Guest Post: Springing the Trap: Prosecutorial Discretion Beyond Politics and Law

By Jens Iverson, Leiden University

I’d like to thank Dov Jacobs for allowing me to post on his excellent blog.

This essay is, at heart, a plea for a more open discussion of the tradeoffs inherent in pursuing international criminal justice, particularly with a limited budget.  Too much time is wasted in unsubstantiated allegations of politicization and unsatisfying invocations of simply following the evidence.  We are stuck in a rhetorical trap that ill-serves the goals of making and explaining our value choices and critiques.

I’ve noticed a pattern in responses from the Office of the Prosecutor (OTP) of the International Criminal Court.  For example, when the particular charges chosen by the OTP in the first trial are questioned, the OTP will emphasize that they follow the lead of the evidence.  When members of only one side of a conflict are charged, the OTP will argue that to charge leaders from both sides, when that is not where the evidence leads, would be a political choice – and they must avoid politicization.  When the question of whether there is a tension between prosecution and peace arises, OTP spokesmen will typically point to the UN Security Council’s power to pause investigation and prosecution, indicating that political choices should be made by the Security Council, not the OTP.  When it’s pointed out that every situation country is in Africa, the response is much the same as to the question about refusing to “balance” prosecutions on both sides of a conflict – the Prosecution will not “balance” their work by opening an investigation elsewhere if that is not where the evidence leads.  The OTP will not be politicized.  It will follow the law.

I am sympathetic with the OTP’s rhetorical approach on the issue of politicization.  This post will not follow the common “critical” approach in which, in the name of truth-telling, the hidden politics of a seemingly apolitical framework (such as the universality of human rights or the rule of law) are cleverly revealed.  While I hope the discourse regarding the choices of the OTP changes, if anything, this post is “anti-critical” – rather than seek to expand the realm of politics to cover the entire field, I suggest that it would be more helpful in the Pragmatic sense, more human, and perhaps more honest, to keep both politics and law in their respective corners when possible and instead admit other explanations and criteria for the OTP’s actions.  It may seem flippant to compare the weighty matters of international criminal prosecution to, for example, performance art, but I am not trying to be flip.  It may seem overly grand to compare the selection of criminal charges to the choices different cultures make over history, but again, I am trying to be helpful, not grandiose. 

What is needed, I suggest, is a conversation where those interested in the OTP’s decisions can discuss them without falling into an artificial dichotomy where everything is either political or legal, with no room for additional criteria to be considered or applied.

Breaking news: ICJ find that Senegal violated its obligation to investigate and prosecute Habré under the Torture Convention

[Note: this post is based on the oral reading of the Judgment, so might be incomplete in parts. The Judgment was just released and can be found here]

Today, the International Court of Justice issued its Judgment in the case opposing Belgium and Senegal on whether Senegal is violating its international law obligations by not prosecuting, or, alternatively, not extraditing to Belgium former Chad President Hissène Habré. As shown by the history of the proceedings, and as is often the case at the ICJ, this is the end result of quite a long process between the two countries, that started in 2005. In addition, the question has been going on for even longer, essentially since Habré found exile in Senegal after having been removed from power in 1990. It should be recalled that Senegal did try to initiate proceedings in the early 2000s, but all charges were dropped because he was being prosecuted for international crimes (crimes against humanity among others, but also torture) that did not exist in Senegalese criminal law at the time. Moreover, when the AU called upon Senegal to prosecute Habré anyway in 2006, the country tried to implement new laws. However, Habré obtained an ECOWAS judgment saying that this would be contrary to the principle of legality.

• Jurisdiction

Having first established jurisdiction based on the Torture Convention, the Court moved on to consider whether Belgium's contention that Senegal had violated its customary international law duty to prosecute crimes against humanity, war crimes and genocide gave the ICJ jurisdiction. The Court found that at the time of the dispute, this was not an issue, so the judges excluded jurisdiction on this ground, which means that they did not make any findings on whether a State is under an obligation to prosecute non-nationals for crimes committed abroad, only on the interpretation of the Torture Convention, more particularly 2 of its provisions:

Article 6(2): "Such State shall immediately make a preliminary inquiry into the facts".
Article 7(1): "The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution."

•  Admissibility

Senegal also challenged Belgium's standing to bring the case. The ICJ first discussed whether the simple fact of being a party to the Torture Convention gives standing. Having recalled the object and purpose of the Convention to end impunity for torture and all States have a common interest in fighting impunity. Obligations under the convention (notably under the above mentioned provision), apply irrespective of the nationality of the perpetrator or the victims, and all States have a legal interest in the respect of the obligations. It is therefore an obligation erga omnes partes, similar to the Genocide Convention. This common interest implies that every State can ask another State to put an end to violations of the Convention, so Belgium did have standing.

Random Comments on the Mali Self-Referral to the ICC

As anybody following ICC activity most likely knows, Mali has referred its own situation to the ICC, as indicated by the OTP in a press release. I was not planning to particularly comment on this event, but after reading the excellent analysis from fellow bloggers Kevin John Heller, Mark Kersten and William Schabas, which I share to a large extent, I had a few thoughts of my own, as a reaction.

• Another African Case

All three comment on the fact that this might not be a good idea to open yet another investigation in Africa, given the criticism that the Court has received in the past for this African trope. Certainly, there are countries in the world outside of the African continent which would have been deserving of an investigation. But generally, I still think, as I said two years ago (see here and here) that this criticism is widely exaggerated. 

First of all, it is difficult to "map" a coherent public opinion on this issue, whether from Africa or internationally. Some African leaders might make some noise occasionally, using the ICC as one among many tools to blame the West for everything that goes wrong in Africa, but then I hear victims' groups asking for MORE investigations in African countries. In addition, Mark is right to point out that the AU "opposition" to the ICC is not as wholesale as sometimes presented. What the AU often criticises (and rightly so in my opinion), is the clear disregard for basic principles of international law, such as head of State immunity, that flows from UNSC referrals, not necessarily ICC activity in general. 

Second of all, overall, the fact remains there are not that many situations around the globe where the systematicity and gravity of the violence reaches the levels that takes place in the DRC, Uganda or CAR. Sri Lanka springs to mind spontaneously, probably Colombia might deserve less complacency, and Syria has obviously reached the level where if Libya deserves a UNSC Referral, it certainly does to. But generally, if you had to rank the worst crimes being committed around the world, it would be disingenuine not to recognize that African situations have ranked quite high up. 

Finally, there might be two Security Council referrals in Africa, but as recalled by William Schabas, there were three self-referrals (DRC, Uganda and CAR). In addition, if the Ivory Coast situation is technically a proprio motu investigation, the 12(3) declaration by the State (which is not a party to the Statute), resembles a self-referral in everything but name. Of course, one can raise questions on the actual decisions of the OTP to follow through on these referrals, as the others do, but on the point being considered here, it is difficult to say that the ICC is biased against Africa, when African countries are referring themselves to the Court!

• The Problem with Self-Referrals

Which doesn't mean that the self-referral practice does not raise difficulties of its own. As pointed out by the other bloggers, there are essentially two issues with this, both linked to the possible political manipulation of the Court by the States.

The first one is the limitation of the referral to the activity of the rebels. This kind of limitation can be damaging to the perception of impartiality of the Court. In this sense, I feel a similar unease at Fatou Bensouda shaking hands with the government representatives, even if it was more low key, than I did some years back when Ocampo was shaking hands with Museveni for the Uganda referral. That being said, it should be recalled that technically speaking, this limitation has no legal value. Indeed, a State refers a situation to the Court and it is then up to the Prosecutor to decide what crimes (including those committed by the government) to prosecute. In this sense, one can say that if there is an intent to manipulate the Court, it is the actual choices of the OTP that will show whether there is consent to be manipulated. Uganda and Ivory Coast are examples where it didn't particularly bother the former Prosecutor to play along. Let's see if the new Prosecutor has more reservations about this.

The second aspect is the idea that States get rid of the cases they do not want, even if they would be able to prosecute the perpetrators themselves. On this point I tend to agree with my fellow bloggers. It is not really in the spirit of complementarity for States to so easily delegate prosecutions to the ICC, when the end goal of the system, as least in the rhetoric, is that States be the first in line in the fight against impunity, with the ICC coming in when the system does not work, or is used to shield the perpetrators from actual justice. Such outsourcing is apparent in a number of situations. As Kevin has pointed out, Uganda clearly has the capacity to prosecute the LRA leaders, if only it could catch them (before they are all killed by infighting...). Also, one should remember that Lubanga was being held in custody for international crimes before being transferred to the ICC. Similarly, Ivory Coast explicitly announced throughout 2011 that they were not prosecuting international crimes against former president Gbagbo, to allow the ICC to do so and avoid admissibility problems, with the OTP kindly complying, whereas everybody else belonging to the pro-Gbagbo camp has since been indicted locally with war crimes, crimes against humanity and even genocide since. If that is not a case of manipulation, I don't know what is.

But the fact remains that this is what the legal framework says. Complementarity in practice resembles nothing like the nice philosophy that is sold to us. It is a mere, non compulsory, procedural hurdle and actually more often than not resembles primacy. Moreover, the test is extremely narrow, contrary to what many people think. Kevin is right to remind us that inactivity, whatever the reason, defeats any admissibility challenge. In relation to that, I recall that one defendant (I think it was Lubanga) argued that allowing such inactivity to trump complementarity is de facto allowing States to violate their international law obligations to prosecute certain crimes. I found the challenge quite smart, but of course, the Judges decided otherwise, and found that the referral to the ICC was one way to satisfy this obligation. And even if there is activity, the very narrow "same person, same conduct" test, allows the ICC to intervene even when national prosecutions are ongoing, as the Lubanga case once again shows.While I have my reservations on the policy consequences of this framework, from a purely legal point of view, that is in my opinion the exact way to interpret the Statute. "Positive Complementarity" might be a nice PR catch phrase, but that is not how complementarity was drafted in the Statute (which is why I think that the OTP's approach to Colombia is legally dubious, but that is a different issue).

• Miscellaneous thoughts on "politics", "legitimacy", "perceptions" and other empty words

My fellow bloggers have pointed out the various issues that make them more or less cautious in relation to the referral, in terms of "political" credit or manipulation, "legitimacy", or "perceptions". While I enjoy having these discussions, I have to admit some caution of my own in using these terms, because I often do not know  how to use them. 

For example, the question of "politicization" puzzles me as an argument whichever way I look at it. Indeed, people claim all types of policy goals for international justice, beyond the core function of a criminal court which is to prosecute people, such as peace or reconciliation, which are broadly political goals. By doing so, they are themselves politicizing the Court in my opinion, so cannot really complain when it is politicized in a direction they do not like. From another perspective, I've never been convinced by the manichean dichotomy of law (=good) and politics (=bad), which is often at the heart of the argumentation of many activists, notably from the human rights fields, for example when they criticize the role of the Security Council in the ICC Framework. Law is the result of political choices, neither of them being intrinsically good or bad, and human rights are no less "political", just because they have a diploma of universal morality. At the end of the day, who cares if States use the Court for political reasons? The ICC was set up to prosecute people, and that is exactly what it is doing (albeit not perfectly...). The ICC will never be able to prevent the political use of its work, whatever it does, in the same way that people use court rulings against other people in any national environment, even when the Court ruling is not initially meant to be used in that way.

Which brings me to my last point, on "legitimacy" and "perceptions". For one, "legitimacy" is often unhelpful, because it is used as a static quality that an entity has or has not. But "legitimacy" is a relationship between the entity and a specific observer. It can be legitimate to some and illegitimate to others. The key being to identify the target constituency. But even when you do that, "legitimacy" is still hard to define because it is a function of expectations which are artificially created. For example, international justice is often blamed for not achieving certain goals (peace, reconciliation, reparation for victims), when this expectation should never have been created in the first place! And the worst part is that those to blame for this are the proponents of international justice themselves, who often oversell their humble family car as a formula one race car. Linked to this, there is often this illusion that legitimacy is a result of a rational equation between different objective factors, such as, for some, respecting the rights of the defense, or for others, prosecuting both sides of a conflict, or having judges from certain countries sit (or not sit) on the bench. But often, people will come to the issue with a preconceived idea of what they want, and, more importantly, what is good for them, and judge an institution by that standard, whatever it does. The ICTY was legitimate for croats when it prosecuted Serbs, but not when it prosecuted Gotovina. I might think that the ICC is illegitimate for convicting Lubanga despite the gross violations of the rights of the defense throughout the process, and his victims might think the ICC illegitimate because he was not sentenced to enough prison. At the end of the day, legitimacy is a totally unworkable concept from a methodological point of view. 

• Bottom line

But I'm straying away from the topic. Bottom line, the self-referral is legal and it's not the Prosecutor's job to evaluate whether she is being manipulated politically, or whether she is perceived as legitimate by such and such constituency. She should do her job of prosecuting people correctly, because that is what she is paid for. If (and it's a big "if", given past performance of the OTP...) the work is done competently, then it is not her problem what the possible consequences might be. Let States take their responsibilities and put their money where their mouth is. If the Security Council wants the ICC to investigate Syria, it should help pay for it, and State parties should increase the budget of the Court (once it is established that the money is well spent). States created a Court to prosecute crimes, irrespective of political considerations, and if they are unhappy when it actually happens, they should have thought of it sooner (or even get rid of the Court). But it is not the Prosecutor's job to do this balancing act between politics, diplomacy and accounting.

As I wrote this last paragraph, I realized that this is something Ocampo might have said (possibly in shorter sentences) and this means that this is two posts in a row where I feel sympathy for him. I fear I might be coming down with a break up syndrome, whereby, when a bad relationship ends, you suddenly remember only the good memories (also known as the graduation goggles). This is unlike me, and I hope I get over it soon...

The Lubanga Sentence (Part 2): Why the Ocampo Bashing is getting old

There is no doubt that Luis Moreno Ocampo, the recently departed ICC Prosecutor, was to ICL commentators what George Dubya Bush was to liberal americans, an endless provider of material to write about. I have myself blogged extensively on his gaffes, legal blunders and media outings over the years. Ocampo has also received a number of significant rebukes from ICC Judges in a number of decisions, not least in the Lubanga case and, with the Sentencing Decision that was handed down today, The Trial Chamber made sure not to miss this new, and probably last, opportunity to pile things on him again. But I'm wondering if the Ocampo bashing is not getting a little old. I don't think he can be blamed for everything that went wrong in the Lubanga trial, and it should not mask the fact that the Judges did not take the appropriate measures to ensure that he stayed in line. This is true for both aspects of the Chamber's consideration of prosecutorial conduct.

• The question of sexual violence

First of all, in relation to Ocampo's stance on Sexual Violence, the Chamber has the following to say (§60):

Some thoughts on the Lubanga Sentence: A throw of the dice

The International Criminal Court issued its first sentence today in the Lubanga case. In a thankfully short Decision, the Trial Chamber sentenced him to 14 years, minus time served. There is a nice summary of the reasoning by Jennifer Easterday over at IntLawGrrls and here are a few first thoughts on the criteria for determining the sentence and the actual sentence he received. I will discuss the Chamber's view on Ocampo's conduct in the next post.

• The criteria for determining the sentence

In a previous post on the Taylor Sentencing Judgment, I expressed some concerns on the confusion between the underlying rationale for having international criminal courts in the first place, and the specific criteria taken into account for the sentencing.These concerns equally arise here. Indeed, I am not convinced by the fact that the Decision refers to the Preamble of the Rome Statute (§16) as a source of inspiration. The Preamble applies to all the crimes, and is not a justification for considering that a particular crime is of particular gravity. This confusion gives rise to meaningless and empty statements like (§37):

"The crimes of conscripting and enlisting children under the age of fifteen and using them to participate actively in hostilities are undoubtedly very serious crimes that affect the international community as a whole."

That is certainly true, and indeed explains why the crime is contained in the Statute in the first place. But it doesn't explain the particular gravity for the purposes of sentencing.

Sentencing Taylor, Suffering Victims and Collective Crimes: The Limits of International Criminal Law

Cross-posted on Opinio Juris

On the 30^th of May, the SCSL sentenced Charles Taylor to 50 years in prison. The sentencing judgment raises a number of interesting issues. some commentators, such as William Schabas, or on Opinio Juris, Marina Aksenova, have discussed the length of the sentence, finding it either too long, or adequate, depending on the preferred objectives of criminal justice (rehabilitation, retribution, deterrence). Wherever one stands on this issue, I think that, despite it being common practice in a number of international judgments, handing down a single sentence for the entire array of crimes convicted, rather than having them individualized does not help achieve the goals one ascribes to sentencing. Indeed, how can there be deterrence, if there is no knowledge that a specific crime for which a person is convicted carries a specific sentence? There is also a problem of predictability, because we don’t know what the judges would have decided if Taylor had for a reason or another been acquitted on one of the counts. The only thing that can be taken out of the sentencing is that it is condemnable to generally participate in the events, and the fact that a couple of crimes more or less took place in the course of things becomes irrelevant.

Which brings me to the main point I want to address here: the limits of criminal law in addressing mass atrocities, both because of the question of gravity and because of the collective dimension of the acts.

• The question of gravity

I have often commented here on the difficult assessment of the criteria of gravity in the ICC framework. In a nutshell, given the fact that the ICC, and international tribunals in general, are competent to prosecute the gravest crimes of interest to the international community as a whole, how does one define an additional notion of gravity within this context? This is made even more complicated because most people refuse to open the Pandora’s Box of a hierarchy of crimes, which would be reflected in sentencing. But if all international crimes are equally grave, then how do you justify given a higher sentence for one of them rather than the other? It essentially boils down the moral outrage of the individual judges. The Taylor sentencing judgment illustrates this point.

Comments on Lubanga Judgment (Part 3): the armed conflict, the elements of the crime and a dissent against the dissent

This post continues the series of comments of the Lubanga verdict started here and here. In this post, I consider the nature of the armed conflict and the elements of the crime of enlisting, conscripting and using children in actively participating in hostilities. This will be an opportunity to critically asses Judge Odio Benito's dissent.

• The Nature of the Armed Conflict

At the outset, it should be pointed out that this is a generally irrelevant point. Indeed, I believe that the drafters of the ICC Statute, by maintaining the strict dichotomy between international and non-international armed conflicts in the drafting of Article 8 in relation to conduct that is criminalized in both cases forgot that international criminal law is not international humanitarian law, despite their obvious conceptual kinship. The distinction should have only been maintained for conduct that is criminalized only in one of them (generally international armed conflict). 

The fact remains that this distinction remains in the Statute and it was therefore necessary to define the nature of the armed conflict because it technically leads to different crimes being prosecuted: 8(2)(b)(xxvi) for an international armed conflict and 8(2)(e)(vii) for a non-international armed conflict.

First Judgment at the ICC: Some Random Thoughts on the Lubanga Verdict (part 2): the investigation

Moving away from questions of form, as dealt with in my previous post, let's look at certain issues of substance, which I will broadly consider in the order they are dealt with in the judgment. Because I want to keep my posts short(ish), I will comment in over different posts...

• ... but first, another comment on form and style

Having plowed through nearly 300 pages of the Judgment so far, there are already a number of parts that could have been seriously cut down. What is the point, for example, of recalling the case law on victim participation at the beginning? The same is true of the factual overview. International Judgments are not history books, and should not try to be history books. For one, they often get things wrong. More importantly, that is not their function. This overview should only be mentioned if it is relevant for the legal analysis (for the determination of the nature of the armed conflict, for example (more on this in Part 3)). 

On the related question of style, international judges have to stop acting as if they are giving a lecture to, depending on the section of the judgment, students/activists/fellow professionals/academics. They are Judges and are not meant and should not be expected to engage in academic debates unnecessarily. Two examples in what I've read so far (but I'm sure there are more). 

When discussing the nature of the armed conflict (again, more on the substance of this in Part 3 of this blog series), the Chamber refers to academic and jurisprudential discussions on the relevancy of the distinction between an international and a non-international armed conflict (§539). It then says, however, that: 

In the view of the Chamber, for the purposes of the present trial the international/non-international distinction is not only an established part of the international law of armed conflict, but more importantly it is enshrined in the relevant statutory provisions of the Rome Statute framework, which under Article 21 must be applied. The Chamber does not have the power to reformulate the Court’s statutory framework.

Of course I agree with this statement, but it shows how far we've gone in misunderstanding the role of the international criminal judiciary that these judges would feel the need to mention it explicitly in the judgment! It is a self-evident truth that is in-built in the role of these individuals as judges and should not have to be recalled in such a context.
A second example relates to the definition of the crime that was charged. The Statute clearly mentions the crime and the age of 15. There's no discussion in that respect. Why therefore does the Chamber feel the need to explain the historical reasons for this prohibition and the fact that "children are particularly vulnerable" (§605-606)? This is neither a course in the history of international crimes nor a course in sociology and such discussions have no place in a Judgment. And the counter-argument of pedagogy, once again, is lost in my opinion, when these 2 pages are drowned in the 600 pages of the judgment as a whole.

• The Investigation Process generally

The Judgment details at length the investigative process of the OTP (starting at §124). This part of the judgment covers a number of issues relating to the investigation, notably the difficulty in gathering evidence and the security issues that were faced by the investigators. The Court highlights the fact that the team was composed of a number of former NGO personnel, as well as people from International justice and human rights (§126). Interestingly, the Court relays the testimony of one witness questioning NGO reports. The following quote from William Pace reproduced at §130 is quite telling in that respect:

Investigators also sometimes find it difficult to corroborate information provided by human rights groups who are eager to call international attention to crises. The gap between the assessment of the human rights groups and the evidence was sort of a surprise,” says Mr Lavigne, a French magistrate and former police detective, who heads the Congo investigation team. Mr Pace considered that “human rights and humanitarian organizations are lousy criminal investigators. They are not producing forensic evidence that can be used by a prosecutor.

This finds an echo in the recent Mbarushimana confirmation of charges decision, where the Prosecutor was criticised for relying too much on NGO reports. It more generally raises the issue of the professional conflation that exists between the various "communities" of international justice, where people easily switch from one activity to the other (academia, tribunals, activism) and more problematic even, often act in all these capacities at once, sometimes abusing their professional function to promote an activist agenda. Such conflation can also be seen in the style of the judgment (see above), with certain parts reading more like a lecture to LLM students than a judicial decision.

The Judgment also highlights the "inconsistent requests" that were made to the investigators due to the absence of clear guidelines and changes in investigative choices from the OTP (§144).

• The use of intermediaries in particular

The major question that arose in relation to the investigation was the use of certain intermediaries by the Prosecutor and their alleged misconduct. This had led to a series of decisions in the course of the trial (see here and here) where prosecutorial actions were severely criticized, even leading to a stay of proceedings.

The Trial Chamber revisits this issue in the Judgment. In fact, it takes up 130 pages (more than a fifth of the judgment!). It considers the background to the use of intermediaries and considers the credibility of the evidence that was gathered by a number of them, concluding in a number of instances that the evidence is not reliable due to the lack of professionalism or even dishonesty of certain intermediaries.

In the summary of the judgment, the judges issued a strong condemnation of the Prosecutor's actions:

17.An issue that occupied the Chamber for a significant part of this trial concerned the use by the prosecution of local intermediaries in the DRC. The Chamber is of the view that the prosecution should not have delegated its investigative responsibilities to the intermediaries as analysed in the judgment, notwithstanding the extensive security difficulties that it faced. A series of witnesses have been called during this trial whose evidence, as a result of the essentially unsupervised actions of three of the principal intermediaries, cannot safely be relied on.

18.The Chamber spent a considerable period of time investigating the circumstances of a substantial number of individuals whose evidence was, at least in part, inaccurate or dishonest. The prosecution’s negligence in failing to verify and scrutinise this material sufficiently before it was introduced led to significant expenditure on the part of the Court. An additional consequence of the lack of proper oversight of the intermediaries is that they were potentially able to take advantage of the witnesses they contacted. Irrespective of the Chamber’s conclusions regarding the credibility and reliability of the alleged former child soldier witnesses, given their youth and likely exposure to conflict, they were vulnerable to manipulation.

This is all very nice, but the childish glee one gets from seeing the Prosecutor criticized once again has now lost its appeal through toothless repetition and been replaced with the frustration of nothing coming out of it. In particular, I don't share Kevin's enthusiasm, over at Opinio Juris, that this shows the judges "listened" to the Defense. Big deal. Time and again, in this instance as in a number of other occasions, the Prosecutor has received harsh rebukes from the Chambers in relation to such futile issues of his public statements, to more important issues relating to his investigations as well as egregious cases such as this one where, not only the Prosecutor showed, at best, gross negligence in his choice of intermediaries, but actually refused to comply with clear orders from the Court to release their names. A slap on the wrist is no longer sufficient. There exist tools in the Statute, such as Articles 70 and 71 that allow for the sanction of the Prosecutor for this kind of conduct and it is about time that they are used.

Moreover, back on the length of the judgment, I'm not quite sure, in light of this unfolding intermediary fiasco, why this was not dealt with months ago. If one of these people was entirely untrustworthy, it should have been considered when the whole issue arose and the stay of proceedings was decided. 20% of the final judgment on this issue is ridiculous.


All in all, this part of the judgment shows the difficulties of investigating such crimes in such circumstances. It also dramatically identifies the failures of the OTP, even in such circumstances. There is clearly a pattern here, when you add the two decisions declining to confirm charges that have occurred. People tend to blame the outgoing prosecutor for these failings. For me, as I've said before, the jury is still out and I am not willing to give an automatic blank check to the new Prosecutor, Fatou Bensouda, whatever appreciation I might have of her as an individual. Indeed, I have difficulty believing that such systemic and repeated errors are the sole responsibility of one man. I hope I am proven wrong on this.

(to be continued, stay tuned)

First Judgment at the ICC: Some Random Thoughts on the Lubanga Verdict (part 1)

(see Part 2 and Part 3)

Today, the ICC issued its first judgment in the Lubanga trial. He was found guilty of the war crime of conscripting and enlisting children under the age of 15 and using them to participate in hostilities. There are a number of things to write about it, and I'll do so over the coming days, time allowing.

Before going into the substance of some of the issues considered, a few words on the conduct of the trial. There is no doubt that any ambition to have this trial as a sort of model trial, just as you have model houses that you can visit, evaporated long ago. This was meant to be a simple case.The Prosecutor decided to have a lengthy list of charges, a criticism often levelled at the prosecutiorial strategy at the ad hoc tribunals and essentially charged Lubanga with one crime relating to child soldiers. This should have been an easy case. However, as we all know, due to a combination of delays (prosecutorial misconduct, judicial activism on the requalification of charges, victim participation), the trial took way longer and went far less smoothly than expected.

This is the summary of the trial proceedings on the ICC website:

Over the course of 204 days of hearings, the Trial Chamber has delivered 275 written decisions and orders and 347 oral decisions. The Chamber heard 36 witnesses, including 3 experts, called by the Office of the Prosecutor, 24 witnesses called by the defence and 3 witnesses called by the legal representatives of the victims participating in the proceedings. The Chamber also called 4 experts. A total of 129 victims, represented by two teams of legal representatives and the Office of Public Counsel for Victims, were granted the right to participate in the trial. They have been authorised to present submissions and to examine witnesses on specific issues. The Prosecution submitted 368 items of evidence, the Defence 992, and the legal representatives of victims 13.

In comparison, in the Popovic et al. case at the ICTY, a case with 7 accused with counts including Genocide, Crimes against humanity and war crimes, 182 prosecution witnesses, around 130 defense witnesses several thousand exhibits, there were 425 trials days, a little more than twice the Lubanga trial.

The comparison need not stop here. The Popovic Judgment, again for 7 acussed and all the related evidence, is two volumes long and some 900 pages. The Lubanga Judgment, including the separate opinions is over 600 pages. For one accused, and essentially one count! One can only have nightmares at the thought of having to read the judgment in the Katanga and Chui case, with two accused and some 10 counts, or an hypothetical Bashir Judgment with its long list of charges... Something needs to be done about this judicial logorrhea. What is amazing is that I've heard some of the staff of these tribunals justify the length of judgments for reasons of pedagogy. Of course. It makes total sense that a layperson is more likely to read a 600 page judgment than a 200 page judgment...

And while we're on form rather than substance, I just came accross the first press release from the OTP following the judgment. It welcomed the first verdict of the Court, of course. It says nothing of the fact that the OTP was publicly chastised for its negligence and sloppiness in the gathering of evidence and use of intermediaries, of course (more on this in subsequent posts). But what it mostly does is celebrate the fact that Angelina Jolie attended the hearing! The first trial at the ICC, the first Judgment, the first conviction, the recognition of the criminal activity of Lubanga and his armed group for thousands of victims, the controversy about not charging sexual crimes, the upcoming sentencing proceedings... and the angle that the OTP chooses for this first press release is the presence of Angelina Jolie... a watershed moment indeed...