Some Initial Thoughts on the Judgment in Prosecutor v. Lubanga

Trial Chamber I of the International Criminal Court (ICC) issued the Court’s first judgment convicting Thomas Lubanga Dyilo of conscripting child soldiers in the Democratic Republic of the Congo (DRC). In doing so, the Trial Chamber was confronted with questions regarding the nature of co-perpetration in the Rome Statute, the definition of an international armed conflict and the elements of the crime of conscripting child soldiers. With this judgment international criminal law took a significant step forward for the first time outside of the United Nations (UN) dominated framework.

Modes of liability and their normative content have been vexing international criminal tribunals for most of the last twenty years. In this context the UN ad hoc criminal tribunals have been interpreting “international customary law” to determine how one can “commit” an international crime. One of the results of this work has been the development of the doctrine of “joint criminal enterprise” or JCE. The purpose of this doctrine is to capture the nature of international criminality for those who do not personally commit the crime but participate in an organization or group that by their nature commit international crimes. JCE comes in three flavors: (1) where all the members of the criminal plan have the same criminal intention to commit the crime;[1] (2) when the accused willingly and knowingly participates in a mechanism (such as a concentration camp) that commits crimes and;[2] (3) those cases where the accused intends to take part in a criminal enterprise and it is foreseeable that members will commit other crimes outside the scope of that criminal purpose.[3] Convictions before the ICC cannot be based directly on JCE as the modes of criminal liability detailed in the Rome Statute do not include it as such.[4]

The interpretation of the Rome Statute was left to the Trial Chamber even though the jurisprudence of the UN courts and the Pre-Trial Chambers of the ICC were available to help guide the Chamber’s decision. The relevant part of the Rome Statute states,

In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:

(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible[5]

The Trial Chamber held that to be liable as a co-perpetrator the accused must, at a minimum, associate with a group whose purpose entails “a sufficient risk that, if events follow the ordinary course, a crime will be committed.”[6]

The majority’s understanding of individual responsibility under the Rome Statute is similar to the third version of the UN tribunals’ JCE doctrine (JCE III). Both doctrines assign criminal liability based on the foreseeable criminal actions of others in connection to the implementation of a common plan. The new formulation departs from the “customary” definition of the UN tribunals in one very important way: it does not require that the overall plan be criminal in essence.[7] The result is criminal responsibility as a direct perpetrator for those who willingly contribute to a common plan in an essential way even when that the plan itself is not criminal.[8] One could argue that Mr Lubanga’s conviction is such a case, however, the Chamber did not make a specific finding on the scope of the common plan (meaning a finding excluding the design of recruiting children) because there was no need under its understanding of the Rome Statute.[9]

The decision to adopt an expansive view of co-perpetration is an interesting one considering the some of the negative views held of JCE III.[10] The Trial Chamber chose to expand the scope of criminal responsibility beyond those who participate in a criminal plan thus potentially ensnaring those who participate in an otherwise purely legal venture. UN authorized humanitarian intervention springs to mind, or any eventual legal application of R2P. All armed interventions involve the commission (or at the very least the allegations) of crimes as a matter of course. American service members committed crimes in Afghanistan and Iraq after the interventions in those countries.[11] There have also been accusations of crimes being committed by NATO in Libya.[12] These are just quick examples to show that the deployment of military force in an armed conflict sooner or later will result in crimes.[13] In circumstances of humanitarian intervention high ranking officers will have agreed to the plan of intervention, provide essential contribution through their leadership roles, be aware that crimes will be committed in the ordinary course of events, be aware of the factual circumstances establishing the armed conflict and the link connecting their acts and the conflict. Under these circumstances military commanders (and possibility politicians) would be criminally responsible for doing what many would say is the right thing. In my view, this expansion could have dangerous and unwanted side effects such as deterring intervention when it might otherwise be justified.

The Chamber also took the opportunity to discuss the nature of the conflict in the DRC. The Pre-Trial Chamber had held at the confirmation of charges that the relevant conflict in the DRC was international in nature because “of the presence of the Republic of Uganda as an occupying Power” for at least a part of the time period.[14] To decide on the existence of an armed conflict the Chamber turned to the jurisprudence of the UN tribunals requiring organized groups and protracted armed violence of sufficient intensity.[15] The Chamber noted that where there is a conflict between a State and a non-State actor in the territory of another State working for that other State, there is an international armed conflict. The Chamber found, however, that in similar circumstances if the non-State actor does not work in concert with a State then the resulting conflict is not of an international character.[16] The Chamber found, contrary to the Pre-Trial Chamber, that the relevant conflict was not of an international character because there was never a conflict involving two or more States.[17]

This seems to be the proper interpretation of international law as it currently stands. It is also consistent with American jurisprudence on the nature of an armed conflict between a State and a non-State actor on the territory of another State.[18]

The Rome Statute and the Elements of Crimes do not define “conscripting, enlisting children under the age of 15 or using them to participate actively in hostilities”.[19] For the issue of child soldiers the Chamber turned to the jurisprudence of the Special Court for Sierra Leone.[20] The Chamber first found that conscription and enlistment are both forms of recruitment of soldiers and do not necessarily result in the children being employed in combat roles.[21] The Chamber went on to find that “active” participation includes those support roles that “exposed [the child] to real danger as a potential target”.[22] Judge Benito in a strong dissent argues that the Chamber should have addressed the issue of sexual violence within the context of active participation in hostilities because the failure to do so leaves this violence outside the scope of the crimes in which the Judge believes it should be included.[23]

These are just some early thoughts and understandings of the Judgment. Its real consequences will play out in the cases that follow and on appeal as the new legal landscape takes shape before the ICC. None of these issues have been definitively decided. This is only the beginning of a new faze of international criminal law.[24]

[1] Prosecutor v. Tadić, IT-94-1-A, Judgment, ¶ 196 (15 July 1999) (“Tadić”).

[2] Ibid. at ¶¶ 202-203.

[3] Ibid. at ¶ 220.

[4] There is a simple reason for this. The Rome Statute of the ICC was adopted in 1998 and the Tadić appeals judgment was issued in 1999.

[5] Article 25(3), Rome Statute of the International Criminal Court.

[6] Prosecutor v. Lubanga, ICC-01/04-01/06, Judgment pursuant to Article 74 of the Statute, ¶ 984 (14 March 2012) (“Lubanga”).

[7] Compare Lubanga at ¶ 984 and Tadić at ¶ 220.

[8] By criminal I mean directed at committing a crime or directed at achieving a goal through the commission of crimes.

[9] Lubanga at ¶ 1021. In fact, the conviction was unanimous even with a dissent on the scope of Article 25, so this argument is not likely to carry too much weight at this juncture. It would however be a good argument to try and make on appeal as it would satisfy the standard that the impugned decision result in prejudice.

[10] For a rebuke of the doctrine see, Case File No. 002/19-09-2007/ECCC/TC, Decision on the Applicability of Joint Criminal Enterprise (12 September 2011).

[11] Abu Gharib and the numerous drone and other attacks resulting in unjustified civilian casualties come to mind.

[13] Such a circumstance is more likely as IHL’s contextual element is more likely to exist outside of a criminal plan than say a widespread or systematic attack against a civilian population.

[14] Lubanga at ¶ 524 citing the confirmation of charges decision.

[15] Ibid. at ¶ 533-538.

[16] Ibid. at ¶ 541.

[17] Ibid. at ¶¶ 563-567.

[18] Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

[19] Lubanga. at ¶ 600.

[20] Ibid. at ¶ 603.

[21] Ibid. at ¶¶ 608-609.

[22] Ibid. at ¶ 628.

[23] Lubanga, Separate and Dissenting Opinion of Judge Odio Benito, ¶¶ 16-17.

[24] Ironically, this new faze is taking place at the same time new trials are being prepared at the UN tribunals. The old and the new exist together. It will be interesting to see to what extent there will be any interplay between the two systems.


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