The Never-Ending Lubanga Trial : A Legacy for Our Children… who will have reached old-age before it concludes!

Posted on August 10, 2009 | Leave a comment

On the French Bastille day, July 14th, the Trial Chamber in the Lubanga case issued a “Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court“. Under this fairly enigmatic title, the Chamber, by a 2-1 vote, with a strong dissent from the Presiding Judge Fulford, considers that the facts underlying the case against Thomas Lubanga could characterise 5 new crimes under the statute of the ICC (3 of sexual slavery (both as a war crime and a crime against humanity), one of inhuman treatment and one of cruel treatment). It should be recalled that Lubanga was up to now charged with 6 counts linked to child soldiers.

In order to reach its decision, the Court relies on Regulation 55(2) of the Court’s Regulations, according to which:

“If, at any time during the trial, it appears to the Chamber that the legal characterisation of facts may be subject to change, the Chamber shall give notice to the participants of such a possibility and having heard the evidence, shall, at an appropriate stage of the proceedings, give the participants the opportunity to make oral or written submissions. The Chamber may suspend the hearing to ensure that the participants have adequate time and facilities for effective preparation or, if necessary, it may order a hearing to consider all matters relevant to the proposed change.”

As much as I would like to disagree with it entirely on principle, I have to agree partially with the Chamber, or at least admit that their interpretation of the Statute and Regulations is possible. According to the Dissenting Opinion, as well as Kevin Heller at Opinio Juris, the use of Regulation 55(2) is contrary to both Article 61(9) of the Statute and Article 74(2) of the Statute.
Let’s start with Article 61(9), dealing with the confirmation of charges and according to which “After the commencement of the trial, the Prosecutor may, with the permission of the Trial Chamber, withdraw the charges”. The dissenting analysis is that this means that the Trial Chamber’s only power in relation to the charges is to allow the Prosecutor to withdraw them. This makes sense, but it is also possible to read this provision as laying down the powers of the Prosecutor, not the Trial Chamber. This could be confirmed by the grammatical constructionof the Article, which states that “The Prosecutor may…” rather than “the Trial Chamber may not…” Moreover, Regulation 55(2) relates the legal qualification of facts, not the question of charges. Of course this sounds like semantic hair-splitting, and I agree, but unfortunately, the multiplication of terms is the drafters’ fault, not mine.
As for Article 74(2), it relates the requirements for the decision: “the decision shall not exceed the facts and circumstances described in the charges. the Court may base its decision only on evidence submitted and discussed before it at trial”. The Trial Chamber contends that this requirement does not apply to Regulation 55(2), because it comes into play during the trial, and not in taking the decision. It bases its argumentation on a comparison with Regulation 55(1), which expressly refers to Article 74(2) and its conditions. Again, as much as I would like to disagree with the Majority Decision, their interpretation, even if it doesn’t make sense, is possible given the drafting of the various provisions. If the drafters wanted to include the Article 74(2) safeguard in Regulation 55(2), they shoud have included it!
Where I do have a major issue with the decision, and this is where the criticism should focus, is on the definition of “legal characterisation”. On this point, I perfectly agree with the minority opinion. The new crimes brought forward are so removed from the ones in the original charges, that the facts already brought forward would not be sufficient to be able to rely on them for a conviction. New facts would necessarily be needed, especially in relation to the widespread and systematic character of the proposed crimes against humanity charge of sexual slavery and the proof of Lubanga’s mens rea in relation to that, which is different that the one for the war crime of enlisting child soldiers. Such a broad definition of “legal characterisation” basically allows the Trial Chamber, nudged forward by the victims, to bring entirely new charges against a defendant during the Trial, which is extremely problematic for the rights of the defense, even if the Trial Chamber did recognise that it needs to give sufficient time to Lubanga to respond, hence the notice under Regulation 55(2).
In conclusion, what to make of this decision?
In my opinion, the only real bad decision-making is in relation to the the legal definition of “legal characterisation”. If not, they make use of the poor drafting of the Statute, RPE and Regulations. Some authors call this “constructive ambiguity”, which is often lauded as allowing the judges some leeway in adapting the statute to new situations. But, even accepting, for the sake of argument, that it is a good thing to allow criminal judges to makes up rules as they go along, one must accept in consequence that this “flexibility” can go both ways, depending on the agendas of the judges (more on this below).
This problematic articulation of the different rules of the ICC legal framework is often due to a pick-and-choose mixture of common law and civil law systems. Both of them have their own logic. But when you take two conflicting rules from each system (in our case prosecutorial discretion, and judge-led trials) without thinking through how to articulate them, you will necessarily be faced with problematic decisions as this one.
Which brings me back to the more general policy considerations.
The first one is one of efficiency. Whatever one thinks of the decision, there is no denying that the use of this procedure will considerably lenghten a trial which has already been going on for far too long.
Secondly, this is not a suprising decision in light of the ongoing struggle between OTP and Chambers since the inception of the Court on who is in charge. This went on at the pre-trial phase, in relation to investigations, participation of victims, qualification of charges, and is obviously continuing in the trial phase.
Third of all, it shows the continuing, increasing and in my opinion problematic influence of victim participation in the proceedings. They had criticised (together with powerful NGOs) the fact that Lubanga was only charged with enlisting of Child Soldiers. And I had partly agreed with this criticism. But it is one thing to critisize and disagree with prosecutorial choices, it is another to actually allow the victims a procedural right to contest (or even change) the charges during the trial. As Kevin Heller points out, “that ship had sailed”, and the trial itself is not necessarily the moment to come back on it.
Finally, related to this issue of victims’ rights, i can’t help but notice that once again the impetus in giving the victims more power comes from latin-american judges (Odio Benito, from Costa-Rica, and Blattman, from Bolivia), just as the first progressive decisions on victim participation had involved Judge Steiner from Brazil. This is not suprising, given the influence of the inter-american system in the development of victims’ rights, through the recognition of an army of rights that have then be exported as unchallenged gospel in the realm of international criminal law, despite the sometimes flimsy legal justification of some of these rights (like the fabled right to truth) that blurs to the point of extinction the distinction between law and morals.
But lets keep this debate for another time…

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Posted in lubanga, prosecutorial discretion, victims participation

Defamation of religions in a Brave new World…

Posted on April 23, 2009 | 2 comments

As the Durban II Review conference on Racism comes to an end, I would like to come back to one aspect of my previous entry: the defamation of religions as an act of racism. It appears from the draft outcome document that it has not been adopted in Geneva.

The Human Rights Council, however, adopted a resolution at the end of March on the theme of “Combating Defamation of Religion”. In that document, Defamation of religion is presented as a component of incitement to religious hatred. It therefore “Underscores the need to combat defamation of religions and incitement to religious hatred in general”. It justified the limitations of freedom of expression that would ensue, by saying that it is protecting Human Dignity and freedom of religion, thus putting us in front of a classic Human Rights balancing test: “Stressing that defamation of religions is a serious affront to human dignity leading to a restriction on the freedom of religion of their adherents and incitement to religious hatred and violence”.

This is not a new issue, and painfully became of global concern when the caricatures of Mohammed were published in a Danish newspaper and in several other countries. The debate back then also focused on the freedom of expression Vs Freedom of religion/Human Dignity.

But the whole logic of this HRC resolution and of this debate in general is flawed at various levels.
First of all, it is wrong to balance Freedom of Expression and Freedom of of Religion here. Nobody is preventing anybody from practicing their religion. Expressing the view that such and such religious practice is to my dislike (whether the stoning of adulteress women, the fact that homosexuals should burn in hell, that women are treated as mere breeders, that I cannot smoke on saturdays, drink when I want, or have sex before marriage (!!!)) is of no relevance to whether the people who do believe in those practices can do so freely or not.
Second of all, since when do “religion” have rights? what does “defamation of religion” mean exactly? Who is this “Religion” who is going to go to court and sue me for having defamed his name? Maybe this a one more example of this trend of “collective” human rights that seems to be gaining ground in the past few years, like the “right to developement”…
Third of all, and more generally, we must not give in to the general trend of politically correct limitations to our freedom of expression. Under the umbrella of “Human Dignity”, pressure groups are trying to prevent any kind of comment that might be vaguely offensive. Comedians cannot open their mouth without someone making a formal complaint. Let me make things clear here. That people are unhappy with something being said and express it is perfectly ok. What I have a problem with is that we call for a legal and more specifically criminal response to offensive remarks. Because that is what we are talking about most of the time. It has nothing to do with “human dignity”. It has to do with being offended and, following this logic, why should “only” the people who call you a “nigger”, a “raghead”, or a “spick” be prosecuted? I should also be sued because I tell you that you are fat, or ugly, or short… Moreover, it leaves no room for irony, sarcasm, or second degree humour. what a sad and brave new world that is…
On a more philosophical level, any thought, philosophy or ideology that cannot accept contradiction is structurally defective. Moreover, I am not defined by the opinion others have of me. Why should I care what an antisemite thinks of me? It says more about him than about me. If we put all stupid people in jail, it would make finding a free stretch of sand on the beach in the summer easier (although I only go to the beach if it’s free…).

Finally, on a more subtantive level, and without taking sides, this general debate should not cloud the fact that certain religious practices are contrary to internationally recognised human rights. Religious leaders can spin it as much as they want, they can’t have their cake and eat it: sometimes strict religious practice is just plain incompatible with respect of human rights. What should be done about this is another issue, but the elephant in the the living room can’t be ignored forever, under the pretence that there isn’t enough light to see it…

PS: Someone pointed out to me that the speech in Geneva by Ahmadinejad was not only on the birthday of Hitler, but also on remembrance day of the Shoah in Israel… you have to love the timing…

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Posted in freedom of expression, freedom of religion, Human Rights Council

The Geneva Show on (anti-)Racism

Posted on April 20, 2009 | 1 comment

Once upon a time… on the birthday of Hitler (oh, the irony…)…

It was written like a crafty Hollywood script… Enter the Iranian president, under the applause of part of the room. The speech starts. Cue unplanned protesters wearing a clown’s attire and who threw a red nose on stage (probably all participants had been asked to take off their shoes to avoid any assault on the speakers…). A few shouts later, they are dragged away by the security team of the conference. And then, to the utmost suprise of the audience, Ahmadinejad starts ranting about the immigrants sent by Europe to create a racist State in the Middle East. Faced with this unforeseen speach from a usually so moderate world leader, some representatives, mostly from European countries, recovered fast from the suprise and improvised a courageous walkout to show their opposition. Following this, despite the short notice, all these countries manage to issue in a suprinsingly coordinated way strong press releases condeming this attack on Israel… The UN expresses dismay at the Iranian president’s outbreak. This is a perfect storyline, full of unexpected drama and…

oh come on! Who are we kidding? This whole joke was as predictable as an episode of Mission Impossible (did anybody ever really believe that they might not save the day?). Everybody wins from this theatrically staged farce in Geneva for the second conference against Racism, after the one organised in Durban in 2001.
It was obvious that the bearded leader of Iran would say something that could create outrage. But a walkout looks so much better on TV than not showing up at all. Like that, the Europeans can show their voters, sorry, citizens, their strong rejection of racism. Ahmadinejad also wins, by looking like a courageous martyr who has the balls to stand up to the Western-capitalist-zionist-freemason-aliens-from-outer-space conspiracy.

The Durban Conference in 2001, despite its good intentions, was hijacked by those wanting to single out Israel as a racist State. Very few countries actually reacted when at the time some “NGOs” distributed anti-semitic material. Only the USA and Israel left the conference back then. And even if the final declaration was mild in its language, most of the debates were focusing on Israel. As for the “Durban II” conference, the signs were not good. A document circulating some weeks before the start of the event, drafted by the Preparatory Commission, headed by Libya with an Iranian Vice-President, contained strong language against Israel and called for the “criticism of religions” to be included as Racism, basically preventing blasphemy. And what did this lead to? How did most countries respond to that? Some States actually decided to boycott the conference (USA, Israel, but also Italy, the Netherlands and Germany). But most apparently learned from the previous event… that they had to have better communication!

Which brings us back to today. The only lesson to draw from this is that it is an artful operation in political PR. All the participants might not agree on the content. But they can all meet up in the dressing room afterwards and congratulate each other on the success of the performance, and get ready for the next show…

… or go back to hone their skills at the permanent rehearsal stage for this type of mascarade that is the UN Human Rights Council… but let’s keep this for another time, shall we?

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Posted in Durban, Iran, Israel, racism