4.2 THE DEMOCRATIC REPUBLIC OF CONGO CASES
4.2.1 Thomas Lubanga Dyilo’s Case
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The section also considers how the Appeals Chamber decision in the Bemba case affects the prosecution of SGBC’s committed in armed conflicts.
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Prosecutor’s inconsistent reasons for his reluctance to prosecute SGBCs such as rape.727 Thus, the focus in this case is the victims’ lost opportunity in receiving reparations, due to the non- prosecution of SGBCs.
In the Document Containing the Charges (DCC)728 filed by the Prosecutor on 28 August 2006, Lubanga was charged with three counts of war crimes under articles 8(2)(e)(vii)729 and 25(3)(a)730 of the Rome Statute. These counts were in relation to ‘conscripting and enlisting children under the age of fifteen years’ into the Force Patriotique pour la Liberation du Congo (FPLC), of which he was commander-in-chief, between 1 July 2002 and 31 December 2003, and
‘using them to participate actively in hostilities’, in a non-international armed conflict context.731 Notably, in its decision of 29 January 2007 given at the confirmation hearing,732 which was held from 9 to 28 November 2006,733 the Pre-Trial Chamber 1 went further than merely confirming the charges contained in the DCC by holding that Lubanga should also be charged for these crimes in an international armed conflict context. Consequently, the charges confirmed by Pre- Trial Chamber 1 against Lubanga provided that:
Thomas Lubanga Dyilo is responsible, as co-perpetrator, for the charges of enlisting and conscripting children under the age of fifteen years into the FPLC and using them to participate actively in hostilities within the meaning of articles 8(2)(b)(xxvi) and 25(3)(a) of the Statute from early September 2002 to 2 June 2003.
727 See chapter 3, section 3.3.1.
728 The Document Containing the Charges (DCC) is the document containing ‘a detailed description of the charges’
which the Prosecutor intends to bring the person charged to trial. As it establishes ‘in detail the nature, cause and content of the charge(s) brought against the accused, this document frames the confirmation hearing. The Prosecutor must provide the Pre-Trial Chamber and the accused with the DCC ‘no later than thirty days before the date of the confirmation hearing.’ Rome Statute, arts 61(3)(a) and 67(1). Rules of Procedure and Evidence, Rule 121(3).
729 Rome Statute, art 8(2)(e)(vii) refers to war crimes applicable to armed conflicts not of an international character.
See Chapter 2 regarding the contextual elements of a war crime in the Rome Statute.
730 Rome Statute, art 25(3)(a) provides that:
Article 25(3) In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:
(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;
731 Prosecutor v Thomas Lubanga Dyilo ‘Document containing the charges article 61(3)(a)’ (28 August 2006) ICC- 01/04-01/06, paras 6 and 20.
732 The confirmation hearing is a hearing where the Pre-Trial Chamber confirms the charges on which the Prosecutor intends to seek trial. The Pre-Trial Chamber thus ‘determines whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged.’ It, thus, protects the defendant’s rights against ‘wrongful and wholly unfounded charges.’ Rome Statute, art 61(7). Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui (30 September 2008) ICC-01/04-01/07, para 63.
733Prosecutor v Thomas Lubanga Dyilo ‘Decision on the confirmation of charges’ (29 January 2007) ICC-01/04- 01/06, para 30.
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Thomas Lubanga Dyilo is responsible, as co-perpetrator, for the charges of enlisting and conscripting children under the age of fifteen years into the FPLC and using them to participate actively in hostilities within the meaning of articles 8(2)(e)(vii) and 25(3)(a) of the Statute from 2 June to 13 August 2003.734
The Pre-Trial Chamber confirmed these charges without giving the prosecutor an opportunity to amend them as required by article 61(7)(c)(ii) of the Rome Statute.735 The Chamber stated that this was not necessary, as articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Rome Statute criminalised the same conduct, regardless of whether the conflict was classified as international or non- international.736 Thereafter, the Trial Chamber ordered the prosecution to amend the DCC. In response to the Trial Chamber’s order, the prosecution filed the amended document on 22 December 2008.737 In handing down its judgment on 14 March 2012, the Trial Chamber re- modified the legal characterisation of the facts to a non-international armed conflict as characterising the conflict during the period September 2002 to 13 August 2003.738
During the course of the trial, victims’ legal representatives filed a joint application on 22 May 2009 requesting the Trial Chamber to modify the legal characterisation of the facts to include crimes against humanity and war crimes of sexual slavery and war crimes of inhuman or cruel treatment.739 The Prosecutor and Lubanga appealed against the majority Trial Chamber’s decision to modify the legal characterisation of the facts.740 Consequently, the Appeals Chamber
734 Prosecutor v Thomas Lubanga Dyilo ‘Judgment pursuant to article 74 of the Statute’ (14 March 2012) ICC- 01/04-01/06, paras 1 and 525.
735 Rome Statute, art 61(7)(c)(ii) provides:
61(7) The Pre-Trial Chamber shall on the basis of the hearing, determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged. Based on its determination, the Pre-Trial Chamber shall:
(c) Adjourn the hearing and request the Prosecutor to consider:
(ii) Amending a charge because the evidence submitted appears to establish a different crime within the jurisdiction of the Court.
736 Prosecutor v Thomas Lubanga Dyilo ‘Decision on the confirmation of charges’ at paras 202 and 204. For a critic on the Pre-Trial Chamber I sua sponte amendment of the charges which it confirmed see Dov Jacobs, ‘A shifting scale of power: Who is in charge of the charges at the International Criminal Court and the uses of regulation 55’ in William Schabas, Niamh Hayes and Yvonne McDermott (eds) The Ashgate Research Companion To International Criminal Law Critical Perspectives (2011) 1 at 8-9.
737 Prosecutor v Thomas Lubanga Dyilo ‘Prosecution’s provision of the amended document containing the charges’
(23 December 2008) ICC-01/04-01/06.
738 Prosecutor v Thomas Lubanga Dyilo ‘Judgment pursuant to article 74 of the Statute’ at paras 566, 567 and 1359.
739 Prosecutor v Thomas Lubanga Dyilo ‘Decision giving notice to the parties and participants that the legal characterisation of the facts may be subject to change in accordance with regulation 55(2) of the Regulations of the Court ’(14 July 2009) ICC-01/04-01/06, para 1.
740 Lubanga appealed on the 11 August 2009 whilst the Prosecutor appealed on 12 August 2009. Prosecutor v Thomas Lubanga Dyilo ‘Judgment on the appeals of Mr. Lubanga Dyilo and the Prosecutor against the decision of Trial Chamber I of 14 July 2009’ at para 6.
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reversed the decision of the Trial Chamber to modify the legal characterisation of the facts in the charges.741
4.2.1.1
Sentencing of Lubanga
The Trial Chamber I convicted Lubanga on 14 March 2010 for war crimes of conscripting, enlisting and using children under the age of 15 years into the FPLC ‘to participate actively in hostilities within the meaning of article 8(2)(e)(vii) and 25(3)(a) of the Statute from early September 2002 to 13 August 2003’.742 The Trial Chamber found that its hands were tied in making a decision on the evidence of sexual violence, as the Prosecution had failed to bring charges against the accused for such crimes.743 It found that the allegations of sexual violence were only relevant to provide context, and reserved the issue of sexual violence as a matter for sentence and reparations.744
Lubanga was sentenced to 14 years imprisonment, with the time he had already spent in custody taken into consideration.745 In its judgment on sentence on 10 July 2012, the Trial Chamber I strongly strongly criticised the method and manner in which the Prosecutor, Luis Moreno-Ocampo, had handled the issue of sexual violence. The Chamber observed that whilst the Prosecutor had made substantial submissions regarding sexual violence in his opening and closing speeches at trial, and that he had asked the Trial Chamber to take into account sexual violence as an aggravating factor in sentencing,746 he had failed to apply for charges of sexual violence or sexual slavery to be added to the original charges either ab initio or during the trial, and in fact opposed the addition of such crimes to the charges during the trial on the basis that this would be prejudicial to the accused.747 In his closing speech, the prosecutor had argued that as he sought the charges to be confined to conscripting, the evidence of the crimes of rape and sexual slavery was presented to highlight the suffering of the girl soldiers under the main
741 Idem at para 112.
742 Prosecutor v Thomas Lubanga Dyilo ‘Judgment pursuant to article 74 of the Statute’ at para 1358.
743Idem at para 896. Judge Odio Benito gave a separate and dissenting opinion.
744 Idem at paras 29 and 896.
745 Idem at paras 107-108.
746 Idem at para 60.
747Prosecutor v Thomas Lubanga Dyilo ‘Decision on sentence pursuant to article 76 of the Statute’ (10 July 2012) ICC-01/04-01/06, para 60. Prosecutor v Thomas Lubanga Dyilo ‘Prosecution’s application for leave to appeal the
“Decision giving notice to the parties and participants that the legal characterization of the facts may be subject to change in accordance with regulations 55(2) of the Regulations of the Court’” (12 August 2009) ICC-01/04-01/06.
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charge.748 The Trial Chamber also noted that whilst the prosecutor argued that the witnesses’
evidence on sexual violence and rape was reliable and credible, it was only relevant to sentence because it did not form part of the case faced by Lubanga.749 The prosecutor’s failure to charge the accused with sexual violence and rape did not deter the Chamber from considering such crimes as relevant factors in its determination of sentence as required by Rules 145(1)(c)750 and 145(2)(b)(iv)751 of the Rules of Procedure and Evidence, (the Rules).752 The Chamber, however, found that the evidence failed to establish beyond reasonable doubt the link between the accused’s conduct and sexual violence.753 The Chamber reserved for a later decision the issue of whether sexual violence would be relevant to the determination of reparations.754
In her dissenting opinion, in accordance with Rule145(1)(c) of the Rules on sentencing, Judge Odio Benito disagreed with the majority decision, finding the evidence of sexual violence was relevant to the harm caused to the victims and their families,.755 She found that there was sufficient evidence before the Trial Chamber that sexual violence had caused the children to suffer harm because of recruitment into the militia. Her colleagues should have distinguished
‘between the factual allegations of the case’, and the legal concept of ‘use to participate actively in the hostilities’, as both were independent factors.756 In Judge Benito’s opinion, SGBV crimes
‘should have been included within the legal concept “use to participate actively in the
748Office of the Prosecutors closing statements (Open Session), at 54 available at http://www-icc- cpi.int/icc.docs/doc/doc1210316.pdf (accessed 25 March 2016).
749 Prosecutor v Thomas Lubanga Dyilo ‘Decision on sentence pursuant to article 76 of the Statute’ (10 July 2012) ICC-01/04-01/06, para 61.
750 Rule 145(1)(c) Rules of Procedure and Evidence provides:
145(1) In its determination of the sentence pursuant to article 78, paragraph 1, the Court shall:
(c) In addition to the factors mentioned in article 78, paragraph 1, give consideration, inter alia, to the extent of the damage caused, in particular the harm caused to the victims and their families, the nature of the unlawful behavior and the means employed to execute the crime, the degree of participation of the convicted person; the degree of intent; the circumstances of manner, time and location; and the age, education, social and economic condition of the convicted person.
751 Rule 145(2)(b)(iv) Rules of Procedure and Evidence provides:
145(2) In addition to the factors mentioned above, the Court shall take into account, as appropriate:
(a) As aggravating circumstances:
(iv) Commission of the crime with particular cruelty or where there were multiple victims;
752 Prosecutor v Thomas Lubanga Dyilo ‘Decision on sentence pursuant to article 76 of the Statute’ at para 67.
753 Idem at para 75.
754 Idem at para 76.
755Prosecutor v Thomas Lubanga Dyilo ‘Decision on sentence pursuant to article 76 of the Statute, separate dissenting Opinion of Judge Odio Benito’(10 July 2012) ICC-01/04-01/06, paras 2, 6, 8 and 22.
756 Idem at para 16.The phrase ‘using to participate actively in hostilities’is taken from article 8(2)(e)(vii) of the Rome Statute which reads ‘conscription or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities’.
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hostilities” ’, as these crimes were an intrinsic part of the boys and girls ‘involvement with the armed group.’757 She stated that the Chamber had a duty to make such a finding, even though it was prevented from considering evidence relating to sexual violence due to the provisions of article 74(2) of the of the Rome Statute.758 She also pointed out that although sexual violence was an element which should have been included within the legal concept ‘use to participate actively in the hostilities’, crimes of sexual violence were separate crimes, which the Chambers could determine if charges for them had been brought by the Prosecutor. She was also of the opinion that taking these factors into consideration in the determination on sentencing would not be prejudicial to Lubanga, as he would have had sufficient notice, time and facilities to prepare his defence during the hearing.759 Judge Benito’s dissenting opinion, underlines the necessity of having female judges on the bench, who are sensitive to gender issues.
Lubanga’s appeal against conviction and sentence was dismissed by a majority of the Appeals Chamber on 1 December 2014. The Trial Chamber’s I conviction and sentence of 14 years imprisonment was upheld.760
4.2.1.2 A lost cause in obtaining reparation for victims of SGBV
The decision on reparations by Trial Chamber I on 7 August 2012 in the Lubanga case was the first decision of its kind before the ICC.761 With regard to SGBV, the Trial Chamber held that
‘the court should formulate and implement reparations awards that were appropriate for the victims of sexual and gender-based violence’.762 It also held that the court should implement gender-sensitive measures in order to overcome the obstacles which women and girls may face when seeking justice.763 On 3 March 2015, the Appeals Chamber amended the order on reparations given by the Trial Chamber on the ground that the crimes did not come within the definition of harm that resulted from the crimes for which Lubanga was convicted,764 in that the
757 Ibid.
758 Idem at para 17.
759 Idem at paras 6 and 8.
760Prosecutor v Thomas Lubanga Dyilo ‘Judgment on the appeal of Mr. Thomas Lubanga Dyilo against his conviction’ (1 December 2014) ICC-01/04-01/06 A 5. Prosecutor v Thomas Lubanga Dyilo ‘Judgment on the appeals of the Prosecutor and Mr. Thomas Lubanga Dyilo against the “Decision in Sentence pursuant to Article 76 of the Statute.”’
761 Trial Chamber I, The Prosecution v Thomas Lubanga Dyilo, Decision establishing the principles and procedures to be applied to reparations (7 August 2012) ICC-01/04-01/06.
762 Idem at para 207.
763 Idem at 208.
764Prosecutor v Thomas Lubanga Dyilo ‘Judgment on the appeals against the “Decision establishing the principle and procedures to be applied to reparations” of 7 August 2012 with AMENDED order for reparations (Annex A)
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Trial Chamber had not found Lubanga guilty of harm which resulted from SGBV. The Appeals Chamber stated that the Trial Chamber should have explained how it reached the conclusion that Lubanga was liable for reparations relating to harm which resulted from SGBV.765 The Appeals Chamber, however, pointed out that the victims were not prevented from obtaining assistance offered by the Trust Fund.766
NGOs have expressed their disappointment of the Appeals Chamber’s ruling as the latest in the string of decisions which have failed to recognise the harm suffered by victims because of SGBV, despite the wealth of evidence of such crimes before the Court.767 Child soldiers and victims who were not child soldiers who suffered from SGBV were denied reparations for SGBCs committed against them simply because the prosecutor failed to bring charges for SGBCs. This illustrated the need for the prosecutor not to bring charges within a narrow compass when the evidence pointed to other crimes. Oosterveld argues that shorter and more focused indictments could lead to the exclusion of charges relating to gender-based crimes,768 especially when the ICC Trial Chamber would not necessarily go out of its way to include crimes which had not been pleaded by the prosecutor. This would apply even though the ‘Chamber has a responsibility to define the crimes based on the applicable law and is not limited to the charges brought by the prosecution against the accused’.769 The prosecutor’s failure to include charges of SGBV, and the Trial Chamber’s failure to include SGBV within the legal concept of ‘use to participate actively within hostilities’ means that victims in this case forfeited their right to compensation for these crimes, as some of the victims were not children under the age of 15.
and public annexes 1 and 2’ (3 March 2015) ICC-01/04-01/06 A A 2 A 3, para 196. Lubanga Case: ICC Appeals Chamber amends Trial Chamber’s order for reparation to victims available at www.icc-cpi-
int/en_menus/icc/press%20and%20media/.../pr1092.aspx (accessed 15 March 2016). The legal representative of the victims, the Office of Public Counsel for victims on behalf of the victims they represented and Lubanga, appealed against the decision of Trial Chamber I.
765 Idem at paras 197-8.
766 Idem at para 199.
767 See for example Women’s Initiatives for Gender Justice. ICC issues first appeal judgment on reparations in the
… www.icc.women.org/.../icc-issues-first-appeal-judgment-on-reparations(accessed 15 March 2016).
768 Valerie Oosterveld ‘Gender-sensitive justice and the International Criminal Tribunal for Rwanda: Lessons learned for the International Criminal Court’ (2005) 12 New England Journal of International and Comparative Law 119 at 131-132.
769 Prosecutor v Thomas Lubanga Dyilo ‘Judgment pursuant to article 74 of the Statute, separate dissenting opinion of Judge Odio Benito’ at para 15.
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