On March 14, 2012, the International Criminal Court (ICC) scored its first point in nearly 10 years of activity: Trial Chamber I delivered its judgment in the case against Thomas Lubanga Dyilo. The three-judge panel unanimously found him guilty of the war crimes of conscripting and enlisting children under the age of 15 years into the Force Patriotique pour la Liberation du Congo and using them to participate actively in hostilities from early September 2002 to August 13, 2003. The chamber's Presiding Judge, Sir Adrian Fulford, appended a separate opinion, and Judge Elizabeth Odio Benito appended a separate and dissenting opinion. Upon Lubanga's request, a separate sentencing hearing will be held.
The trial faced two stays of proceedings as a result of disclosure issues and the prosecutor's refusal to comply with an order of the bench: the first stay was imposed from June 13 to November 18, 2008 and the second between July 8 and October 25, 2010. The trial hearings commenced on January 26, 2009. As the Summary of Judgment [PDF] (filed in the record of the case for the benefit of the reader) states, the chamber heard 67 witnesses, including three witnesses called by the legal representatives of the victims and four experts called by the bench. A total of 1,373 items of evidence were presented by the parties and participants in the course of the trial. Overall, however, the most impressive number is 624, the number of pages that the Chamber needed to deliberate on the charges brought against Lubanga, although he was accused of essentially one single count consisting of three distinct conducts (conscripting, enlisting and using children under the age of 15 to participate in hostilities).
Those numbers warrant some reflections. Comparing the records of different judicial institutions is not necessarily indicative of the wellness of a court of law. Nor is it a technically correct exercise, due to differences in the rules of procedures and the particular circumstances surrounding trials before different jurisdictions. However, one can hardly refrain from comparing the Lubanga trial to the proceedings against Dusko Tadić, the first indictee brought before the International Criminal Tribunal for the former Yugoslavia (ICTY). The judgment [PDF], dated May 7, 1997, was the first verdict rendered by the ICTY and took to the tribunal only one year, 125 witnesses and 473 items of evidence to convict Tadić on 11 counts of war crimes and crimes against humanity in 301 pages, including a separate opinion. After 15 years, the ICTY has a remarkable track record. As the ICC interprets its rules and develops its procedures, one can only expect that the court will benefit from the same evolution.
Moving to the law, the trial chamber touched upon several issues, some of which will be briefly addressed below. First, pursuant to regulation 55 of the Regulations of the Court, the chamber relied on its power to change the legal characterization of the facts underlying the charges, in particular the nature of the armed conflict ongoing at the time of the crimes. Contrary to the determination made by Pre-Trial Chamber I when confirming the charges, trial chamber found that there was no evidence indicating the direct intervention of Rwandan armed forces in the Democratic Republic of Congo at any relevant time. In addition, although evidence was available that Ugandan forces had occupied the airport of Bunia, the chamber considered that this did not make the armed conflict at stake international. In this respect, the chamber clarified that even if an international armed conflict existed at the time of the events, it was concurrent with the non-international armed conflict in the context of which the crimes alleged by the prosecutor were committed. By so doing, the chamber correctly meant that two or more armed conflicts, even of a different nature, can in principle coexist in time and space and can potentially characterize the same situation under investigation by the prosecutor. The chamber, however, is called to identify which armed conflict constitutes the relevant context for the purpose of deciding on the charges against the accused.
One further remark on international humanitarian law issues: when assessing whether the requirements of a non-international armed conflict were met, trial chamber confirmed that Article 8(2)(f) of the Rome Statute, which defines non-international conflicts, establishes a lesser threshold than Article 1(1) of the 1977 Protocol II of the Geneva Conventions of 1949. More specifically, the chamber endorsed the jurisprudence on the definition of non-international armed conflicts and stressed that the statute exclusively requires the existence of a "protracted" armed conflict between "organized armed groups." It follows that the prosecutor does not have to demonstrate that the armed groups involved in the conflict "exercise such control over a part of [the] territory as to enable them to carry out sustained and concerted military operations" and that the armed groups are "under responsible command," as stipulated by Article 1(1) of Protocol II. It is noteworthy that the applicability of the statute to non-international armed conflicts constitutes one of the areas in which the drafters of the statute departed from international humanitarian law instruments, opting for a less stringent threshold. Such deviation, however, goes in the direction of extending the scope of application of the statutory provisions concerning war crimes to the greatest part of the internal armed conflicts existing today.
With regard to individual criminal responsibility, Lubanga was found guilty as a direct co-perpetrator under Article 25(3)(a) of the statute, having committed the crimes charged "jointly with another," as the provision states. The majority of the trial chamber, with Judge Fulford's appending a separate opinion on the issue, adopted the doctrine of control over the crime, which Pre-Trial Chamber I had developed at the time of the confirmation of charges and which has been consistently followed by the other pre-trial chambers of the Court. Essentially, this doctrine pursues two goals. First, it distinguishes between principals and accessories to the crime. Second, it ensures that liability of principals extends to individuals who, despite their physical absence from the crime's scene, exercise control over its commission because they are in a position to decide whether and how the crime has to be perpetrated. For a person to be criminally responsible as a direct co-perpetrator, the prosecutor must prove that (i) there existed an agreement or common plan between the accused and at least one other co-perpetrator; (ii) the accused carried out a coordinated and essential contribution resulting in the realisation of the objective elements of the crime; (iii) the accused fulfilled the subjective elements of the crimes charged; (iv) the accused was aware that he provided an essential contribution to the implementation of the common plan; and (v) the accused was aware of the factual circumstances that established his joint control over the crime charged.
Contrary to the majority in the trial chamber, Judge Fulford considered that the doctrine of control over the crime is unsupported by the text of Article 25(3)(a) of the statute and it also imposes an unnecessary burden on the prosecution. He further held that the different modes of criminal liability provided in Article 25(3)(a)-(d) are not be considered mutually exclusive. Accordingly, the wording of the provision would not suggest a hierarchy of gravity among these modes of participation, with Article 25(3)(a) constituting the gravest form and Article 25(3)(d) the least serious. By implication, Article 25(3) does not envisage, as legal requirements to be proved, progressively higher contributions from sub-paragraphs (d) to (a) of the provision. On the basis of this reasoning, there would be no legal ground to argue that ordering, soliciting or inducing an international crime is, in principle, less serious than committing the same crime "jointly with another," as Lubanga did. By the same token, liability of an aider and abettor is not automatically more serious than the responsibility of individuals contributing to the commission of a crime by a group of persons. To put it practically, it may be the case that, on the basis of the evidence, the contribution made by an accused charged with participating in the commission of a crime by a group of persons will result as essential for the perpetration of the offence as the contribution performed by an individual charged under Article 25(3)(a) of the statute.
The process of classifying the modes of liability according to the degree of contributions has necessarily implied that the chambers of the Court, up to the recent decision on the confirmation of charges in the Callixte Mbarushimana case, embarked in linguistic exercises by juxtaposing adjectives such as "essential" or "significant" to the contributions that a person has to carry out in order to be accountable pursuant to Articles 25(3)(a) and (d) of the statute, respectively. Should the prosecutor decide in the future to charge someone with other forms of participation still unexplored in the ICC jurisprudence, such as soliciting, inducing or aiding and abetting, one can expect a similar trend. The relevant chamber will have to determine what level of contribution may amount to soliciting, inducing or aiding and abetting a crime under international law. Creating a priori a scale within the different modes of criminal liability, based on the degree of contribution made by the accused, and making this a legal requirement to be proved by the prosecutor is artificial, in particular when such requirement is disconnected from the material facts of the case. As a matter of facts, concepts such as ordering or inducing the commission of a crime will often be indistinguishable among themselves and in comparison with other modes of liability envisaged in Article 25(3)(a)-(d). Consequently, they are likely to overlap, thereby rendering the structure of Article 25(3) as is currently interpreted by the case law more problematic and confusing.
One could therefore suggest that a less rigorous categorization of Article 25(3) would constitute a more realistic basis for the work of the Court. After all, determining the degree of the accused's involvement in the commission of the offense aims at establishing an accurate account of the events and, most importantly, has a bearing on the determination of the appropriate sentence to be given to the convicted person. However, it should be borne in mind that according to Rule 145 of the Rules of Procedure and Evidence, the degree of participation in the commission of the crime is only one of the factors to be taken into consideration when determining the sentence. All the above considerations are arguably persuasive enough for the Court not to tie its hands by classifying the modes of liability according to the level of contributions made by the accused, thus requiring the prosecutor to investigate and present evidence accordingly.
Niccolò Pons is currently an Assistant Legal Officer in Pre-Trial Division, Chambers of the International Criminal Court. He is a former Legal Consultant in a Trial Chamber of the International Criminal Court. Previously, he worked in the Chambers of the Special Tribunal for Lebanon and has written on the challenges of in absentia proceedings. The views expressed herein are those of the author alone and do not necessarily reflect the views of the International Criminal Court or the Special Tribunal for Lebanon.
Suggested citation: Niccolo Pons, Lubanga Verdict a Victory for Victims and ICC, JURIST - Hotline, Apr. 6, 2012, http://jurist.org/hotline/2012/04/niccolo-pons-lubanga.php.
This article was prepared for publication by Leah Kathryn Sell , an assistant editor of JURIST's professional commentary service. Please direct any questions or comments to her at firstname.lastname@example.org