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Published online by Cambridge University Press: 17 January 2008
On 29 January 2007, Pre-Trial Chamber I of the International Criminal Court (the ICC) handed down its decision confirming the charges brought against Thomas Lubanga Dyilo, the first defendant to appear before the Court. In this and earlier decisions in the case, the Chamber has said a number of interesting things about the admissibility of cases before the Court, the elements of the war crime of child recruitment and the modes of liability under the Rome Statute of the International Criminal Court (the Rome Statute).140 More generally, however, the Chamber's actions also say much about the role the judges of the ICC see themselves as undertaking in the Court's proceedings.
Thomas Lubanga is a national of the Democratic Republic of Congo (the DRC). He describes himself as a politician. It is alleged that from its foundation in 2000 he has been the leader of the Union des patriots congolais (the UPC) and commander-in-chief of its military wing, the Forces patriotiques pour la liberation du Congo (the FPLC). From mid-2002 to the end of 2003, the FPLC was engaged in fighting in the region of Ituri in the DRC. During the conflict, the UPC/FPLC is alleged to have committed numerous atrocities, including the widespread recruitment of children into its ranks.141
The DRC had become a party to the Rome Statute on 11 April 2002 and, accordingly, the Statute entered into force for it on 1 July 2002, the date of the Court's establishment. Following strong hints from the Prosecutor,142 on 19 April 2004 the President of the DRC referrred to the Court ‘the situation of crimes within the juris- diction of the Court allegedly committed anywhere in the territory of the DRC since the entry into force of the Rome Statute’.143 On 23 June 2004, the Prosecutor opened an investigation into the situation, the ICC's first.144 On 19 March 2005, Lubanga was arrested and detained by the DRC authorities, and charged with genocide, crimes against humanity, murder, illegal detention and torture in relation to crimes alleged committed between May 2003 and February 2005. On 17 March 2006, Lubanga was transferred from Congolese custody to that of the ICC.
140 (1998) 2197 UNTS 90.Google Scholar
141 See eg Human Rights Watch, Covered in Blood: Ethnically Targeted Violence in Northeastern DR Congo (2003).Google Scholar
142 See Report of the Prosecutor, Luis Moreno-Ocampo, Second Assembly of States Parties to the Rome Statute of the International Criminal Court, 8 09 2003, 3–5.Google Scholar See also ICC press release, ‘Communications received by the Office of the Prosecutor of the ICC’, The Hague, 16 07 2003, ICC-OYTP-20030716–27-En, 2–4Google Scholar
143 ICC press release, ‘Prosecutor receives referral of the situation in the Democratic Republic of Congo’, The Hague, 19 04 2004, ICC-OTP-20040419–50-En.Google Scholar
144 ICC press release, ‘The Office of the Prosecutor of the International Criminal Court opens its first investigation’, The Hague, 23 06 2004, ICC-OTP-20040623–59-En.Google Scholar
145 Prosecutor v Lubanga, Decision on the Prosecutor's Application for a warrant of arrest, Art 58, Pre-Trial Chamber I, 17 02 2006Google Scholar, ICC-01/04–01/06–8-Corr 17–03–2006. The decision and the arrest warrant were originally issued under seal and were unsealed only recently.
146 Art 25(3)(a) provides that a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if he ‘[c]ommits such a crime, whether as an indi- vidual, jointly with another or through another person …’
147 Art 8(2)(b)(xxvi) and article 8(2)(e)(vii) provide, respectively, that ‘[c]onscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities’ during an international armed conflict, and ‘[c]onscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities’ during a non-international armed conflict, are war crimes within the Court's jurisdiction.
148 For a range of these criticisms, see Katy, Glasborow, ‘ICC Prosecutor's Performance Reviewed’, Tribunal Watch, No. 471, 6 10 2006.Google Scholar
149 Prosecutor v Kony et al, Decision on the Prosecutor's Application for Warrants of Arrest under Art 58, Pre-Trial Chamber II, 8 07 2005Google Scholar, ICC-02/04–01/05–1-US-Exp.
150 ibid, 2.
151 Art 19(1) provides that: ‘The Court shall satisfy itself that it has jurisdiction in any case brought before it. The Court may, on its own motion, determine the admissibility of a case in accordance with article 17.’
152 The Prosecutor, in his application, had not raised any issues of jurisdiction or admissibility, above, n 145, para 19.
153 ibid, paras 17–20.
154 ibid, para 31. See also the definition of ‘a case’ given in Situation in the Democratic Republic of the Congo, Decision on the Applications for Participation in Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, Pre-Trial Chamber I, 17 01 2006, ICC-01/04–101-Corr, para 65Google Scholar
155 ibid, para 34.
156 ibid, para 36.
157 ibid, paras 38–40.
158 (1969) 1155 UNTS 331.Google Scholar
159 Art 21(1) of the Rome Statute provides that, after the Statute, Elements of Crimes and Rules of Procedure and Evidence, the Court shall apply applicable treaties and the principles and rules of international law.
160 Above, n 145, para 63.
161 Above, n 145, para 16.
162 ibid, para 81.
163 ibid, para 85.
164 ibid, para 93.
165 ibid, para 96. Perpetration ‘through another person’ is another mode of liability under article 25(3)(a) of the Rome Statute. See n 7 above.
166 Ordering is a mode of liability under Article 25(3)(b) of the Rome Statute.
167 ibid, para 102.
168 Art 57(3)(e) provides, inter alia, that where an arrest warrant has been issued, a pre-trial chamber may seek the cooperation of States ‘to take protective measures for the purpose of forfeiture, in particular for the ultimate benefit of victims.’
169 Above, n 145, para 136.
170 ibid, para 141.
171 ICC press release, ‘First arrest for the International Criminal Court’, The Hague, 17 03 2006, ICC-CPI-20060302–125-En.Google Scholar
172 ibid, para 20.
173 Art 19(2) permits, inter alia, a person for whom an arrest warrant had been issued to challenge the jurisdiction of the Court and the admissibility of a case on the grounds referred to in Art 17 of the Statute.
174 Prosecutor v Lubanga, Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to art 19 (2) (a) of the Statute, Pre-Trial Chamber I, 3 10 2006, ICC-01/04–01/06–512Google Scholar; and Prosecutor v Lubanga, Judgment on the Appeal of Mr Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to art 19 (2) (a) of the Statute of 3 10 2006, 14 12 2006, ICC-01/04–01/06–77.Google Scholar
175 To be precise, the Defence did file an appeal but then withdrew it: see Prosecutor v Lubanga, Decision on Thomas Lubanga Dyilo's Brief Relative to Discontinuance of Appeal, Appeals Chamber, 3 07 2006, ICC-01/04–01/06–176.Google Scholar
176 Art 61 of the Rome Statute provides that within a reasonable time after a person's surrender to the ICC, the Pre-Trial Chamber shall hold a hearing to confirm the charges on which the Prosecutor intends to seek trial. On the basis of the hearing, the Chamber shall determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged and, if so, confirm the charges and commit the person for trial.
177 Prosecutor v Lubanga, Submission of the Document Containing the Charges pursuant to Art 61(3)(a) and of the List of Evidence pursuant to Rule 121(3), Office of the Prosecutor, 28 08 2006Google Scholar, ICC-01/04–01/06–356, para 12 (a).
178 ibid, para 12(b). Art 25(3)(d) provides that a person shall be criminally responsible for a crime within the jurisdiction of the Court if he in any way contributes to its commission or attempted commission by a group of persons acting with a common purpose.
179 With one exception, see text to nn 200–6 below.
180 Prosecutor v Lubanga, Décision sur la confirmation de charges, Pre-Trial Chamber I, 29 01 2007Google Scholar, ICC-01/04–012/06–803. An English translation has not yet been published.
181 See instead International Bar Association Human Rights Institute, IBA Monitoring Report: International Criminal Court (04 2006)Google Scholar; and International Bar Association Human Rights Institute, IBA Monitoring Report: International Criminal Court (09 2006).Google Scholar
182 Prosecutor v Tadic, Case No. IT-94–1, judgment of the Appeals Chamber, International Criminal Tribunal for the former Yugoslavia, 15 07 1999, paras 84–6.Google Scholar
183 Above, n 41, paras 208–11.
184 Armed Activities in the Territory of the Democratic Republic of Congo (DRC v Uganda), judgment of 19 Dec 2005, [2005] ICJ Rep 59.Google Scholar
185 Above, n 180, paras 212–20.
186 ibid, paras 221–6.
187 Art 8(2)(f), Rome Statute.
188 Above, n 180, para 246.
189 See Art 77, Protocol Additional to the Geneva Conventions of 12 08 1949Google Scholar and Relating to the Protection of Victims of International Armed Conflicts, (1977) 1125 UNTS 3 (AP I); Art 38Google Scholar, Convention on the Rights of the Child, (1989) 1577 UNTS 3Google Scholar; and Art 1, Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, (2000) 39 ILM 1285.Google Scholar An exception is Article 4, Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-International Armed Conflicts, (1977) 1125 UNTS 609 (AP II), which provides that children under the age of 15 shall not take any part in hostilities.
190 Draft Statute for the International Criminal Court, Report of the Preparatory Committee on the Establishment of an International Criminal Court, Addendum, Part One, UN Doc. A/CONF.183/2/Add.1, 14 04 1998, 21.Google Scholar
191 Yves, Sandoz, Christoph, Swinarski and Bruno, Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987), 619Google Scholar (commenting on Art 51(3) of AP I, which provides that ‘[c]ivilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities’). See also Prosecutor v Galic, Case No. IT–98–29–T, Trial Chamber, ICTY, judgment, 5 12 2003, para 48.Google Scholar
192 GA Res. 2675 (XXV) of 9 Dec 1970 on the basic principles for the protection of civilian populations in armed conflicts.
193 Prosecutor v Tadić, above, n 182, paras 111–19.
194 See Art 50 AP I and Art 13, AP II, which protect civilians insofar as they do not take a direct part in hostilities.
195 Prosecutor v Akayesu, Case ICTR-96–1-T, Trial Chamber, ICTR, Judgment, 2 09 1998, para 629Google Scholar; and Prosecutor v Rutaganda, case No. ICTR-1993–3-T, Trial Chamber, ICTR, judgment, 6 12 1999, paras 99–100.Google Scholar
196 Above, n 180, para 257.
197 ibid, para 263.
198 The only references were to Art 77(2) of AP I, the ICRC commentary on that provision and the Preparatory Committee's footnote.
199 A similar provision also appears in the Elements of Crimes.
200 (1969) 1155 UNTS 331.Google Scholar
201 See Prosecutor v Tadié, above, n 43, paras 164–6Google Scholar and Prosecutor v Delalic, Case No. IT-96–21-A, Appeals Chamber, ICTY, Judgment, 20 02 2001, paras 56–84;Google Scholar
202 Above, n 41, paras 282–4 (paragraph numbers omitted).
203 Regulations Respecting the Laws and Customs of War on Landed annexed to Convention (IV) Respecting the Law and Customs of War on Land, (1908) 2 AJIL Supplement 9.Google Scholar
204 Geneva Convention (I) for the Amelioration of the Condition of the Sick and Wounded in Armed Forces in the Field, (1949) 75 UNTS 31.Google Scholar
205 Art 13, Geneva Convention (III) Relative to the Treatment of Prisoners of War, (1949) 75 UNTS 135.Google Scholar
206 The term ‘national’, it appears, was introduced into Art 8(2)(b)(xxvi) to assuage concerns among Arab States that otherwise the participation of Palestinian youth in the intifada would be criminalized. See Herman von, Hebel and Daryl, Robinson, ‘Crimes within the Jurisdiction of the Court’ in Lee, Roy S (ed), The International Criminal Court: The Making of the Rome Statute: Issues, Negotiations, Results (1999), 118.Google Scholar
207 The reference was to its decision on the warrant of arrest, above, n 6, para 78.
208 Above, n 41, para 318. 209 ibid, para 338.
210 ibid, para 329.
211 ibid, para 332.
212 ibid, paras 343–8.
213 As set out, in most cases, in Art 30 of the Rome Statute.
214 Above, n 41, paras 349–67.
215 The case has since been referred to Trial Chamber I: see Prosecutor v Lubanga, Decision Constituting Trial Chamber I and referring to it the case of The Prosecutor v Thomas Lubanga Dyilo Presidency, 6 03 2007, ICC-01–04–01–06–842.Google Scholar
216 See Prosecutor v Lubanga, Defence Appeal Against the Pre-Trial Chamber's ‘Décision sur la confirmation des charges’ of 29 01 2007, Defence Counsel, 30 01 2007, ICC-01/04–01/06–797.Google Scholar Defence Counsel, however, then requested and was permitted to step down owing to illhealth, and difficulties in persuading new counsel to accept the terms offered by the Registry has meant that matters have proceeded little. However, new permanent counsel have now been appointed and the appeals can be expected to move forward.
217 Prosecutor v Lubanga, Application for Leave to Appeal Pre-trial Chamber I's 29 01 2007 ‘Décision sur la confirmation des charges’, Office of the Prosecutor, 5 02 2007, ICC-01/04–01/06–806, para 2.Google Scholar
