Libya and the ICC: In the Pursuit of Justice?

by Leila Hanafi

[Leila Hanafi works as regional coordinator for the Middle East and North Africa at the Coalition for the International Criminal Court. This contribution is cross-posted at the Middle East Monitor.]

The ongoing post-conflict reconstruction process in Libya is reigniting a crucial debate among transitional justice advocates as to the role the International Criminal Court (ICC) can play in delivering justice and redress to victims of grave crimes. In the midst of the February 2011 revolution, the ICC opened an investigation into crimes allegedly committed in Libya, based on United Nations Security Council (UNSC) Resolution 1970. The Court has to date issued three arrest warrants for Saif Al-Islam Gaddafi, Abdullah Al-Senussi and Muammar Gaddafi. The warrant against Muammar Gaddafi was withdrawn following his death, while Al-Islam Gaddafi is currently detained in Libya and Al-Senussi in Mauritania. Neither has been turned over to the ICC. The Libyan National Transitional Council (NTC) has asserted that it wishes to try these men in Libya, while France has declared its intention to purse Al-Senussi’s extradition for earlier alleged crimes. However, the ICC, along with many human rights groups nationally and internationally, question Libya’s capacity to conduct fair trials against these high profile individuals.

Key Justice Concerns in Libya

In my capacity as regional coordinator for the Coalition for the International Criminal Court Middle East and North Africa (MENA), I recently spoke with several Libyan legal and civil society stakeholders who expressed the view that existing Libyan laws do not always conform to human rights standards and need to be repealed or amended. Although the recent adoption by the NTC of a transitional justice law has been a step in the right direction, the capacity of the Libyan legal system to deliver justice remains weak.

In its February 2012 report, the United Nations International Commission of Inquiry on Libya stated that Libya was marred by widespread human rights abuses and brutal repression under Muammar Gaddafi’s decades of autocratic rule. It is against this background of impunity that the call for rule of law and reforms in the justice system needs to be assessed. Members of the legal and judicial sectors played a decisive role in the 17 February revolution, with the independence of the judiciary one of their main demands. Although the law under Gaddafi provided for an independent judiciary, this was not the case in practice. The government used…

CCR Updates Evidence in Its ICC Filing Against Catholic Church

by Julian Ku

Ben Davis sends me this update on the new evidence submitted to the International Criminal Court against the Catholic Church.

Today, a survivor-led support group for sex abuse victims, which is under attack by U.S. Catholic officials, submitted to the International Criminal Court (ICC) new and extensive documentation that the organization says shows ongoing child rape by Catholic clergy and continuing cover-ups by bishops and Vatican officials. The Survivors Network of those Abused by Priests (SNAP) says the new evidence, submitted by SNAP’s attorneys at the Center for Constitutional Rights, underscores the urgent need to prevent future child sex crimes and cover-ups and hold church officials accountable for widespread

I assume that this new evidence is part of the difficult case for the clergy-abuse-victims at the ICC, especially in trying to establish that the abuses were a “crime against humanity.”  As I (and a bunch of commenters) suggested here back in September, this is a difficult, longshot case.  But the evidence is quite powerful, even if I still don’t see how it quite fits the legal requirements for ICC jurisdiction.

Lubanga Decision Roundtable: Lubanga and the Trouble with ICC Deterrence

by Mark Kersten

[Mark Kersten is a PhD student in International Relations at the London School of Economics]

International lawyers will undoubtedly pour over the landmark verdict handed down this week by the International Criminal Court, in which Thomas Lubanga Dyilo was found guilty of conscripting, enlisting and using child soldiers in the long-standing and brutal conflict in the Democratic Republic of Congo. The trial, riddled with well-documented problems from the get-go, is likely to shape the practice of the ICC itself – at least so those disturbed by the conduct of the prosecution hope. But what of the political effects of the Lubanga decision beyond the Court room? Will the trial have a deterrent effect on the use of children in warfare in the DRC?

The widely held argument that international criminal justice can deter the commission of international crimes remains highly problematic. Scholarship on the subject typically, and rather dubiously, ignores the mixed evidence of deterrence in the case of domestic crimes. Studies generally assess international criminal justice’s effects in a vacuum where, for example, the use of military and economic sanctions aren’t taken into account when seeking to establish whether or not there is a deterrent effect. Most problematically, evidence of deterrence is forever slanted against those who claim its existence. As William Schabas has rightly observed, “while we can readily point to those who are not deterred, it is nearly impossible to identify those who are.”

Despite these key issues, deterrence continues to be among the most common arguments proffered in favour of holding perpetrators of international crimes to account. The increased prominence of the deterrence arguments reflects a shift, elucidated recently by Leslie Vinjamuri, in the argumentation for international criminal tribunals, away from moral duties and obligations to the positive consequences that these tribunals can bring about. But will the verdict against Lubanga have a deterrent effect on the use of child soldiers?

Lubanga Decision Roundtable: Lubanga Legacies?

by Mark Drumbl

[Mark A. Drumbl is the Class of 1975 Alumni Professor at Washington and Lee University and author of Reimagining Child Soldiers (OUP, 2012).]

A long time in coming, to be sure, and slightly anticlimactic, the Lubanga judgment nonetheless represents a watershed – a first, in any event, for the ICC.  What might the legacies of the Lubanga judgment be? I thank the organizers for inviting me to speculate on this question.  Three lenses come to mind: jurisprudence, pedagogy, and bureaucracy.

Jurisprudential.  Lubanga further clarifies the scope of the war crime of conscripting or enlisting children under the age of fifteen into armed forces or groups or using them to participate actively in hostilities. Specifically, although conscription and enlistment are separately mentioned as offenses, the consent of the child can never be a defense. Proof of compulsion is not required. As a matter of liability, therefore, it doesn’t matter whether the child was forcibly abducted or was enlisted after volunteering. The Trial Chamber did intimate that an abductor might be sentenced more harshly than the commander who enrolls child volunteers (para. 617, also referencing reparations). Lubanga also examines the question as to what, exactly, using a child to participate actively in hostilities actually means.  The majority approach focused on whether the “support provided by the child to the combatants exposed him or her to real danger by becoming a potential target” (para. 820).  This approach obscures the reality that some child soldiers may face the prospect of greater harm from members of their own forces (whether adult leaders, mid-level officials, and fellow children) than from “enemy” forces.  Sexual slavery and abusive punishment come to mind.  Judge Odio Benito took up this point in her separate and dissenting opinion.

Pedagogic. Overall, the Lubanga judgment invokes, and further embeds, the prevailing image of child soldiers as victims who lack capacity to determine their best interests in the context of armed conflict (paras. 610-618). I have argued elsewhere that this image, although indicative of the lives of many child soldiers, cannot so readily be generalized. What is more, this imagery may also become disabling, may discourage the input of former child soldiers in processes of post-conflict reconstruction, and may weaken the development of a robust culture of juvenile rights. The use of imagery is a powerful tool to mobilize resources and actualize denunciation. Alternately, the use of other images, for example that of child soldiers as feral youth programmed to kill, also serves instrumental political ends. The United States, for example, has stylized Omar Khadr and children associated with Al Qaeda as “very very dangerous” so as to justify their becoming subjects of harsh military commission proceedings and lengthy imprisonment. All extreme images are at best partial prints that occlude more than they clarify.  Child soldiers are heterogeneous in their experiences, expectations, and paths to (and from) militarization. The fact that release of the Lubanga judgment coincided with the viral success of the Kony 2012 video further reinforces a number of sensationalized myths in public consciousness. One myth is the Africanization of child soldiering.

Lubanga Decision Roundtable: Lubanga in Context

by James G. Stewart

[James G. Stewart is Assistant Professor of Law at the University of British Columbia]

The first judgment of the International Criminal Court is cause for real celebration, but we must not let our justifiable elation overshadow all that work the judgment leaves undone.

Let me begin by rejoicing, before I express concerns. This is the first determination of guilt by a permanent international institution dedicated to accountability for atrocity. Who could have dreamed, when Allies drew up charges against only their vanquished enemies after WWII, when atrocity after atrocity when unpunished during Cold War rivalries, or when prosecutors used broken doors as desks in the initial years of ad hoc tribunals, that their efforts would culminate in a permanent international institution with (almost) global reach. The Lubanga judgment is the first fruit of a spectacularly unlikely diplomatic project, a much-needed symbol of the possibilities for historical change in the face of entrenched political resistance, and a glimmer of hope that some imperfect justice may just prevail.

This specific judgment is also a reminder that African rebel leaders cannot feel complacent about the impunity they have traditionally enjoyed, and to a lesser extent, a warning to others elsewhere too. So, when Joseph Kony demands that a set of criminal lawyers march for miles into the bush to advise him on his potential exposure to liability for international crimes, there is some nominal gain in the world. This benefit is also apparent when the head of the British army demands a single written sentence from the British Attorney General and Prime Minister describing the Iraq War as legal before he sends in British troops, even if his fear of prosecution for aggression before the ICC is legally misguided. The Lubanga judgment undermines the complacency we all got used to.

And then there is the issue of child soldiers…

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

by dov jacobs

[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…

Lubanga Decision Roundtable: The Participation of Children in Hostilities

by Cecile Aptel

[Cecile Aptel is Associate Professor of International Law at the Fletcher School, Tufts University]

Among the many legal and factual issues raised by the landmark Lubanga judgment rendered by the ICC this week, a central one concerns the definition of “the use [of children under 15] to participate actively in hostilities” qualified as war crimes under both article 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Rome Statute, the only charges retained against Lubanga. The sensitive question of the definition of “use to participate actively in hostilities” gave rise to a dispute between the majority of the trial chamber, including its presiding judge, judge Fulford, and judge Odio-Benito, and resulted in the latter issuing a separate and dissenting opinion.

The judges disagreed on whether or not the terms “use to participate actively in hostilities” should actually be defined in the judgment. The majority opined:

[…] Given the different types of roles that may be performed by children used by armed groups, the Chamber’s determination of whether a particular activity constitutes “active participation” can only be made on a case-by-case basis. (para. 627)

Judge Odio-Benito in her separate and dissenting opinion disagreed with this case-by-case determination, arguing notably that it potentially risks leading to divergent assessments of the respective harms suffered by different children, in particular by the girls victims of sexual violence.

Judge Odio-Benito’s concern appears to stem notably from the failure of the prosecution to charge Lubanga for the sexual crimes committed against some of the child-soldiers…

Is Peace the Victim of the ICC’s Justice?

by Julian Ku

I don’t have any particular insights to add on the very interesting and detailed roundtable discussion folks are having on the Lubanga judgment.  But I can’t resist pointing out this op-ed by Ian Paisley (the son of a leading figure on the Northern Irish settlement) in the New York Times slamming the ICC as a obstruction to national reconciliation and peace:

The court’s success as a vehicle for delivering justice continues to be debated. The I.C.C. was founded amid much fanfare, but its track record — with only this single conviction — has been poor. Arguably, the cases before it are complex, and it was always going to take time for a new institution to complete them.

But this misses the point. The I.C.C. was intended as an instrument for delivering peace. In this respect it has not been a success. It will continue to falter because its current methods go against the experience of many places in Africa and around the world where peace has been delivered through political negotiations and reconciliation efforts, not the imposition of international justice.

I am not making an argument against I.C.C.’s existence: In places where there is no functioning government, or the government is hostage to one section of society, or where there is no viable reconciliation process, the international community has a duty to ensure that the court is the guardian of justice.

But the pursuit of justice should not replace or undermine ongoing national reconciliation efforts. The foremost challenge facing the I.C.C. is to determine whether its intervention will help or hinder the cause of peace. The wheels of justice must be allowed to turn at their own pace, but that they must not impede the peace process.

Of course, Jide Nzelibe and I have made this argument at some length here, and with a further wrinkle that the ICC is not likely to have much of a deterrence effect either.  I know this is an old and already hotly debated topic among scholars. But I wonder if it will again become a leading criticism of the ICC.

Lubanga Decision Roundtable: More on Co-Perpetration

by Kevin Jon Heller

I’ll have much to say about various legal aspects of the Lubanga judgment in the days to come, but I wanted to start by discussing the relatively narrow — though critically important — point that Jens addressed in his post: the dispute between the majority and Judge Fulford concerning the correct interpretation of co-perpetration in Article 25(3)(a) of the Rome Statute, the sole mode of participation at issue in the case.  I think Judge Fulford correctly rejects the majority’s interpretation, but I disagree with his reasoning.

At the outset, it should be noted that Article 25(3)(a) is maddeningly vague: it simply provides that a person shall be criminally responsible for an international crime if he “[c]ommits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible” (emphasis mine).  Lubanga was charged with responsibility for the conscription and enlistment of child soldiers by committing that crime “jointly with another” — co-perpetration.  But what qualifies as co-perpetration?

The obvious solution for the Trial Chamber would have been to hold that co-perpetration under Article 25(3)(a) is equivalent to JCE I at the ICTY, which is what the legal representatives of the victims advocated at the pre-trial stage.  Instead, the Trial Chamber followed the Pre-Trial Chamber (in Lubanga and in other cases) and held that co-perpetration differs from JCE I in that it requires the perpetrator to make an “essential” contribution to the common plan to commit a crime, whereas JCE I is satisfied as long as the perpetrator contributes in any way to the common plan…

Lubanga Decision Roundtable: Lubanga and the Control Theory

by Jens David Ohlin

[Jens Ohlin is Associate Professor of Law at Cornell Law School]

Cross-posted at LieberCode.

So the ICC has released its first verdict and it only took 10 years.  Most media reports are concentrating on the substantive crime – the use of child soldiers – because that issue has suddenly gained popular currency with the Kony2012 viral video.

But the Lubanga decision is also notable for the open disagreement between the judges regarding the mode of liability in the case.  Although all three judges agreed that Lubanga was a co-perpetrator, Judges Benito and Blattmann adopted Roxin’s Control Theory of Perpetration, while Judge Fulford rejected the Control Theory, becoming one of the few ICC jurists to express serious concerns about the doctrine.

To recap for those readers who aren’t as obsessed with modes of liability as I am: The Control Theory was developed by the German criminal law scholar Claus Roxin in the 1960s, and was discussed with approval by George Fletcher in Rethinking Criminal Law.  It was influential in German criminal law circles but largely ignored in the United States, despite Fletcher’s extensive discussion of it in Rethinking.  Roxin himself created an organizational version of the doctrine after the Eichmann trial, thus demonstrating the theory’s application to mass atrocity.  The first significant judicial application of the theory came during the German Border Guard Cases after German reunification.

In its earliest days, the ICC Pre-Trial Chamber decided against applying the ICTY doctrine of Joint Criminal Enterprise that was closely identified with Cassese, and instead adopted Roxin’s Control Theory of Perpetration.  It is therefore not surprising that the Lubanga Trial Chamber confirmed this approach, though the dispute between the judges on this point demonstrates that the Control Theory still has its detractors.

Specifically, Judge Fulford complained about the hypothetical and counterfactual reasoning required by the control theory – a point that myself, Thomas Weigend, and plenty of others have made before.  Because the control theory requires a finding that the defendant performed an essential contribution, one has to decide if the crime would have still occurred in the absence of the defendant’s contribution – hence the notion of “essential.” This is, necessarily, a counterfactual question, and the theory also gives too little guidance about how different the counterfactual crime must be before we declare it to be a different crime altogether, and therefore whether the defendant’s contribution was essential or not.  These questions clearly weighed on Judge Fulford, leading him to conclude in his concurring opinion that the Control Theory created insurmountable problems for structuring ICC cases.

However, Judge Fulford also had another objection to the Control Theory – one that I cannot subscribe to.  Fulford complained that the control theory was being transplanted from another legal culture – Germany – where the distinction between principals and accomplices is of central concern, in particular because the statutory sentencing ranges for principals and accomplices differ significantly. Consequently, it really matters in Germany if the defendant is convicted as a principal or an accomplice.  At the ICC, though, there are no statutory sentencing guidelines, so the distinction between principals and accomplices is of no practical consequence.  Or so says Judge Fulford.

I cannot subscribe to this reasoning.  If there is a defect here, it is a defect in the ICC scheme on sentencing.  The Rome Statute ought to have a more rigorous methodology for dealing with sentencing, but it does not.  But even if that never changes, and judges retain full discretion to decide sentencing based on the individual circumstances of the case, the distinction between principals and accomplices still has enormous value.  It’s part of the concept of fair labeling – i.e. that the law, and in this case the substantive doctrine of criminal law, should capture a defendant’s true and accurate culpability by applying the correct legal categories to him.  A system that eviscerates the distinction between principals and accomplices fails to live up to the principal of fair labeling.  I won’t belabor the point here, since it is the subject of a forthcoming exchange between myself and James Stewart in an upcoming OJ symposium sponsored by the Leiden Journal of International Law.

One final point on precedent, a subject that I have started discussing recently at LieberCode.  Although Judge Fulford rejected the control theory, he refused to apply his “plain reading” version of co-perpetration in this case.  His rationale for this refusal was that to do so would be prejudicial to Lubanga, since Lubanga structured his defense around the Control Theory as it was expounded by the Pre-Trial Chamber.  To do otherwise would violate the fair trial rights of the defendant.

This argument strikes me as curious indeed.  If Pre-Trial Chambers are going to give detailed exegesis on matters of law, which then apparently become the “law of the case” even if the Trial Chamber disagrees with them, then the law becomes static with more limited opportunities for revision.  Of course, Fulford’s argument is presumably asymmetrical, in the sense that he is fine with changing the law if it benefits the defendant, but not if it prejudices him.  Still, is Fulford suggesting that the same rationale would bind the Appeals Chamber in this case?  Under this rationale, the ICTY Appeals Chamber should never have pronounced the JCE doctrine during the Tadic appeal.

Breaking: Lubanga Convicted by the ICC

by Kevin Jon Heller

From AllAfrica.com:

Today, International Criminal Court (ICC) judges in The Hague delivered the Court’s first verdict—a finding of guilt against former Congolese warlord Thomas Lubanga.

Prosecutors accused Lubanga of the war crimes of conscripting, enlisting, and using children under the age of 15 years for combat purposes while he served as political head of the Union of Congolese Patriots (UPC) rebel group in the Ituri region of the Democratic Republic of Congo (DRC). Lubanga denied all allegations against him, insisting that he gave orders for children not to be involved in combat and that prosecutors had influenced witnesses to lie against him.

The ICC judges ruled that the prosecution proved beyond reasonable doubt that Lubanga is guilty of the crimes charged. Judge Adrian Fulford, Presiding Judge of the Trial Chamber, in delivering the verdict said that there was reasonable evidence to believe that Lubanga was involved in a recruitment drive for his UPC rebel group and that such drive included conscripting children and using them for combat purposes. The judges also found that Lubanga personally used children as his bodyguards.

The judges agreed with the defense on allegations that the prosecution had delegated its investigations to local intermediaries in the Democratic Republic of the Congo and that these intermediaries manipulated and influenced some witnesses to lie against Lubanga. The evidence of these prosecution witnesses were in doubt and were therefore disregarded by the judges. On the strength of other prosecution evidence, including a video footage of Lubanga addressing children at a UPC training camp, the judges found that Lubanga is guilty of the charges against him.

The verdict is not particularly surprising: the evidence against Lubanga was overwhelming, and the OTP — for reasons that still have never been adequately explained — declined to bring more serious charges against him, even though he had been facing murder and torture charges in the DRC.  It is good news, though, that the verdict was unanimous; more than one insider predicted that Judge Fulford would dissent.  (Note, though, that there is a separate opinion by Judge Fulford and a dissenting opinion on a point of law that does not affect Lubanga’s criminal responsibility by Judge Benito.)

Of course, no ICC prosecution would be complete without at least something that makes Luis Moreno-Ocampo look bad.  The OTP handled the intermediaries terribly, at one point raising the specter of Lubanga being released.  I’m glad that the Court did not take such a drastic step — but I’m also glad that it acknowledged that the intermediaries deliberately encouraged witnesses to perjure themselves.  That is a clear indication the judges took the defense’s arguments seriously.

Lubanga’s sentence will be imposed at a later date.  Most articles say that he could receive a life sentence, but I don’t think that’s true.  According to Article 77 of the Rome Statute, the maximum penalty for an ordinary crime is 30 years imprisonment, with a life sentence being possible only “when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.”  To sentence Lubanga to life imprisonment for a crime that does not even require death would set a very bad precedent; if recruiting child soldiers is so grave as to justify a life sentence, what international crime would deserve a lesser sentence?

In any case, it’s very unlikely that Lubanga will receive even the maximum sentence for an “ordinary” crime. A good friend has guessed that he will be sentenced to 10 years; I’m guessing 15.  Readers, shall we start a pool?  The winner will receive an official OJ coffee mug — on the condition that the blog ever commissions one.

Congratulations, ICC!

PS. You can download the judgment here — all 650+ pages of it.

The Failure of the ICTY to Deter International Crimes

by Julian Ku

Bloomberg BusinessWeek offers what is slowly becoming conventional wisdom on the ICTY, at least, if not international criminal justice in general.

Credit [] is due to the court, which focused on individual responsibility rather than collective guilt. This helped foster reconciliation among Serbs, Croats and Muslims in the former Yugoslavia.

But beyond the Balkans, it would be a mistake to exaggerate the court’s relevance as a deterrent to other would-be war criminals. The court was successful because its jurisdiction was limited and a broad consensus existed that these were the most heinous human rights violations in Europe since World War II.

The genocide in Darfur, Charles Taylor’s crimes in western Africa, the slaughter of civilians in Sri Lanka, and Muammar Qaddafi’s willingness to wage war against his own people in Libya all demonstrate a larger truth. International law, for all its good intentions, is no substitute for international action.