The ICC, Lubanga, and the Tricky Mens Rea of Conscripting Child Soldiers (Updated)

As Julian notes, earlier today the ICC’s Pre-Trial Chamber I ordered Thomas Lubanga to stand trial on three charges relating to the FPLC’s use of child soldiers. Here is the ICC’s summary of the charges:

The Chamber decided that there is sufficient evidence to establish substantial grounds to believe that Thomas Lubanga Dyilo is criminally responsible as co-perpetrator for the war crimes of enlisting and conscripting of children under the age of fifteen years into the FPLC, the military wing of the Union des Patriotes Congolais (UPC) and using them to participate actively in hostilities in Ituri (Democratic Republic of the Congo) from September 2002 to 13 August 2003.

The Chamber noted that there were substantial grounds to believe that after its creation, the FPLC allegedly recruited children and that this was a systematic practice known to the Hema population, and involved a large number of children. The Chamber found that there was sufficient evidence to establish substantial grounds to believe that after military training, the children were deemed fit for combat and that FPLC commanders then put them on the frontline to fight.

The Chamber found that there was sufficient evidence to establish substantial grounds to believe that when the FPLC was created in early September 2002, there was an agreement or common plan between Thomas Lubanga Dyilo and other high-ranking FPLC commanders. The purpose of the plan was allegedly to further war effort by voluntarily or forcibly recruiting minors into the ranks of the FPLC, subjecting them to military training and causing them to participate actively in military operations and using them as bodyguards. The Chamber found that there was sufficient evidence to establish substantial grounds to believe that Thomas Lubanga Dyilo assumed an essential general coordinating role in the implementation of the common plan and that he personally exercised other functions in the implementation of the common plan and that he was aware of the importance of his role.

According to Pre-Trial Chamber I, although the agreement or common plan did not specifically target children under the age of fifteen, but young recruits in general, in the normal course of events, its implementation would entail the objective risk that it would involve children under the age of fifteen.

Although the Pre-Trial Chamber’s decision is indeed momentous, it is worth noting that the Prosecutor’s decision to focus solely on the child-soldier charges has been strongly criticized by the human rights community. Here, for example, is part of a letter sent to the Prosecutor by a coalition of the leading human-rights groups, including Avocats Sans Frontières, Human Rights Watch, International Center for Transitional Justice, and Women’s Initiatives for Gender Justice:

We welcome the initiation of proceedings against Thomas Lubanga before the International Criminal Court (ICC) as an important step in bringing justice to the many victims of the brutal conflict in Ituri. Enlisting, conscripting and using children as soldiers in armed conflict are serious crimes that should be condemned and appropriately punished. However, much more is needed.

According to estimates by the United Nations, in the past six years more than 60,000 people have been slaughtered in Ituri alone.1 This reality requires that those responsible for the most serious crimes are brought to justice. As you are aware, the UPC, which Mr. Lubanga led, has committed numerous other serious crimes in Ituri including murder, torture and sexual violence. For example, in February-March 2003, UPC militias carried out a large-scale military operation called “Chikana Namukono” against the villages located between Lipri and Nyangaraye. The operation, a veritable manhunt, resulted in the killing of at least 350 persons and the complete destruction of 26 localities. 2

We are disappointed that two years of investigation by your office in the DRC has not yielded a broader range of charges against Mr. Lubanga. Charging those responsible for the most serious crimes committed in Ituri – including, but not limited to Mr. Lubanga – with representative crimes for which there is a strong evidentiary basis is crucial for the victims of these crimes and for ending the culture of impunity in the DRC and in the Great Lakes region. We believe that the failure to include additional charges in the case against Mr. Lubanga could undercut the credibility of the ICC in the DRC. Moreover, the narrow scope of the current charges may result in severely limiting victims’ participation in the first proceedings before the ICC. This could negatively impact on the right of victims to reparations.

The coalition’s concerns are well-founded. Although the Prosecutor has vowed to continue his investigation into the crimes committed by Lunbanga and the FPLC, it seems highly unlikely that, in the event Lubanga is convicted, the Prosecutor would bother to bring additional charges given the number of situations pending before the ICC and the scarcity of its resources. As a result, we may well see an unfortunate replay of the Dujail trial, where the IHT’s decision to prosecute Saddam on legally uncomplicated charges ultimately prevented him from standing trial on far more serious charges affecting a far greater number of victims.

It is also worth noting that the child-soldier charges are not without their legal difficulties. Although the Pre-Trial Chamber’s decision has not been released, the summary quoted above seems to imply that the Chamber concluded not that Lubanga actually knew that the child soldiers were under 15 years of age, but that he should have known that they were — in other words, that he was negligent instead of reckless with regard to the possibility that the FPLC was using soldiers under 15:

[A]lthough the agreement or common plan did not specifically target children under the age of fifteen, but young recruits in general, in the normal course of events, its implementation would entail the objective risk that it would involve children under the age of fifteen.

If the defense is smart — and there is little doubt that the best defense attorneys in the world will be clamoring to take part in the ICC’s first trial — it will challenge the idea that Article 8(2)(e)(vii), the war crime of conscripting child soldiers, can be committed negligently. According to Article 30 of the Rome Statute:

Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.

Article 8(2)(e)(vii) prohibits “[c]onscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities.” There is no indication in the Article that the normal default mens rea — intent and knowledge — does not apply. Read literally, therefore, it does not seem that the crime can be committed negligently; the perpetrator must have actually known that the child he was conscripting was under the age of 15.

But here is where the law gets interesting. A mens rea of negligence is not “otherwise provided” in the Rome Statute itself — but it is “otherwise provided” in the ICC’s Elements of Crimes. Here are the elements of Article 8(2)(e)(vii):

1. The perpetrator conscripted or enlisted one or more persons into an armed force or group or used one or more persons to participate actively in hostilities.

2. Such person or persons were under the age of 15 years.

3. The perpetrator knew or should have known that such person or persons were under the age of 15 years.

4.The conduct took place in the context of and was associated with an armed conflict not of an international character.

5. The perpetrator was aware of factual circumstances that established the
existence of an armed conflict.

So here is the difficult legal question: does the expression “unless otherwise provided” refer only to the Rome Statute itself, or does it also refer to the Elements of Crimes? In other words, can the Elements of Crimes prescribe a mens rea for a particular crime that differs from the default mens rea established by Article 30, or must deviations from the default mens rea be dictated by the Rome Statute itself?

There is no easy answer to this question. A number of excellent international criminal law scholars, including Gerhard Werle, Antonio Cassese, and Roger Clark, believe that “unless otherwise provided” refers to both the Rome Statute and the Elements of Crimes. But a number of equally excellent scholars, including Kai Ambos, Albin Eser, and Thomas Weigend, insist that only the Rome Statute can “otherwise provide” a different mens rea. (Which it does in a number of places. Genocide, for example, imposes an additional intent requirement — the specific intent to destroy a protected group.)

I’m not sure what my own position on the issue is. Werle and Florian Jessberger make a strong argument that the drafters of the Rome Statute intended the “unless otherwise provided” language to refer to both the Rome Statute and the Elements of Crimes. (See 3 J. Int’l Crim. Just. 35, 45-46.) Thomas Weigend, however, makes an equally strong argument that permitting a document other than the Rome Statute to broaden a perpetrator’s potential criminal responsibility violates the principle of legality. (See 19 Nouvelles Etudes Penales, 319, 326.)

In the end, though, it may not matter which side is correct — an issue that will ultimately have to be decided by the ICC’s Appeals Chamber. Article 22(2) of the Rome Statute provides that “[t]he definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.” It certainly seems reasonable to suggest that the definition of Article 8(2)(e)(vii) is ambiguous even if, in the end, Werle, Cassese, and Clark have the better argument. As a result, if the defense plays its cards right, the cost of making good law on the “unless otherwise provided” issue may well be letting Lubanga himself go free.

UPDATE: I hate when facts undermine a lovely conceptual analysis. As Bjoern Elberling correctly notes in the comments, the ICC’s press release was misleading. Having now read the transcript, it seems clear that the Pre-Trial Chamber did, in fact, conclude that Lubanga knew that he was conscripting children under the age of 15:

The Chamber found that there was sufficient evidence to establish substantial grounds to believe that from early September 2002, date of the creation of the FPLC, until August 2003 Thomas Lubanga Dyilo was, at the very least, aware that in the ordinary course of events the implementation of the common plan would result in the enlistment, conscription and use of children under the age of 15 years in hostilities [and] that he accepted this.

The expression “aware that in the ordinary course of events” tracks the language of Article 30, which defines the mens rea of knowledge as “awareness that a circumstance exists or a consequence will occur in the ordinary course of events.” As a result, unless the Prosecutor fails to prove that Lubanga actually knew that his desire to conscript minors would ordinarily lead to the conscription of children under 15, the “unless otherwise provided” issue will not be a factor in Lubanga’s trial.

That said, the issue remains a critical one. It will be interesting to see what the Appeals Chamber holds when the issue eventually comes before it.

My thanks to Bjoern for the correction!