As the defense in the first trial at the International Criminal Court (ICC) prepared to call its last witness, the judges decided on a schedule for closing the case. Thomas Lubanga Dyilo is charged with committing war crimes by enlisting and conscripting children under the age of 15 years and using them in hostilities in the eastern Democratic Republic of the Congo (DRC) between September 2002 and August 2003.
The trial, which began on January 26, 2009, has been plagued by delays and very nearly ended before it began when prosecutors refused to turn over potentially exculpatory evidence to the defense. After the trial got back on track, defense counsel charged prosecutors with abuse of process by allegedly presenting false witnesses who claimed they were coached by prosecution intermediaries. The judges interrupted the trial to hear testimony on the abuse of process charge.
After months of testimony, the judges ruled on March 2, 2011 that the case would not be thrown out due to alleged prosecutorial misconduct. They decided the evidence was not sufficient to render a fair trial impossible. A final decision on the abuse of process charge will be made after the close of the case when the judges consider all issues and deliver their final judgment.
The trial chamber scheduled oral arguments for August 25 and 26, 2011. In the meantime, the parties, including victims’ representatives, will prepare written submissions that must address all relevant legal and factual issues in the case. The judges identified issues that particularly need to be addressed to reach a decision on the charges under the Rome Statute:
1. Did an armed conflict exist in Ituri, DRC, between September 1, 2002 and August 13, 2003?
2. If there was an armed conflict, was there a nexus between the conflict and the alleged crimes?
The law requires there to be a sufficient and clear connection between the crime and the conflict, that is, “it must be proved that there are substantial grounds to believe that the alleged crimes were closely related to the hostilities.”
3. Was the armed conflict international or non-international?
Different provisions of the Rome Statute are invoked for international and non-international armed conflicts, though both criminalize the same conduct, however the conflict is characterized. The Pre-Trial Chamber discussed this issue in its Decision to Confirm Charges from January 29, 2007.
4. If the Chamber concludes the conflict was not of an international character, what factors should be taken into account if the Chamber considers modifying the legal characterization of the facts for the period of early September 2002 to June 2, 2003?
In its Decision to Confirm the Charges against Mr. Lubanga, the Pre-Trial Chamber held, “There is sufficient evidence to establish substantial grounds to believe that, as a result of the presence of the Republic of Uganda as an occupying Power, the armed conflict which occurred in Ituri can be characterized as an armed conflict of an international character from July 2002 to 2 June 2003, the date of the effective withdrawal of the Ugandan army.”
The Pre-Trial Chamber also held that evidence before it was sufficient to establish an armed conflict not of an international character existed from at least June 2003 to December 2003.
If the Trial Chamber finds that the facts presented at trial do not support the Pre-Trial Chamber’s conclusion that the conflict was international what should guide them when in altering the legal meaning of the facts, as set down by the Pretrial Chamber?
5. What does the prosecution need to establish to prove individual criminal responsibility under Article 25(3)(a) of the Rome Statute that provides a person shall be criminally responsible for a crime within the jurisdiction of the Court, if that person “commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible?”
6. What is the meaning of “conscripting” or “enlisting” children under the age of fifteen years into the national armed forces, into armed forces or armed groups or “using them to actively participate in hostilities?”
The Pre-Trial Chamber’s view of the law is a good starting place: “’Conscripting’ and ‘enlisting’ are two forms of recruitment, ‘conscripting’ being forcible recruitment, while ‘enlisting’ pertains more to voluntary recruitment.” A child’s consent is not a valid defense.
The Pre-Trial Chamber stated its view that “active participation in hostilities” includes gathering and transmission of military information, transportation of arms, ammunition, or supplies. It includes not only direct participation in combat but also participation in combat-related activities such as scouting, spying, sabotage, and the use of children as decoys, couriers, or at military checkpoints. In addition, guarding military objectives, such as military quarters, or safeguarding the physical safety of military commanders (in particular, their use as bodyguards) is considered participation in hostilities, the Pre-Trial Chamber stated.
7. What does the prosecution need to establish to prove the mental element, also known as mens rea, of the crimes? The Trial Chamber refers to Article 30 of the Rome Statute, which provides that a person can only be held liable for a crime within the Court’s jurisdiction if the “material elements are committed with intent and knowledge.”
In other words, the parties are asked to address whether Mr. Lubanga knowingly and intentionally conscripted or enlisted children less than fifteen years of age into his armed forces, and knowingly and intentionally used them to participate actively in hostilities.
The prosecution had requested that all parties be required to make their written submissions by the same date. In light of legal and factual developments related to the abuse of process charge occurring since the trial began, the Trial Chamber decided the defense should have the benefit of seeing the prosecution’s submissions before responding to avoid its answering evidence on which the prosecution may no longer rely.
The prosecution’s written submission, which is limited to 250 pages, is due June 1, 2011. The two teams of legal representatives of victims and the Office of Public Counsel for Victims (OPCV) must also file submissions at a maximum 50 pages each by June 1. The defense will have until July 15 to respond and are given a 300 page limit, followed by an opportunity for the prosecution to submit a short reply of up to 50 pages by August 1. The defense is given the last word and may file a final reply of up to 50 pages no later than August 15, 2011.
The judges emphasized that the parts of oral evidence relied on by the parties and participants and the documents relied on during examination of witnesses must be clearly identified. Moreover, they must explain the relevance of the principal facts derived from oral evidence on which they rely.
The prosecution and defense will each have two hours for oral closing statements, while the two teams of legal representatives and OPCV were granted 40 minutes each.