Category Archives: lubanga

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

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

Guest Post: A Matter of Distinction: ‘active’ and ‘direct’ participation in hostilities and the war crime of using child soldiers

By Catherine Harwood, Leiden University

The Rome Statute prohibits the use of children under fifteen years to ‘participate actively in hostilities’ in international and non-international armed conflicts [arts. 8(2)(b)(xxvi) and 8(2)(e)(vii)]. Trial judgments in the Lubanga and Katanga cases interpreted ‘active participation’ broadly to include both ‘direct’ and ‘indirect’ participation in hostilities. Recently, Pre-Trial Chamber II committed Bosco Ntaganda to trial for charges including the use of child soldiers, and implicitly followed this approach. However, Mr. Lubanga is currently appealing his conviction, including on the basis that ‘active’ participation should be limited to ‘direct’ participation in hostilities.

This contribution argues that in light of the drafting history of the Rome Statute, the current interpretation of ‘active participation’ should be sustained. ‘Indirect’ participation which exposes children to real danger should be prohibited, without requiring a nexus between the activity and loss of civilian protection. This would preserve the intended ‘buffer zone’ of protection, so that children’s participation in risky combat-related activities is prohibited, even when they retain civilian protection.

In practice, the Rome Statute’s semantic inconsistencies, inherited from international humanitarian law (IHL), could be ameliorated by using ‘direct participation’ to denote the general limit of civilian protection, and ‘active participation’ to refer to the use of child soldiers. This approach would also encourage greater consistency between the English and French versions of the Statute.

  • Active and direct participation under international humanitarian law

In IHL, parties to an armed conflict must distinguish between civilians and military objectives, and attacks directed at civilians are prohibited. Civilians lose this protection when they take a ‘direct part in hostilities’ [Additional Protocol I, art. 51(3) and Additional Protocol II, art. 13(3)]. To make matters more complicated, the limit to civilian protection in Common Article 3 to the Geneva Conventions is ‘active’ participation. However, only the English texts contain this irregularity. The term participent directement (direct participation) is used consistently in the French texts, and ‘active participation’ is not recognised.  Nicole Urban suggests that this indicates “a uniform meaning across IHL”, and that ‘active’ and ‘direct’ are synonyms.

‘Direct participation’ is not defined in conventional IHL. The ICRC’s Interpretive Guidance provides a narrow definition which comprises a certain threshold of harm, direct causation of harm and a belligerent nexus [p. 93]. Direct participation generally encompasses activities likely to cause harm to the adversary’s military capacity or operations.

IHL also prohibits the participation of children in hostilities. AP I, art. 77(2) requires that children do not take a ‘direct’ part in hostilities. AP II does not contain any threshold: art. 4(3)(c) simply states that children must not ‘take part’ in hostilities. These rules are identical in English and French texts. The ICRC Customary Rules also articulate that customary international law simply prohibits children to “take part in hostilities”.

Why then does the Rome Statute specifically prohibit ‘active’ participation of children in hostilities, in both French and English? To understand this peculiar phrase it is necessary to revisit the statutory drafting history. Continue reading

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

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.

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

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.