“Recharacterizing” Facts in Lubanga

There has been a very interesting — and potentially very troubling — development in the Lubanga trial.  In response to a submission by representatives for the victims and over a strong dissent by Judge Fulford, the majority of Trial Chamber I has given notice to the parties and participants in the trial “that the legal characterisation of the facts may be subject to change in accordance with Regulation 55(2) of the Regulations of the Court.”  In particular, the Trial Chamber wants to hear argument concerning whether the facts presented in the case should be “recharacterized” to support five new charges against Lubanga, who is currently charged with six counts of the war crime of conscripting child soldiers.  If the Trial Chamber ultimately grants the victims’ request, Lubanga would also be charged with:

• Sexual slavery as a crime against humanity.
• Sexual slavery as a war crime in international armed conflict.
• Sexual slavery as a war crime in non-international armed conflict.
• Inhuman treatment as a war crime.
• Cruel treatment as a war crime in non-international armed conflict.

The dispute centers on the correct interpretation of Regulation 55(2), which reads as follows:

If, at any time during the trial, it appears to the Chamber that the legal characterisation of facts may be subject to change, the Chamber shall give notice to the participants of such a possibility and having heard the evidence, shall, at an appropriate stage of the proceedings, give the participants the opportunity to make oral or written submissions. The Chamber may suspend the hearing to ensure that the participants have adequate time and facilities for effective preparation or, if necessary, it may order a hearing to consider all matters relevant to the proposed change.

The majority has concluded that “[t]he submissions of the legal representatives of the victims and the evidence heard so far during the course of the trial persuade the majority of the Chamber that such a possibility exists.”  Judge Fulford disagrees — and rightly so.  The problem with the victims’ argument is that they are not actually asking for facts to be legally recharacterized; they are asking the Trial Chamber to conclude that the facts presented during the prosecution’s case in chief, which ended last month, support convicting Lubanga of charges that were not originally confirmed by the Pre-Trial Chamber.  That request, however, is inconsistent with two important Articles in the Rome Statute.  The first is Article 61(9):

After the charges are confirmed and before the trial has begun, the Prosecutor may, with the permission of the Pre-Trial Chamber and after notice to the accused, amend the charges. If the Prosecutor seeks to add additional charges or to substitute more serious charges, a hearing under this article to confirm those charges must be held. After  commencement of the trial, the Prosecutor may, with the permission of the Trial Chamber, withdraw the charges.

As Judge Fulford points out (paras. 12-17), Article 61(9) makes clear that only the Pre-Trial Chamber can amend the charges against a defendant after they have been confirmed, and only then prior to trial.  Once trial gets underway, the Trial Chamber is limited to granting or rejecting a motion by the Prosecutor to withdraw charges; it cannot add new charges or amend the confirmed ones.  Yet that is exactly what the Trial Chamber has served notice it might do — on the basis, no less, of an analysis that does not even mention the Article 61(9) issue.

The majority’s decision is also inconsistent with Article 74(2) of the Rome Statute, which provides as follows:

The Trial Chamber’s decision shall be based on its evaluation of the evidence and the entire proceedings. The decision shall not exceed the facts and circumstances described in the charges and any amendments to the charges. The Court may base its decision only on evidence submitted and discussed before it at the trial.

The critical sentence is the second one: “[t]he decision shall not exceed the facts and circumstances described in the charges and any amendments to the charges.”  The victims’ proposed “recharacterization” of the facts would be consistent with Article 74(2) only if the new sexual slavery, inhuman treatment, and cruel treatment charges would not require the Prosecution to prove any facts beyond those described in the original charges.  But as Judge Fulford explains (paras. 46-50), that is clearly not the case:

The Amended Document Containing the Charges seemingly makes no reference to acts of sexual violence or sexual slavery (proposals A, B and C). Further, the Amended Document Containing the Charges apparently does not suggest that Thomas Lubanga had specific knowledge of, and was responsible for, the severe sanctions in the camp (proposals D and E); the suggestion in the document containing the charges may be no greater than that set out in paragraph 17, namely “[…] Thomas Lubanga Dyilo was in a position to exercise command and control over subordinate units on a permanent basis, and to stay informed about the general situation in Ituri, in particular about FPLC military operations and the situation in the FPLC military training camps (emphasis added).” Generally, it would be necessary to prove his participation in a plan or policy, or his involvement in a large-scale commission, of the charges of inhuman or cruel treatment, in the context of the charges.

The Trial Chamber could conceivably get around Article 74(2) if the charges were formally amended and the Prosecution allowed to re-open its case in chief and introduce the new facts necessary to sustain the amended charges.  But that just leads back to the Article 61(9) problem, because the article specifically prohibits the Trial Chamber from amending the charges after trial has begun.

And rightfully so.  As Judge Fulford rightly notes (para. 28), it would be completely unfair to Lubanga — and to future defendants who find themselves in a similar situation — to permit new and arguably more serious charges to be added in the middle of a trial:

In my respectful view, this result would markedly undermine the rights of the accused under Article 67(l)(a) “[t]o be informed promptly and in detail of the nature, cause and content of the charge […]”, set against the general restrictions on changes to the charges as reflected in governing provision, Article 61(9). The facts of a criminal case frequently — in reality, invariably — change and develop as the trial unfolds, and under the approach preferred by the majority, the accused could be confronted, at any stage, with a re-characterization based on the new facts and circumstances that have emerged during the trial.

It’s also worth noting that, unfortunately, the Office of the Prosecutor did not forcefully oppose the victims’ submission.  It seems clear that the OTP is not entirely comfortable with the proposed additions (see the Decision at para. 10).  But it certainly didn’t tell the Trial Chamber that the proposed recharacterization was impermissible.  It should have, because the majority’s decision represents a very significant intrusion into prosecutorial discretion; although victims should have the right to be heard at trial, they should not have the right to determine what charges the OTP brings against a suspect.  I hope that, having reserved the right to specifically address the merits of the victims’ submission if the Trial Chamber gave notice that “recharacterization” was possible (as it now has), the OTP will be more blunt in subsequent motions.

I don’t blame the victims from trying to cleverly introduce new charges into the Lubanga trial.  Victims groups, human-rights organizations, and scholars have long criticized the OTP for charging Lubanga only with conscripting child soldiers.  But that ship has sailed: once the trial got underway, the original charges were final.