Lubanga Decision Roundtable: Lubanga, Sexual Violence and the Legal Re-Characterization of Facts

[Dov Jacobs is an Assistant Professor of International Law at Leiden University. He also blogs at Spreading the Jam where he has already commented on several aspects of the Lubanga Judgment.]

The Lubanga trial was not only being scrutinized for the charges that were included (the use of child soldiers in armed conflict). The charges that were not included always loomed close by, and most notably among those, the allegations of sexual violence. From the start, the Prosecutor was criticized for essentially including one crime, that of using child soldiers. The possible reasons for this approach are manifold. Understanding why the OTP chose this path is however not the object of this post. What I want to discuss is what, if anything, can and should be done, once the choice is made, especially on the part of the judges.

The answer, according to me, is crystal clear when you read the Statute and Rules of Procedure and Evidence (RPE) of the Court: absolutely nothing. It would be too long to go into the details of what these documents say in relation to the choice of charges (I refer you to my upcoming book chapter on the topic for a comprehensive analysis). But in a nutshell, the Prosecutor is solely responsible for choosing the charges and the underlying factual elements. The Judges, whether at the pre-trial phase, or at trial, have no power whatsoever in relation to the content of the charges. But the story doesn’t end there. The Judges, in their never-ending quest to maintain control over the proceedings, included in the Regulations of the Court (because they had, rightfully in my opinion, lost power over the RPE) a Regulation 55 allowing them to legally re-characterize the facts, a provision which I think was adopted ultra vires and is contrary to the Statute. Indeed, whatever one thinks of the opportunity of judges having such a power, the fact is that the drafters of the Statute and the RPE chose not to grant it, and it was not the judges’ decision to make to grant it to themselves (more on this in the above-mentioned book chapter).

In any case, this Regulation was used in the Lubanga trial to try and get sexual violence in through the back door. In May 2009, the victims filed a motion asking the Trial Chamber to characterize the facts to include charges of, among others, inhumane treatment and sexual slavery. The Chamber (with a strong dissent from Judge Fulford) ran with that and gave notice to the parties that it might indeed consider that. Thankfully, later that year, the Appeals Chamber reversed this decision, considering that the judges had gone too far in their interpretation of the Regulation (I commented on these developments at the time at Spreading the Jam, here and here).

This is why the Lubanga Judgment (at paragraphs 629-630) clearly indicates (with Judge Odio Benito dissenting, see below) that it could not consider issues of sexual violence in the context of the Judgment, even if these issues might be relevant at the sentencing or and reparations phases.

The reasoning of the Trial Chamber in these two paragraphs is somewhat unclear as to why exactly it did not consider sexual violence. Indeed, it considers two possible approaches. The first one relates to the crimes charged per se. The Judges recall that the Prosecutor failed to charge sexual enslavement and rape and even opposed the failed attempt at recharacterization, thus implying that this is why the Judges could not do it. The second approach relates more to the facts. The Judges consider that, even if one could argue that sexual violence falls within the definition of using “children to participate actively in hostilities”, because no evidence of sexual violence was put forward in the confirmation of charges hearings, any such evidence that emerged subsequently in in the trial could not be used, because it would exceed the “facts and circumstances” of the case, as confirmed in the pre-trial phase.

While I fully agree that judges should not be allowed to change the legal characterization of the charges, I’m a little more skeptical of the second approach. If, and it’s a massive “if”, sexual abuse falls within the definition of using children to participate actively in hostilities, which is the crime charged from the beginning and confirmed, even the harsh strict positivist that I am, would not necessarily find it contrary to the Statute to consider evidence brought forward during the trial which was not put forward in the confirmation of charges (assuming, of course, that the rules of disclosure to the defense have been respected and that they have had the opportunity to adequately prepare their case). After all, Article 74(2) provides that “The Court may base its decision only on evidence submitted and discussed before it at the trial”, not the Confirmation of Charges hearing. This deference to the Confirmation of Charges decision seems to me to be a little problematic. Certainly, the pre-trial phase is meant to avoid that obviously unfounded cases go to trial, and of course some things need to be settled there for the process to have any meaning, but if the trial chamber considers itself so strictly bound by the facts brought forward in the confirmation hearing, then one can wonder what the point is of having the trial at all? It just becomes a confirmation of the confirmation.

The underlying question of all this is of course the role of international criminal judges. Should they be allowed to consider issues, such as sexual violence in the Lubanga case, despite the limitations of the statutory framework?

I would unsurprisingly, given my rigid (some would say “cold-hearted”) positivism, answer in the negative. However, Judge Odio Benito, in her dissenting opinion, clearly thinks so. Apparently, the latest trend of international decisions is to have a strong dissent from a Latin American Judge trying to push a human rights agenda. The ICJ has Judge Cançado Trindade (see a great analysis of his activity over at EJIL Talk!) and the ICC now has Judge Odio Benito.

In her dissent, the judge from Costa Rica plays the usual tune meant to strike a chord of shame in the hearts of the cynical positivists that stubbornly resist to march in step. She refers to the now traditional tool of natural lawyers (a contradiction in terms, maybe?) who advance in the guise of common sense positivists, namely the “object and purpose” of the Statute, and says that the fact that the Chamber refuses to consider sexual violence, is “a step back in the progressive development of international law” (again, the classical rhetoric of progress, which makes any person who might resist a vile reactionary). She concludes by saying that “ICC trial proceedings should also attend to the harm suffered by the victims as a result of the crimes within the jurisdiction of the Court. It becomes irrelevant, therefore, if the prosecutor submitted the charges as separate crimes or rightfully including them as embedded in the crimes of which Mr. Lubanga is accused. The harm suffered by victims is not only reserved for reparations proceedings, but should be a fundamental aspect of the Chamber’s evaluation of the crimes committed.” (my emphasis)

I comment more generally on this victim-oriented approach here. But in relation to the issue of the role of the judge, how can an ICC judge say that it is “irrelevant” what and how the Prosecutor charges? How can an ICC judge not care that there exist discrete provisions in the Statute to cover these acts and that it means something that these are used or not? Of course, the whole international criminal law project is built on this moral outrage and its direct impact on the creative development of the law, through the activism of judges. Maybe this was necessary in the beginning, because, let’s face it, there would not be an international criminal law to talk about without it. Indeed, there is no doubt that international judges, more than any other “community” of international criminal justice, have taken a central role in the development of international criminal law. From Nuremberg onwards, international judges with the late Antonio Cassese being a prime example, have practiced what their supporters might call “judicial creativity”, but is essentially “judicial activism” (although the two might arguably not necessarily be mutually exclusive), to develop international criminal norms in directions that were not explicitly provided for in the black letter of the law. This practice has been lauded in the name of human rights, human dignity, progress and common sense. But the fact remains that this is often done in flagrant violation of the principle of legality and the rights of the defense. More systemically, this clear disregard for the legal framework by a judge, in the name of humanity, breaches every rule on the separation of powers between the judiciary and the legislator and opens to door to arbitrariness. The system must now move towards a more responsible respect for the rule of law, in which the judge, whatever his moral views, just cannot do what he or she likes.