On 1st July 2012, the International Criminal Court (ICC)[i] celebrated its 10th anniversary, meanwhile it had even concluded its first ever review meeting of its statute – stock taking, which took place in Kampala, Uganda during 31st May to 11th June 2010.[ii] If we look into the work of the ICC during these 10 long years it has delivered only a single judgement with much fanfare on the situation relating to the Democratic Republic of the Congo in the case of the Prosecutor v .Thomas Lubanga Dyilo. Nonetheless, one cannot really pass a judgement about an institution whether it is a success or a failure by looking at its decade long history. However, it is a long time for the victims of international crimes, who suffered and continued to suffer to get the justice and reparation from an international institution, which supposed to render justice to the victims and put an end to the culture of impunity of international crimes in international law.
After six prolonged years of arguments and delays in the trail process of the present case in discussion, the Trial Chamber of the ICC delivered its judgement on 12th March 2012. The international community has been arguing that this judgement contributes to the development and improvement of the normative practice of international criminal law. They further argued that this judgement may offer invaluable insights on the role of international criminal justice system. However, the present notes may not be intended to provide a comprehensive analysis of the entire case at hand, but it is an attempt to focus on two major issues which are very pertinent to the development of international criminal law and international humanitarian law. These two pertinent issues include first, the classification of armed conflict in DRC by the ICC and second the narrow indictment of charges of rape and sexual violence, where in the country the sexual abuses are amongst the highest in the world.
The Case Facts and Analysis
It is important to look into the chronology of the events which took place in this much celebrated case to understand why the Court suffered inordinate delay to deliver its first judgement. However, some other may comment that the ICC has rendered its first judgement in a very swift manner. Nevertheless, the Court had issued an arrest warrant on 10th February 2006, against the former president and founder of the Union des patriots congolais (UPC) and the commander-in-chief of its military wing, the Forces patriotiques pour la liberation du Congo (FPLC), charging him with the offence of war crimes for conscripting the enlisting children under the age of fifteen years and for using them to further the armed conflict in the Ituri region of the Democratic Republic of Congo (DRC).
Subsequently, on 29th January 2007, the Pre-Trial Chamber rendered its decision on the confirmation of charges. It confirmed that the Court has sufficient evidence to establish substantial grounds to believe that Thomas Lubanga Dyilo is responsible as a co-perpetrator, for the charges of conscripting and enlisting children under the age of fifteen years into the FPLC and using them to participate actively in hostilities within the meaning of Articles 8 (2) (b) (xxvi)[iii] and 25 (iii) (a) of the Rome Statue from early September 2002 to 2nd June 2003. [iv]
Further the Court’s Pre-Trial Chamber confirmed that there was sufficient evidence to establish substantial grounds to believe that the accused is responsible, as a co-perpetrator, for the charges of enlisting and conscripting children under the age of fifteen years into the FPLC and using them to participate actively in hostilities within the meaning of Article 8 (2) (e) (vii)[v] of the Rome Statue of ICC.[vi] Mr. Lubanga was further found to have made an essential contribution to implementing the common plan and to have done so with the requisite mens rea.[vii]
Issues Relating to the Classification of Armed Conflicts
By focusing on the charges of the Court and its judgement, here I would like to deal with the issue of classification of the armed conflict and the way in which the Trial Chamber had dealt with this issue. The Court has charged the accused according to Article 8 (2) (b) (xxvi) and (e) (vii). These provisions of the Rome Statue of the ICC are identical and prohibit conscripting or enlisting children under the age of fifteen years into the national forces or armed forces or groups or for using them to participate actively in hostilities. However, clause (b) (xxvi) of Article 8 is applicable only to the situation concerning to international armed conflicts and clause (e) (vii) of Article 8 is applicable only to situation concerning to armed conflict of a non-international in character. These two provisions are specifically applicable to two different types of armed conflicts, but when charges were framed by the Pre-Trail Chamber it has re-characterised the facts – assumed that it had power under Article 67 (7) (c) (ii) – and decided that most part of the conflicts in Ituri was of an international armed conflicts. On the contrary, the Prosecutor had only charged the accused under Article 8 (e) (vii), that is, armed conflict of non-international in character. It is very difficult to comprehend and assess on what basis the Pre-Trail Chamber has arrived to the conclusion that the incidents which had occurred between July 2002 and 2nd June 2003 fall under the categories of armed conflict of international in character.
In fact, it is clear that the incidents which occurred during the period between July 2002 and 2nd June 2003 fall under the categories of armed conflict of non-international in character based on the ground situation i.e. UPC involved in fighting with the other ethnic groups in Ituri. The normative practice of international humanitarian law and its treaty regime clearly distinguishes between the types of armed conflict in international law. According to the common Article 2(1) of the four Geneva Conventions of 1949, international armed conflict means “all cases of declared war or of any other armed conflict which may arise between two or more high contracting parties, even if the state of war is not recognised by one of them”. [viii] Further, Article 3 common to the four Geneva Conventions of 1949 and its protocol II additional to them clearly provides the definition of armed conflicts not of international in character.
Based on the definitions rendered by the IHL treaty mechanisms, the conflict in Ituri was undoubtedly armed conflict of non-international in character. However, the question was whether Uganda’s occupation of the Ituri region in the DRC was relevant to the classification of the conflicts involving Lubang’s militia. This militia was found not to be under the control of any of the state’s fighting in that area during the above mentioned period.
In this context, the Trial Chamber took different approach while the Pre-Trail Chamber had taken the view that the occupation by foreign power – in this case, the Ugandan army as an occupying power in some parts of ituri – constitutes conflict as an international armed conflict. Here, the IHL scholars raises pertinent question by asking that, where one state is in occupation of the territory of another state, should that fact mean that an armed conflict that takes place in the occupied territory is classified as an international armed conflict, even if that conflict relates to hostilities against or between non-state groups?[ix]
However, for the purpose of determining the applicable law to the situation, the Trail Chamber took the opinion of the International Criminal Tribunal for Former Yugoslavia’s (ICTY) judgement in the Tadic Case[x] into consideration and stated that
Depending on the particular actors involved, conflicts taking place on a single territory at the same time may be of a different nature. The Chamber endorses this view and accepts that international and non-international conflicts may coexist.[xi]
It appears that the Trail Chamber had come to the above conclusion that though the conflict may appear to be international armed conflict in nature due to the fact that the Ugandan army’s occupation in Ituri region in DRC but it turned out to be a non-international armed conflict thereafter. The Trail Chamber further changed the classification of the conflict and decided that the conflict was not international in character in the entire period but during the period between July 2002 and 2nd June 2003 the UPC militia engaged in fighting with the other militias, since then the nature of the armed conflict had changed. The court further held that in its judgement:
Similarly, although there is evidence of direct intervention on the part of Uganda, this intervention would only have internationalised the conflict between the two states concerned (viz. the DRC and Uganda). Since the conflict to which the UPC/FPLC [Lubanga’s militia] was a party was not “a difference arising between two states” but rather protracted violence carried out by multiple non-state armed groups, it remained a non-international conflict notwithstanding any concurrent international armed conflict between Uganda and the DRC.[xii]
As discussed above, there is evidence that during the relevant timeframe the UPDF [Ugandan armed forces] occupied certain areas of Bunia, such as the airport. However, it is unnecessary to analyse whether the territory came under the authority of the Ugandan forces, thereby amounting to a military occupation, because the relevant conflict or conflicts concern the UPC and other armed groups[xiii]
Focussing solely on the parties and the conflict relevant to the charges in this case, the Ugandan military occupation of Bunia airport does not change the legal nature of the conflict between the UPC/FPLC, RCD-ML/APC and FRPI rebel groups since this conflict, as analysed above, did not result in two states opposing each other, whether directly or indirectly, during the time period relevant to the charges. In any event, the existence of a possible conflict that was “international in character” between the DRC and Uganda does not affect the legal characterisation of the UPC/FPLC’s concurrent non-international armed conflict with the APC and FRPI militias, which formed part of the internal armed conflict between the rebel groups.[xiv]
To draw the above conclusion the Trail Chamber had relied on the approach of “overall control” test which was decided in the Tadi Case[xv]by the ICTY Appeal Chambers rather than the “effective control” test adopted by the International Court of Justice (ICJ) in the Nicaragua Case.[xvi] In the Nicaragua Case the ICJ had established that the Nicaragua would have had to demonstrate “that the US directed or enforced the perpetration of the acts” which are committed by the contras against the Nicaragua’s government to describe the nature of conflict. This test was considered as one of the effective means of establishing the presence and involvement of foreign forces in the affairs of the other country. Subsequently, in 2007 the ICJ had reiterated the “effective control” test in its judgement in Genocide Case[xvii] by rejecting the Tadic approach of “overall control” test which was loosely adopted by the ICTY Appeal Chamber.
However, the ICJ did not out rightly rejected the Tadic approach, instead it held that the “overall control” test may be applicable when it comes to the distinction between international and non-international armed conflict, but not for attributing the responsibility for internationally wrongful acts committed by non-governmental forces.[xviii]
To conclude, by taking into consideration of the precedent rendered by ICJ and ICTY, the Trail Chamber of ICC could have considered at least the ICJ’s precedent before following the Tadic Precedent which is sound enough to give clarity on the issue in this case. It is also important to note that the Trail Chamber had rendered its decision by making clear that the conflict between non-state groups who are not controlled by or act on behalf of state is a non-international armed conflict, even if it takes place in an occupied territory. It further said that the conflict between Lubanga’s militia and other armed groups should be regarded as non-international armed conflict. Therefore, I agree with the findings of the Trail Chamber in this situation because of the reason that when a foreign occupier occupies a territory in certain parts of a territory and subsequently involved in fighting with rebels groups cannot constitute the conflict as international in character. Nevertheless, one cannot argue that the nature of conflict will change due to the fact that the foreign powers have control over the territory by discharging their powers as occupied forces in the territory where rebel groups are operating. Nevertheless, the occupied forces have duty to observe the law relating to international armed conflict where hostilities break out in occupied territory with non-state armed groups.
Issues Relating to the Narrow Indictment of Charges of Rape and Sexual Violence
In this case another important issue which required much attention is that the Trail Chamber’s findings on sexual violence, where Lubanga was tried for and convicted on limited charges and was not charged with gender based crimes. The facts relating to sexual violence were not considered by the Trail Chamber’s majority due to non inclusion of those sexual violence charges by the Pre-Trail Chamber during the time of confirming the charges which set the scope of the case.[xix] The Trail Chamber in its decision said that
In accordance with the jurisprudence of Appeals Chamber, the Trail Chamber’s Article 74 Decision shall not exceed the facts and circumstances (i.e. the factual allegations) described in the charges and any amendments to them. The Trial Chamber has earlier pointed out that “(F)actual allegations potentially supporting sexual slavery are simply not referred to at any stage in the Decision on the Confirmation of Charges”. Regardless of whether sexual violence may properly be included within the scope of “using (children under the age of 15) to participate actively in hostilities” as a matter of law, because facts relating to sexual violence were not included in the Decision on the Confirmation of Charges, it would be impermissible for the Chamber to base its Decision pursuant to Article 74 (2) on the evidence introduced during the trial that is relevant to this issue.[xx]
The Trail Chamber further addressed the Prosecution’s arguments that sexual violence could be taken into account as an aggravating factor, without having brought charges for rape and sexual violence. The chamber noted that the Prosecution’s failure to charge the accused with rape and sexual violence is not determinative of whether this activity is a relevant factor for sentencing. The Chamber also stressed that pursuant to Rule 145 (1) (c), it may consider sexual violence first, as part of the harm suffered by the victims; second, in regards to the nature of the unlawful behaviour; third, in relation to the circumstances in which the manner of crime was committed and, pursuant to Rule 145 (2) (b) (iv), to show the crime was committed with particular cruelty. Further, the Chamber emphasized that it may consider sexual violence in sentencing notwithstanding that it did not form part of the confirmation proceedings. The Chamber also mentioned that it remains necessary for the Chamber to be satisfied beyond reasonable doubt that “child soldiers under fifteen years were subjected to sexual violence and this can be attributed to the accused in a manner that reflects his culpability. [xxi]
Nevertheless, in her dissenting opinion Judge Odio Benito advocated to include sexual violence in the legal concept of “use to participate actively in the hostilities” as this is the “critical aspect” of the crime would otherwise remain invisible.[xxii] She further pointed out that the harm suffered may stem “from within the same armed group” and that sexual violence committed against children “causes irreparable harm and is a direct consequence of their involvement with the armed group.
Although the dissenting judge acknowledged with the fact that during the situation of conflict, a systematic and widespread sexual violence against girl children who were recruited as soldiers was sufficient to characterised as occurring in the ordinary course of the implementation of the common plan for which the accused is responsible, but the Court in majority failed to acknowledge to those facts. It clearly shows that the gender based crimes are still lacking sufficient attention by the Court. It is further important to note that the Prosecution decision not to bring charges of sexual violence in this case could also limit the provision for reparation for related harm suffered primarily by former girl child soldiers. Some of the Women’s initiatives argued that harm resulting from rape and sexual violence should be addressed by a reparations order at lease, failing in which it clearly shows a discriminatory impact based on gender.[xxiii]
The Lubanga’s judgement by the ICC is certainly a welcome step to put an end to the culture of impunity to international crimes by a Permanent International Criminal Tribunal unlike its sister ad-hoc tribunal such as ICTY and ICTR and Sierra Leon Hybrid Tribunals. This case undoubtedly made an important contribution towards the development of international criminal jurisprudence and for an effective implementation of international humanitarian law. However, the Court needs to be consistent with its decisions and rulings with regard to characterisation of armed conflicts and it deserves much attention from the Court.
The second important observation, though the Court focused on some of the pertinent issues such as victim’s participation, and reparation in the process, but still it lacks attention on gender based crimes. As the entire world noticed and witnessed what had happened in DRC with regard to flagrant sexual abuses against girl child soldiers, the Court and the Prosecutor did not pay much attention to those widespread gender based sexual violations. Nevertheless, it is the beginning in the direction of addressing gross human rights and humanitarian law violations and to bring justice to the victims, but certainly there is long way to go.
- Situation Concerning the Democratic Republic of the Congo, The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, 14 March 2012 the judgement pursuant to Article 74 of ICC Statute; see International Criminal Court website for details of the case available at https://www.icc-cpi.int/iccdocs/doc/doc1379838.pdf visited on 15 June 2013.
[i]The Rome Statue of the International Criminal Court was adopted in 1998 which came into force in 2002, for details see the UN Treaty Collection available at https://treaties.un.org/Pages/ ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en visited on 15th June 2013.
[ii]See for details of the Review Conference of the Rome Statute at ICC available at https://www.icc-cpi.int/en_menus/ asp/reviewconference/pressreleaserc/Pages/press%20releases%202010.aspx visited on 15 June 2013.
[iii]See the Article 8 (2) (b) (xxvi) of the Rome Statue of ICC UNDCPEICC adopted in 17 July 1998, available at https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/ RomeStatutEng1.pdf visited on 16 July 2013.
[iv]See the Judgment in the Case of the Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, 14 March 2012 at para 1, available at https://www.icc-cpi.int/iccdocs/doc/doc1379838.pdf visited on 16 June 2013 (hereinafter Judgement)
[v]See the Article 8 (2) (e) (vii) of the Rome Statute of ICC, note.3.
[vi]See the Judgement, note. 4.
[vii]See Judgement para 1356-57, note.4.
[viii]See Article 2 of the Geneva Convention of 1949, available at https://www.icrc.org /applic/ihl/ihl.nsf/ Article.xsp? action=openDocument&documentId=41229BA1D6F7E573C12563CD00519E4A, visited on 17 June 2013.
[ix]Dap Akande , “ICC Delivers its First Judgement: The Lubanga Case and Classification of Conflicts in Situation of Occupation”, European Journal of International Law Talk, available at https://www.ejiltalk.org/icc-delivers-its-first-judgment-the-lubanga-case/ visited on 19 June 2013.
[x]Prosecutor v. Tadic, ICTY, Case No. IT-94-1-A, 1999, Appeals Chamber, Appeals Judgement, 15 July 1999 (TadićAppeal Judgment).
[xi]See the Judgement , Para 540,l note. 4
[xii]Para 563 of the Judgement, note.4.
[xiii]Para 564 of the Judgement, note.4.
[xiv]Para 565 of the Judgement, note.4.
[xv] Tadic Appeal Judgement, note 10.
[xvi]Case Concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits), Judgment of 27 June 1986, available at https://www.icj-cij.org/docket/index.php? sum=367& p1=3&p 2=3&case =70&p3=5 , visited on 19 June 2013 (hereinafter Nicaragua Judgement).
[xvii]Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) Judgment of 26 February 2007, available at https://www.icj-cij.org/docket/ files/91/ 13685.pdf visited on 19 June 2013 (hereinafter Genocide Case).
[xviii]Ibid, para 404, and also see Thomas R. Lieflander, “The Lubanga Judgement of the ICC: More than just the First Step?”, Cambridge Journal of International and Comparative Law, Vo. 1, , 2012.
[xix]Para 630 of the Judgement, note.4
[xxi]See paras 67, 68,69, and75 and also see generally B Inder, “First Sentencing Judgement by the ICC, The Prosecutor v. Thomas Lubanga Dyilo,” in Women’s Initiatives for Gender Justice, available at https://www.iccwomen.org/news/docs/WI-LegalEye6-12-FULL/LegalEye6-12.html visited on 20 June2013.
[xxii]Dissenting opinion of Judge Odio Benito, at Trail Chamber in the Judgement in the Case of the Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, 14 March 2012.
[xxiii]The Women’s Initiatives submitted their Observations in Reparations Proceedings in the Lubanga Case available at https://www.lubangatrial.org/2012/12/14/lubanga-judgment-the-womens-initiatives-submits-observations-in-reparations-proceedings-in-the-lubanga-case/, visited on 20June2013.