Category Archives: ICC

The Comoros Referral to the ICC of the Israel Flotilla Raid: When a ‘situation’ is not really a ‘situation’

Posted on May 15, 2013 | 5 comments
As has been widely reported already, The ICC OTP announced today that it had received a referral from the Comoros “in relation to the event of May 2010 on the vessel Mavi Marmara”. You will recall that this boat was part of the group of boats that tried to reach Gaza at the time and which were boarded by the Israeli army, resulting in a number of deaths and injuries.

The usual suspects of the blogosphere have already put up excellent posts on this development: Kevin Heller (here and here), Dapo Akande (here) and William Schabas (here). They already covered a number of more political issues which I won’t delve into here, such the perception issues that would flow from the initiation or not of a formal investigation among African States and the international community, the alleged anti-palestinian bias of the ICC OTP or the apparently poor timing of the referral given that Israel and Turkey seem to be getting close to finishing their negotiations on the incident.

I also won’t go discussions of certain legal questions that come up in relation to this referral. I would tend to agree with Kevin’s evaluation that this would not meet the gravity threshold under Article 17, especially given the response given by the Prosecutor in the Iraq communications. However, I’m wondering if the Abu Garda case, which concerned a single attack on a peace keeping compound, and where it was considered that the gravity threshold was met, is not a indication to the contrary.

Also, I find the referral thoroughly sloppy on the legal characterization of the facts as war crimes and crimes against humanity. It unconvincingly tries to link the events to the Gaza situation (discussions on the Palestinian declaration to the ICC in 2009 are for me beside the point here) and there is a meager two paragraphs on crimes against humanity that would be laughable if not present in a formal State referral to the ICC.

Finally, as an aside, I think too much is being made of the link between the fact that Comoros is the State of registration of the Mavi Marmama and the fact that Comoros is doing the referral, as if the former implied the latter. However, legally, there is no need to make that link. What’s important is that the alleged crimes were committed on the territory of a State Party, but after that, any State Party could have made the referral.

But the main point I want to focus on is whether this is really a referral of a “situation” as required by the ICC Statute. Both Dapo and Kevin make strong cases on the fact that this is indeed a “situation”, because specific cases have not been referred (which would not be allowed) and because it is not an issue that potentially only one crime has been committed (I’m not entirely sure why both of them make this last point so vocally, as even the referral suggests, even unconvincingly a number of alleged crimes falling within the jurisdiction of the Court…). I’m still not convinced for the following reasons.

To start out, it is interesting to note that, reading the referral, the scope of the “situation” that is referred is subject to interpretation. The Mavi Marmara is mentioned a number of times in the document, but the actual referral seems to be broader and cover “IDF’s attach on the humanitarian aid flotilla on the 31st of May 2010”. This ambiguity is reflected in the OTP Press release with only mentions the Mavi Marmara in the title of the release, while using the broader scope in the text of the release.

I think both interpretations raise different questions that I’m struggling with.

If the situation referred is the attack on the Mavi Marmara, I can’t shrug the feeling that this is stretching the notion of “situation” a little too far. Of course, a “situation” needn’t be the whole territory of a State (as illustrated by the Uganda and Sudan referrals). However, I’m wondering if narrowing down a referral to a single event doesn’t make a joke out of the whole idea of what a “situation” is (as well as of prosecutorial discretion in the selection of cases). Would we really call, for example, the “referral” of the destruction of the bridge of Mostar or the Sarajevo snipping, “situations”? Or to take an ICC example, what would we have said if only the attack on the AU peacekeepers, for which Abu Garda was charged, had been referred by the Security Council?

Moreover, the thin line between “situation” and “case” becomes a little blurred if this referral is accepted. Indeed, at the ICC, a case is when, within a situation, a specific individual becomes the focus of investigations for specific crimes.  For me, allowing only one incident to be referred under the label “situation”, would be like saying in a national context that investigation into a murder is a “situation”… until a suspect is identified and it becomes a “case”. This would be a ridiculous semantic distinction. In other words, I think that we are here very close to a “case” being referred to the ICC. This feeling is obviously strenghtened by the fact that the perpetrators are already know and pointed to in the referral, at least collectively, as the IDF.

Let me be clear, I’m not saying that this referral does not fit the ICC definition as it currently stands and as put forward by Dapo and Kevin (given that it is extremely vague both in the Statute and the case law…), but should this be considered as a “situation”, thus allowing the ICC to take on specific incidents, rather than broader “situations” (for lack of a better word…),  I think this could change the logic of ICC intervention in ways that would not be necessarily welcome.

If, on the other hand, the “situation” is the attack on all the boats, notably the two other ships flying flags of State Parties (Greece and Cambodia), then a different question arises. The issue can become whether the referral is too broad rather than too narrow. Indeed, the referral covers crimes committed not on the territory of one State Party, but on the territory of several State Parties. Again, nothing in the Statute seems to prevent that, but I’m wondering if this is really what the drafters intended, because it could lead to the consequence of actually de-territorializing.

Indeed, what the Comoros are essentially saying, is that the key element is the attack and its perpretrators, irrespective of the territory it was committed on (aside from the jurisdictional requirements of course). This means that tomorrow, a State could refer the crimes committed by a global terrorist organization, anywhere on the territory of a State Party. Would that fit our instinctive notion of a “situation”? If it doesn’t, we must be cautious at accepting a referral which does the same here: the attack of the IDF on the flotilla, irrespective of the territory it was committed on. I know it seems difficult to compare the two situations, because we are just talking about boats here, not entire countries, but legally, it’s the same difference.

All in all, I think that the fact that this is a “situation” under the Rome Statute is not as clear-cut as we would like to think. And if it turns out to be, I think it sets a precedent that can have far-reaching consequences that we should be aware of and that might affect the way the ICC operates in ways that go further than the specific political context in which this referral comes.

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Posted in flotilla, gaza, gravity, ICC, Israel, situations

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

Comments on Lubanga Judgment (Part 3): the armed conflict, the elements of the crime and a dissent against the dissent

Posted on March 15, 2012 | 1 comment
This post continues the series of comments of the Lubanga verdict started here and here. In this post, I consider the nature of the armed conflict and the elements of the crime of enlisting, conscripting and using children in actively participating in hostilities. This will be an opportunity to critically asses Judge Odio Benito’s dissent.

  • The Nature of the Armed Conflict
At the outset, it should be pointed out that this is a generally irrelevant point. Indeed, I believe that the drafters of the ICC Statute, by maintaining the strict dichotomy between international and non-international armed conflicts in the drafting of Article 8 in relation to conduct that is criminalized in both cases forgot that international criminal law is not international humanitarian law, despite their obvious conceptual kinship. The distinction should have only been maintained for conduct that is criminalized only in one of them (generally international armed conflict). 
The fact remains that this distinction remains in the Statute and it was therefore necessary to define the nature of the armed conflict because it technically leads to different crimes being prosecuted: 8(2)(b)(xxvi) for an international armed conflict and 8(2)(e)(vii) for a non-international armed conflict.

Initially, the Prosecutor had charged the crimes under a NIAC. The Pre-Trial Chamber had used (abused) its power under Regulation 55 of the Court to change this legal qualification, considering that for a period of the indictment, it was an IAC (this is not the place to discuss Regulation 55 in detail, but on its illegality and abuse, including in the Lubanga trial, cf. my article on the issue). Now, the Chamber re-used Regulation 55 to say that, in fact, it was a NIAC all along. it confirms that several armed conflicts of different nature can co-exist at the same time and that you have to carefully identify which is the relevant one for the purposes of the trial. It this case, any international aspect (most notably the presence of Uganda and Rwanda) was not deemed to make the armed conflict between the Government and Lubanga’s armed group international. Moreover, the Chamber also confirms that the requirement of “control over part of the territory” from the armed group present in APII, is not in the ICC Statute and need not be verified for a NIAC to exist.
  • Elements of the crime of enlisting, conscripting and using children to participate actively in the hostilities
In relation to the enlisting and conscription of child soldiers, the Chamber, while pointing out the semantic distinction between voluntarily joining the armed forced (enlisting) and involuntarily joining the armed forces (conscription), decided to consider them both together. 
The more problematic issue was the question of the meaning of “participate actively in the hostilities”. In line with some SCSL case-law, this was deemed to cover not just combat activities, but any support activities that might expose the child to danger as a potential target (§628). 
The real question was whether sexual violence should be considered in this context. You will recall the 2009 fiasco of the legal recharacterisation of facts on which I commented on here and here, where the trial chamber (with a strong dissent from Judge Fulford) tried to get sexual crimes in through the back door, using their power under Regulation 55, before being reversed by the Appeals Chamber. In application of this Appeals decision, the judgment confirms that evidence pertaining to sexual crimes could not be considered because it had not been contained at the confirmation stage. Interestingly, the Trial Chamber does not take a position on whether sexual violence is actually contained in the definition of active participation in the hostilities.

  • Judge Odio Benito’s Dissent
This point is however addressed in Judge Odio Benito’s dissent. It seems that no international judgment today is worth anything without a dissent from a Latin American judge with a human rights activist agenda. The ICJ has Cancado Trindade and the ICC apparently now has Odio Benito. In a mercifully short dissent (Judge Trindade is not that graceful in his dissents that are sometimes twice the size of the actual ICJ judgment), the judge from Costa Rica plays the usual tune meant to strike a chord of shame in the hearts of the cynical positivists that some of us are. She refers to the now traditional tool of natural lawyers (a contradiction in terms, maybe?) who advance in the guise of common sense positivists, namely the “object and purpose” of the Statute, and says that the Chamber, in refusing to decide whether sexual violence is part of the definition, is “a step back in the progressive development of international law” (again, the classical rhetoric of progress, which makes any person who might resist a vile reactionary). She concludes her opening plea with the following grand finale (§8 of the dissent): 

I deem that the Majority of the Chamber address only one purpose of the ICC trial proceedings: to decide on the guilt or innocence of an accused person. However, ICC trial proceedings should also attend to the harm suffered by the victims as a result of the crimes within the jurisdiction of the Court. It becomes irrelevant, therefore, if the prosecutor submitted the charges as separate crimes or rightfully including them as embedded in the crimes of which Mr. Lubanga is accused. The harm suffered by victims is not only reserved for reparations proceedings, but should be a fundamental aspect of the Chamber’s evaluation of the crimes committed.

Needless to say that I strongly disagree with Judge Odio Benito. How can an ICC judge say that it is “irrelevant” what and how the Prosecutor charges? Moreover, I failed to identify when the ICC became a counseling service for victims. More importantly, it is this kind of grandiloquent statement that creates the false expectations among the victims that the ICC is indeed there to have this restorative and psychological role. Like many people, Judge Odio Benito, with all her good feelings, confuses the function of an institution and possible positive consequences of the exercise of this function. Of course an ICC trial can have an effect in the restorative process, by identifying the perpetrator, acknowledging the crimes and sometimes giving the victims a (limited) voice in the proceedings. But if the ICC is sold as having this function, it will necessarily fail in achieving this goal and disappoint expectations that should never have been created in the first place. Blaming the ICC, which is not institutionally designed to do this, for not doing enough for victims, is like blaming your dishwasher for not being able to cook your pasta. It doesn’t make sense. What you should do is blame the person who sold you the dishwasher, claiming that it could also heat up your pizza.
In any case, and to get back to the point, given Judge Odio Benito’s approach to law, it is unsurprising that she argues that sexual violence should be considered as an “active participation in the hostilities” because sex slaves provide “essential support” to the armed groups (§20 of the dissent) and sexual violence is often an intended consequence of illegal recruitment. This reasoning strikes me as odd when you consider that, for exactly the same objective of protecting civilians, IHL has always thrived to limit the scope of “direct participation in hostilities”. But now, the definition should be expanded to also protect civilians. This kind of flexibility (creativity) is typical of human rights activism that wants its cake and eat it. Also, the fact that there exists a discrete crime in that respect in the Statute which was voluntarily not charged by the Prosecutor is clearly irrelevant for the Judge. All this shows that the previous reproduced quote is not even close to what she thinks. She doesn’t think that a criminal trial should also consider the harm of victims, in addition to the legal dimension, as we might initially read it, but she is willing to bend the law to include that harm, in a perfect natural law tradition.

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