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.
Initially, the Prosecutor had charged the crimes under a NIAC. The Pre-Trial Chamber had used (abused) its power under Regulation 55 of the Court to change this legal qualification, considering that for a period of the indictment, it was an IAC (this is not the place to discuss Regulation 55 in detail, but on its illegality and abuse, including in the Lubanga trial, cf. my article on the issue). Now, the Chamber re-used Regulation 55 to say that, in fact, it was a NIAC all along. it confirms that several armed conflicts of different nature can co-exist at the same time and that you have to carefully identify which is the relevant one for the purposes of the trial. It this case, any international aspect (most notably the presence of Uganda and Rwanda) was not deemed to make the armed conflict between the Government and Lubanga's armed group international. Moreover, the Chamber also confirms that the requirement of "control over part of the territory" from the armed group present in APII, is not in the ICC Statute and need not be verified for a NIAC to exist.
- Elements of the crime of enlisting, conscripting and using children to participate actively in the hostilities
In relation to the enlisting and conscription of child soldiers, the Chamber, while pointing out the semantic distinction between voluntarily joining the armed forced (enlisting) and involuntarily joining the armed forces (conscription), decided to consider them both together.
The more problematic issue was the question of the meaning of "participate actively in the hostilities". In line with some SCSL case-law, this was deemed to cover not just combat activities, but any support activities that might expose the child to danger as a potential target (§628).
The real question was whether sexual violence should be considered in this context. You will recall the 2009 fiasco of the legal recharacterisation of facts on which I commented on here and here, where the trial chamber (with a strong dissent from Judge Fulford) tried to get sexual crimes in through the back door, using their power under Regulation 55, before being reversed by the Appeals Chamber. In application of this Appeals decision, the judgment confirms that evidence pertaining to sexual crimes could not be considered because it had not been contained at the confirmation stage. Interestingly, the Trial Chamber does not take a position on whether sexual violence is actually contained in the definition of active participation in the hostilities.
- Judge Odio Benito's Dissent
This point is however addressed in Judge Odio Benito's dissent. It seems that no international judgment today is worth anything without a dissent from a Latin American judge with a human rights activist agenda. The ICJ has Cancado Trindade and the ICC apparently now has Odio Benito. In a mercifully short dissent (Judge Trindade is not that graceful in his dissents that are sometimes twice the size of the actual ICJ judgment), the judge from Costa Rica plays the usual tune meant to strike a chord of shame in the hearts of the cynical positivists that some of us are. She refers to the now traditional tool of natural lawyers (a contradiction in terms, maybe?) who advance in the guise of common sense positivists, namely the "object and purpose" of the Statute, and says that the Chamber, in refusing to decide whether sexual violence is part of the definition, is "a step back in the progressive development of international law" (again, the classical rhetoric of progress, which makes any person who might resist a vile reactionary). She concludes her opening plea with the following grand finale (§8 of the dissent):
I deem that the Majority of the Chamber address only one purpose of the ICC trial proceedings: to decide on the guilt or innocence of an accused person. However, ICC trial proceedings should also attend to the harm suffered by the victims as a result of the crimes within the jurisdiction of the Court. It becomes irrelevant, therefore, if the prosecutor submitted the charges as separate crimes or rightfully including them as embedded in the crimes of which Mr. Lubanga is accused. The harm suffered by victims is not only reserved for reparations proceedings, but should be a fundamental aspect of the Chamber's evaluation of the crimes committed.
Needless to say that I strongly disagree with Judge Odio Benito. How can an ICC judge say that it is "irrelevant" what and how the Prosecutor charges? Moreover, I failed to identify when the ICC became a counseling service for victims. More importantly, it is this kind of grandiloquent statement that creates the false expectations among the victims that the ICC is indeed there to have this restorative and psychological role. Like many people, Judge Odio Benito, with all her good feelings, confuses the function of an institution and possible positive consequences of the exercise of this function. Of course an ICC trial can have an effect in the restorative process, by identifying the perpetrator, acknowledging the crimes and sometimes giving the victims a (limited) voice in the proceedings. But if the ICC is sold as having this function, it will necessarily fail in achieving this goal and disappoint expectations that should never have been created in the first place. Blaming the ICC, which is not institutionally designed to do this, for not doing enough for victims, is like blaming your dishwasher for not being able to cook your pasta. It doesn't make sense. What you should do is blame the person who sold you the dishwasher, claiming that it could also heat up your pizza.
In any case, and to get back to the point, given Judge Odio Benito's approach to law, it is unsurprising that she argues that sexual violence should be considered as an "active participation in the hostilities" because sex slaves provide "essential support" to the armed groups (§20 of the dissent) and sexual violence is often an intended consequence of illegal recruitment. This reasoning strikes me as odd when you consider that, for exactly the same objective of protecting civilians, IHL has always thrived to limit the scope of "direct participation in hostilities". But now, the definition should be expanded to also protect civilians. This kind of flexibility (creativity) is typical of human rights activism that wants its cake and eat it. Also, the fact that there exists a discrete crime in that respect in the Statute which was voluntarily not charged by the Prosecutor is clearly irrelevant for the Judge. All this shows that the previous reproduced quote is not even close to what she thinks. She doesn't think that a criminal trial should also consider the harm of victims, in addition to the legal dimension, as we might initially read it, but she is willing to bend the law to include that harm, in a perfect natural law tradition.