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Milestones in International Criminal Justice: Recent Judgments and New Developments International Law Meeting Summary Milestones in International Criminal Justice: Recent Judgments and New Developments Dapo Akande Lecturer, University of Oxford Olympia Bekou Associate Professor, University of Nottingham Steven Powles Doughty Street Chambers Chair: Elizabeth Wilmshurst Associate Fellow, International Law, Chatham House 28 June 2012 The views expressed in this document are the sole responsibility of the author(s) and do not necessarily reflect the view of Chatham House, its staff, associates or Council. Chatham House is independent and owes no allegiance to any government or to any political body. It does not take institutional positions on policy issues. This document is issued on the understanding that if any extract is used, the author(s)/ speaker(s) and Chatham House should be credited, preferably with the date of the publication or details of the event. Where this document refers to or reports statements made by speakers at an event every effort has been made to provide a fair representation of their views and opinions, but the ultimate responsibility for accuracy lies with this document’s author(s). The published text of speeches and presentations may differ from delivery. Meeting Summary: Milestones in International Criminal Justice INTRODUCTION The meeting was hosted jointly between Chatham House and Doughty Street Chambers to discuss milestones in international criminal justice and was the third in a series of joint seminars to be held on this topic. The meeting was not held under the Chatham House Rule and an audio recording of the event is available on the Chatham House website. The meeting addressed three recent developments in international criminal law: the judgements handed down on the conviction of Charles Taylor, former president of Liberia, by the Special Court for Sierra Leone and the conviction of Thomas Lubanga Dyilo, by the International Criminal Court (the ICC); the subject of complementarity in relation to the arrest warrants issued by the ICC for certain Libyan suspects; and the problem of immunity under international law for high officials such as Presidents and Foreign Ministers. www.chathamhouse.org 2 Milestones in International Criminal Justice: Recent Judgments and New Developmets Olympia Bekou1: Legal Headlines from New Case Law The Lubanga2 judgment is 593 pages long and the Taylor3 judgment is 2,533 pages. I have decided to focus on a number of issues that cut across those two judgments, mindful of the fact that these judgments are from two separate international tribunals. The International Criminal Court is the permanent tribunal and the Special Court for Sierra Leone (SCSL) exists as an internationalized hybrid tribunal. Both judgments are important. The Lubanga decision was obviously important as it was the first judgment to be rendered by the ICC. Taylor is equally significant as it is the most important decision by the SCSL and it involves a former head of state. The two judgments also have something else in common. They both took an inordinate amount of time to complete. Lubanga took about six years and took 600 pages of ink. Taylor took about four years to complete and both are somewhat disappointing. When I finished reading the Taylor judgment this morning, I thought, is that it? What am I supposed to do with this now? A substantive issue that is important for both cases is the use of child soldiers. In the Lubanga case the majority refused to give a definition of what constitutes the use of child soldiers to actively participate in hostilities – the core of the war crimes. The judges implied that such a decision should be made on a case by case basis. I find myself agreeing here with Judge Odito Benito, the judge who rendered a separate and dissenting opinion. She said in her dissenting opinion that as this was the first judgment on the issue of child soldiers at the ICC and considering that this was the key issue of the decision, the Court should have taken the time to clarify the remit of use as set out in the Statute. Another curious point about the Lubanga decision is the use of targeting in order to determine active participation in hostilities. The Court held that the underlying element and therefore the determinative factor of active participation is whether the child is exposed to danger as a potential target. I think this is rather problematic as the Court did not make clear what they meant by ‘target’. What did the Court have in mind: a lawful target as defined in the law of armed conflict or a target in a more general sense? In the Taylor judgment, conscripting or enlisting children under the age of 15 years into armed forces or groups was also one of the counts. Of course, the SCSL has a number of decisions on that matter. In fact, many of these are cited in the Lubanga case. What is important in the Taylor judgment is that Taylor has been found guilty as an aider and abettor in conscripting and enlisting children. This is quite an interesting fact. Moving on to gender based crimes: in the Taylor decision, there were three counts of sexual violence in the indictment which were rape, sexual slavery as crimes against humanity and outrages upon personal dignity as a war crime. The trial chamber found Taylor guilty of aiding and abetting these crimes through the provisions of arms and ammunition, military personnel, operational support and moral support; and they found him guilty of planning these crimes. This is the first time a former head of state was convicted as being responsible for various forms of sexual violence. What is also important in terms of sexual violence is that the SCSL looked at the contextual elements of the crimes. They, I think, came to the right conclusion departing from the 1 Speaking in a personal capacity and not on behalf of the ICC’s Legal Tools Project. 2 ICC, The Prosecutor v. Thomas Lubanga Dyilo, Cited at: http://www.icc- cpi.int/Menus/ICC/Situations+and+Cases/Situations/Situation+ICC+0104/Related+Cases/ICC+0104+0106/ Court+Records/Chambers/Appeals+Chamber/ 3 The Special Court for Sierra Leone, The Prosecutor v. Charles Ghankay Taylor, Cited at: http://www.sc- sl.org/LinkClick.aspx?fileticket=k%2b03KREEPCQ%3d&tabid=107 www.chathamhouse.org 3 Meeting Summary: Milestones in International Criminal Justice AFRC judgment. The crime of sexual slavery cannot be included under the crime of terrorizing the civilian population because it is a crime of opportunity. This cannot be committed with the intent to cause fear in the civilian population. I think this is the right conclusion. Overall, the Taylor judgment represents a milestone in terms of gender justice. Not least because it provides that the leaders can be recognized to be responsible, even though they are far away from the theatre of conflict. They are responsible by supporting and encouraging the violence of others or make no attempt to prevent or punish it. As regards the sexual violence issue in the Lubanga decision, the majority of the Court did not adopt a standpoint on sexual violence coming under the use of child soldiers. The Special Rapporteur on Children in Armed Conflict had testified before the ICC and had urged the Court to include any sexual act perpetrated against child soldiers. However, I am sympathetic towards the Court in refusing to consider sexual violence as a constitutive element of using child soldiers. While the criminalization of sexual violence before the ICC would be welcome, it should not be introduced through the back door, as it would have been the case in the Lubanga judgment. The onus here is on the prosecutor. The charge on sexual violence was dropped; the Court reached the right conclusion by not introducing it. Judge Odito Benito did not agree and in her dissenting opinion explained this. She adopts a more purposive and human rights oriented view. She adopts the view that the Court is not there simply to decide upon the guilt or innocence but is also there for the progressive development of international law. If we take a victim-centric approach, perhaps this view of Judge Odito Benito is more sympathetic. There have been commentators who have adopted this position. But reaching this conclusion would be deeply problematic from a legal perspective. Primarily, this is because this would have to be tied to the targeting question, as already mentioned. In my view, this would violate the principle of legality. Now, a few words on individual criminal responsibility and co-perpetration. The Lubanga trial concerned co-perpetration as the basis of liability. I think that the majority was right to hold that co-perpetration is established when the individuals are aware that implementing a common plan ‘will’ result in the commission of the crime, rather than that it ‘may’ result, which was the standard applied in previous ICC decisions, as this suggested the application of dolus eventualis, which is not what the wording of the Statute intended. In Lubanga we saw the inclusion of this concept of ‘essential contribution’ as a requirement to establish co-perpetration which the majority concluded was necessary, in order to distinguish co-perpetration from accessorial liability, something they considered to be a less serious form of liability. I find myself agreeing with Judge Fulford in his separate opinion. What Judge Fulford argued was that there is no such requirement in the Statute and therefore this requirement should not be included. So, what he proposed was what he called a ‘plain text approach’ which was more in line with the Statute. Moving on to the issue of liability in the Taylor judgment, joint criminal enterprise (JCE) was not upheld by the trial chamber and Charles Taylor was found guilty on all accounts, but only as an aider and abettor.
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