Monthly Archives: December 2014

Guest Post: A Matter of Distinction Part II: participation of children in hostilities following the Lubanga Appeal Judgment

[I’m delighted to welcome Catherine Harwood again with her thoughts on the recent Lubanga Judgment’s take on active participation in hostilities]

  • Introduction

On 1 December 2014, the Appeals Chamber of the International Criminal Court dismissed Mr Lubanga’s appeals against conviction and sentence. Mr Lubanga had been convicted of the war crimes of enlisting and conscripting of children under the age of fifteen years and “using them to participate actively in hostilities” under Article 8(2)(e)(vii) of the Rome Statute, and was sentenced to 14 years imprisonment.

Mr Lubanga’s grounds of appeal included that the Trial Chamber had misconstrued the concept of ‘active participation in hostilities’ in Article 8(2)(e)(vii). In a previous post I discussed his appeal and supported the distinction made by the Chamber between ‘active participation’ in Article 8(2)(e)(vii) and other manifestations of ‘active’ or ‘direct’ participation in hostilities in international humanitarian law (IHL). I cautioned against the adoption of a unitary concept, writing that it was preferable to retain this distinction in light of the drafting history and purpose of Article 8(2)(e)(vii). I argued in favour of a bifurcated approach “in order to discourage the use of children in roles that place them in harm’s way, while also preserving their status as protected persons until they participate directly in hostilities.”

This contribution follows up on that post, after the delivery of the Appeal Judgment. In upholding the  conviction and sentence, the Appeals Chamber endorsed the distinction between ‘active participation’ in Article 8(2)(e)(vii) and the notion of ‘direct participation in hostilities’. However, it concluded that the Trial Chamber had erred in its interpretation of ‘active participation’. This contribution argues that despite some elements of ambiguity, the Appeals Chamber’s ‘link to combat’ approach is workable and appropriately connected to the underlying protective purpose of the prohibition. Continue reading

Post Conflict Justice and the ICC: some thoughts on false expectations and the illusion of staying together “for the kids”

At the end of last week, I attended a very interesting conference organised by the Grotius Centre of Leiden University on the “Impact and Effectiveness of the International Criminal Court”, the final conference of a several year project on post conflict justice and local ownership. The wide-ranging list of speakers covered a large number of topics, such as the question of legacy of the ICC, the insertion of the ICC in the restorative justice and peace debates or the operation and impact of the principle of complementarity.

I was privileged to be able to present my thoughts on complementarity which I called “a tale of false promises and mixed up chameleons”. You can read an extended version of my speaking notes here, on the excellent new website on post conflict justice ( launched at the conference. In them, I analyse the current case-law on the issue and suggest that it does not allow the principle to realize the broader goals assigned to the ICC of promoting the rule of law and local ownership.

Ultimately, however, I question whether these goals should be assigned to the ICC as a function in the first place in the following way: Continue reading

BREAKING NEWS: Charges Dropped by the ICC Prosecutor in the Kenyatta Case

Earlier this week, the Trial Chamber in the Kenyatta case at that ICC told the Prosecutor to either bring new evidence or drop the charges. I predicted without to much doubt that the charges would indeed be dropped. Just this morning, the OTP promptly confirmed this in a press release and in a notice of withdrawal filed with the Trial Chamber.

As I said, this was the only possible outcome, given that the Prosecutor herself had acknowledged that, as things stood, there was not enough evidence to prove the case beyond a reasonable doubt. I will not repeat here what I think are the consequences of this turn of events for Kenyatta, the Court and the OTP. I just want to add three extra points. Continue reading

An ICC Trial Chamber brings the Kenyatta case closer to an end

[Cross-posted on Invisible College]

Today, a Trial Chamber at the International Criminal Court (ICC) issued two decisions in the case against President Kenyatta of Kenya. Together, these decisions bring the case yet closer to a close, even before the trial even started. As you might know, a few weeks ago, the Trial Chamber held two status conferences at which was discussed the question of Kenya’s alleged lack of cooperation with the Prosecutor’s investigation, the OTP request for another adjournment of the trial and the Defense’s corresponding request for a termination of the proceedings.

Today’s decisions when read together can only be read as an unmitigated disaster for the Office of the Prosecutor (OTP). In the cooperation decision, the Trial Chamber, while recognizing some elements of bad faith and finding overall non-compliance (§78) on the part of Kenya, ultimately considers that it would be inappropriate to make a referral of non-compliance to the ASP because ultimately “while cooperation by State Parties is crucial for the functioning of the Court, the primary responsibility for investigation lies with the Prosecution” (§85). In light of this, the Chamber considered that the OTP did not do all it could to follow through on its own request for cooperation. Continue reading

The Lubanga Appeals Judgment: another nail in the coffin of the Confirmation of Charges Procedure?

On the 1 December 2014, The Appeals Chamber of the International Criminal Court (ICC) issued its Judgments on the Lubanga Trial Judgment and Sentencing Judgment. These judgments bring to a final close the first trial of the Court, nearly 9 years after Lubanga was transferred to the Court and nearly 3 years after the Trial Judgment. The Appeals Chamber confirmed everything, both the judgment and the sentence, with a partially dissenting opinion from Judge Song and a very strong dissent from Judge Usacka.

This trial has been a regular feature of this blog (see more particularly discussion of the Trial Judgment here, here and here and of the sentencing Judgment here and here). If you go through past commentaries of the trial, you will note that a number of issues have created controversy over the years: Prosecutorial miscond… sorry, negligence in relation to the use of intermediaries, the relevancy of evidence of sexual violence or whether the definition of co-perpetration includes a “control over the crime” criteria as imported out of thin air (or rather German criminal law doctrine) by a number of Chambers at the Court. More generally, this was a first opportunity to test the “Ocampo Legacy” at the appeals level. So, how did the Appeals Chamber do? Continue reading