Kai Ambos*

The first confirmation decisionof the International Criminal Court:

Prosecutor v. Thomas Lubanga Dyilo

Abstract/Zusammenfassung

Die Bestätigung der Anklage im Verfahren gegen Thomas Lubanga Dyilo war die erste

"corifirmation decision" des 18tGB. seitdem sind zwei weitere Anklagebestätigungen ergangen (im

Verfahren gegen Katanga/Ngudjolo am 30.9.2008 und im Verfahren gegen Bemba am 15,6.2009/*,

Als erster Anklagebestätigung kommt der Lubanga-Enischeidung eine besondere Bedeutung zu.

Erstmalig musste sich die Vorverfahrenskammer 1 schwerpunktmäßig mit Fragen des materiellen

Volkerstrafrechts auseinandersetzen. Die Anklageschrifllegte Lubanga die Rekrutierung und Ver­

wendung von Kindersoldaten im nicht-internationalen bewaffneten Konflikt zur Last. 1m Gegensatz

zum Ankläger bewertete die Verfahrenskammer die Auseinandersetzungen in Ituri (Nordosten De­

mokratische Rep. Kongo) bis zu einem bestimmten Zeitpunkt allerdings als internationalen Kon­

flikt. Dies wirftnicht nur Fragen hinsichtlich der Kompetenzverteilung zwischen den Prozessbe­

teiligten auf, sondern hat auch sachrechtliehe Konsequenzen, da die beiden einschlägigen Tatbe­

standsvarianten leichte Unterschiede aufweisen. So genügt es im internen Konflikt nicht, dass die

Kinder in "Streitkräfte oder bewaffnete Gruppen" eingegliedert werden. Vielmehr muss es sich um

" nationale Streitkräfte" handeln. Die Vorverfahrenskammer legt diesen Begriff bedenklich weit

aus und hält auch die Eingliederung von Kindern in bewaffnete Rebellengruppen. die in keinerlei

Verbindung zur Regierung stehen, für tatbestandsmäßig. Es erscheint sehr fraglich, ob diese Aus­

legung mit dem Verbot der strajbegründenden Analogie vereinbar ist.

Von grundlegender Bedeutung sind vor allem die Ausführungen zur strafrechtlichen Verant­

wortlichkeit Lubangas. Die Kammer schließt sich nicht der ständigen Rechtsprechung der ad-hoc

Tribunale zur joint criminal enterprise an, sondern entwickelt in Anlehnung an die deutsche Tat­

herrschafts/ehre ein engeres Verständnis von Mittäterschaft. Dadurch wird eine klareAbgrenzung

zwischen Täterschaft und Teilnahme ermiiglicht und einer bedenklichen Ausdehnung der Strafbar-

* Professor of Criminal Law, Criminal Procedure, Comparative Law and InternationalCriminal Law in Georg-August University of Göttingen; Judge at the District Court (Land­

gericht) Göttingen. - I am indebted to my research assistant Stefanie Bock for invaluable assis­

tance in the preparation of this paper.

** On the Bembadecision see K Ambos, Critical issues in the Bemba confirmation decision,

Leidem Joum. ofInt. Law 22 (2009), 715 et seq.

980 Kai Ambos

keit, wie sie die Lehre von der joint criminal enterprise insbesondere in ihrer dritten Form zur

Folge hat, entgegengewirkt.

A. Introduction

.. _ Themas Lubanga Dyilo hasbeeIl.cha-rg~d~b5ijlie.prosecut()roLth.e}J.1.~~~a-.

tional Criminal Court (K'C) with war crimes in the variations of conscription(charge 1) and enlistment{charge 2) of children under the age of 15 into armedgroups as well as using these (charge 3) actively: in hostilities according to Arti­cle 8 (2) (e) (vii) of the ICe Statutel-'. According to the indictment, the crimeshappened within the framework ofa non-international (domesticjconflict' in theHuri region of the Democratic Republic of Congo (DRC) on the border with

Uganda in the East and with Sudanin the Nortlr'. The alleged crimes are sup­posed to have been committed on the one hand by the FPLC iForces Patri­otiques paur la Liberation du Conga), a military wing of the UPC(Union desPatriots Conglaisv established in September 2002~ and prior to that, by the UPCitself''. Thomas Lubanga Dyilo, as co-founder of the UPC, President of theUPCIRP and Commander-in-chief ofthe FPLC; is supposedto have played a keyrole in these crimes. For these reasons, he was charzed -alonz with other FPLC;l ... __ _

commanders and UPC members and supporters- as aco-perpetrator according toArticle 25 (3) Ca) ofthecrimes mentioned",

The case history reads as follows: on 5 July, 2004, the situation in the DRCwas transferred to the Pre-Trial Chamber 1. On 10 Febmary, 2006, an arrest war­rant was issued for Thomas Lubanga Dyilo and he was transferred to the K'C onthe 16-17 March, 2006. On 20 March, 2006, Lubanga Dyilo appeared before thePTC for the first time; the indictment was read and he was advised of his rights.

1. The followingarticles without reference are taken from the lCC Statute.

2. Submission of the Document Containing the Charges pursuant to Article 61 (3) Ca) and of

the List ofEvidence pursuant to Rule 121 (3), Annexe 2, 28 August, 2006; ICC-01/04-0l/06-356, 24.

3. Ibid., para. 27.

4. Ta the situationin the Ituri Region see: Prosecutor v. Lubanga, Decision on the confirma­

tion of charges, 29 January, 2007, ICC-01/04-01l06-803, para. 1 et seq.; see also thedetailed report

from Human Rights Watch, Des Forges (Ed.), Ituri: "Covered in Blood", July 2003, HRW Report

Vol. 15, No. 11 (A), <hrtp://hrw.org/reports/2003/ ituri0703/DRC0703.pdf> (last viewed on 13June, 2007).

5. In September 2003, the UPC was renamed the UPCIRP (Union des Patriotes Congolais/

Reconciliation et Paix).

6. Prosecutor v. Lubanga, supra note 4, para. 9 et seq,

7. Document Containing the Charges, supra note 2, para. 20 and 23.

The first corfirmation decision ofthe International Criminal Court 981

On 15 and 19 May, 2006, single judge Sylvia Steiner issued two fundamentaldecisions as to the system of Disclosure 01Evidence and the establishment of atimetable". On 28 July and20 Oetober, 2006, vietims were allowed to participatein the Lubanga case, whereas-according to lec rule 85, a direct causallink be-tween the injurysuffered and the chafges brought is nccessary". Shortlybeforethe confinnation hearing (i.e., the hearing to eonfirm the charges for themaintrial, Article 61), the PIC deeidedabout the so-called witness proofing (i.e., thepreparation of the witness with a view to the examination in the trial phase)andprohibited this practice'", weIl known from the UN Ad Hoc Tribunals for theformer Yugoslavia (ICTY) and Ruanda (ICTR)11, The confirmation hearing,from which the deeision discussed here results, took place between 9 and 28 No­vember, 2006 (more hereto forthwith). With the confirmation of the indietment,

8. Decision on theFinal System of Disclosure and the Establishment of a Timetable, 15

May, 2006, lCC-OI/04-01/06-102; Decision Establishing General Principles Governing Applica­

tions to Restriet Disclosure pursuant to Rule 81 (2) and (4) of the Statute, 19 May, 2006, lCC­

01/04-01/06-108.

9. Decision on the Applications for Participation in the Proceedings of a/OOOll06, al0002/06and al0003/o6 in the case of the Proseentor v. Thomas Lubanga Dyilo and of the investigation in

the Democratie Republic ofthe Congo, 28 July, 2006, ICC-Ol/04-01/06-228; Decision on applica­

tions for participation in proeeedings al0004/06 to a/0009/06, alOO 16/06, a/0063/06, a/0071106 to

a!0080/06 and alO105/06 in the ease of The Prosecutor v. Thomas Lubanga Dyilo, 20 Oetober,

2006, ICC-O1/04-0 1I06-60 1; see also the fundamental decision as to the participation of victims

during preliminary procedures: Decision on the Applications for Participation in the Proceedings of

VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, ]7 January, 2006, ICC-01l04-101-Corr.

10. Decision on ·the Practices of Witness Familiarisation and Witness Proofing, 8 Nov.,

2006, ICC-0l/04-01l06-679. To the difference between "Proofing" and "Familiarisation" as well as

in general to the issue from a comparative perspective see: K. Ambos, '«Witness Proofing» before

the ICe: Neither Legally Admissible nor Necessary', in C. Stahn andG. Sluiter (eds.), The emerg­

ing practice of the lCe, Leiden et al. (Martinus Nijhoff Publishers) 2009, 599-614; id., 'Die Präpa­

rierung von Zeugen aus völkerprozessualer und rechtsvergleichender Sicht', in: W. Hassemer/E.

Kempf/S. Moccia (Hrsg.), Festschrift für Klaus Volk zum 65. Geburtstag, München (eH. Beck)

2009, 1-18.

11. Prosecutor v. Limaj et al., Decision on the defence motion on Prosecution practice of

'proofing witncsses', 10 December, 2004,2; in a similar vein Prosecutor v. Milutinovic et .al., De­

cision on Ojdanic motion to prohibit witness proofing, 12 December, 2006 (IT-05-87~T), para. 15;

Prosecutor v. Karemera et al., Decision on Interlocutory Appeal Regarding Witness Proofing, 11

May, 2007 (ICTR-98-44-AR73.8), para. 9 et seq. In favour of this approach R. Karemaker/D. Tay­

lor l/I/T W. Pittman, 'Witness proofing in international criminal tribunals: a critical analysis of

widening procedural divergence, Leiden J. of InLL. 21(2008),683; against my reply 'Proofing

before the International Criminal Court: A reply to Karemaker, Taylor, and Pittman', LJlL 21

(2008),911-916; and again the reply ofKaremaker et al., ibid., 917 et seq.

982 Kai Ambos

the pre-trial proceedings ended and the Lubanga case was transferred to TrialChamber I under the Presidency ofthe Englishjudge Adrian Fulford.

On 30 November, 2007, the Chamber confinned the prohibition of WitnessProofingl~,Inpreparaticm forthe hearing of evidence in the main trial phase, theChamber ordered the deposition af-expert witnesses and 'requestedthatthe par­ties and participants agree, if possible, upon common expert witnesses and thatthey instruct them together!'. In addition, the Chamber developed general princi­pies for the interrogation of witnesses, with the intention, inter aha, of limitingthe burden immanent in the proceedings, especially for the victims!". On 18

. January, 2008, the Chamber issued a fundamental decision on the admission 0/victims and to the extent of their right to participate'>. The Chamber held, interalia, that victims, albeit not directly injured through the crimes charged, couldstill take part in the proceedings as long as they were at least factually affected in.their personal interests. .This view was, however, overturned by the AppealsChamber because in its view a victim is only personally affected according toArticle 68 (3) if he/she was causally injured through the crimes charged in theindictment". In July 2008, the Chamber established that the prosecution hadrnade abusive recourseto the possibility under Artic1e 54 (3) (e) to guarantee theconfidentiality of certain documents and information. The Chamber expressedthe concem that the defendant could DO langer be guaranteed a fair trial and or­dered the stay ofthe proceedings'? and the release ofthe defendant'". The prose-

The first confirmation decision 0/the International Criminal Court 983

cution appealed both decisions'", The Appeals Chamber granted the appeal withsuspensive effect, so that Lubanga had to remain in confinement until the situa­tion had been eonclusively decided-". On 3 September, 2008, Trial Chamber Idenied a prosecutorial motion to repeal the decision to stay the proceedings-! .

..On21 Oetober 20PS, rhe App.Ch. issuedtwo decisions. In itsdecision onthe stay 01proceedings, the App. Ch. rej ected the Prosecutor' s third ground ofappeal and confirmed the stay. It also noted that, pursuant to Rule 157 of the lCCRules of Procedure and Evidence ("RPE"), an appeal can only be discontinued inits entirety and not. only partially'". In its second decision onthe release ofLubanga, the App. Ch. reversed the T.Ch.'s release decision, essentially arguingthat in the case of a conditional stay, as in this case-', the Court is not perma­nently barred from jurisdiction and therefore the unconditional release is not an"inevitable consequence," especially if the stay "rnight be lifted in the not-too­distant future"?". In fact, T.Ch. llifted the stay on 18 November 2008, conclud­ing that the reasons for the suspension had "fallen away">. Finally, Oll 26 Janu­ary 2009, the trial ofThomas Lubanga Dyilo began before T.Ch. 1.

19. Prosecution's Application for Leave to appeal the "Decision on the consequences of non­disclosureof exculpatory materials covered by Article 54(3)(e) agreementsand the application tostay the prosecution of the accused, together with certain other issues raised at the Status Confer­ence on 10 June, 2008," 23 June, 2008, ICC-01/04-01l06-1407; Prosecution's Appeal against the"Decisionon the release of Thomas Lubanga Dyilo" and Urgent Application for Suspensive Effect,

2 July, 2008, ICC-01l04-01/06-1419.20. Decision on the request of the Prosecutor for suspensive effect ofhis appeal against the

"Decision on the release of Thomas Lubanga Dyilo," 7 July, 2008, ICC-01/04-01/06-1423; Rea­

sons für the decision on the request ofthe Prosecutor für suspensive effect ofhis appeal against the

"Decision on the release of Thomas Lubanga Dyilo," 22.7.2008, ICC-O1/04-0 1/06-1444.21. Decision on the Prosecution's Application toLift tbe Stay ofProceedings, 3 September,

2008, ICC-Oll04-01/06-1467.22. Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-OI-04-01-06-1486, Decision on the

Consequences of Non-disclosure of ExculpatoryMaterials Covered by Article 54(3)(e) Agree­ments and the Application to Stay the Prosecution of the Accused, Tagether with Certain other Is­sues Raised at the Status Conference on 10 June, 2008, para. 16, (October, 21,2008).

23. See previously: Prosecutor v. Lubanga, supra note 17, para. 94,97 where the Chamberstated thatthe stay was capable ofbeing lifted in the future.

24. Prosecutor v. Themas Lubanga Dyilo, Case No. ICC-Ol/04-01/06-1487, Judgment on theAppeal oftheProsecutor Against the Decision of Trial Chamber 1 entitled "Decisionon the Re­

lease of Thomas Lubanga Dyilo," para. 37 (October 21, 2008). According to the Chamber the T.

Ch. has to consider all relevant circumstances and base its decision on release or detention on Art.

60 and 58 Cl) (ibid.).25. Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-Ol/04-01/06-T-98, Hearing Tran­

script Trial Chamber I (November] 8,2008).

984 Kai Ambos

The confirmation decision analyzed in this paper represents the most im­portant decision of the lce so far26. In the confirmation proceedings, "sufficientevidence,' as defined in Article 61 (7)27, mustexist in order "to establish sub­stantialgrounds to believe that the person committed each of the crimescharged." The evidentiary standerd requiresvsubstantialgrounds tobelieve."-­This is, on the one hand, higher than the one of "reasonable grounds" requiredunder Article 58 (1) (a) for the issuance of an arrest warrant, but on the otherhand lower than the threshold for a conviction where the Court must be "convin­ced of the guilt of the accused beyond a reasonable doubt' (Article 66 (3))28,Thus, the Chamber required concrete and tangible evidence that supports thespecific charges-".

B. The Confirmation Decision

1. Evidentiary and Procedural Matters

Although the central portionof the decision deals with substantive law (in­fra II.), the Chamberalso addresses a few interesting evidentiary and proceduralmatters,

26. It may on1y be cornpared to the second confinnation decision in the Katanga case, see in­

fra note 53.27. Art. 61 (7) reads: "The Pre-trial Chamber shall, on the basis ofthehearing, determine

whether there is sufficient evidence to establish substantia1 grounds to believe that the person

committed each ofthe crirnes charged. Based on its deterrnination, the Pre-Trial Chamber shal1:a) Confirm those charges in relation to which it has detennined that there is sufficient evi­

dence, and commit the person to a Trial Chamber for trial on the charges as confinned;

b) Dec1ine to confirm those charges in relation to which it has determined that there is insuf­

ficient evidence;

c) Adjourn the hearing and request the Prosecutor to consider:

i)Providing further evidence or conducting further investigation with respect to a particular

charge; OI

ii) Amending acharge because the evidence submitted appears to establish a different crimewithin the jurisdiction of the Court,"

28, K. Ambos/D. Miller, Structure and Function of the Confirmation Procedure before the

lCC from a Comparative Perspective, ICLR 7 (2007) 335, at 345 et seq.

29. Lubanga, supra note 4, para. 39. The Chamber references in para. 38 especially the rul­ings ofthe ECHR, see among others: Soering v. the United Kingdom, Ruling, 7 July, 1989, Appli­cation No. 14038/88 [ECHRl

The first confirmation decision 0/ the International Criminal Court 985

1. Admissibility ofEvidence (par. 40-130)

The most interesting procedural issue of the decision is the question of howto deal with evidence obtained in breach ofnationallaw and declared inadmissi­ble in nationalproceedings(par. 62-90). TheChamber points out that it isnotbound by national decisions on evidentiary matters (par. 69). This is correct sinceitis not the source of the decision -a national or international organ- but the sub­stance 0/ the violationwhich decides on the admissibility of evidence, i.e.,whether the violation makes the evidence unreliable or its use antithetical entail­ing a serious damage to the integrity ofthe proceedings (Article 69, paragraph 7,ofthe Statute forthe International Criminal Court [hereinafter: "ICCStatute"])3o.Consequently, the Congolese authorities' violation of the principleof propor­tionality -as an internationally recognised human right (par. 81) daes notauto­matically lead to the exclusion of the tainted evidence (par. 84). The Chamberhas considerable discretion, it may try to strike "an appropriatebalance betweenthe rights ofthe accused and the need to respond to victims' and the internationalcommunity' s expectations" (par. 86), yet it should apply the criteriaenunciatedin Aitic1e 69, paragraph 7, ICC Statute more concretely than done in .thc case athand (par. 90). While one may agree with the Chamber's result -the admissibil­ity ofthe relevant evidence- it lacks a more profound reasoning and concrete ar­guments,

In addition, the Chamber construes a new ground of inadmissibility in caseof a party's noncompliancewith its obligation "to inform each prospective wit­ness" of its intention "to rely on his or her statement [... ] for thepurpose of theconfirmation hearing"?' (par. 59). Thus, a witness statement must only be used ifthe witness was previously infonned about this possible use. This is to be wel­comed in light of the enonnous risk for witnesses of the Court and may directlyflow from the Court' s obligation of victims and witness protection (Article 68leC Statute). Only if the witnesses are aware of the use of their statements, theywill be in a position to take security measures or ask the Court' s Victims andWitness Unit to da so. Clearly, this Unit will quickly be overloaded if too manyvictims ask for protection. Thus, it is not surprising that PTC I has decided else-

30. See also M Miraglia, Admissibility of Evidence, Standard of Proof, and Nature of the

Decision in the ICC Confinnation of Charges in Lubanga, 6 Journal ofIntemational Criminal Jus­tice 2008, p. 493. On the use oftorture evidence seeK. Ambos, Die transnationale Verwertung vonFolterbeweisen, Strafverteidiger 29 (2009), 151-161 [for an extended English version see Israeli

Law Review 42 (2009), 362 et. seq.].31. For a general discussion of the structure and function of the confirmation procedure see

K. Ambos/D. Miller, supra note 28, p. 335 et seq.

986 Kai Ambos

where that the Prosecution may present only a limited number of witness state­ments".

With references to the jurisprudence of the Appeals Chamber (par. 101) andthe ECHR (par. 102), the Chamber holds that hearsay evidencefrom anonymoussourcesisnötinadmissibleperse (par. lOl).When evaluating theprobativevalue of tbe relevant evidence, however, the Chamber takes into account the ob­jections regarding the use of anonymaus hearsay evidence, and establishes "as ageneral rule" that such evidence will only be used "to corroborate other evi­dence" (par. l06).With regard to the evaluation of evidence, the Chamber gen­erally points out, that the probative value of each piece of evidence must be "de­termined as part of the assessment of the totality of the evidence admitted forpurpose of theconfirmation hearing" (ibid),

2. Withdrawal 01evidence (par. 137-145)

Before the confirmation hearing the parties have to provide a list with theevidence they intend to presentto the Chamber (and ifapplicable to the suspect)(Rule 121 para. 3 and 6 ofthe Rules ofProcedure and Evidence)". The LubangaChamber denies the parties the right to withdraw evidence once inc1uded in theirlists since the Statute does not provide for such a withdrawal and, from a moresubstantive perspective, it considers that the witnesses are not "the property" ofthe parties but "witnesses ofthe Court' (par. 143). As argued e1sewhere in moredetail>', the lCC Statute does not simply adapt a certainlegal tradition, but estab­lishes a procedural law sui generis. The interpretation and application of therelevant provisions will, however, mainly depend on the preferences, especiallythe legal background of the judges. This decision is a good example of suchapreference since it shows a clear tendency towards the inquisitorial system wherethe judge has a dominant role in the production and presentation of evidence. Inan adversatorial system the domination of the parties especially extends to theevidence and therefore would include their right to withdraw "their" evidence.

32. ICC, Decision on Evidentiary Scope ofthe Confirmation Hearing, Preventive Relocationand Disclosure under Article 67(2) of the Statute and Rule 77 of the Rules, Prosecutor v. Katanga

and Ngudjolo, Doc. No. ICC-Ol/04-01/07-428, PTC I, 25 April 2008, par. 78.

33. Cf, K Ambos/D. Miller, supra note 28; p..344.

34. K. Ambos, International criminal procedure: "adversarial", "inquisitorial" or mixed", 3

International Criminal Law Review, 2003, p. 1 et seq; updated version in M. Bohlander (ed.), In­

ternational Criminal Justice: A critical analysis of institutions and procedures, London 2007, 429 et

seq.; see also K Ambos, Internationales Strafrecht, München 2nd. ed. 2008, § 8.

The first confirmation decision ofthe International Criminal Court

IL Substantive Law

987

1. Crimes charged

a) Characterization ofthe armed conflict (par. 167-237)

ArticleS-lCCStatute is based on the traditional two box approach and dis­tinguishesbetween war crirnescornmitted in an international and non-inter­national arrned conflict. This distinction is relevant if, as in this case, the of­fences charged differ in their description of the criminal conduct: While Article8, paragraph 2 sub b (xxvi), lee Statute criminalises the conscription andenlist­ing of chi1dren "into national armed groups", paragraph 2 sub e (vii), lee Stat­ute does so "into armedforces or groups",

Assuming that the conflict in Ituri was a non-international one, the Prose­cutioncharged Lubanga under Article 8, paragraph 2 sub e (vii), lec Statutewith the war crime of conscripting and enlisting children into an armed groupand using them to participate actively in hostilities'". The Chamber does not fol­low this approach. In detennining the nature of the conflict it applies the ICTY' s"overall control test"36 (par. 210-11) without even mentioning the ICrs alterna­tive "effective contro1 test'?". While, according to this test, the other state has tobe in effective control of a military or paramilitary group and this control mustbe exercised with respect to operations contrary to hurrianitarian law", "overallcontrol" is broader since it does not require that the other state issues instructions

35. ICC, Document Containing the Charges, Article 61(3)(a), Prosecutor v. Lubanga, Doc.

No. ICC-'OIl04-01l06-356-Anx2, 28 August 2006. See to the rights and the protection of children

in intemationalcriminal law K. Arts/V. Popovski, International Criminal Accountability and the

Rights of Children, Hague Academic Press, The Hague 2006 and the overview on the relevant in­

ternational case law by M A_ Drumbl, Prosecutor v. Thomas Lubanga Dyilo. Decision sur la

Confinnation des Charges. Case No, ICC-0l/04-01/06, 101 American Journal of International

Law, 2007, p. 845 et seq.

36. See ICTY, Judgment, Prosecutor v. Tadic, Case No. IT-91-1-A, AC, 15 July 1999, par.

137; ICTY, Judgment, Prosecutorv. Aleksovski, Case No. IT-95-14/1-A, AC, 24 March 2000, par.

134; ICTY, Judgment, Prosecutor v. Delalic et. al., Case No. IT-26-21-A, AC, 20 February 2001,

par. 26.37_ Crit. on the even more restrictive approach of the IeJ in Bosnia v. Serbia (judgment of

26 Febr, 2007) J GriebellM Pliicken, New developments regarding the rules of attribution?, 21

Leiden J. ofInt.L. 2008,601 et seq.

38. ICJ, Military and Paramilitary Activities inand Against Nicaragua, Judgement, IC] Re­

ports 1986, par. 115. Recently confinned in JCJ, Judgement, Case concerning Armed Activities on

the territory of the Congo, DRC v. Uganda, 19 December2005, par, 150.

988 Kai Ambos

or directives for the cornmission of specific acts". Even though there might begood reasons to rejectthe effective control test in international criminallaw40 itwas unnecessary for the Chamber to deal in more detail with this issue. For,re­ferring to thc ICJ Judgment in the case of the DRC v. Uga~dctlJ the Chamberconvincingly argües-thatfromJuly 2002 to 2 June 2003 Uganda established andexercised authority in Huri as an occupying power (par. 220). With this, an inter­national anned conflict existed by all rneans (par. 209)42 and it is unnecessary todiscuss a possible intemationalisation of the conflict by taking recourse to thetwo tests mentioned. Given the factual scenario presented by the Chamber itsconclusion seems convincing. However, one may criticise that the Chamber ad­heres toomuch to the findings of tbe ICJ although tbey are not bindingv. Also,tbe Charnber's discussion of the intemationalisation of the conflict and its pref­erence for the overall control test may place an additional burden on the TrialChamber ifit adopts a different legal view in tbis case OI another.

On 2 June 2003, the Ugandan army was withdrawn from Huri and the occu­pationended. Thereby, the conflict changed to a non-international one (until theend ofDecember 2003). According to Artic1e 8, paragraph 2 sub e, leC Statute anon-international armed conflict has tobe distinguished from internal distur­bances and tensions. The Chamber assurnes that contrary to Article 1 of the Ad­ditional Protocol II to the 1949 Geneva Conventions (Add. Prot. II Ge) a non­international anned conflict may exist even if the groups involved are not able toexercise territorial control (par. 233). This gives consideration to the develop­ment of modem conflicts where far-reaching weaponry and highly mobile mili-

39. Prosecutor v. Tadic, supra note 36, par. 131; R. Cryer/H. Friman/D. Robi~son/E.

Wilmshurst, International Criminal Law and Procedure, Cambridge University Press, Carnbridge2007, p. 235 et seq.

40. See Prosecutor v. Tadle, supra note 36, par. 103 etseq.; Prosecutor v. Delalic et. al., su­pra note 36, par. 262 et seq.

41. DRCv. Uganda, supra note 38, para. 178.

42. See common Article 2 of the Geneva Convention and M Cottier, in O. Triffterer (ed.),

Commentary on the Rome Statute of the lCC, 2nd ed, Beek, Baden-Baden 2008, Article 8 mn. 5.

For arecent critical cornmentary S. Weber, International oder nicht-international? -Die Konflikt­

qualifikation in der Lubanga-Entscheidung des IStGH, 22 Humanitäres Völkerrecht-lnforma­

tionsschriften, 2009, 75, at 76 et seq.

43. G. de Beco, War Crimes in International Versus Non-International Anned Confliets:

"New Wine in Old Wineskins?", 8 International Criminal Law Review 2008, p. 326; O. Bekou,

Proseentor v. Thomas Lubanga Dyilo -Decision on the Confirmation of Charges, 8 Human Rights

Law Review, 2008,p. 348.

The first corfirmation decision 01 the International Criminal Court 989

tary equipment may be more important than stable territorial control'", In theChamber's view, it is sufficient ifthe violence has reached a certain degree ofin­

tensity and ifthe involved gr()up~ .. act with some degree of organisation and havethe ability to plan and carry ü'ut sustained military operations. Without explicitlyclarifying whether ArticleS, paragraph 2 sub d arid f, ICCStatlitecontain tWüdifferent kinds of international armed coriflicts (normal versus protracted con­flict)", the Chamber points out that sub f) especially emphasises the protractednature ofthe conflict (par. 234). As a consequence the crimes covered by sub e)are only applicable in protracted conflicts". Inthe result, the Chamber arguesthat this threshold is met (par. 235) and consequently appliesparagraph 2 sub cand e, ICC Statute.

b) Offences concerning child soldiers (par. 238-293)

Before turning to the differences between the two offences (supra a), theChamber interprets the tenns "enlisting" and "conscripting" (par. 242-258). Itstarts its legal analysis with Artic1e 77, paragraph2, ofthe Additional Protocol Iof the Geileva Conventions (Add. Prot. I GC) and Article 43, paragraph 3, Add.Prot. II GC. The Chamber concludes that these provisions aim to prevent theforcible recruitment as well as the voluntary enlistment of children. The distin­etion between "forcible" and "voluntary" 1S reflected by the terms "conscripting"and "enlisting" (par, 246), in the case of the former a child's consent cannot be avalid defence (par. 247). Even though this interpretation seems convincing, onewould have appreciated a more detailed analysis based on comparative law. Ac­cording to Article 21, paragraph 1 subc, lCC Statute, the Court applies, in a sub­sidiary form, general principles of law derived from the nationallaws üf the legalsystems of the world. Generalprinciples are not only important for filling legalgaps but also for the interpretation of imprecise legal rules and for enhancing le­gal reasoning'", Thus, the Chamber should have taken into aceount at .the veryleast important common law systems in order to support its findings. In any case,

44. M Cottier, supra note 42, Article 8 rnn. 5. Critically H. Olasolo ; Unlawful Attacks inCombat Situations, Martinus NijhoffPublishers, Leiden 2008, p. 48.

45. See thereto the detailed analysis by A. Cullen, The Definition of Non-InternationalArmed Conflict in the Rome Statute of the International Criminal Court: An Analysis of the

Threshold of Application contained in Article 8 (2) (f), 18 Journal of Conflict & Security, February

2008, p. 419.46. See also H Olasolo, supra note 44, p. 32.47. F. Raimondo, General Principles of Law in the Decisions of International Criminal

Courts and Tribunals, Leiden et aL (M. Nijhoff) 2008, p. 190.

990 Kai Ambos

already a quick look in Black's Law Dictionary" indicates that the Chamber' sfindings are correcr" since it defines "enlistment" as "voluntary entry into abranch 0/ the armed services", while "conscription" is said to mean the "com­pulsory enlistment 0/persans into military service. rr However, so as to increasethe Iegitirnacy andanthorityofits decisions.-the Chamber shouldhave givenmore weight to awell reasoned interpretation ofthe Statute.

The Chamber rightly qualifies the enlistrnent and conscription of children asa permanent crimewbich "continues to be committed as lang as ihe Childrenremain in the armed groups or forces" (par. 248). This consideration might havean important impact on the temporal jurisdiction of the Court, since the Courtmight evenbe competent for recruitments occurred before tbe entry into force oftbe ICC Statute, provided tbat the commission of the crime continuedafter the 1July 20025°. This is a tricky issue, though, which also applies to forced disap­pearances as a crime against humanity (Artic1e 7, paragraph 1, sub i, ICC Statu­te). To give the Statute a retroactive effeet by the technicality of a continuous OI

permanent offence would certainly go against the will of the' drafters>' if notagainst the wording of Articles 11, 22 ICC Statute interpreted in a reasonableway'".

48. B. A. Garner (ed.), Black's Law Dictionary, Thomson West, St. Paul 8th ed. 2004.49. However, according to G. Pa1omo Suarez, Kindersoldaten und Völkerstrafrecht -Die

Strafbarkeit der Rekrutierung lind Verwendung von Kindersoldaten nach Völkerrecht, BerlinerWissenschafts-Verlag, Berlin 2009, pp. 140-143, 'enlisting' comprises forcible and voluntary rec­ruitments,

50. For this view for examp1e J C Ochoa, The ICC's Pre-Trial Chamber I Confirrnation ofCharges Decision in the Case 01Prosecutor v. Thomas Lubanga Dyilo: Between Application andDevelopment of International Criminal Law, 16 European Journal of Crime, Criminal Law andCriminal Justice, 2008, p. 45.

51. The issue was still in Rome controversial (cf Draft Report of the Drafting Comrnittee to

the Committee of the Whole, Part 3, General Principles of Criminal Law, 14 July 1998, A/Conf183/C.1./L.65/Rev. 1, fn. 4 on Article 33 (non-retroactivity) which reads: "The question has beenraised as regards a conduct which started before the entry into force and continues after the entry

into force"). Yet, later, the restrictive position of the drafters was expressed by footnote 24 of thcElements of Crimes providing that the crime against humanity of enforced disappearance of per­

sons falls und er the jurisdiction of the court only if the attack occurred after the entry into force ofthe Statute (cf. G. Wischel/W. Rückert, Article 7 (1) (i) -Crime Against Humanity ofEnforced Dis­appearance of Persons, in R. S. Lee (ed.), The International Criminal Court -Elements of Crimesand Rules ofProcedure and Evidence, Transnational Publishers, Ardsley 2001, p. 102; H. 016s010,

A note on the evolution ofthe principle oflegality in Int. CriminalLaw, 18 Criminal Law Forum,2007, p. 307 with fn. 22).

52. For the same result Olasolo, supra note 51, at 22.

The first corfirmationdecision 01the International Criminal Court 991

The Chamber then tums to the second offence contained in Artic1e 8, para­graph 2 sub b (xxvi) as weIl as in paragraph 2 sub e (vii) K'C Statute, i.e., thewar crime of using childrento participate actively in hostilities (par. 259-267).The Chamber points out, thatactiveparticipation does not only refer to directparticipation in hostilities, but also covers active participation in combat-relatedactivities>. However, in the Chamber's view, the activityin question must be rc­lated to hostilities since Artic1e -77, paragraph 2, Add. Prot. 1 Ge prohibits onlythe direct involvement of children in armed conflicts. On the other hand, how­ever, Article 4, paragraph 3 sub c, Add. Prot. II GC excludes children from anyparticipation -be it direct or indirect. This leads to the surprising result, that theprotection of children is greater in non-international than in international con­flicts>'. Be that as it may, the ICCStatute finds itself sornewhere in-between itshumanitarian predecessors. It would have been expedient if the Chamber hadmade some comments on this point. The Chamber' s findings are clearly inspiredby the travaux perparatoires. In the proposal elaborated in the last session ofthePreparatory Committee (PrepCom) for the Rome conference in March/April1998 an explanatory footnote was added in order toprovide guidance for the in­

terpretation of"using" and "participation'"". The Chamber adopts this footnotealmost literally.

Afterwards, the Chamber deals with the discrete elements of the two provi­sions, the difference between "national armedforces H (Article 8 paragraph 2 sub

53. Confirmed in ICC, Decision on the Confirmation of Charges, Prosecutor v. Katanga and

Ngudjolo, Doc. No. ICC-01l04-0l/07-717, PTC I, 30 September 2008, par. 250.

54. Cottier, supra note 42, Articlc 8 mn. 229. See also Palomo Suarez, supra note 49, pp.

163-64.

55. Draft Statute for the International Criminal Court, Report of the Preparatory Committee

on the Establishment of an International Criminal Court, UNDoc/CONF. 183/2/Add. 1, p. 21.The

relevant footnote reads as follows:

"The words 'using' and 'participate' have been adopted in order to cover both direct parti­

cipation in combat and also active participation in military activities Iinkedto combat such as scou­

ting, spying, sabotage and the use of children as decoys, couriers or at military checkpoints. It

would not cover activities c1early unrelated to the hostilities such as food deliveries to an airbase or

the use of domestic staff in an officer's married accommodation. However, use of children in a di­

reet support function as acting as bearers to take supplies to the front line, or activities at the front

line itself, would be included within the terminology." As to the drafting process see Palomo

Suarez, supra note 49, p. 166.

See also the Proposal submitted by Colombia during the Preparatory Commission for the In­

ternational Crimina1 Court, Working Group on Elements of Crirnes, 4 August 1999, Doc.No.

PCNICC/1999IWGEC/DP.23, p. 3.

992 Kai Ambos

b (xxvi), ICC Statute) onthe one and "armed forces or groups" (Article 8 para­graph 2 sub e (vii), ICC Statute). on the other hand (par. 268-285). The Prosecu­tion holds Lubanga responsible for the recruitmcnt of children into the FPLC. Asalready mentioned above the FPLC was the military wing of the UPC, arebelorganizationfoundedüzez alia by Lubanga. TheFPLCcertainlyqualifiesas.au __armed force. However, the question is whether "national" restricts the scope ofArticle 8 paragraph 2 sub b (xxvi), leC Statute to govemmental armed forcesand is therefore inapplicable to recruitments into an irregular force like theFPLC. Guided by Artic1e 31 of the Vienna Convention on the Law of Treaties(par. 276) the Chamber starts itsinterpretation by analysing the ordinary mcan­ing of the term "national" (par. 277-280). Referring to several judgements of theICTY, the Chamber argues that "national" does not necessarily mean "govern­mental" armed forces. In these judgements, however, the ICTY dealt with thequestion whether "national" in tenns of Artic1e 4, paragraph 1, of the Fourth Ge­neva Convention might be interpreted as "ethnic" OI as "belonging to the oppos­ingparty", ie., they were rendered in a total different context. Thus, it is highlyquestionable if these considerations can be applied without more to the interpre­tation of "national armed forces'<". Without any references to the travaux, theChamber further holds that the "drafters of the Statute wanted to include underArtic1e 8 of the Statute a larger array of criminal conduct committed in the con­text of an international armed conflict" (par. 284). This statement, however, con­flicts with the drafting history and cannot be reeoneiled with the nullum crimen

principle (Artic1e 22 ICC Statute).As· the Chamber correctly notes, Article 8 paragraph 2 sub b (xxvi), leC

Statute is based on Article 77 Add. Prot. I Ge which obliges the member statesto take all feasible measures in order to prevent children from directly participat­ing in hostilities. The Chamber argues that Add. Prot. I GC is not limited to gov­ernmental armed forces (par. 272)57, Similarly, the original proposal ofthe Prep­Com provided for the recruitment of ehildren into "armed forces"; only laterwas the term "national" added. This was done in order to meet the concerns ofseveral Arab States, especially of the Lebanon, which feared that the fonner ver­sion would cover the forces of Hisbollah. Thus, c1early the addition of "national"was intended to limit the provision's application only to the officialarmed forces

56. Bekou, supra note 43, at p. 353; Palomo Suarez, supra note 49, p. 156.

57. See to the question whether the FPLC would qualify as an armed group in terms of the

Additional Protocol I Bekou, supra note 43, at p, 352.

The firstconfirmatlon decision 01 the International Criminal Court 993

of a state". For this very reason,it was criticized by several human rights groupswith .the argument that rebel movements would be excluded'", Hence, the Cham­ber' s findingsare supported neither by the jurisprudence of the ICTY nor by thedrafting history. In fact, the Chaniber's 'interpretation i~s, as it explicitly acknowl­edges,based on "humanitarian considerations and commonsense"{par. 284). Adifferentresult would, in its view, have undermined the "object and purpose ofthe Statute of the Court, which is none other than to ensure that the most seriouscrimes of concern to theinternational community as a whole must no langer gounpunished" (par. 281)60. However, such considerations -as convincing as theymay seem from a general policy perspective- cannot disburden the Chamberfrom tbe correct and exact interpretation of the relevant provisions. Article 21,paragraph 1, sub a, ICC Statute explicitly obliges the Chamber to apply the Stat­ute in the first place andnot the Vienna Convention which, in fact, is a mere in­strument of interpretation. Article 22 .K'C Statute lays down the fundamentalprinciple of nullum crime sine lege in its four forms: A person can only be pun­ished for an act which was codified in the Statute at the time of its commission(lex sripta), was committed after its entry into force (lex praeviai, was definedwith sufficient c1arity (lex certa) and was not extended byanalogy (lex scriptav),The rule against analogy applies to interpretation. It prohibits a conviction forpreviously unknown crimes on the basis of their similarity to known.onest'. Thedecision to qualify a conduct as criminal is up to the Assembly of States Parties(Article 112 ICe Statute) as the relevant legislative power in the lee System butnot to tbe judges'v, lf tbe Statute uses a term like "national" and this term was in-

994 Kai Ambos

cluded expressing the clear will of the drafters the Chamber must livewith thistenn and interpret it. It cannot outplaya clear wording by taking recourse to theobject and the purpose ofthe Statute. In case of ambiguity, the tenn hasto be in­terpreted in favour of the suspect or accusedv', .One may still argue that Artic1e 8paragraph 2 subb (xxvi), lec Statute maybe extended to non-governmentalarmed groups", yet such an argument mustbe basedon an interpretation in ac­cordance with the general rules of interpretation and not just on humanitarianconsiderations and common sense. In the result, the Chamber deprives the term"national" of any discrete meaning and extends the scope of paragraph 2 sub b(xxvi), lce Statute to aU armed forces, Thereby, it ignores the legislative deci­sion of the member states and violates the rule against analogy as laid down inArtic1e 22, paragraph 2 sentence 1 lee Statutes".

Finally, in the light of the findings of the Chamber, one wonders why itmade the effort to characterise the arrned conflict in Huri at all.For, ultimately,with its broad interpretation of Article 8 paragraph 2 sub b (xxvi), lec Statute,the Chamber outplayed the .difference between the two provisions. Hence, itcould have left the characterisation of the armed conflict to the Trial Chamberfor final determination'".

c) Nexus requirement (par. 286-293)

The nexus requirement, i.e., the requirement of a nexus between the crimi­nal act in question and the anned conflict, is weIl established in internationalhumanitarian and criminallaw. It foIlows from the case law ofthe ad-hoc Tribu­nals68 and is taken up by the 1CC's Elements of Crirne as Element no. 4 of Arti­cle 8 paragraph 2 sub b (xxvi) and Article 8 paragraph 2 sub e (vii), lCe Statute.Thus, the Chamber is correct in applying it (par. 286).

64. See Article 22, paragraph 2 sentence 2, ICC Statute.

65. In this direction Amnesty International, supra note 59, p. 4. For a restrictive

interpretation de Beco, supra note 43, p. 328; Bekou, supra note 43, p. 354.

66. See also de Beco, supra note 43, p. 328 and the critical analysis by Palomo Sudrez, supra

note 49, pp. 155-61. Nevertheless, the Chamber has confirmed its interpretation of "national arrned

forces" in Prosecutor v. Katanga and Ngudjolo, supra note 53, par. 259.

67. See also de Beco,supra note 43, p. 328.

68. See most recently ICTY, Judgment, Prosecutor v. Mrksic, Radio and Sljvancanin, Case

No. ICTY-IT-95-13/l-T, TC H, 27 September 2007, par, 423; ICTY, Judgment, Prosecutor v. Ha­

radinaj, Balaj and Brahimaj, Case No. IT-04-84-T, TC 1,3 April 2008, par. 61.

The first confirmation decision 0/the International Criminal Court 995

d) lnadmissible amendment ofthe charges? (par. 202~204)

In confirming the charges under two separate provisions (Articles 8 para­graph 2 sub b (xxvi), and 8 paragraph 2 sub e (vii),~Ce Statute), the Chamberdeparts from the Proseentor who took the view that the evidence was not suffi­eient to establish substantial grounds to believe tbat aninteriüitional anned con­:f1ict existed'". As a eonsequenee, even though Lubanga was never eharged withwar crimescommitted in an international armed eonfliet, the confirmation° con­tains the offenee ofArticle 8 paragraph 2 sub b (xxvi), lec Statuteonly applica­ble in an international armed eonfliet. If t?is is a eorreet result depends on theChamber' s power to amend the charges proprio motu. Although this is, at firstsight, a proeedural question it is linked to substantive law, namely the eorrectclassification of aeriminal eonduct with regard to the crimes of the lee Statuteand, as such, the eorrect interpretationof these erimes. For this reasons it cantreated at this juncture.

According to Artic1e 61, paragraph 7 sub c (ii) lee Statute, it is up to theProsecutor to amend acharge if theevidence submitted appears to establish adifferent crime within tbe jurisdiction of.the Court. The Chamber, bowever, dis­missed this possibility (and the eorresponding adjoumment of the hearing) since,in its view, the relevant provisions are similar in scope, regardless of the charac­terisation of the armed conflict (par. 204). .This may be in line with its extensiveinterpretation of Artic1e 8 paragraph 2 sub b (xxvi), lee Statute but this interpre-

°tation i8, asargued above, hardly reconcilable with the wording of this provisionand therefore with the nullum crimen principle. Ir one 'considers Article 8 para­graph 2 sub b (xxvi), lee Statute as a "different .crime" within themeaning ofArticle 61, paragraph 7 sub c (ii), K'C Statute the plain wording of this provisionsuggests that a Chamber exceeds, as submitted in casu by the Prosecutor?", thescope of its authority and interferes with the Prosecution's autonomy to deter­mine which erimes should be charged and prosecuted if it amends the °chargespropria motu.ln case of a "different crime" in this sense only the Prosecutor

69. TeC, Submission of the Document Containing the Charges pursuant to Article 61(3)(a)and of the List ofEvidence pursuant to Rule 121(3), Prosecutor v. Lubanga, Doc. No. TCC-01/04­

01/06-356,28 August2006, par. 12.

70. K'C, Application for Leave to Appeal Pre-Trial Chamber I's29 January 2007 "Decision

sur la confirmation des charges", Prosecutor v. Lubanga, Doc. No. ICC-01/04-01l06-80f), 5 Febru­

ary2007, par. 11; K'C, Prosecution's submission regarding the subjects that require early determi­

nation: status ofthe evidenceheard by the Pre-Trial Chamber; status ofthe Pre-Trial Chamber; and

manner in which evidence shall be submitted, Prosecutor v. Lubanga, Doc. No. ICC-Ol/04-0Y06­

953,12 September 2007, par. 17.

996 Kai Ambos

rnay amend the charges, a Pre-Trial Chamber has no right to modify the legalcharacterisation of the crimes71. On the other.hand, one may argue, as doneelse­where'", that the iura novit curia ("the judge knows the law") principle estab­lished in Regulation 55 ofthe Regulation ofthe Court" could also be applied tothe confinnation hearing (although,on the faceofit,-Regulation 55 only appliesto the trial phase) and, consequently, the Pre-Trial Chamber is in its right .if itamends the charges proprio motu. Admittedly, this issue, especially with regardto the interpretation of"a different crime" is open to further discussion?".

The further argument against the Chamber's approach, name1y that it in­creases the workload of the Prosecutor since he has now to prove to the TrialChamber that the conflict in Ituri had an international character'", is not convinc­ing. Even if the Prosecution fails to prove the international character of thearmed conflict, the Chamber may convict Lubanga for the charged offencescommitted in a non-international armed conflict, as long as these offences areencompassed by the facts and the circumstances as described in the (original)charges'". In addition, it might be possible for the Prosecution to withdraw cer­tain elements of acharge during the trial, including the characterisation of therelevant armed conflict as international?". In sum, the Chamber's modificationshave only an insignificant impact on the work ofthe Prosecutor".

2. Principle oflegality and mistake 011aw (par. 294-316)

The Defenceargued that the principle of legality requires that the perpe-

71. Lubanga Application for Leave, supra note 70, par. 12.72. AmboslMiller, supra note 28, at 358 et seq, (360).73. The Regulations have been adopted by the judges on 26 May 2004, ICC-BD/0l-OI-04.

Pursuant to Regulation 55 the Trial Chamber is empowered, "in its decision under Article 74" (i.e.at the trial phase), to modify the legal charaeterisation ofthe facts.

74. See e.g. Ochoa, supra note 50, p. 57 et seq; Drumbl, supra note 35, p. 847 et seq.; Bekou,

supra note 43, at p. 344 et seq., 355.75. de Beco, supra note 43, p. 326.76. ICC, Decision on the status before the Trial Chamber of the evidence heard by the Pre­

Trial Chamber and the decisions of the Pre-Trial Chamber in trial proceedings, and the manner inwhich evidence shall be submitted, Prosecutor v. Lubanga, Doc. No. TCC-Ol/04-0l/06-1084, TC I,13 December 2007, par. 47.

77. This possibility is left open in ICC, Decision on the status before the Trial Chamber ofthe evidence heard by the Pre-Trial Chamber and the decisions of the Pre-TrialChamber in trialproceedings, and the manner in which evidence shall be submitted, Prosecutor v. Lubanga, Doc.No. ICC-OI/04-0l/06-1084, TC 1,13 December2007, par. 45.

78. K Shibahara/W. Schabas, in: Triffterer, supra note 42, Article 61 mn. 19.

The first confirmation decision ofthe International Criminal Court 997

trator is aware 01 the existence 01 the relevant crime. Given the fact that neitherUganda nor the Congo "brought to the knowledge of the inhabitants of Ituri thefact that the Rome Statute had been ratified" (par. 296), the Defence concluded

. that Lubanga could not have known of the prohibition of enlisting or conscript­ing children andtherefore his conviction would violate theprincipleof legality.This argument is based on a misunderstanding of the principle of legality. Thisprinciple only requires, objectively, the codification of the crimes charged at thetime of their commission (Artic1e 22, paragraph I ICe Statute) independent ofthe accused's awareness of this codification. In casu, the crimes were allegedlycommitted after 1 July 2002 (the entry into force of the K'C Statute) and weredefined with sufficient c1arity. Consequently, the principle oflegality cannot be avalid defence. The Chamber is right indismissing the flawed argumentation ofthe Defence (par. 303)79.

The true significance ofthe Defence's argument lies in the possibility of amistake of law because of ignorance of the prohibition of the relevant conduct,Yet, Article 32 paragraph 2, ICC, Statute is based on the error iuris non nocetrule, i.e., amistake of law i8 irrelevant unless it negates the mental element re­quired by such a crime. Accordingly, in the Chamber's view, amistake of lawmay only exclude criminal responsibility if the suspect "was unaware of a nor­mative objective element of the crime as a result of not realising its social sig­nificance (its every day meaning)" (par. 316)80. Thus, only a mistake about nor­mative elements of a crime may be rclcvantvFor example, Lubanga may havearguedthat he was aware of the general prohibition of enlisting and conscripting

, children but was convinced that this provision was only applicable to the forciblerecruitment of children--. In any case, the Chamber does not analyse Artic1e 32 .paragraph 2, lee Statute in further detail but rejects the Defences submission onfactual grounds. In the Chamber' s view the presented evidence does not "showthat Thomas Lubanga Dyilo might have made any such mistake in the context inwhich the crimes were committed" (par. 316).

79. See also T. Weigend, lntent, Mistake ofLaw, and Co-Perpetration in the Lubanga Deci­

sion on Confirmation ofCharges, 6 Journal of InternationalCriminal Justice 2008, p. 474.

80. Critically Weigend, supra note 79, p. 475.81. Cf. K. Ambos, Der Allgemeine Teil des Völkerstrafrechts, Duncker & Humblot, Berlin

2002 p. 811 et seq.; id., supra note 34, § 7 mn. 103.

82. See T. Weigend, supra note 79, p. 475.

998 Kai Ambos

3. Criminal responsibility (par. 317-348)

The main part of the decision deals with the criminal responsibility ofLubanga. In the Chamber's view, a11 fonns of accessory liability provided for inArtic1e 25, paragraph 3 sub b to d, lCC Statute are completely absorbed in theconcept of co-perpetrationwithin the meaning ofsub a; alt. 2 (par. 321). Whilethe .Chamber analyses the ICTY's development of the doctrine of joint criminalenterprise ("jce")83 it finally adopts the liabilitymode of co-perpetration in a nar­row sense. In the Chamber's view, "[t]he concept of co-perpetration based onjoint control over the crime is rooted in the principle of the division ofessentialtasks for the purpose of committing a crime between two or more persons actingin a concerted manner. Hence, although none of theparticipants has overall con­trol over the offence because they a11 depend on one another for its commission,theya11 share control becauseeach ofthem cou1d frustrate thecommission ofthecrime by not carrying out his or her task" (par. 330).

On an objective level the Chamber establishes two requirements, name1ythe existence of an agreement or common plan between two or more persons(par. 343-345) and a co-ordinated essential contribution by each co-perpetratorresulting in the realisation of the objective elements of the crime (par. 346-348).As to the subjective side, the Chamber generally states the obvious, i.e., that thesuspect must fulfil the subjective elements of the crime in question (par. 349­360). More concrete1y, the suspects must a11 be mutually aware and mutually ac­cept that implementing their common plan may result in the realisation of the ob­jectiveelements of the crime (par. 361-365); they must be aware of the factualcircumstances enabling him or her to jointly control the crime (par. 366-367). Inessence, the Chamber adopts the German doctrine of "functionalcontrol overthe

aet" ("funktionelle Tatherrschaft")84. This approach is based on the doctrine ofthe "control of the act" (Tatherrschaft)85 and allows for a reasoned distinctionbetween perpetrators on the one and accessories on the other hand'<,

83. ICTY, Judgment, Prosecutor v. Tadie, Case No. IT-91-1-A, AC, 15 July 1999, par. 196­

20 L For a critical analysis see K. Ambos, Joint criminal enterprise and conunand responsibility, 5

Journal ofInternational Criminal Justice, 2007, 159.84. See also H. Satzger, Internationales und Europäisches Strafrecht, 3rd ed. Nomos, Baden­

Baden2009, § 14 rnn. 54; K. Ambos, in Triffterer, supra note 42, Article 25 special print, mn.9a;

Weigend, supra note 79, p. 479 and the fundamental work of C. Roxin, Täterschaft und Tatherr­

schaft, 8th ed.,de Gruyter, Berlin 2006, p. 275 et seq., 719 et seq.

85. Cf. H. 016so1o, Developments in the distinction between principal and accessorialliabil­

ity in light of the first case law of the leC, in Stahn/Sluiter, supra note 10, 339, at 351 et seq. with

further references.

86. See Weigend, supra note 79, p. 478; Olasolo, supra note 85, at 343 et seq. who identifies

Thefirst confirmation decision ofthe International Criminal Court 999

The Chamber does not eonsider that the ability to exercisejoint control overa crime is linked to a performance at the execution stage (par. 348). Yet, theChamber' s reasoning is flawed in that it only refersto the Statute ovcrlookingthat positive lawdoes not rariswer this question. Indeed, the scope of co­perpetration liability .isa c1assicaldoctrinal problem which requires an informedand eritical discussion of the different positions taken by the case law andbyscholars'".

Briefly, the Chamberalso deals with the commission of crimes through an­other person pursuant to Artic1e 25, paragraph J sub aalt. 3, lCe Statute.Thisform of perpetration presupposes, in its classical form, that the person whocommits the crime ("intermediary", "intennediaire", "Tatmittler")can be used as_an instrument or tool by the indirect perpetrator ("auteur mediat") as the master­mind or "man in the background" ("Hinterrnann")88. He or she isnormally an in­nocent agent, not responsible for the criminal act. However, especially in thefield of "macrocriminality", i.e., systematie or mass criminality organized, sup­ported or tolerated by the state'", the direct perpetrator or executor normally per­forms the act with the necessary mens rea and is fully aware of its illegality.Thus, the question arises ifperpetration by means always presupposes that thedirect perpetrator has a "defeet", or if this construction is also possible with afully responsible or cu:lpable direct perpetrator, i.e., in the case of a ,,(indirect)perpetrator behind the (direet) perpetrator" ("Täter hinter dem Täter")?". Theconvincing answer of the Chamber is in the affirmative (par. 339). This view issupported by the wording of Article 25, paragraph 3 sub a leC Statute'" and thesubsequent recent Katanga/Chui confirmation deeision which dealt with this

this distinction already in the Nurernberg and ICTY case law.87. See thereto Ambos, supra note 81, p. 565 et seq,88. For a detailed analysis with further references see Ambos, supra note 84, Article 25 mn.

10. - As to terminology it 19 worthwhile pointing out that M Bohlender employs in his recenttranslation of the German Criminal Code (The German Crirninal Code -A Modern English Trans­lation, Hart Publishing, OxfordfPortland, 2008, at §84) the term "hinterman" referring to otherwords borrowed from German into English tenninology, such as "hinterland", which suggest thatEnglish native-speakers will be familiar with the connotations of the prefix "hinter-" and be able töadapt it to new combinations.

89. See H. Jäger, Makrokriminalität. Studien zur Kriminologie kollektiverGewalt, Suhrkamp,Frankfurt a. M. 1989.

90. To the relevant discussion in Germany see Roxin, supra note 84, p. 252 et seq.91. A. Eser, Individual Responsibility, in: A. Cassese/P. Gaeta/J. Johns (eds.), The Rome

Statute of the International Criminal Court: A Commentary - Volume I, Oxford University Press,

Oxford 2002, p. 794; Ambos, supra note 84, Article 25 mn. 13.

1000 Kai Ambos

theory in much more detail'". It is also confirmed by national case law. Regard­less of the full criminal responsibility of the executor the "Hintermann" was heldhable in cases in which he dominates the direct perpetrators by way of a hierar­chical organisational stmcture, i.e., where be OI she has "Organisationsherr­schuft?", This doctrine basbeen recognised and appliedseveral .times.by na­tional tribunals (Eichmann?', Argentinean .Generals'", East German border kill­ings'"); most recently, the former Peruvian president Alberto Fujimori was sen­tenced on the basis of this theory for 25 years of imprisonment for killings, bod­ily injuries and kidnappings committed during his presidency"?..

The Chamber c1early dissociates itself from the jurisprudence of the ICTY.Before deciding on the ''joint contro}" as the central element of co-perpetrationthe Chamber has discussed and dismissed a pure objective as weIl as a pure sub­jective approach (par. 326-329). Here again,the Chamber is obviously inspiredby the German doctrine and discussion'". More importantly, however, the Cham­ber associates the jce doctrine with the dismissed subjective approach. Appar­ently, with this approach the Chamber dissociates itselffrom the jce doctrine, atleast as far as it goes beyond mere co-perpetration in the sense of Article 25,paragraph 3 sub a, ICC Statute, i.e., in its systemic (jce II) and extended fonns(jce III). It remains to be seen ifthis first decision heraIds the end of the most no­torious innovation ofthe ad-hoc Tribunals'".

92. Prosecutor v. Katanga and Ngudjolo, supra note 53, para. 500 et seq. ("controlover the

organisation"), 511 et seq. ("organised and hierarchical apparatus ofpower"), 515 et seq. ("execu~

tion ofthe crimes secured by almost automatie compliance with the orders").

93. See Roxin, supra note 84, p. 242 etseq., 704 et seq.;for a further discussion see Ambos,

supra note 81, at590 et seq.; id., supra note 34, § 7 mn. 25 et seq.; id., supra note 84, Article 25mn. 10-11.

94. Jerusalern District Court, 12 December 1961, 36 International Law Reports, p. 236-37par. 197.

95. Cämara Nacional de Apelaciones en 10 Criminal y Correccional de la Capital, 9 Decem­

ber 1985, 309-I/II, Coleeeion Oficial de Fallos de 1a Corte Suprema de Justicia de la Nacion ("Fal­

los") 33-1657, at 1601-02.

96. BGRSt 40, 218 (Offieial eolleetion of the Supreme Court judgements in eriminal mat­

ters) at p. 236 et seq.; for the subsequent ease law see BGRSt 45, 270, 296; BGHSt 48, 331;

BGRSt 49, 147; BOR, Neue Zeitschrift für Strafrecht 2004, 457, 458 and Neue Zeitschrift für Stra­

frecht 2008, 89.

97. Corte Suprema de Justicia de La Repüblica, Sala Penal Especial, Sentencia del 7 abril de

2009, Exp. No. A.V. 19-2001, parte III cap. TI ("autoria mediata").

98. See the diseussion in Roxin, supra note 84, p. 34 et seq.

99. See also Weigend, supra note 79, p. 478.

The [irst confirmation decision ofthe International Criminal Court 1001

In the result, the Chamber holds Lubanga responsible as a co-perpetrator.In its view, the kind of contral exercised by Lubanga did not meet the necessarythreshold for indirect participation (especiallypar. 374), i.e. perpetration bymeans (mittelbare Täterschaft). In contrast, in another decision the Chamberstated"thatthere are reasonable groundsto believe that, giventhe alleged hier­archal relationship between Mr Thomas Lubanga and other members of the UPCand the FPLC, the concept of indirect participation [... ]couldbe applicable"100.

.While the Chamber is not bound by its previous decisions, there are also severalhints in the confinnation decision witb regard to Lubanga's significant control.For example, the Chamber states timt Lubanga "had the final say over the adop­tion of FLPC policies" (par. 376) and "played a key overall co-ordinating role"(p. 138)~ This seems to indicate that Lubanga was in a position to dominate thedirect perpetrators by way ofthe hierarchical organisational structure, i.e., that heexercised "Organisationsherrschaft " as an indirect perpetrator. The Chamber

. should have avoided theseinconsistencies bydrawing a clear line between co­perpetration and perpetration by means.

4. Subjective requirements 01co-perpetration and intent (par. 349-367)

Pursuant to Artic1e 30, paragraph 1, ICC Statute the suspect has to act withintent andknowledge. In theChamber's view, this provision coversthe dolus di­rectus of the first degree, the dolus directus of the second degree andthe doluseventualis (par. 351-352). However, given the great number of different conceptsund definitions of dolus eventualis it is not possible to decide about its inclusionin Article 30 lee Statute without having, in advance, clarified the concept ordefinition used'?'. This implies comparative legal groundwork which again isomitted by the Chamber.

Contrary to Article 30, paragraph 1, lee Statute the relevant elements ofcrimes (Elementno. 3 of Art. 8 (2) (b) (xxvi) and 8 (2) (e) (vii)) provide that theperpetratorknew or should have known that such person orpersons were underthe age of 15 years. This different standard was adopted because the delegateswere eoncerned that astriet application of the knowledge element of Article 30

100. ICC, Decision on the Prosecution's Application for a warrant of arrest, Prosecutor v.

Lubanga, Doc.No. ICC-01l04-0l/06-'8, PTC 1, 9 March 2006, par. 96.101. For a different view See e.g. Ambos, supra note 81, p. 770; id., supra note 81, § 7 mn.

67; A. Eser, Mental Elements - Mistake of Fact and Mistake of Law, in: Cassese/Gaeta/Jones, su­

pra note 91,po 932 with furtherreferences.

1002 Kai Ambos

lce Statute would impose too high aburden of proof on the prosecution'F. Per­sons should not be able to avoid criminal responsibility by refusing to take anysteps to verify the age of persons in the armed forces-'". The application of theconcept of negligence seems to be an indispensable precondition for the effectiveprosecution ofcrimes conceming child soldiers. Accordingly, the Chamber holdsthat the subjective elernent is fulfilled ifthe suspect "did not know that the vic­tims were under the age of fifteen [... ] and lacked such knowledge because he orshe did not act with due diligence in the relevant circumstances" (par. 358).11 isquestionable if this approach is consistent with the ICC Statute. Pursuant to Arti-

eIe 30, paragraph 1, leC Statute, the general subjective element applies to anycrime unless another standard is provided for. The classical example of such adifferent (lower) standard is the should-have-known-requirement in commandresponsibility (Article 2S"ICe Statute). It is, however, questionable if such a dif­ferent stand can also follow from a source different from the Statute, in particu­lar, as in this case, from the Elements of Crimes. The issue was discussed con­troversially during the Rome Conference and the negotiation of theElements ofCrimes and is stilIunresoIved. While Article 9, paragraph 3, ICe Statute classi­fies the Elements as a subsidiary sourceof law, clearIy inferior to the Statute, Ar­ticle 2I} paragraph 1 sub a, lee Statute seems to put the Statute, the Elementsand the Rules on an equal footing''". The Chamber adopts this Iatter view butagain does not give any appropriate reasoning for its choicel'". In any case, ulti­mately, thisissue has no impact on the Chamber's decision since it considers thatthe subjective requirements of co-perpetration render the should-have-known­standard in casu inapplicable. Thus, all perpetrators must be "mutually aware of

102. See C Garraway, Artic1e 8 (2) (b) (xxvi) - Using, Conscripting or Enlisting Children,

in Lee, supra note 51, p. 207.

103. See Amnesty International, The International Criminal Court: Preliminary comments

conceming the elements of war crimes other than grave breaches of the Geneva Conventions - Part

I, July 1999, AI Index: IOR 40/11199, p. 13; Human Rights Watch, Commentary to the Second

PreparatoryCornmission on RulesofProcedure and Elements ofCrimes, July 1999, p. 24;Palomo

Sudrez, supra note 49, pp. 177-78.

104. See M Kelt/H. von Hebel, General Principles of Criminal Law and the Elements of

Crimes, in Lee, supra note 51, p. 29 et seq.; D. K. Piragoff/I). Robinson, in Triffterer, supra note

42, Art. 20 mn. 14;Weigend, supra note 79, p. 473. For arecent discussion O. Triffterer, Can the

"Elements of Crimes" narrow or broaden responsibility for crirninal behavior defined in the Rome

Statute?, in: Stahn/Sluiter, supra note 10, 381 et seq. arguing (at 384) that in case of an "obviousdeviation" the Statute definition of a crime must prevail while in cases of ambiguity of this defini­

tion the Elements may prevail if they are more favourable to the suspect ("narrowing Elements").

105. See also Weigend, supra note 79, p. 474.

The first confirmation decision 0/the International Criminal Court 1003

and mutually accept, the likelihood that implementing the common plan wouldresult inthe realisation of the objective elements of the crime" (par. 356): Thisleads to the somewhat paradox result that the subjective threshold for co­perpetrators is higher than fo; ~o single perpetratorsacting in parallel without acomrnonplan. These different standards may leadtoan unequaltreatment ofpractically identical conducts.

c. Conclusion

In its very first decision on substantive law, the Chamber emancipated itselffrom the ad-hoc Tribunals and made thereby clear that a new area of interna­tional criminallaw has begun. However, the decision suffers inlarge parts froma lack of sufficient reasoning and comparative research and thus reminds us ofthe old regrettable pattern of the case law of the ad-hoc Tribunals. It is hopedthat the Chambers will spend in the future more energy and resources on a betterrcasoning of their decisions and enrich thernwith thenecessary comparative lawanalysis.