Thursday, February 08, 2007

Thoughts on the Lubanga Confirmation Decision - Part 1 of ?

Having finally read the Confirmation Decision (which, so far, is available only in French here), here are some initial thoughts:

Some smart Ph.D. student or scholarly inclined Defence Lawyer will have to write a book about disclosure, especially about restrictions to disclosure, at international criminal tribunals.
The disclosure process makes up the bulk of the paper produced in the pre-confirmation procedure, what with all those requests for authorisation of redactions, disclosure notes and inspection reports, etc. I would venture the guess that the whole disclosure process is responsible for a large part of the eight month delay between the first appearance of Thomas Lubanga and the beginning of the Confirmation Hearing - and this in a trial concerning charges which are rather uncomplicated both legally and as regards the evidence required to prove them.
What's more, it also seems to be one of the most legally complicated and divisive issues, with up to now three judgments of the Appeals Chamber reversing Pre-Trial Chamber decisions (one on appeal by the Prosecution - see here; two on appeal by the Defence - see here and here).
And it again features prominently in the Confirmation Decision, where the Pre-Trial Chamber has to deal with the fallout from the last two of these Appeals Chamber judgments, which only arrived after the end of the Confirmation Hearing. Quite frankly, I have all but given up on trying to follow proceedings on these questions in depth, but I do sympathize with the Defence's worries, as detailed e.g. by Melinda Taylor from the Office of Public Counsel for the Defence during the First Day of the Confirmation Hearing (starting on page 171, time-stamp 17:41:00)

Coming to the more substantive issues dealt with by the Chamber, the first refers to the chapeau of Art. 8 Rome Statute, i.e. the existence of an armed conflict in Ituri province at the time of the alleged crimes. The Chamber finds that from July 2002 to June 2003, the Ituri conflict was of an international character due to occupation by Ugandan armed forces. The Chamber also finds that there was some evidence of involvement of Rwandan troops in the conflict, but that there was not enough evidence for it to decide whether this involvement could be characterized as "direct or indirect intervention". Two remarks on these findings:
  • First of all, they might be taken as indicative of the ICC's behavior towards findings by other international courts, especially on questions of general international law. In this regard, as far as the legal standard for, e.g., armed occupation is concerned, the Chamber relies on a mix of ICJ and ICTY jdugments. As for the factual pronouncements, there are some obvious parallels between the Chamber's decision and earlier ICJ judgments in parallel cases: In proceedings brought by the DR Congo against Uganda, the ICJ had found that Uganda had violated internationa law by, among others, occupying parts of the DR Congo's territory. In parallel proceedings against Rwanda, however, the ICJ found that it lacked jurisdiction to deal with the issue.
  • Secondly, the Chamber's characterization of the conflict conflicts (bad pun actually not intended) with that of the Office of the Prosecutor, which had characterized the conflict as non-international for all of the material time. The OTP had, in fact, charged Lubanga only with the war crime of recruitment of child soldiers in non-international armed conflict (Art. 8 (2) (e) (vii) Rome Statute) and not alternatively or additionally with the similar crime in international armed conflict (Art. 8 (2) (b) (xxvi) Rome Statute). In such situations, i.e. where the Chamber's legal characterization of acts charged differs from that of the OTP, Art. 61 (7) (c) (ii) Rome Statute foresees that the Chamber adjourns the hearing and requests the Prosecutor to consider amending the charges in this regard. The Chamber, however, chose to instead confirm the charges while substituting (Art. 8 (2) (b) (xxvi) for Art. 8 (2) (e) (vii) (or, in other words, amending them itself), pointing to the substantial similarity between the two crimes. I guess that from the perspective of judicial economy (and thus from a speedy trial perspective), that makes sense. At the same time, it could also be seen as a further stage in the struggle between the PTCs and the OTP about who has control over pre-trial proceedings (I am working on an article on this question, and I also hope to post some more about it in the near future) - in fact, the OTP has asked for leave to appeal the Confirmation Decision, under Art. 82 (1) (d) Rome Statute, for precisely the reason that the Chamber substituted the charges.
Speaking of appeals: Not only the OTP has appealed the decision, but so has the Defence.
First of all, Defence Counsel has brought an appeal an appeal under Art. 82 (1) (b) of the Statute, which grants a right to appeal against "a decision granting or denying release of the person investigated or prosecuted." While it is true that the Confirmation Decision effectively leads to Lubanga's further detention, I am not sure that this means that it is covered by Art. 82 (1) (b), and apparently neither is the Appeals Chamber, which instructed parties to focus on this very question first (see the Defence Submission on the question here).
Second, as becomes clear from this decision of the PTC Single Judge, the Defence has also asked for leave to appeal the Confirmation Decision under Art. 82 (1) (d). We'll have to wait and see how things develop, but my guess would be that none of these appeals will reach the "merits" phase.

This much for now - stay tuned for future posts on the substantive findings on Arts. 8 and 27 Rome Statute and for a first attempt at characterizing the Pre-Trial proceedings as a whole.


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21 November, 2009 16:19  

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