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Abstract
This article considers the first verdict of the International Criminal Court in the Lubanga case. It focuses on the narrow scope of the conviction, resulting from the very limited charges brought by the Office of the Prosecutor and its failure to seek to amend the charges when evidence of wider crimes came to light during the trial. The article also considers the failed attempts of legal representatives for victims to encourage the Court to re-visit the charges, and analyses the Pre-Trial and Trial Chambers' (in)action in response. The limited provisions in the Rome Statute which afford a degree of oversight on prosecutorial discretion were never properly activated by the Court, with the result that the evidence which emerged during trial that exceeded the charges was never considered.
Notes
ICC Trial Chamber I, Situation in the Democratic Republic of the Congo, The Prosecutor v. Thomas Lubanga Dyilo, Judgment Pursuant to Article 74 of the Statute, ICC-01/04-01/06,14 March 2012 (hereinafter, Lubanga Judgment).
See, e.g., Human Rights Watch, ‘ICC: Landmark Verdict a Warning to Rights Abusers’ (Press statement, March 14, 2012); Amnesty International, ‘Landmark ICC Verdict Over Use of Child Soldiers’ (Press statement, March 14, 2012); IRIN News, ‘DRC: Lubanga Verdict “a First Step”’, March 14, 2012.
The maxim jura novit curia, more accepted in civil law systems, gives a court authority to base its decisions on legal theories that have not been advanced by the parties.
Lubanga Judgment, para. 1.
Ibid., para. 36.
Prosecutor v. Delalić et al. (ICTY), Appeal Judgment, IT-96-21-A, 20 February 2001, para. 400.
Prosecutor v. Rutaganda, (ICTR), Trial Chamber Judgment, 6 December 1999, ICTR-96-3, para. 117.
See, Prosecutor v. Jean-Pierre Bemba Gombo, (ICC), Decision Pursuant to Article 61(7)(a) and (b) on the Charges against Jean-Pierre Bemba Gombo, ICC 01/05–01/08, 15 June 2009.
Prosecutor v. Lubanga, (ICC), Judgment on the Prosecutor's Appeal Against the Decision of Pre-Trial Chamber I Entitled ‘Decision Establishing General Principles Governing Applications to Restrict Disclosure Pursuant to Rule 81(2) and (4) of the Rules of Procedure and Evidence’, ICC-01/04-01/06-568, 13 October 2006, paras 49–56.
Throughout the examination of witnesses at trial, Judge Odio Benito in particular regularly questioned witnesses about the particular experiences of girls and the prevalence of sexual violence in the camps. Lubanga Judgment, para. 16.
Rome Statute of the International Criminal Court, Done at Rome on 17 July 1998, in force on 1 July 2002, United Nations, Treaty Series, Vol. 2187, No. 38544, Preamble.
Article 54(1)(a) of the Rome Statute.
Article 69(3) of the Rome Statute.
OTP, Prosecutorial Strategy (2009–2012) (1 February 2010), para. 18.
Ibid., para. 19.
Whilst in addition to his proprio motu powers, the prosecutor may receive referrals from states parties and the UN Security Council, it is ultimately his decision on the review of the evidence, as to which situations, cases and charges to pursue. See, arts 13(b), 14(1) and 15(3) of the Rome Statute.
Article 15(1) and (2) of the Rome Statute.
R. 49(1) of the Rules of Procedure and Evidence.
Article 68(3) of the Statute.
See, for example, REDRESS, ‘Public Statement Issued at the Second Public Hearing of the Office of the Prosecutor’, September 26, 2006.
OTP, Prosecutorial Strategy (2009–2012), para. 20.
Ibid.
Some authors have called for more concrete guidelines to be adopted. See, e.g., Allison Marston Danner, ‘Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court’, American Journal of International Law 97 (2003): 510, 538; James Goldston, ‘More Candour about Criteria: The Exercise of Discretion by the Prosecutor of the International Criminal Court’, Journal of International Criminal Justice 8 (2010): 383, 403. See also, UN, Guidelines on the Role of Prosecutors (Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990), Principle 17, which provides: ‘In countries where prosecutors are vested with discretionary functions, the law or published rules or regulations shall provide guidelines to enhance fairness and consistency of approach in taking decisions in the prosecution process, including institution or waiver of prosecution.’
See, William Schabas, ‘Prosecutorial Discretion v. Judicial Activism at the International Criminal Court’, Journal of International Criminal Justice (2008): 731–61, 741: ‘It is difficult to reconcile the prosecutorial discourse about gravity with the decision to proceed against Lubanga. The arrest took place within days of issuance of the statement in which the Prosecutor said wilful killing of civilians by British troops in Iraq was not sufficiently serious enough to warrant further investigation. He contrasted this with the “thousands” of deaths in the DRC, yet then proceeded in a case of recruiting child soldiers in which allegations of homicide were not even made. The Prosecutor was comparing apples with oranges.’ See also, Avocats Sans Frontières, Centre for Justice & Reconciliation, DRC Coalition for the ICC, International Federation of Human Rights, Human Rights Watch, REDRESS and the Women's Initiative for Gender Justice, ‘Joint Letter to the ICC Prosecutor on the Narrow Scope of the Charges Brought against Mr Lubanga’, 31 July 2006.
Pascal Kambale, ‘The ICC and Lubanga: Missed Opportunities’, in Possible Futures: A Project of the Social Science Research Council (16 March 2012), http://www.possible-futures.org/2012/03/16/african-futures-icc-missed-opportunities/ (accessed 8 April 2012).
Prosecutor v. Lubanga, Prosecutor's Information on Further Investigation, 28 June 2006, ICC-01/04-01/06-170, at para. 2.
Ibid., paras 7, 9.
Ibid., para. 10.
Request Submitted Pursuant to Rule 103(1) of the Rules of Procedure and Evidence for Leave to Participate as Amicus Curiae in the Article 61 Confirmation Proceedings (With Confidential Annex 2), submitted 7 September 2006, ICC-01/04-01/06.
Decision on Request Pursuant to Rule 103(1) of the Statute, 26 September 2006, ICC-01/04-01/06.
These related to murder, wilful killing, inhumane acts, inhuman treatment, sexual slavery, intentionally directing attacks against the civilian population, pillaging in the village of Bogoro. See, the Warrant of Arrest for Germain Katanga, ICC-01/04-01/07-1 and ICC-01/04-01/07-Anx1 and the Warrant of Arrest for Mathieu Ngudjolo Chui, ICC-01/04-01/07-260 and ICC-01/04-01/07-260-Anx, both dated 2 July 2007.
See, in relation to the International Criminal Tribunal for Rwanda's poor experience of prosecuting sexual violence crimes, Binaifer Nowrojee, ‘“Your Justice is Too Slow”: Will the ICTR Fail Rwanda's Rape Victims?’ (Occasional Paper Ten, United Nations Research Institute for Social Development (UNRISD), November 2005). For an analysis of the Special Court for Sierra Leone's failings in prosecuting sexual violence, see Michelle Staggs Kelsall and Shanee Stepakoff, ‘“When We Wanted to Talk About Rape”: Silencing Sexual Violence at the Special Court for Sierra Leone’, The International Journal of Transitional Justice 1 (2007): 355–74.
Daniel Nsereko, ‘Prosecutorial Discretion before National Courts and International Tribunals’ (Guest lecture series of the Office of the Prosecutor, 2004), 16.
Matthew Brubacher, ‘Prosecutorial Discretion within the International Criminal Court’, Journal of International Criminal Justice 2 (2004): 71–95, 86.
Article 53(3) of the statute provides that a state making a referral, or the Security Council making a referral, may request the Pre-Trial Chamber to review a decision of the prosecutor not to proceed and may request the prosecutor to reconsider that decision. The Pre-Trial Chamber may, on its own initiative, review a decision of the prosecutor not to proceed if it is based solely on the ‘interests of justice’. Victims are not mentioned in this article. In principle, victims with participatory rights in a particular case or situation could raise the issue with the Pre-Trial Chamber however only those victims who fit within the existing charges will be eligible for participatory rights, and it will naturally be those which fall outwith the charges that would have the strongest interest to encourage the Pre-Trial Chamber to carry out a review. Furthermore, in practice, if the prosecutor would issue a formal statement as to why a particular investigation or case (or charges within a case) were not pursued, it would be unlikely to cite the ‘interests of justice’ exclusively.
See n. 30 and accompanying text.
On the date of the filing, there was a three and a half hour closed, ex parte hearing with the OTP only, see: http://icc-cpi.int/iccdocs/doc/doc215766.pdf the contents of which have not been publicly reported (accessed 22 May 2012).
See n. 31 and accompanying text.
A ‘situation’ refers to the phase of proceedings in which the prosecutor has been authorised by the Pre-Trial Chamber to carry out investigations in relation to a particular locale, outside of, or prior to, the preferring of charges against any particular suspect.
Situation in the Democratic Republic of the Congo (ICC), Women's Initiatives for Gender Justice, Request Submitted Pursuant to Rule 103(1) of the Rules of Procedure and Evidence for Leave to Participate as Amicus Curiae with Confidential Annex 2, ICC-01/04-313, 13 November 2006, para. 13.
Situation in the Democratic Republic of the Congo (ICC), Prosecution's Response to Request Submitted Pursuant to Rule 103(1) of the Rules of Procedure and Evidence for Leave to Participate as Amicus Curiae in the Situation in the Democratic Republic of Congo, ICC-01/04-316, 5 December 2006, para. 1.
Situation in the Democratic Republic of the Congo (ICC), Decision on the Request Submitted Pursuant to Rule 103(1) of the Rules of Procedure and Evidence, ICC-01/04-373, 17 August 2007, para. 5. A similar request made by a legal representative for victims was rejected, on the basis that the prosecutor had not taken a decision not to investigate or not to prosecute, under paragraph l(c) or 2(c) of article 53 of the statute, in relation to the situation in the DRC. See, Situation in the Democratic Republic of the Congo (ICC), Decision on the Requests of the Legal Representative for Victims VPRS 1 to VPRS 6 regarding ‘Prosecutor's Information on Further Investigation’, ICC-01/04-399, 26 September 2007.
This could have been a landmark ruling; the ability of the ICC Pre-Trial Chamber to exercise oversight over the exercise of the prosecutor's discretionary powers is a new feature of the ICC not present in the procedures of the ad hoc tribunals. It would have been a golden opportunity to comment on the extent and modalities of this oversight function.
See, e.g., Nowrojee, ‘Your Justice is Too Slow’; Staggs and Stepakoff, ‘When We Wanted to Talk About Rape’. See also, Beth Van Schaack, ‘Obstacles on the Road to Gender Justice: The International Criminal Tribunal for Rwanda as Object Lesson’, Journal of Gender, Social Policy & the Law 17 (2009), note 2. On the limited charging in the Lubanga case, see Kambale, ‘The ICC and Lubanga: Missed Opportunities’.
Kelly Askin, ‘Prosecuting Wartime Rape and Other Gender-Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles’, Berkeley Journal of International Law 21 (2003): 288, 346.
Prosecutor v. Mladic (ICTY), Decision on Amendment of Indictment, IT-09-92-I, 27 May 2011, para. 13.
Prosecutor v. Akayesu (ICTR), Trial Chamber Judgment, ICTR 96-4-T, para. 41. See Van Schaack, ‘Obstacles’, wherein the case and subsequent jurisprudence before the ICTR is reviewed.
Van Schaack, ‘Obstacles’.
See, Prosecutor v. Fofana and Kondewa (CDF Case) (SCSL), Majority Decision on Prosecution's Application for Leave to File an Interlocutory Appeal Against the Prosecution's Request for Leave to Amend the Indictment Against Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, 2 August 2004; and Prosecution's Application for Leave to File an Interlocutory Appeal Against the Decision on the Prosecution's Request for Leave to Amend the Indictment Against Sam Hinga Norman, Moinina Fofana and Allieu Kondewa, 2 June 2004, discussed in Staggs and Stepakoff, ‘When We Wanted to Talk About Rape’.
Prosecutor v. Lukić & Lukić (ICTY), IT-98-32/1-PT, 8 July 2008, discussed in Van Schaack, ‘Obstacles’.
Lukić & Lukić, paras 5, 6.
Ibid., para. 8.
Ibid., para. 13.
Ibid., para. 63.
Article 61(9) of the Rome Statute.
Rule 128(1) of the Rules of Procedure and Evidence.
See, article 61(9) of the Rome Statute. See, Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Appeals Judgment (7 December 2009) Appeals Judgment on the Legal Characterization of the Facts, para. 94, in which the Appeals Chamber held that new charges may only be added pursuant to a new confirmation hearing; this is not something a Trial Chamber is empowered to do. See also, the Trial Chamber's comments in the Katanga case, wherein it states that ‘Regarding the period after the commencement of the trial, the article 61(9) provides only for the situation where the Prosecutor seeks to withdraw the charges, subject to leave of the Trial Chamber. However, that same article makes no provision for any amendment or addition of new facts after the commencement of the trial. It would appear to the Chamber, however, that such a possibility, if compatible with the texts currently in force, would mean that the Prosecutor would have to institute new proceedings against the suspect before the Pre‐Trial Chamber’ (emphasis added). Prosecutor v. Katanga and Ngudjolo Chui (ICC), Decision on the Filing of a Summary of the Charges by the Prosecutor, ICC-01/04-01/07-1547-tENG, 21 October 2009, para. 21.
Note however, that in the Lukic case, the ICTY prosecutor's request to amend the indictment for a third time was made shortly before the commencement of the trial.
Discussed in part four.
Prosecutor v. Lubanga (ICC), Prosecutor's Application for Leave to Appeal, ICC-01/04-01/06-2074, 12 August 2009, para. 24.
Lubanga Judgment, para. 629.
Article 61(7)(c)(ii) of the Rome Statute.
Prosecutor v. Mbarushimana (ICC), Decision on the Confirmation of Charges, ICC-01/04-01/10-465-Red, 16 December 2011, para. 41; Prosecutor v. Banda & Jerbo (ICC), Decision on the Confirmation of Charges, ICC-02/05-03/09-121-Corr-Red, 7 March 2011, para. 31; Prosecutor v. Abu Garda (ICC), Decision on the Confirmation of Charges, ICC-02/05-02/09-243-Red, 8 February 2010, para. 39; Prosecutor v. Bemba (ICC), Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, 15 June 2009, para. 28; Prosecutor v. Katanga and Ngudjolo (ICC), Decision on the Confirmation of Charges, ICC-01/04-01/07-717, 30 September 2008, para. 63; Prosecutor v. Lubanga (ICC), Decision on the Confirmation of Charges, ICC-01/04-01/06-803-tEN, 29 January 2007, para. 37; Prosecutor v. Muthaura and Muigai (ICC), Decision on the Confirmation of Charges, ICC-01/09-02/11-382-Red, 23 January 2012, para. 52.
For example, in the Bemba Confirmation of Charges hearing, the Pre-Trial Chamber recommended the prosecutor to amend the charges because it determined that the evidence submitted appeared to establish an alternate – and arguably lesser mode – of liability for the alleged crimes, namely superior or command responsibility. As a result, the prosecutor submitted an amended document containing the charges. Prosecutor v. Bemba (ICC), Prosecution's Submission of Amended Document Containing the Charges, Amended List of Evidence and Amended In-Depth Analysis Chart of Incriminatory Evidence, and its Related Annexes, ICC-01/05-01/08-395, 30 March 2009.
See later discussion of the Pre-Trial Chamber's approach in the Lubanga case, where the chamber went further, and imposed different charges than the ones brought by the Office of the Prosecutor, during the confirmation of charges hearing.
Situation in Cote D'Ivoire (ICC), Request for Authorisation of an Investigation Pursuant to Article 15, ICC-02/11-3, 23 June 2011, paras 1 and 40.
Situation in Cote D'Ivoire (ICC), Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d'Ivoire, ICC-02/11-14-Corr, 15 November 2011, para. 185.
ICC-02/11-3, para. 42.
Prosecutor v. Ruto, Kosgey and Sang (ICC), Prosecution's Document Containing the Charges and List of Evidence Submitted Pursuant to Article 61(3) and Rule 121(3), ICC-01/09-01/11-242, 1 August 2011.
Prosecutor v. Ruto, Kosgey and Sang (ICC), Final Written Observations of the Victims’ Representative in Relation to the Confirmation of Charges Hearing, ICC-01/09-01/11-344, 30 September 2011.
Prosecutor v. Ruto, Kosgey and Sang, Decision on the Confirmation of Charges Pursuant to Article 61(7)(A) and (B) of the Rome Statute, ICC-01/09-01/11-373, 23 January 2012, paras 277 and 278.
Article 61(7) of the Rome Statute.
Ruto, Decision on the Confirmation of Charges, para. 278.
Article 69(3) of the Rome Statute.
The common legal representative raises this issue in her final observations, though refrains from putting forward any view, given that it was not a live issue. See n. 72.
See, Olympia Bekou, ‘Prosecutor v. Thomas Lubanga Dyilo: Decision on the Confirmation of Charges’, Human Rights Law Review 8 (2008): 343–55, 345.
Prosecutor v. Lubanga (ICC), Decision on the Confirmation of Charges, ICC-01/05-01/08-803-tEN, 29 January 2007, para. 203.
Bekou, ‘Prosecutor v. Thomas Lubanga’, 345.
Ibid.
Prosecutor v. Lubanga (ICC), Decision on the Prosecution and Defence Applications for Leave to Appeal the Decision on the Confirmation of Charges, ICC-01/04-01/06-915, 24 May 2007, para. 21.
Prosecutor v. Lubanga (ICC), Decision on the Status before the Trial Chamber of the Evidence Heard by the Pre-Trial Chamber and the Decisions of the Pre-Trial Chamber in Trial Proceedings, and the Manner in Which Evidence Shall Be Submitted, ICC-01/04-01/06-1084, 13 December 2007.
Ruto, Decision on the Confirmation of Charges.
Bekou, ‘Prosecutor v. Thomas Lubanga’, 355.
The same NGO, Coalition, whose amicus submission in the Akayezu case led to the eventual decision of the prosecutor to amend the charges in that case.
Prosecutor v. Ntagerura et al. (ICTR), Decision on the Application to File an Amicus Curiae Brief, ICTR-99-46-T, 24 May 2001, para. 22.
The Statute of the ICTR, similar to that of the ICTY and the Special Court for Sierra Leone require the prosecutor not to ‘seek or receive instruction from any Government or from any other sources’. See, art. 15(2) of the ICTR Statute; art. 16(2) of the ICTY Statute; art. 15(1) of the Statute of the Special Court for Sierra Leone. These tribunals do not benefit from provisions akin to the ICC Statute's article 53(1) on ‘interests of justice’ or 61(7)(c)(ii), nor do they benefit from victims’ legal representatives who would arguably have the greatest interest in raising such issues.
Regulations of the Court, Adopted 26 May 2004, as amended 14 June and 14 November 2007 (amendments entering into force 18 December 2007).
Regulation 55(1) of the Regulations of the Court.
Regulation 55(2).
Regulation 55(3).
Joint Application of the Legal Representatives of the Victims for the Implementation of the Procedure under Regulation 55 of the Regulations of the Court, 22 May 2009, ICC-01/04-01/06-1891-tENG.
Prosecutor v. Lubanga (ICC), 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, ICC-01/04-01/06-2049, 14 July 2009.
Prosecutor v. Lubanga (ICC), Second Corrigendum to Minority Opinion on the ‘Decision Giving Notice to the Parties and Participants that the Legal Characterisation of Facts May Be Subject to Change in Accordance with Regulation 55(2) of the Regulations of the Court’, ICC-01/04-01/06-2069-Anxl, 31 July 2009, para. 34.
This was also the view taken by both the defence and the prosecution, who both sought leave to appeal the decision.
Prosecutor v. Lubanga (ICC), Judgment on the Appeals of Mr Lubanga Dyilo and the Prosecutor against the Decision of Trial Chamber I of 14 July 2009 Entitled ‘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’, ICC-01/04-01/06, 8 December 2009, para. 112.
Prosecutor v. Lubanga (ICC), Decision on the Legal Representatives’ Joint Submissions Concerning the Appeals Chamber's Decision on 8 December 2009 on Regulation 55 of the Regulations of the Court, ICC-01/04-01/06-2223, 8 January 2010.
See, Carsten Stahn, ‘Modification of the Legal Characterization of the Facts in the ICC System: A Portrayal of Regulation 55’, Criminal Law Forum 16, no. 1 (2005): 1–31; Sienna Merope, ‘Recharacterizing the Lubanga Case: Regulation 55 and the Consequences for Gender Justice at the ICC’, Criminal Law Forum 22 (2011): 311–46.
Prosecutor v. Lubanga (ICC), Joint Submission of the Legal Representatives on the Consequences of the Appeals Chamber Judgment on Regulation 55, ICC-01/04-01/06-2211, 15 December 2009.
Prosecutor v. Lubanga (ICC), 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, ICC-01/04-01/06-2049, 14 July 2009.
Para. 77.
Lubanga Judgment, see, e.g., paras 630, 896.
Yet, note the Pre-Trial Chamber's comments in the Bemba Confirmation of Charges decision, in which it purports to justify its decision to disallow cumulative charging in part because of the possibility for the Trial Chamber to use Regulation 55 to add new charges during the trial phase. This decision, while arguably erroneous, demonstrates that, at the least, there is a need to clarify further the remit of this regulation. See, Prosecutor v. Bemba (ICC), Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-14-tENG, 20 June 2008, para. 203.
Ibid., para. 28.
Lubanga Judgment, para. 896.
Lukić case, para. 13.
Ibid.