at the end of the day, the judges are as responsible as Ocampo was for this trial being a joke at times, by failing to use their statutory powers to control him (and even, as recalled previously, by delaying the trial themselves). Apparently, command responsibility only applies to war criminals…
  • Final thoughts on Ocampo
I never thought I would one day write such a defense of Ocampo, having been a very vocal critic of his performance in past years. But there comes a moment when I get suspicious of systematic scapegoating. Ocampo was most certainly, all things considered, a poor choice as a Prosecutor. His communication skills are far from commendable, and more dramatically, his grasp of international criminal law was shaky at best. But, for better or for worse, he did put the ICC on the international map in a way that I’m not sure another Prosecutor would have done, and I did agree with some of his positions over the years (unsurprisingly, when he opposed an extensive participation of victims, for example). 
More importantly, and to come back to my Bush metaphor, I’m afraid that the poor performance of Ocampo is tainting our approach to Bensouda in the same way that Obama was seen as the savior of the nation. Everybody is head over heels for Bensouda and does not associate her with Ocampo. Even the Sentencing Judgment, when referring to the “former-prosecutor” plays a part in this narrative. But, as I’ve said before, Bensouda worked for Ocampo for 9 years, and can’t have not been involved in any of the bad decisions that he made. For example, I’ve seen some of the first documents coming out of the OTP in the Gbagbo case, and they certainly have not improved in terms of legal reasoning.
Of course, I wish Bensouda the best, but I do call for caution in having too high expectations, which is the surest way to have them dissapointed. All the talk about Africa and the ICC, geopolitcal considerations of selection of cases, extra-legal debates on Peace Vs Justice and the fact that we have both an African and a woman as Prosecutor as an offering to political correctness, should not mask the simple fact: what we need is a competent Prosecutor, nothing more, nothing less.

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Posted in bensouda, gravity, ICC, lubanga, ocampo

Some thoughts on the Lubanga Sentence: A throw of the dice

Posted on July 10, 2012 | 1 comment
The International Criminal Court issued its first sentence today in the Lubanga case. In a thankfully short Decision, the Trial Chamber sentenced him to 14 years, minus time served. There is a nice summary of the reasoning by Jennifer Easterday over at IntLawGrrls and here are a few first thoughts on the criteria for determining the sentence and the actual sentence he received. I will discuss the Chamber’s view on Ocampo’s conduct in the next post.

  • The criteria for determining the sentence

In a previous post on the Taylor Sentencing Judgment, I expressed some concerns on the confusion between the underlying rationale for having international criminal courts in the first place, and the specific criteria taken into account for the sentencing.These concerns equally arise here. Indeed, I am not convinced by the fact that the Decision refers to the Preamble of the Rome Statute (§16) as a source of inspiration. The Preamble applies to all the crimes, and is not a justification for considering that a particular crime is of particular gravity. This confusion gives rise to meaningless and empty statements like (§37):

“The crimes of conscripting and enlisting children under the age of fifteen and using them to participate actively in hostilities are undoubtedly very serious crimes that affect the international community as a whole.”

That is certainly true, and indeed explains why the crime is contained in the Statute in the first place. But it doesn’t explain the particular gravity for the purposes of sentencing.

A more relevant factor is the particular vulnerability of the children, even if one could, in theory, contest this as well as an unwarranted classification of harm, especially as International Criminal Law continues to refuse to acknowledge the idea of a hierarchy of crimes, thus rejecting the easiest conceptual basis for a differentiation in sentencing.

On a more positive note, I particularly appreciate two aspects of the decision. The first one is that the Judges made clear that factors were not considered twice, i.e, factors considered for the purposes of gravity were not taken into account as aggravating circumstances. This was applied, for example, to the fact that the victims were “particularly defenseless” (§78). The second positive aspect is the rather careful approach of the Majority to the consideration of sexual violence as an aggravating circumstance. While I have my doubts as to whether this should be considered at all because Lubanga was not charged with the crime, once the Judges did do so, they set a high threshold, considering that (§69):

However, that said, it remains necessary for the Chamber to be satisfied beyond reasonable doubt that: (i) child soldiers under 15 were subjected to sexual violence; and (ii) this can be attributed to Mr Lubanga in a manner that reflects his culpability, pursuant to Rule 145(1 )(a) of the Rules.

Based on this test, the Majority found that there was no sufficient evidence to suggest that Lubanga ordered or encouraged this practice and therefore refused to consider it as an aggravating circumstance.

The Chamber also deals with the OTP decision not to charge sexual violence and the OTP’s misconduct during the trial, but I will discuss these issues together in a separate post.

  • Determination of the sentence
With all this in mind, the judges were all set to reveal the final figure for the sentence. On this, the decision clearly leaves us in the dark on why 14 years, as international judgments often do. The Decision starts by mentioning the SCSL judgments which have considered this crime, with sentences ranging from 7 years to 50 years, which is certainly not of much help. And then, after 25 pages of factors that were or were not considered, the result, 14 years, falls from the sky without the reader being any more enlightened, despite the appearance of explanation. The Judge might as well have thrown dice and rendered a one-page decision.
To be fair, the Judges do explicitly say that in the absence of any aggravating circumstances, a life sentence (which the OTP had actually not asked for anyway) would be inappropriate (§96). The Chamber also rejects the OTP suggestion that a baseline of 24 years should be adopted for all crimes, notwithstanding the fact that this is not provided for in the Statute. I must admit that I have sympathy for the OTP’s position, which would be a step in the direction of some predictability. And the final sentence decided upon by the Chamber is not any more in the Statute than the baseline proposed by the OTP. 
But apart from these clarifications, the Judges do not specifically explain why 14 years. The OTP had asked for 30 years. The Chamber says that it has taken into account all the circumstances of the case to come up with the final figure.What number did the judges start from to add years for the particular gravity of the crime or deduct time for the mitigating circumstances? Why is there a different sentence for conscripting (13 years), enlisting (12 years) and using the children in hostilies (14 years)? Of course, one can see the logic there, but it would have been nice to have some explicit clarifications.
The whole absurdity of the process is illustrated by the (unsurprising) dissent by Judge Odio Benito. In a 12-page dissent (so a third of the majority decision), the Judge expresses her “strong” and “firm” disagreement on the fact that the Chamber did not sufficiently take into account the sexual violence that occured as a consequence of the commission of the crime. But as a result of this disregard for “the damage caused to the victims and their families” (dissent, §2), Judge Benito suggests a whooping one year increase (15 years instead of 14 years) to the sentence imposed by the Majority. This is of course ridiculous. Assuming that Judge Benito is right in what she says, this one year differential hardly deserves the time spent writing  (and more particularly, reading) the dissent.

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Posted in bensouda, ICC, lubanga, ocampo, taylor