Dear Readers,

The following commentary first ran in a Special Issue of the Legal Eye on the ICC, a regular eLetter produced by the Women’s Initiatives for Gender Justice, an international women’s human rights organisation that advocates for gender justice through the International Criminal Court (ICC) and works with women most affected by the conflict situations under investigation by the ICC. This Special Issue is the second in a series of four Special Issues reporting on the first trial Judgment handed down by Trial Chamber I in the case against Thomas Lubanga Dyilo on March 14, 2012. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative. To read the full version of the second Special Issue Legal Eye eLetter, click here.

On March 14, 2012, Trial Chamber I issued a judgment in the ICC’s first case, The Prosecutor v. Thomas Lubanga Dyilo, convicting Thomas Lubanga Dyilo (Lubanga) of the war crimes of conscripting and enlisting children under the age of 15, and using them to participate actively in hostilities within the meaning of Articles 8(2)(e)(vii) and 25(3)(a) of the Statute, from early September 2002 to 13 August 2003 (Judgment).^[i] Lubanga is the former President of the Union des patriotes congolais (UPC) and Commander-in-Chief of the Forces patriotiques pour la libération du Congo (FPLC).

In a 624-page judgment, including two separate or dissenting opinions, the Trial Chamber addressed Lubanga’s individual criminal responsibility for the crimes charged, and also included a detailed discussion of the arguments of the parties, addressing issues such as the Prosecution’s use of intermediaries in its investigations, and the Defense claims of abuse of process. The Trial Chamber first provided a brief history of the proceedings, and outlined procedural issues that arose during trial, such as jurisdiction and victim participation. The Chamber noted that a total of 129 victims (34 female and 95 male victims) were authorized to participate in the proceedings. The Chamber also observed that ‘while all 129 victims claimed they had suffered harm as a result of the enlistment or conscription of children under the age of 15, or their use to participate actively in hostilities, many also alleged they had suffered harm as a result of other crimes, such as sexual violence and torture or other forms of ill treatment, which are not the subject of the charges against the accused’.[ii]  The limited charges against Lubanga are further discussed in the first Special Issue in this series.

Following an overview of the facts, including the background to the conflict in Ituri, the conflict between the Hema and Lendu ethnic groups specifically, and the creation of the UPC, the Trial Chamber provided a detailed discussion and evaluation of the evidence. As noted, the Lubanga case has a complex procedural history and there were repeated Defense challenges to the Prosecution’s evidence and use of intermediaries. The Trial Chamber therefore made legal and factual findings with regard to the reliability of several witnesses and devoted a considerable portion of the trial Judgment to detailing the investigative approach taken by the Office of the Prosecutor in this case. [iii] After addressing these issues and their implications, the Chamber proceeded to discuss the nature of the armed conflict. As described in more detail below, the Chamber recharacterized the armed conflict, finding that the entire time period of the charges should be classified as an internal armed conflict. Finally, having analysed the elements of the crimes with which Lubanga was charged, as well as the factual submissions, including witness testimony on sexual violence,[iv] the Chamber discussed Lubanga’s individual criminal responsibility. This section also included a factual analysis of the elements of the mode of liability with which Lubanga was charged, including the common plan, Lubanga’s contribution and the mental requirements of indirect co-perpetration. The Chamber’s findings on Lubanga’s individual criminal responsibility are discussed in detail, below.

Classification of Conflict

The classification of the conflict, whether international or non-international, has been an ongoing issue in the Lubanga case. Initially, Lubanga was charged with six counts of war crimes, namely enlistment, conscription and use of child soldiers in the context of a non-international armed conflict (Article 8(2)(e)(vii)), and enlistment, conscription and use of child soldiers in the context of an international armed conflict (Article 8(2)(b)(xxvi)), on the basis of the Pre-Trial Chamber’s assessment that the conflict in Ituri constituted an armed conflict of an international character from July 2002 to June 2, 2003 and changed to an internal armed conflict between June 2, 2003 and December 2003.[v] The Pre-Trial Chamber, finding reasonable grounds to believe that Uganda supplied arms and training and eventually seized control of Bunia, held that Uganda’s involvement in the conflict rendered the conflict international until June 2, 2003, the date of the effective withdrawal of the Ugandan army.[vi] This finding was in contrast to the Prosecution submission, which argued that the alleged crimes were committed in the context of an armed conflict of a non-international character. While both the Prosecution and the Defense sought leave to appeal this determination by the Chamber, this was denied by the Pre-Trial Chamber.

In denying leave to appeal, the Pre-Trial Chamber made reference to Regulation 55 of the Regulations of the Court.[vii]  Following submissions from the parties and participants on this issue after the transfer of the case file from the Pre-Trial to the Trial Chamber, the Trial Chamber notified the parties and participants in accordance with Regulation 55 and instructed them to ‘prepare their cases on the basis that the Bench may decide that the first group of three charges encompass both international and internal armed conflicts’.[viii] In its order concerning closing arguments in the case, the Chamber invited submissions from the parties and participants on the classification of the conflict.[ix]

Having analysed the submissions from the parties and participants on the classification of the conflict, as well as the evidence presented to that effect, the Trial Chamber concluded that the armed conflict between the UPC/FPLC and other armed groups in Ituri between September 2002 and August 13, 2003 was only of a non-international character. The Chamber held that the Ugandan military occupation of Bunia airport did not in fact render the conflict international, as it did not result in two states opposing each other.[x] As such, applying Regulation 55, the Chamber changed the legal characterisation of the facts ‘to the extent that the armed conflict relevant to the charges was non-international in nature’.[xi] Accordingly, in the Judgment the Chamber limited its assessment to Lubanga’s individual criminal responsibility for the enlistment, conscription and use of child soldiers pursuant to Article 8(2)(e)(vii).

Individual Criminal Responsibility

The Prosecution charged Lubanga with indirect co-perpetration pursuant to Article 25(3)(a),[xii] alleging that as President and Commander-in-Chief he had both functional and de facto control over all levels of the organisation, made final decisions and dictated the strategy and policy of the UPC/FPLC. According to the Prosecution, the crimes were committed with his direct intention and knowledge: Lubanga was regularly put on notice of the crimes committed and he was in a position to order their cessation. The Prosecution further alleged that the demobilisation decrees, which it argued were intended to be a cover-up for the crimes, proved Lubanga’s knowledge of the presence of child soldiers in his militia group.[xiii] On the contrary, the Defense argued that Lubanga’s only essential contribution was to act as a political leader. The Defense claimed Lubanga had not issued any orders relating to the recruitment or training of soldiers because he did not intervene in military affairs such as recruitment or military operations.[xiv]

Trial Chamber I found Lubanga guilty as a co-perpetrator under Article 25(3)(a) of the Rome Statute, which states in relevant part that ‘a person shall be criminally responsible and liable for punishment […] if that person […] commits such a crime, whether as an individual, jointly with another person, or through another person, regardless of whether that other person is criminally responsible’. To reach this finding, the Chamber relied significantly on documentary and video evidence.  The Chamber analysed the five factors of individual criminal liability enunciated by the Pre-Trial Chamber in its confirmation of charges decision and found that the evidence presented by the Prosecution satisfied all five elements of co-perpetration.[xv] These five factors (two objective and three subjective elements) are discussed in more detail, below.

Objective Factors of Co-Perpetration

In the confirmation of charges decision, the Pre-Trial Chamber had set forth two objective elements: (i) the existence of a common plan between two or more persons; and (ii) the coordinated essential contribution made by each co-perpetrator that results in the realisation of the objective elements of the crime.[xvi] Following the Pre-Trial Chamber’s reasoning, the Trial Chamber determined that under the charge of co-perpetration, two or more individuals must act jointly within a common plan, which must include ‘an element of criminality’. However, this element of criminality need not be specifically directed at the commission of a crime.[xvii] As such, the Chamber concluded that ‘the agreement on a common plan leads to co-perpetration if its implementation embodies a sufficient risk that, in the ordinary course of events, a crime will be committed’.[xviii] The Chamber stressed that the existence of a common plan may be inferred from circumstantial evidence.^[xix]

In its review of the evidence of a common plan between the accused and his co-perpetrators, the Chamber relied upon evidence prior to the time period of the charges as background information from which to infer the joint involvement of the co-perpetrators over a significant period of time, prior to, and during, the UPC’s control of Ituri.[xx] The Chamber noted that Prosecution witnesses testified that Lubanga became the spokesperson for Hema mutineers, a group which later became the UPC,^[xxi] and gave evidence regarding Lubanga’s participation in training at Kyankwanzi, where he testified that Lubanga underwent training in the presence of child soldiers.^[xxii] Evidence submitted for two additional time periods, that prior to the takeover of Bunia and during the summer of 2002 while the accused was detained in Kinshasa, was also considered to infer the development of the common plan to build an army to control Ituri. Relying on witness testimony, in addition to documentary evidence, the Chamber found that ‘by the summer of 2002 Thomas Lubanga personally intended to take over Bunia’.^[xxiii] Witnesses testified regarding the role of the accused in the recruitment of troops, including children under the age of 15, during the summer of 2002.^[xxiv] After the takeover of Bunia, the Chamber found that evidence established the existence of the FPLC as the military wing of the UPC with the goal to expand its role in Ituri.^[xxv]

Following its evaluation of the evidence, the Trial Chamber framed the common plan agreed to by the co-perpetrators as one ‘to build an effective army to ensure the UPC/FPLC’s domination of Ituri’.[xxvi] The Chamber also found that from at least September 2002, Lubanga was President of the UPC and in that capacity endorsed and actively implemented the common plan. The Chamber added that the common plan, and Lubanga’s contribution to the plan, remained unchanged during the time-frame of the charges.

The Chamber found that Lubanga, as President and Commander-in-Chief of the UPC/FPLC, was able to influence, shape and direct the policies and actions of the militia group and of his co-perpetrators. He was regularly updated and kept informed and issued instructions about the implementation of the common plan. Lubanga also provided significant logistical support and was involved in the planning of military operations.[xxvii] The Chamber also found that Lubanga was directly responsible for the military leaders who conducted the training of child recruits.[xxviii] Based on his role and function within the UPC/FPLC, as well as Lubanga’s participation in rallies and visits to troops and recruits, the Trial Chamber concluded that implementation of the common plan, which resulted in the crimes of conscription, enlistment and use of children below the age of 15, ‘would not have been possible without [the accused’s] contribution’.[xxix] In considering this element of co-perpetration, the Chamber relied heavily on a video taken of the accused’s visit to the training camp at Rwampara, and included a long excerpt of his speech in the Judgment.[xxx]

Subjective Elements of Co-Perpetration

In addition to the two objective elements of co-perpetration, the Pre-Trial Chamber had also set forth three subjective, or mental, elements. The Trial Chamber adopted the Pre-Trial Chamber’s approach and held that the Prosecution must establish that: (i) the accused was aware that by implementing the common plan, the criminal consequences would ‘occur in the ordinary course of events’; (ii) the accused was aware that he provided an essential contribution to the implementation of the common plan; and, (iii) the accused was aware of the factual circumstances that established the existence of an armed conflict, and of the link between these facts and his conduct.[xxxi] Significantly, the Trial Chamber analysed these mental elements under Article 30 of the Statute, the standards of intent and knowledge generally applicable to all crimes enumerated by the Statute, rather than under the lower threshold set forth in Article 8, which is recognised as an exception to Article 30.[xxxii]

Following from this determination, the Trial Chamber combined its consideration of the two required mental state elements related to the crimes charged (elements (i) and (ii) above), using the following framework:

It is necessary, therefore, for the prosecution to establish that Thomas Lubanga intended to participate in implementing the common plan, and, additionally, that he was aware that the conscription, enlistment or use of children below the age of 15 “will occur in the ordinary course of events” as a result of the common plan. The Chamber needs to be satisfied the accused knew that the children were under the age of 15 years and, additionally, that he was aware that he was providing an essential contribution to the implementation of the common plan.[xxxiii]

In making its determination that the Prosecution had established intent and knowledge on the part of the accused, the Chamber reviewed evidence of Lubanga’s frequent attempts to ‘convince the population to provide food and to make youngsters available in order to join, and to train with, the army of the UPC/FPLC’.[xxxiv] The Chamber relied upon testimonial and documentary evidence, including videos that it found established that the accused knew there were children below the age of 15 in the UPC/FPLC troops, particularly acting as bodyguards. The bulk of the Chamber’s analysis under this combined mental element centred on the accused’s alleged efforts to demobilise child soldiers as this reflected his knowledge of their conscription, enlistment and use. The Chamber relied upon several documents[xxxv] regarding demobilisation efforts undertaken by the UPC under Lubanga’s command to conclude that these efforts were the result of external pressure applied by human rights organisations. Additionally, the Chamber found that any demobilisation efforts were undermined by the behaviour of the accused, which was ‘wholly incompatible with a genuine intention to avoid recruiting children into, or to demobilise children from, the FPLC’.[xxxvi] The Chamber thus concluded that Lubanga was aware that by implementing the common plan, the criminal consequences would ‘occur in the ordinary course of events’ and that he was aware that he provided an essential contribution to the implementation of the common plan.

Finally, the Chamber also found that the third subjective element regarding the accused’s knowledge of the armed conflict and the nexus between it and his conduct was proved ‘[o]n the basis of the evidence rehearsed above’, referring to the entire section on criminal responsibility.[xxxvii]

The Chamber relied on one video, of the accused’s 12 February 2003 visit to the training camp at Rwampara,[xxxviii] to prove each of the five elements of co-perpetration, in conjunction with other evidence. The video depicted the accused exhorting the troops – which included children under the age of 15 – to train, to use weapons, and to provide security for the Congolese people.[xxxix] The Chamber stated that the video’s depiction of the co-perpetrators[xl] together provided evidence of a common plan.[xli] The video also proved the ‘essential contribution’ of the accused because, when viewed along with the other evidence, it established his contribution as the highest-ranking official of the UPC to the common plan of conscripting children under the age of 15.[xlii] The Chamber relied most heavily on the video of the visit to Rwampara in assessing the mental elements of the crimes and the awareness of the accused that children under 15 years of age were among UPC/FPLC troops. The Chamber accepted that the video showed ‘recruits who were clearly under the age of 15’, and that ‘the accused saw UPC/FPLC recruits under the age of 15 at the camp in Rwampara in February 2003’.[xliii] In its final paragraph regarding the mental elements of the crimes, the Chamber concluded that ‘this video, filmed on 12 February 2003, contains compelling evidence as to Thomas Lubanga’s awareness of, and his attitude towards, the enduring presence of children under the age of 15 in the UPC’.[xliv] The Chamber’s heavy reliance on video and documentary evidence to establish Lubanga’s individual criminal responsibility as a co-perpetrator reflects the lack of sufficient credible witness testimony, given that the Chamber held there were strong reasons to believe that Prosecution intermediaries had improperly influenced the testimonies of alleged former child soldier witnesses, and that it could not safely rely upon their testimony.[xlv]

Finding that all elements of co-perpetration had been satisfied, Trial Chamber I held Lubanga individually criminally responsible as co-perpetrator under Article 25(3)(a), and convicted him of the war crimes of conscripting and enlisting children under the age of 15, and using them to participate actively in hostilities in the context of an armed conflict of a non-international nature from early September 2002 to 13 August 2003.

Separate Opinion by Judge Fulford

As noted above, Judge Fulford issued a separate opinion to explain his views on the scope of the co-perpetration charge as set forth in Article 25(3)(a). Particularly, Judge Fulford stated that he disagreed with the standard set out by the Pre-Trial Chamber and adopted by the Trial Chamber, and instead favored a plain-reading of the text, as described below. However, Judge Fulford noted that to preserve the rights of the accused provided in the Statute, the Trial Chamber could not change the test to a lesser test of ‘contribution’, as opposed to a test of ‘essential contribution’, at this stage of the proceedings and without prior notice. For these reasons he concurred with the Judgment on this issue while writing separately to clarify his position on the law.

The test for co-perpetration as set out by the Pre-Trial Chamber in the confirmation of charges decision, and which was mirrored in the trial Judgment, included a ‘control of the crime’ principle, setting out that co-perpetration liability only attaches to those individuals who can be said to have ‘control over the crime’.[xlvi] Judge Fulford observed that ‘the Pre-Trial Chamber’s adoption of the control of the crime theory was founded, in the first place, on the perceived necessity to establish a clear dividing line between the various forms of liability under Article 25(3)(a) – (d) of the Statute and, in particular, to distinguish between the liability of “accessories” under Article 25(3)(b) and that of “principals” under Article 25(3)(a) of the Statute’.[xlvii] In Judge Fulford’s view, this interpretation was erroneous, not supported by a plain-text reading of the Statute and unnecessary because the ‘modes of commission under Article 25(3)(a) – (d) of the Statute were not intended to be mutually exclusive’.^[xlviii] While such an approach would have merit if sentencing was strictly determined by the specific article and subsection under which an accused was charged, the ICC was not so bound during sentencing, instead having wide-ranging discretion to take into account ‘all relevant factors’.^[xlix]

Judge Fulford’s plain-text reading of Article 25(3)(a) would result in a lower standard of proof for the Prosecution, one requiring at least two individuals acting to implement a common plan. Rather than the ‘essential contribution’ as defined in the trial Judgment, he would employ a standard that simply involved a ‘contribution to the crime, which may be direct or indirect, provided either way there is a causal link between the individual’s contribution and the crime’.^[l] Judge Fulford submitted that this approach is not only in line with a plain-text reading of the Statute, but that it also provides a realistic basis for the Court to undertake assessments of co-perpetrator liability. He stressed that ‘an ex post facto assessment as to whether an individual made an essential contribution to war crimes, crimes against humanity or genocide will often be unrealistic and artificial’.[li] For all of these reasons, Judge Fulford disagreed with the approach to co-perpetrator liability by the Pre-Trial Chamber and his judicial colleagues of Trial Chamber I.[lii]

Read the Trial Chamber’s Judgment

Read Judge Fulford’s Separate Opinion

Read the previous Special Issue of the Legal Eye on the ICC eLetter, discussing the Chamber’s findings on sexual violence

For more background on the Lubanga case, see Gender Report Card 2008, 2009, 2010 and 2011