Saturday, 14 June 2014

Some thoughts on the Ntaganda and Gbagbo confirmation of the charges decisions at the ICC

The International Criminal Court has issued two confirmation of the charges decisions this week - in the case of Laurent Gbagbo, on 12 June, and Bosco Ntaganda, on 9 June

The length taken to issue these decisions is notable in light of the Court's Regulation 53, which states that the decision on the confirmation of the charges 'shall be delivered within 60 days from the date the confirmation hearing ends.' By my count, 469 days passed in the Gbagbo case between the last date of the confirmation hearing (28 February 2013, although a decision adjourning the confirmation hearing and requesting further information was issued on 3 June 2013) and the issuance of this decision. While the Ntaganda Chamber did slightly better (115 days from the final date of the confirmation hearing), the blatant disregard for a Regulation clearly designed to protect the right of the accused to trial without undue delay is notable. Indeed, it seems that only the Lubanga and Katanga confirmation decisions have comported with this time limit to date.

In both of the most recent confirmation decisions, we see an implicit discomfort with the recent Regulation 55 debacle in Katanga. Both decisions opted to confirm the Prosecutor's request to cumulatively charge the accused with a number of potential modes of liability, ultimately leaving it up to the Trial Chamber to decide which (if any) mode of liability most appropriately fits the conduct of the accused. This move was motivated by the need to ensure 'judicial efficiency', per the Ntaganda Pre-Trial Chamber (para 99), and 'taking stock of the past experiences of the Court', according to para 228 of the Gbagbo Pre-Trial Chamber. Doubtless, cumulative charging is likely to avoid the repetition of another disastrous application of Regulation 55 (although the Gbagbo Chamber was careful to avoid excluding this possibility), and to that extent, might assist in ensuring that the accused is fully informed of the charges against him or her, as well as avoiding delay later in the process. However, it might seem that the Prosecutor's move to confirm several modes of liability as potential bases for criminal liability highlights some uncertainty as to the most appropriate mode of liability.

This is perhaps highlighted in the finding of the Gbagbo Chamber on common purpose liability pursuant to Article 25(3)(d). At para 231, the Chamber noted that 'violence against civilians, while not in itself the ultimate goal of Laurent Gbagbo and his inner circle, was a criminal element inherent to the common plan to stay in power at any cost.' Pursuant to Article 25(3)(d)(i), the individual charged with this form of liability must have contributed to the common purpose of the group 'with the aim of furthering the criminal activity or criminal purpose of the group.' This formulation suggests that the common purpose of the group must be primarily criminal in nature. Presuming, arguendo, that this is not the case, it is clear that the accused's conduct must be directed to the perpetration of crimes by the group. Of the seven categories of evidence referred to on this point, only one ('Gbagbo's public statements which indicate an intention to hold on to power at any cost, including by use of force against civilians') explicitly links the accused to the crimes committed. Judge van den Wyngaert, in a dissenting opinion, was unconvinced of the sufficiency of the evidence on this point. This was despite the fact that the confirmation decision was adjourned last year, given the prosecution's excessive reliance on hearsay evidence and NGO reports. It is perhaps beside the point, but worthy of note, that the 3 June 2013 decision arises out of one of the provisions of the ICC Statute that, in my view, has the greatest potential for unfairness - Article 61(7)(c), which permits the Pre-Trial Chamber to adjourn the confirmation hearing and request further evidence from the Prosecutor (but not the defence!). Article 61(7)(c) results in an inequality of arms, and effectively offers the prosecution a second chance to meet the 'substantial grounds to believe' threshold.

On a more positive note, the finding in the Ntaganda decision that war crimes can be committed against those taking part in hostilities on the same side as the perpetrator (paras 76-82) is to be welcomed. The defence had appealed to the purpose of IHL, which was devised to protect those taking part in hostilities when they fall into the hands of the enemy. In finding that the war crimes of rape and sexual slavery can be committed by a military leader against their own combatants in a non-international armed conflict, the Chamber referred to the principle that the protection of IHL is only lost when one takes active part in hostilities, and that the victims of rape and/or sexual slavery could not be considered to be directly participating in hostilities 'during the specific time when they were subject to acts of a sexual nature'. Rosemary Gray has a fascinating blog post on this exact point at Beyond the Hague, which is well worth a read.

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