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Dissent in Lubanga Appeal Decision Highlights Fair Trial Concerns

The International Criminal Court (ICC) today issued its first appellate decision in the case against Thomas Lubanga, upholding his conviction and sentence for war crimes relating to child soldiers. However, a strong dissent was issued by Judge Anita Ušacka, who stated that she would have reversed the conviction and acquitted Mr. Lubanga, vacating his sentence.

The majority appellate decision relied upon the law regulating appeals to find that the trial chamber overall had not acted beyond the limits of its discretion. The appeals judges found that the trial chamber’s conviction and sentence were within the bounds of a reasonable arbiter of fact. The appeals judges also affirmed that the accused charged as a co-perpetrator need not “personally directly” commit the alleged acts but that a crime must be “virtually certain” to follow from the common purpose with other co-perpetrators.

Judge Ušacka based her dissent on two grounds. First, she found that the charges lacked specificity and thereby did not provide Mr. Lubanga with enough notice to prepare his defense. She found that this violated his right to a fair trial.

The majority appeal judgment found that the vagueness in the original arrest warrant was cured through the provision of further information during the legal proceedings, such as the document containing the charges submitted before the confirmation of charges hearing and the list of evidence provided to the defense.

However, Judge Ušacka found that this additional information from the prosecutor did not sufficiently cure the defects in the pleading of the indictment.  She found that the range of dates provided by the prosecution concerning when the alleged crimes took place were too broad. She also found that the locations of the events were not sufficiently clear and the identities of the alleged victims were not specific. For example, initially nine victims were mentioned, but addition victims were raised during the proceedings. Unlike the majority, Judge Ušacka did not find that these defects were cured by the additional information provided by the prosecution.

The second ground of Judge Ušacka’s dissent focused on the trial chamber’s findings on the evidence relating to the age of the alleged child soldiers. She expressed reservations with the method of identifying the age of a person through their physical appearance. In particular, Judge Ušacka found it problematic that the trial judgment made reference to alleged victims found to be “relatively close to the age of 15.”  Judge Ušacka disapproved of the methodology of judge’s relying upon their own impressions in these circumstances and the opinions of non-expert witnesses.

Judge Ušacka raised the video evidence relied in the trial proceedings as a demonstration of the flawed reliance on impressionistic reasoning from the evidence and urged that in such instances, the evidence should be interpreted restrictively. Consequently, Judge Ušacka did not find it reasonable for the trial chamber to find that the video excerpts depicted children “manifestly under the age of 15.” She also found that, at times, the videos showed only partial views with no objective measures to make a comparison of the content within the video. As a result, Judge Ušacka disagreed with the majority decision to exclude the additional evidence obtained by the defense after the close of the trial proceedings of two witnesses, ‘Witness D-0040’ and ‘Witness D-0041,’ who allegedly were able to dispute the age of the persons shown in the videos.

In conclusion, Judge Ušacka opined that it seemed the trial judgment was motivated by the desire to establish a historical record of the events, as opposed to an assessment of the individual liability of the accused. She expressed her hope that future prosecutions will preserve fairness of proceedings and will not sacrifice fair trial concerns in order to put historical events on the record.

In his partially dissenting opinion, Judge Sang-Hyun Song noted that he considers the war crimes-specific provision of the Rome Statute charged constitutes one charge as opposed to three separate charges, as found by the trial chamber and affirmed on appeal. Judge Song also noted that the appeals judges ought to provide trial judges more guidance on the sentencing criteria, which will be set out in more detail in his dissenting judgment.

This appellate decision, while a landmark demonstrating the operational effectiveness of the ICC, highlights continuing concerns regarding preserving the accused’s right to a fair trial. However, it is important to note that the court is a judicial institution with no enforcement powers. It relies entirely on the cooperation of States to implement its mandate. Challenges in evidence collection and assessment relates to the commitment of governments to provide sufficient funding, access, and support to allow the ICC to do its work. The upcoming Assembly of State Parties in New York starting this Monday, December 8, will be a crucial opportunity to reassess this engagement by States to support accountability for atrocity crimes.