Case No. ICC-01/04/01/06Judgment on the appeal of Mr. Thomas Lubanga Dyilo against his conviction
December 1, 2014
Convicted under Article 8(a)(e)(vii) of the Rome Statute and Appealed from the Trial Judgment
On December 1, 2014, the Appeals Chamber of the International Criminal Court (ICC) issued two judgments in the case against Thomas Lubanga Dyilo: one relating to his conviction and the other relating to his sentence. Lubanga was convicted by the Trial Chamber on March 14, 2012 for war crimes committed in the Democratic Republic of Congo (DRC) from September 1, 2002 to August 13, 2003. Specifically, he was convicted pursuant to Article 8(2)(e)(vii) of the Rome Statute for the war crimes of enlisting and conscripting children under the age of fifteen into an armed force and actively using them to participate in hostilities. On July 10, 2012, the Trial Chamber sentenced Lubanga to fourteen years imprisonment, allowing the time spent in ICC custody in The Hague to be deducted from the total sentence. Lubanga appealed both the conviction and the sentence; the Prosecutor appealed the sentence. In each judgment, a majority of the Appeals Chamber rejected all grounds of appeal and confirmed the holding of the Trial Chamber.
Majority Decision on Lubanga’s Conviction
Lubanga’s first ground of appeal was that his right under Article 67(1) of the Rome Statute “to be informed in detail of the nature, cause and content of the charges” against him had been violated. This claim was based on the fact that, in its judgment, the Trial Chamber excluded the evidence provided by each of the nine child soldiers relied upon by the Prosecution in its Document Containing the Charges to support the allegations against the accused. While the Trial Chamber found other evidence to support the charges, Lubanga claimed that this additional evidence was insufficiently detailed in the Document Containing the Charges. In assessing this claim, the Appeals Chamber first confirmed that, pursuant to Article 67(1) of the Rome Statute, the Prosecutor must provide the accused with “details as to the date and location of the underlying acts [for which he is charged] and identify the alleged victims to the greatest degree of specificity possible in the circumstances.” However, on the question of “where and how the detailed information about the charges is to be provided to the accused,” the Appeals Chamber rejected the notion that such information must be contained in the Document Containing the Charges given to the accused prior to the confirmation hearing. Rather, the Chamber held that, in assessing whether sufficient notice has been provided to the accused, it must consider “all documents that were designed to provide information about the charges,” including “auxiliary documents” provided to the accused prior to the start of the trial hearing. In this case, the Chamber noted that Lubanga’s appeal referred primarily to the initial Document Containing the Charges submitted by the Prosecution, with some cursory references to the Pre-Trial Chamber’s Decision on the Confirmation of Charges. However, the Chamber did not refer to details included in the Amended Document Containing the Charges and Summary of Evidence submitted by the Prosecution to the Trial Chamber prior to the start of trial. The Appeals Chamber held that Lubanga “should have substantiated his submissions by reference to these latter documents” and declined to “conduct proprio motu an exhaustive review of the charging documents and relate the information contained therein to the findings” of the Trial Chamber in its judgment. Furthermore, the Appeals Chamber noted that Lubanga failed to establish that he was “materially impaired” by the Trial Chamber’s reliance in its conviction on evidence presented at trial that was not sufficiently detailed in the Document Containing the Charges. Accordingly, a majority of the Appeals Chamber, Judge Anika Ušacka dissenting, dismissed the ground of appeal.
In another ground of appeal, the Defense challenged the process by which the Trial Chamber determined the ages of the children allegedly recruited by Lubanga for active use in hostilities. In determining that Lubanga had recruited and used children under the age of fifteen in his army, the Trial Chamber relied on: (i) video footage; (ii) non-expert testimony from individuals who said they had seen children who appeared to be under fifteen in the ranks of Lubanga’s army; (iii) the testimony of one witness who had interviewed former child soldiers and asked about their ages; and (iv) one piece of documentary evidence. The Defense raised several related challenges to the Trial Chamber’s approach, essentially arguing that the Chamber acted unreasonably in relying on these sources to determine guilt beyond a reasonable doubt. In response, the Appeals Chamber engaged in a detailed review of the Trial Chamber’s findings with respect to each type of evidence and determined that the lower court did not act unreasonably. Thus, in line with the standard of review holding that the Appeals Chamber “will not interfere with factual findings of the first-instance Chamber unless it is shown that the Chamber committed a clear error, namely, misappreciated the facts, took into account irrelevant facts, or failed to take into account relevant facts,” a majority of the Appeals Chamber dismissed Lubanga’s challenge. Again, Judge Ušacka dissented from this holding.
Among the other challenges raised by the Defense were the claims that: (i) the Trial Chamber erred in dismissing Lubanga’s request for a permanent stay in proceedings, which was based, inter alia, on a number of alleged violations of the Prosecutor’s statutory obligations to disclose exculpatory material and investigate exonerating circumstances; (ii) the Trial Chamber erred in its assessment that children were forcibly conscripted into Lubanga’s army and that they were “actively” used in hostilities; and (iii) the Trial Chamber’s findings in relation to Lubanga’s individual criminal responsibility as a co-perpetrator. The Appeals Chamber dismissed each of these claims unanimously.
Dissenting Opinions on Lubanga’s Conviction
Judge Sang-Hyun Song and Judge Ušacka each issued a separate opinion in relation to Lubanga’s conviction. For his part, Judge Song issued an opinion dissenting in part, agreeing with the majority’s decision to reject all of the Defense’s grounds of appeals, but asserting the view, proprio motu, that Article 8(2)(e)(vii) of the Rome Statute requires that the conscription, enlistment, and use of child soldiers be treated as one crime, not three. In support of his view, Judge Song pointed to the ICC’s Elements of Crimes, which contains an explanatory note stating that, where “paragraphs of those articles of the Rome Statute list multiple crimes … the elements of crimes appear in separate paragraphs which correspond to each of those crimes to facilitate the identification of the respective elements.” Because the Elements of Crimes does not separate the three types of conduct contained in Article 8(2)(e)(vii) into separate paragraphs, Judge Song believed that “it can be concluded that the drafters of the Elements of Crimes did not consider them to be separate offences.” Judge Song also observed that the prohibition of the three types of conduct serve the same purpose, “namely to keep children under the age of fifteen years away from harm associated with armed conflict,” and thus it is “unnecessary to make a finding that this provision contains three different offences.” Finally, Judge Song reviewed certain aspects of the drafting history of Article 8(2)(e)(vii) and concluded that “the drafters’ focus was clearly on delineating the modalities of conduct of one and the same crime, as opposed to setting out different offences.”
By contrast to Judge Song’s partial dissent, Judge Ušacka issued a dissent from the majority’s findings on two of Lubanga’s grounds of appeal and stated that, in light of her conclusions, she was of the opinion that the conviction “as a whole” should not stand. The first holding of the majority with which Judge Ušacka took issue was the decision to dismiss Lubanga’s appeal pursuant to Article 67(1) of the Rome Statute. Specifically, Judge Ušacka found that “the factual detail in the charges against Mr Lubanga was sufficient only in respect of the nine children who were allegedly conscripted, enlisted and used in hostilities by” Lubanga’s army and, because these nine cases were excluded from evidence by the Trial Chamber, “Mr
Lubanga was convicted of charges that were insufficiently detailed.” Stressing that it was “entirely unforeseeable” at the start of trial that the Trial Chamber would exclude the evidence of the nine child soldiers, Judge Ušacka observed that even the Prosecution focused on these individual cases through trial and in its final submissions. Judge Ušacka did not appear to take issue with the majority’s holding that the required details about the charges against the accused may be provided through a series of documents leading up to the start of trial. However, she concluded that, in this case, Lubanga never received the requisite detail regarding the nature, cause, and content of the charges beyond the information regarding the individual nine soldiers whose evidence was excluded. Thus, in Judge Ušacka’s opinion, Lubanga’s right to be informed of the charges against him “was violated to such an extent that it was utterly impossible for him to defend himself against the charges presented.”
Second, Judge Ušacka agreed with the Defense that the age element of the offense had not been established beyond a reasonable doubt. Indeed, Judge Ušacka found several problems with the Trial Chamber’s approach to the relevant evidence for this element. For instance, in relation to the testimony of various witnesses who claimed that they saw children who appeared younger than fifteen years of age in Lubanga’s army, Judge Ušacka observed that, “rather than assessing the reliability of each age estimate given by a witness, the Trial Chamber assessed in the abstract the ability of each witness to estimate the ages of the children that they saw.” Furthermore, it appeared to Judge Ušacka that “the Trial Chamber unquestioningly accepted any evidence given by [those witnesses] that they had seen a child who appeared to be under the age of fifteen, often in the absence of any explanation by the witness as to how they made that evaluation.” She also stressed the difficulty of assessing age exclusively by physical appearance and concluded that none of the video excerpts viewed by the Trial Chamber displayed children “manifestly” under the age of fifteen. Ultimately, emphasizing that “the accused must always be given the benefit of any doubt as to the proof of guilt,” Judge Ušacka concluded that the Trial Chamber’s judgment “simply lacks a sufficient convincing evidentiary basis for the age element of the crimes.”
In light of her findings on these two issues, Judge Ušacka would have reversed Lubanga’s conviction altogether.
Majority Decision on Sentencing
As stated above, both the Defense and the Prosecution appealed the Trial Chamber’s sentence. For its part, the Prosecution alleged: (1) the sentence was disproportionate to the crimes due to the failure of the Trial Chamber to consider all factors in assessing the gravity of the crimes, (2) the Trial Chamber failed to consider Lubanga’s abuse of authority as an aggravating circumstance, and (3) the Trial Chamber generally erred in its assessment of aggravating circumstances. However, the Appeals Chamber dismissed each of these claims, finding in each instance that the Trial Chamber acted within its discretion.
The Defense challenged the sentence based on: (1) the Trial Chamber’s consideration that Lubanga’s crimes were committed on a widespread basis, despite the fact that the Chamber never assessed the precise number or proportion of recruits under the age of fifteen; (2) the failure of the Trial Chamber to take into account the violations of Lubanga’s rights by the Prosecution; and (3) the failure of the Chamber to deduct time he served in prison in the DRC from his sentence. The Defense also lodged a complaint regarding the Trial Chamber’s finding that it could consider facts and circumstances beyond those contained in the Decision on the Confirmation of Charges in its sentencing decision, although the Defense expressly stated that it was not formally lodging an appeal in respect of that holding as the Trial Chamber’s consideration of such evidence did not affect the sentence. The Appeals Chamber dismissed the first claim on the ground that the Trial Chamber had a reasonable basis to determine the crimes were widespread. Second, the Appeals Chamber found that Lubanga was not entitled to an automatic reduction in sentence in relation to various failings by the Prosecution because those failings did not amount to a violation of his fundamental rights. Furthermore, the Appeals Chamber noted that the Trial Chamber took into account, as a mitigating factor, the fact that the accused was “respectful and cooperative throughout the proceedings, notwithstanding some particularly onerous circumstances,” after which it referred to several shortcomings of the Prosecution. Thus, the Appeals Chamber held that the Trial Chamber acted within its discretion. Third, the Appeals Chamber held that Lubanga failed to link his detention in the DRC with the crimes for which he was convicted at the ICC, and thus found that the Trial Chamber did not err in failing to deduct time spent in prison in the DRC from his ICC sentence. Finally, the Appeals Chamber dismissed the Defense’s challenge regarding consideration of facts and circumstances not contained in the Decision on the Confirmation of Charges in limine because it was not properly raised as a ground of appeal.
Dissenting Opinion on Sentencing
Once again, Judge Song agreed with the majority of the Appeals Chamber that the appeals of the parties should be rejected. However, he wrote separately to express his view that the Appeals Chamber should have taken the opportunity of its decision in this case to provide guidance to the Trial Chambers generally regarding the interaction between the sentencing factors listed in Article 78(1) of the Rome Statute and those found in Rule 145(1)(c) of the Rules of Procedure and Evidence. Specifically, Judge Song would have made clear that several of the specific factors mention in Rule 145(1)(c), including 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; and the circumstances of manner, time, and location of the crime” should be considered in the context of the gravity of the crime. The remaining factors including the “age, education, social and economic condition of the convicted person should be considered in the context of the individual circumstances of the convicted person.” In addition, consistent with his view that Article 8(2)(e)(vii) of the Rome Statute constitutes a single offense as opposed to three separate offenses, discussed above, Judge Song wrote that the Trial Chamber should have entered a single sentence and taken account the various ways in which the crime was enacted in its assessment of gravity. Judge Song did not state whether this approach would result in a sentence different from that handed down by the Trial Chamber.
 Rome Statute of the International Criminal Court, Art. 67(1).
 International Criminal Court, Public redacted Judgment on the appeal of Mr Thomas Lubanga Dyilo against his conviction, ICC-01/04-01/06-3121-Red, ¶ 123 (Dec. 1, 2014).
 Id. ¶ 124.
 Id. ¶¶ 128-29.
 Id. ¶ 134.
 Id. ¶ 135.
 Judge Ušacka’s dissent is discussed in detail below.
 Id. ¶ 21.
 Id., Partially Dissenting Opinion of Judge Sang-Hyun Song, ¶ 5 (quoting ICC Elements of Crimes, p. 1).
 Id. ¶ 6.
 Id. ¶ 8.
 Id., Dissenting Opinion of Judge Anita Ušacka, ¶ 79.
 Id. ¶ 1.
 Id. ¶ 20.
 Id. ¶ 29.
 Id. ¶ 30.
 Id. ¶ 67.
 Id. ¶ 79.
 International Criminal Court, Judgment on the appeals of the Prosecutor and Mr Thomas Lubanga Dyilo against the “Decision on Sentence pursuant to Article 76 of the Statute,” ICC-01/04-01/06-3122, ¶ 108 (Dec. 1, 2014).
 Article 78(1) of the Rome Statute states: “In determining the sentence, the Court shall, in accordance with the Rules of Procedure and Evidence, take into account such factors as the gravity of the crime and the individual circumstances of the convicted person.”
 Rule 145(1)(c) of the Rules of Procedure and Evidence states: “In addition to the factors mentioned in article 78, paragraph 1, [the Court shall] 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 behaviour 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.”
 Id., Partially Dissenting Opinion of Judge Sang-Hyun Song, ¶ 3.