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?

I don’t have the time or patience to comment on all aspects of the judgments. More knowledgeable people than myself on these particular issues will most certainly be commenting on the fact that the AC specified what “active participation in hostilities” means for the purposes of the use of child soldiers (on this see Catherine Harwood here), the fact that the AC confirmed the control over the crime theory or clarified the mental element of co-perpetration (rejecting the notion of “risk” that the crimes would occur in the normal course of events).

Generally, as I point out here in an initial reaction to the judgment, I find the Appeals Judgment anti-climatic and extraordinarily cautious in its evaluation of the work of the Trial Chamber, especially when it comes to the assessment of evidence or the relevant criteria for sentencing. Indeed, apart from Judge Usacka (mostly) and Judge Song (to some extent), there seems to be very little desire for the Appeals Judges to get their hands dirty and actually see if the evidence actually showed what the judges said it showed. There are a couple of inconsequential occasional slaps on the wrist for the Trial Chamber, but, as often with the Appeals Chamber, this has no direct impact on the actual outcome. This is most certainly not a “Tadic moment” for the ICC in terms of the legacy this first appeals judgment will have for the future practice of the court. It’s a if the Appeals Chamber hardly has an opinion about anything, to the point, and I never thought I would say that, of regretting the bolder approaches adopted in ICTY/ICTR appeals judgments…

One issue I would like to focus on because it is an issue of interest to me is the question of the specificity of the charges.

Lubanga challenged the Trial Judgment on the basis that the charges against him were not specific enough, especially as a number of key witnesses against him were deemed unreliable. The Appeals Judgment (Judge Usacka) dissenting, dismissed the ground of appeal.

What it is interesting here is that the Appeals Chamber took the opportunity to clarify what is meant by the notion of “charges”. Indeed, despite the central role of this concept in the proceedings (after all “charges” are what are confirmed as a sine qua non condition for a trial), the term is actually not defined in the Rome Statute (as I already noted here a couple of years ago). Two notable points are made by the Appeals Chamber in that respect.

First of all, the Appeals Chamber notes the following elements need to be specified to the accused:

the Appeals Chamber finds that, in order to be able to prepare an effective defence, where an accused is not alleged to have directly carried out the incriminated conduct and is charged for crimes committed on the basis of a common plan, the accused must be provided with detailed information regarding: (i) his or her alleged conduct that gives rise to criminal responsibility, including the contours of the common plan and its implementation as well as the accused’s contribution (ii) the related mental element; and (iii) the identities of any alleged co-perpetrators. With respect to the underlying criminal acts and the victims thereof, the Appeals Chamber considers that the Prosecutor must provide details as to the date and location of the underlying acts and identify the alleged victims to the greatest degree of specificity possible in the circumstances. In the view of the Appeals Chamber, the underlying criminal acts form an integral part of the charges against the accused, and sufficiently detailed information must be provided in order for the accused person to effectively defend him or herself against them.

This is a nice attempt to drawing the contours of the charges, and the inclusion of the underlying criminal acts in the charges is a welcome clarification, given that, for example in the Gbagbo case, the Prosecution had claimed that the acts alleged to prove the contextual elements of crimes against humanity needn’t be proven to the same standard of proof as the rest. Of course, as noted below, there seems to be a gap between the nice legal requirement and what was actually accepted in this case…

The second point of interest relates to the question of where these elements should be located. In that respect, the Appeals Chamber says that this information can be found in any pre-trial document (Confirmation of charges decision, any amended Document containing the charges or the summary of evidence) (§124 and 128). On one hand, I can see the logic of this approach. As noted by the Appeals Chamber, the right to be informed of the charges is link to the right to prepare one’s defense (§129), so as long as the accused is told sufficiently before trial of the detail of the charges, who cares where they are found? On the other hand, this reasoning is for me both procedurally and possibly practically flawed. Procedurally, it ignores the fact that the “charges” are meant to be confirmed by the Pre-Trial Chamber in order to go to trial. If what the PTC confirmed needs to be clarified later, does it not mean that the PTC did not in fact do its job, that something was missing from the confirmation decision and that therefore it did not confirm the “charges”? practically, the evaluation done by the Appeals Chamber is perfect in hindsight. Once the Trial Judgment comes out, you can trace back the elements that it relies on to check whether they are contained somewhere in the Pre-Trial Document. But a defendant preparing for trial does not have hindsight! It is not so obvious to know when reading through the hundreds of pages of the confirmation decision (written by a PTC with a certain view of things), the DCC and the summary of evidence (written by the OTP with possibly a very different view of things) what will be relied on in fine by the Trial Chamber to convict.

This difficulty is brought to the fore by the dissenting opinion of Judge Usacka who point out that Lubanga could not know in advance that the core evidence of 9 witnesses would be struck out and that he would be convicted on evidence that had been presented as peripheral by the Prosecution.

In that respect, Judge Usacka criticizes the OTP for distinguishing a “pattern section” of the DCC, with vague unsubstantiated claims and an “individual cases” section, with evidence that was ultimately rejected by the Trial Chamber. For Judge Usacka, the vagueness of the charges meant that:

the only effective defence available to Mr Lubanga was to affirmatively prove that no children under the age of fifteen had been conscripted, enlisted or used in hostilities by the UPC/FPLC during the period of the charges.

This is most certainly an unreasonable burden to put on the accused in the absolute and most certainly so in hindsight. This imprecision of the charges, combined to the poorness of the evidence means that, according to Judge Usacka, the Trial Chamber was more concerned with “putting historical events on the record” than preserving the fairness of the proceedings.

This discussion must be put in the context of the slow demise of the confirmation of charges part of the proceedings. This was meant to be a strong gatekeeper to the trial, contrary to the rubber stamping of the indictments that took place ex parte at the ad hoc tribunals. While some Pre-Trial Chambers took this job seriously, things are not looking so bright anymore.

Regulation 55 killed any idea of certainty that he can actually rely on confirmation of charges decision in relation notably to modes of liability, to the point that Pre-Trial Chambers are now back to the ICTY/ICTR practice of confirming multiple modes of liability.

Now, the Appeals Chamber apparently does not expect the Confirmation of Charges decision to actually confirm the “charges” because any imprecision can be corrected later. Frankly, I’m not sure I see the point anymore of this endless pre-trial process anymore. Either take it seriously, or get rid of it…