AIDP Blog

Holding that phases of the conflict in the Congo were international not internal might indeed change the Prosecution’s case against Lubanga, but when confirming the charges, the court did not remove the ‘non-international’ portion of the charges, it merely included additional ‘international’ charges under article 8(2)(b)(xxvi). Would this not make the Prosecution’s case easier instead of harder? It is still possible to prove children under fifteen were used as soldiers for a certain time period. Even if the Prosecution cannot prove beyond a reasonable doubt that the first phase of the conflict was international, the Prosecution still may prove child soldiers were used during the non-international portion of the conflict; Lubanga seems no more likely to escape justice.

Perhaps it would have been more appropriate to adjourn and have the prosecution amend their charges, however, this would have caused further delay, and by confirming the charges it did, the court made a strong statement - whether part of international or non-international conflict, prohibition against using child soldiers is essentially the same. In the long run, this makes the “deeper question” in the case more clear and hopefully avoids legal technicalities.

Amy Blom

The judgment in the Pre-Trial Chamber will definitely affect the outcome of the Prosecutions trial against Lubanga. While the court would like to identify the use of children soldiers in international conflicts and internal conflicts as the same, these charges rely on a separate set of factual distinctions and proofs. The courts choice not to allow an amendment was inappropriate as it does not allow the Prosecution to amend its case to fit the charges.

I further believe that the presence of soldiers from another state does not automatically make this conflict international. These soldiers were from the same general region and unless the several states were in conflict with each other (forgive my ignorance of the topic as I am not sure what the circumstances were here), then there is no international conflict. Make no mistake, the Iraq situation was is an internal conflict, as was Vietnam and Korea. The U.S. presence is and was mere ego.

As stated in Mark Drumbl’s blog, the charge brought by the Prosecutor contains conscripting and enlisting child soldiers to fight in Ituri, Congo. The Prosecutor marked this armed conflict as being internal, the Pre-Trial Chamber changed the charge and found an international armed conflict. It is true that Rwandan and Ugandan troops were present in the region at that time, but they were not involved in the conscription and enlisting in child soldiers. I think the mere presence of the armed forces of the other two nations does not change the interal nature of the conflict. A distinction should be drawn between the classical internal conflict, being a civil war, and the internal conflict with an international nature. The latter applies to the Lubanga case. That does not mean that the Rwandan and Ugandan troops can be excluded from having a part in other crimes in that region, like genocide. However, I think that in this particular case one should adopt the internal armed conlflict approach.

Knowing this, one could shug his shoulders and simply say, so what? Well, by marking this conflict as an international one and changing the charge, the burden of proof, as stated by Mark Drumbl, shifts to the Prosecution who has to prove the direct link between Lubanga’s troops and the Ugandan and Rwandan troops. One can imagine that this effects the Prosecution to a large extent. To prove these ties beyond a reasonable doubt can be seen as nearly impossible.

As enshrined in the ICC Statute, the Pre-trial Chamber cannot just change the charges of the Prosecution. However, this did occur. During the trial concerning the confirmation of charges, the Chamber has two options. Either it confirms the charges brought by the Prosecution, or it rejects the charges brought by the Prosecution based on insufficient evidence (Art. 61 (7) (a-b) ICC St.). The hearing can be ajourned when the Chamber feels that further investigation is needed or that the evidence constitutes a different crime (Art. 61 (7) (c) ICC St.). It is clear to me that the Chamber should have resorted to the latter option.

This alltogether, seems to be of more importance than thought in first instance. In the leave to appeal the Prosecution states that this procedural mistake made by the Pre-Trial Chamber can have a huge effect on the further Lubanga trial.
First, the right of the Prosecution to bring charges before the Chamber is violated. The Prosecution concluded that this already demonstrates that the fairness has been affected.
Second, the Prosecution states that by changing the charges the fairness of the subsequent proceedings are in danger, because this decision imposes the duty on the Prosecution to find, what already has been tried, evidence to prove the international nature of the conflict. These are the reasons why the Prosecution wants to turn to the Appeals Chamber.
Finally, the Prosecution believes this decision to influence the outcome of the trial.

I would like to share my view on the problem stated by Drumbl, namely the impact of this case on justice. Indeed, I am concerned about the consequences of this case and I strongly hope this trial will never be a precedent on this part, albeit it can serve as an example of how it is not supposed to go. The ICC is a heavy, but still a very fragile and immature institution, and rulings like these can indeed damage the value, credibility and legitimacy of this International Criminal Court. However, I think and I strongly hope that we can interpret this example like being a part of teething troubles, normal and expected problems emerging from the newly gained responsibility of the International Criminal Court. In conclusion, I think that this case shows that the ICC system is not and cannot be foolproof, like any other legal system. However, I believe the ICC nowadays is the ultimate instrument to impose individual responsibility on perpetrators of the most unforgettable and unforgivable crimes and that this will contribute to the eternal battle for global justice.