Category Archives: lubanga

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

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.

First Judgment at the ICC: Some Random Thoughts on the Lubanga Verdict (part 2): the investigation

Moving away from questions of form, as dealt with in my previous post, let’s look at certain issues of substance, which I will broadly consider in the order they are dealt with in the judgment. Because I want to keep my posts short(ish), I will comment in over different posts…
  • … but first, another comment on form and style
Having plowed through nearly 300 pages of the Judgment so far, there are already a number of parts that could have been seriously cut down. What is the point, for example, of recalling the case law on victim participation at the beginning? The same is true of the factual overview. International Judgments are not history books, and should not try to be history books. For one, they often get things wrong. More importantly, that is not their function. This overview should only be mentioned if it is relevant for the legal analysis (for the determination of the nature of the armed conflict, for example (more on this in Part 3)). 
On the related question of style, international judges have to stop acting as if they are giving a lecture to, depending on the section of the judgment, students/activists/fellow professionals/academics. They are Judges and are not meant and should not be expected to engage in academic debates unnecessarily. Two examples in what I’ve read so far (but I’m sure there are more). 
When discussing the nature of the armed conflict (again, more on the substance of this in Part 3 of this blog series), the Chamber refers to academic and jurisprudential discussions on the relevancy of the distinction between an international and a non-international armed conflict (§539). It then says, however, that: 

In the view of the Chamber, for the purposes of the present trial the international/non-international distinction is not only an established part of the international law of armed conflict, but more importantly it is enshrined in the relevant statutory provisions of the Rome Statute framework, which under Article 21 must be applied. The Chamber does not have the power to reformulate the Court’s statutory framework.

Of course I agree with this statement, but it shows how far we’ve gone in misunderstanding the role of the international criminal judiciary that these judges would feel the need to mention it explicitly in the judgment! It is a self-evident truth that is in-built in the role of these individuals as judges and should not have to be recalled in such a context.
A second example relates to the definition of the crime that was charged. The Statute clearly mentions the crime and the age of 15. There’s no discussion in that respect. Why therefore does the Chamber feel the need to explain the historical reasons for this prohibition and the fact that “children are particularly vulnerable” (§605-606)? This is neither a course in the history of international crimes nor a course in sociology and such discussions have no place in a Judgment. And the counter-argument of pedagogy, once again, is lost in my opinion, when these 2 pages are drowned in the 600 pages of the judgment as a whole.

  • The Investigation Process generally

The Judgment details at length the investigative process of the OTP (starting at §124). This part of the judgment covers a number of issues relating to the investigation, notably the difficulty in gathering evidence and the security issues that were faced by the investigators. The Court highlights the fact that the team was composed of a number of former NGO personnel, as well as people from International justice and human rights (§126). Interestingly, the Court relays the testimony of one witness questioning NGO reports. The following quote from William Pace reproduced at §130 is quite telling in that respect:

Investigators also sometimes find it difficult to corroborate information provided by human rights groups who are eager to call international attention to crises. The gap between the assessment of the human rights groups and the evidence was sort of a surprise,” says Mr Lavigne, a French magistrate and former police detective, who heads the Congo investigation team. Mr Pace considered that “human rights and humanitarian organizations are lousy criminal investigators. They are not producing forensic evidence that can be used by a prosecutor.

This finds an echo in the recent Mbarushimana confirmation of charges decision, where the Prosecutor was criticised for relying too much on NGO reports. It more generally raises the issue of the professional conflation that exists between the various “communities” of international justice, where people easily switch from one activity to the other (academia, tribunals, activism) and more problematic even, often act in all these capacities at once, sometimes abusing their professional function to promote an activist agenda. Such conflation can also be seen in the style of the judgment (see above), with certain parts reading more like a lecture to LLM students than a judicial decision.

The Judgment also highlights the “inconsistent requests” that were made to the investigators due to the absence of clear guidelines and changes in investigative choices from the OTP (§144).

  • The use of intermediaries in particular

The major question that arose in relation to the investigation was the use of certain intermediaries by the Prosecutor and their alleged misconduct. This had led to a series of decisions in the course of the trial (see here and here) where prosecutorial actions were severely criticized, even leading to a stay of proceedings.

The Trial Chamber revisits this issue in the Judgment. In fact, it takes up 130 pages (more than a fifth of the judgment!). It considers the background to the use of intermediaries and considers the credibility of the evidence that was gathered by a number of them, concluding in a number of instances that the evidence is not reliable due to the lack of professionalism or even dishonesty of certain intermediaries.

In the summary of the judgment, the judges issued a strong condemnation of the Prosecutor’s actions:

17.An issue that occupied the Chamber for a significant part of this trial concerned the use by the prosecution of local intermediaries in the DRC. The Chamber is of the view that the prosecution should not have delegated its investigative responsibilities to the intermediaries as analysed in the judgment, notwithstanding the extensive security difficulties that it faced. A series of witnesses have been called during this trial whose evidence, as a result of the essentially unsupervised actions of three of the principal intermediaries, cannot safely be relied on.

18.The Chamber spent a considerable period of time investigating the circumstances of a substantial number of individuals whose evidence was, at least in part, inaccurate or dishonest. The prosecution’s negligence in failing to verify and scrutinise this material sufficiently before it was introduced led to significant expenditure on the part of the Court. An additional consequence of the lack of proper oversight of the intermediaries is that they were potentially able to take advantage of the witnesses they contacted. Irrespective of the Chamber’s conclusions regarding the credibility and reliability of the alleged former child soldier witnesses, given their youth and likely exposure to conflict, they were vulnerable to manipulation.

This is all very nice, but the childish glee one gets from seeing the Prosecutor criticized once again has now lost its appeal through toothless repetition and been replaced with the frustration of nothing coming out of it. In particular, I don’t share Kevin’s enthusiasm, over at Opinio Juris, that this shows the judges “listened” to the Defense. Big deal. Time and again, in this instance as in a number of other occasions, the Prosecutor has received harsh rebukes from the Chambers in relation to such futile issues of his public statements, to more important issues relating to his investigations as well as egregious cases such as this one where, not only the Prosecutor showed, at best, gross negligence in his choice of intermediaries, but actually refused to comply with clear orders from the Court to release their names. A slap on the wrist is no longer sufficient. There exist tools in the Statute, such as Articles 70 and 71 that allow for the sanction of the Prosecutor for this kind of conduct and it is about time that they are used.

Moreover, back on the length of the judgment, I’m not quite sure, in light of this unfolding intermediary fiasco, why this was not dealt with months ago. If one of these people was entirely untrustworthy, it should have been considered when the whole issue arose and the stay of proceedings was decided. 20% of the final judgment on this issue is ridiculous.

All in all, this part of the judgment shows the difficulties of investigating such crimes in such circumstances. It also dramatically identifies the failures of the OTP, even in such circumstances. There is clearly a pattern here, when you add the two decisions declining to confirm charges that have occurred. People tend to blame the outgoing prosecutor for these failings. For me, as I’ve said before, the jury is still out and I am not willing to give an automatic blank check to the new Prosecutor, Fatou Bensouda, whatever appreciation I might have of her as an individual. Indeed, I have difficulty believing that such systemic and repeated errors are the sole responsibility of one man. I hope I am proven wrong on this.

(to be continued, stay tuned)

First Judgment at the ICC: Some Random Thoughts on the Lubanga Verdict (part 1)

(see Part 2 and Part 3)

Today, the ICC issued its first judgment in the Lubanga trial. He was found guilty of the war crime of conscripting and enlisting children under the age of 15 and using them to participate in hostilities. There are a number of things to write about it, and I’ll do so over the coming days, time allowing.

Before going into the substance of some of the issues considered, a few words on the conduct of the trial. There is no doubt that any ambition to have this trial as a sort of model trial, just as you have model houses that you can visit, evaporated long ago. This was meant to be a simple case.The Prosecutor decided to have a lengthy list of charges, a criticism often levelled at the prosecutiorial strategy at the ad hoc tribunals and essentially charged Lubanga with one crime relating to child soldiers. This should have been an easy case. However, as we all know, due to a combination of delays (prosecutorial misconduct, judicial activism on the requalification of charges, victim participation), the trial took way longer and went far less smoothly than expected.

This is the summary of the trial proceedings on the ICC website:

Over the course of 204 days of hearings, the Trial Chamber has delivered 275 written decisions and orders and 347 oral decisions. The Chamber heard 36 witnesses, including 3 experts, called by the Office of the Prosecutor, 24 witnesses called by the defence and 3 witnesses called by the legal representatives of the victims participating in the proceedings. The Chamber also called 4 experts. A total of 129 victims, represented by two teams of legal representatives and the Office of Public Counsel for Victims, were granted the right to participate in the trial. They have been authorised to present submissions and to examine witnesses on specific issues. The Prosecution submitted 368 items of evidence, the Defence 992, and the legal representatives of victims 13.

In comparison, in the Popovic et al. case at the ICTY, a case with 7 accused with counts including Genocide, Crimes against humanity and war crimes, 182 prosecution witnesses, around 130 defense witnesses several thousand exhibits, there were 425 trials days, a little more than twice the Lubanga trial.

The comparison need not stop here. The Popovic Judgment, again for 7 acussed and all the related evidence, is two volumes long and some 900 pages. The Lubanga Judgment, including the separate opinions is over 600 pages. For one accused, and essentially one count! One can only have nightmares at the thought of having to read the judgment in the Katanga and Chui case, with two accused and some 10 counts, or an hypothetical Bashir Judgment with its long list of charges… Something needs to be done about this judicial logorrhea. What is amazing is that I’ve heard some of the staff of these tribunals justify the length of judgments for reasons of pedagogy. Of course. It makes total sense that a layperson is more likely to read a 600 page judgment than a 200 page judgment…

And while we’re on form rather than substance, I just came accross the first press release from the OTP following the judgment. It welcomed the first verdict of the Court, of course. It says nothing of the fact that the OTP was publicly chastised for its negligence and sloppiness in the gathering of evidence and use of intermediaries, of course (more on this in subsequent posts). But what it mostly does is celebrate the fact that Angelina Jolie attended the hearing! The first trial at the ICC, the first Judgment, the first conviction, the recognition of the criminal activity of Lubanga and his armed group for thousands of victims, the controversy about not charging sexual crimes, the upcoming sentencing proceedings… and the angle that the OTP chooses for this first press release is the presence of Angelina Jolie… a watershed moment indeed…

Self Promotion: Who is in charge of the charges at the ICC?

I’ve just published on SSRN the draft of my upcoming chapter in the THE ASHGATE RESEARCH COMPANION TO INTERNATIONAL CRIMINAL LAW: CRITICAL PERSPECTIVES (William A. Schabas, Niamh Hayes, Yvonne McDermott and Maria Varaki, eds.).  In it, I consider the powers of the various organs of the ICC in defining, amending and recharacterizing the charges, especially the infamous Regulation 55 which was at the heart of the controversy surrounding the attempt by the Trial Chamber in Lubanga to introduce new charges of sexual violence during the trial and which I commented on here and here.


Here is the abstract:

One issue that has come to the fore in the early practice of the International Criminal Court (ICC) is the question of who determines the content of the charges against an accused individual and the scope and timing of any amendments that are to be made. The importance of this issue is threefold. First, having a clear framework for the amendment of charges is important from the point of view of the accused. If he or she is to have adequate time for the preparation of the defence, it is important that there be some certainty as to the charges resting against him or her, without running the risk of multiple amendments. Second, the issues are illustrative of the more general concern in the ICC Statute to achieve a balance between legal certainty and judicial efficiency. The former requires that as few amendments as possible be allowed the more advanced the proceedings are, whereas the latter opens to door to some flexibility to avoid acquittals based on a faulty determination of the charges. Third, as will be illustrated in the course of the chapter, it more generally highlights the difficult balance of power to be struck between various organs of the Court, not just between the Prosecutor and the Chambers, but also between the Pre-Trial Chamber and the Appeals Chamber, and begs the question as to whether the judges of the ICC ought to have the final say in matters that might seem to relate more to a legislative rather than judicial function.

Please don’t hesitate to circulate, and all comments are welcome!

Follow-up on Lubanga and the possible removal of ICC Prosecutor by the ASP: it’s "definitely" not going to happen, says the President of the ASP.

I ended my previous post on the possible next steps after the Appeals Chamber Judgment reversing the stay of proceedings in the Lubanga case. I would like to make a couple of follow-up comments on this point.

For one, it is likely that contempt proceedings be initiated by the Court in accordance with article 71 of the Statute. In accordance to Rule 171 of the RPE, the Chamber can pronounce the removal from the proceedings of a person who has failed to comply with an order of the Court, or even, if the person is an official of the Court, order an interdiction to exercise their function for a period up to 30 days. And of course, they can fine the person as well.
I still don’t see how this is linked to the opportunity of staying the proceedings or not. If the prosecutor were being accused of bribing witnesses (which is not far removed from the underlying accusations against the OTP intermediaries in this case…), would the Chamber have an obligation to keep the trial going while it initiated proceedings under 71, even if it means that corrupt witnesses are testifying? It wouldn’t make sense. You have to make sure that the underlying cause justifying the stay has ceased to exist before you can resume the trial.

Another (independent) avenue is action by the ASP. This could lead to disciplinary measures (Article 47) which may be (very scary) “(a) A reprimand; or (b) A pecuniary sanction that may not exceed six months of the salary paid by the Court to the person concerned” (RPE, Rule 32). Or, if the conduct is sufficiently serious, the ASP can vote by an absolute majority of States a removal from office (Article 46). There is no middle-ground between the two, such as a temporary suspension. However, this oversight is partly compensated by the fact that the Chamber can suspend the person temporarily. It should also be pointed out that the proceedings are not initiated directly by the ASP, but should be triggered through a formal complaint to the Presidency, or proprio motu by the Presidency (Rule 26 RPE).

In relation to the latter possible proceedings at the ASP, the Asser Institute hosted a lecture by Ambassador Wenaweser last night, where the President of the ASP shared some of his thoughts on the Kampala Conference and more generally on what lies ahead for the ICC. In response to a comment he made on strenghtening the role of the ASP, I asked him if he had any thoughts on the ASP using its powers to sanction or even remove Prosecutor Ocampo. He was fairly evasive on the ASP looking into things more generally, but his answer was crystal clear on the removal aspect: this will definitely not happen. Of course, this is unsurprising politically. But this statement is problematic, both substantially and procedurally.

From a substantial point of view, you have to wonder what the Prosecutor must do to be removed, if his conduct in the Lubanga case is not sufficient to at least consider the possibility. In Lubanga alone, he has voluntarily misrepresented the Statute not to communicate UN documents to the defense. He has refused to obey Court orders. Also, we mustn’t forget the underlying situation behind the recent current events, which have taken a backseat to the procedural drama of the stay of proceedings : his intermediaries are alleged to have interfered with witnesses, which, if established, would be a massive breach of the fairness of the proceedings.

Beyond this substantial aspect, it is problematic that the President of the ASP would express a preconceived opinion about the possible outcome of a formal procedure provided for by the Statute and the Rules of Procedure and Evidence. This is just as inappropriate as a judge saying in advance that a defendant will go free before his hypothetical trial takes place.

This is a sign of the general impunity for the organs of international tribunals, which is ironic given that their overarching mandate is specifically to fight impunity. Judges have been caught sleeping. Prosecutors have been accused of paying witnesses. Decisions have been taken that clearly undermine the rights of the defense on a daily basis, both subanstially (for example new crimes being added through the haphazard use of customary law) and procedurally (for example the very lax rules on the admission of evidence). All these events would constitute serious miscarriages of justice by any normal standard, but end up having little to no consequences in international tribunals under the guise of the superior moral objective of these institutions. Of course, I’m not equating some of the procedural improprieties that I mention previously, to the serious crimes alledgedly committed by the defendants. But the underlying principle behind these tribunals should apply in their daily working: if there is no accountability, there cannot be justice.

To come back to the specific issue at hand, one could argue that it wouldn’t look good and would be a sign of weakness for the ICC to remove (or sanction) its Prosecutor. But for me, this is a short-sighted analysis. On the long-run, the legitimacy of the Court will depend on its capacity to publicize its successes, but also to accept the consequences of its failures. It is a sign of the maturity of an institution that it can acknowledge its mistakes, rather than sweep them under the carpet, as it keeps doing in the Lubanga case. All they will achieve is to create this increasing mound of dust over which Justice, as the long-term goal of the institution, can only stumble eventually.