ICC Delivers Its First Judgment: The Lubanga Case and Classification of Conflicts in Situations of Occupation

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On Wednesday, the International Criminal Court delivered its first ever judgment. The Trial Chamber in the Lubanga Case delivered a judgment of over 600 pages by which it convicted Thomas Lubanga of the war crime of conscripting and enlisting children under the age of 15 and using them to participate actively in hostilities. It has taken nearly a decade for the Court to reach the point where it has finally completed a trial (though expect an appeal). That is quite a long time to get to this point and the course of this particular trial has, at times, been particularly unfortunate.

As I haven’t read the entire judgment I am not in a position  to provide comprehensive comments on it at this point. I really want to focus on two issues. The first issue is the length of the judgment. It is a shame that the ICC has followed the trend of other international criminal tribunals in issuing these excessively long decisions. I fail to see why the decisions of these tribunals need to be as long as they are. I would be grateful if someone can explain why the judgments are so long. Sure, these tribunals deal with complex cases. However, domestic courts, at least the ones that I’m familiar with, do not issue judgments anywhere near this length and they do deal with complex matters as well. I agree completely with Dov Jacobs point on his blog when he says:

The Lubanga Judgment, including the separate opinions is over 600 pages. For one accused, and essentially one count! One can only have nightmares at the thought of having to read the judgment in the Katanga and Chui case, with two accused and some 10 counts, or an hypothetical Bashir Judgment with its long list of charges… Something needs to be done about this judicial logorrhea. What is amazing is that I’ve heard some of the staff of these tribunals justify the length of judgments for reasons of pedagogy. Of course. It makes total sense that a layperson is more likely to read a 600 page judgment than a 200 page judgment…

The second, and main, issue I want to deal with is the way in which the Trial Chamber dealt with the classification of the armed conflict. Article 8 of the Rome Statute of the ICC sets out different lists of war crimes depending on whether an armed conflict is international or non-international. In general, an international armed conflict is one that takes place between States. In addition, the law regarding international armed conflicts applies to the occupation by a State of the territory of another State. But how should conflicts which take place in occupied territory and which involve non-State group be classified? In the Lubanga case, the question was whether Uganda’s occupation of the Ituri region in the Democratic Republic of Congo was relevant to the classification of the conflicts involving Lubanga’s militia – a militia that was found not to be under the control of any of the State’s fighting in that area. Where one State is in occupation of the territory of another State, should that fact mean that an armed conflict that takes place in the occupied territory is classified as an international conflict, even if that conflict relates to hostilities against or between non-State groups? On this point, the Trial Chamber disagreed with the view that the Pre-Trial Chamber had taken at the confirmation of charges stage of this same case.

The crime of conscripting or enlisting child soldier, or using children to participate actively in hostilities is stated to be a crime, under Article 8, in both international and non-international armed conflicts. Therefore, the classification of the conflict in this case does not at first sight appear to be of great significance. Except that the formulation of the crime is slightly different for the two types of conflicts. For international armed conflicts, Art. 8(2)(b)(xxvi) speaks of conscription into “the national armed forces”, whilst Art. 8(2)(3)(vi) which provides for the crime in non-international armed conflicts speaks of conscription into “armed forces or groups”. One question that would arise, if the conflict was classified as international is whether recruitment into an armed group that is not part of the regular armed forces of the State but which is controllled by, or acts on behalf of, the State is recruitment into the “national armed forces”. The majority of the Trial Chamber did not deal with this question and Judge Odio Benito, in her separate opinion, thought they ought to have done so.

At the confirmation of charges stage of the Lubanga case, the Pre-Trial Chamber held that there were substantial grounds to believe that the relevant conflict in the Ituri region of the Democratic Republic of Congo was an international armed conflict in the period in which Uganda was an occupying power in that Ituri region and a non-international armed conflict thereafter. However, the Trial Chamber, in its recent decision, changed the classification of the conflict and held that the relevant conflict was non-international throughout. In its view, the relevant conflict was that between the militia controlled by Thomas Lubanga and other militias and this was not an international armed conflict. It held that:

563. Similarly, although there is evidence of direct intervention on the part of Uganda, this intervention would only have internationalised the conflict between the two states concerned (viz. the DRC and Uganda). Since the conflict to which the UPC/FPLC [Lubanga’s militia] was a party was not “a difference arising between two states” but rather protracted violence carried out by multiple non-state armed groups, it remained a non-international conflict notwithstanding any concurrent international armed conflict between Uganda and the DRC.

564. As discussed above, there is evidence that during the relevant timeframe the UPDF [Ugandan armed forces] occupied certain areas of Bunia, such as the airport. However, it is unnecessary to analyse whether territory came under the authority of the Ugandan forces, thereby amounting to a military occupation, because the relevant conflict or conflicts concern the UPC and other armed groups

565. Focussing solely on the parties and the conflict relevant to the charges in this case, the Ugandan military occupation of Bunia airport does not change the legal nature of the conflict between the  UPC/FPLC, RCD-ML/APC and FRPI rebel groups since this conflict, as analysed above, did not result in two states opposing each other, whether directly or indirectly, during the time period relevant to the charges. In any event, the existence of a possible conflict that was “international in character” between the DRC and Uganda does not affect the legal characterisation of the UPC/FPLC’s concurrent noninternational armed conflict with the APC and FRPI militias, which formed part of the internal armed conflict between the rebel groups.

I agree with the conclusion reached by the Trial Chamber that a conflict between non-State groups who are not controlled by or act on behalf of States is a non-international armed conflict, even if it takes place in occupied territory. I also agree that to the extent that the relevant conflict is one between Lubanga’s militia and other armed groups, the conflict should be regarded as non-international law. However, I also think some of the statements made by the Chamber are overly broad. In particular, I think it is wrong to assume that in a situation of occupation, the law relating to international armed conflicts only applies to hostilities between State armed forces or forces controlled by them. In my view, the law of occupation (the law of international armed conflicts) also applies to the acts of the occupying power in its relationship with the people in the occupied territory. Thus the occupier is bound to observe the law relating to international armed conflicts where hostilities break out in occupied territory with non-State groups. I deal with this issue in my chapter in a book to be published by Oxford University Press later this year. The book is edited by Elizabeth Wilmshurst and is on International Law and the Classification of Conflicts .  As I say in that chapter:

The argument that armed conflicts between an occupying power and a non-state group within occupied territory amount to a non-international armed conflict proceeds from the view that every international armed conflict is between two opposing States. However, the relevant question is not what type of conflict exists between the State and the non-state group but what law applies to the acts of an occupying power within occupied territory. It is important to note that the law of occupation is not just about the relationship between two contending States and not just a means of indicating the temporary nature of the authority of the occupier vis-à-vis that of the territorial State. The law of occupation is also a means of regulating what may well be the tense relationship between the occupying power and persons within the occupied territory and a means of providing restraint with regard to how the occupier treats the local population. The tension between the occupier and the local population may well result in acts of hostilities but the fact that the local population has chosen to rise up in arms does not free the occupier from the restraints it otherwise has. Indeed it ought to strengthen those restraints. The law of occupation is no less necessary in those situations. Moreover, the law of occupation is cognizant of the fact that persons who are not combatants (in the sense in which that term is used in international armed conflicts) may well engage in hostilities against the occupier, acts of sabotage, or other acts which imperil the security of the occupier. For example, article 5 of the Fourth Geneva Convention contemplates persons who engage in sabotage, the provisions relating to internment deal with persons who may imperil the security of the State. Likewise, article 45(3) of Additional Protocol I contemplates that persons who engage in hostilities in a situation of occupation, and are not entitled to prisoner of war status, are nevertheless entitled to the protections of the Fourth Geneva Convention or of the fundamental guarantees in article 75 of Additional Protocol I (which represents customary law)

Thus, it is the law of occupation and other rules of international armed conflict (including the law of targeting) that conditions how the occupier may respond to an uprising in the foreign territory of which it has temporary occupation.

 In Lubanga, these issues are not particularly relevant as the conflict that was relevant was that between Lubanga’s militia and other armed groups. However, the Trial Chamber did note that for a period in March 2003 there was fighting between Ugandan forces and Lubanga’s group. This raises questions as whether that part of the conflict should have been seen as international. In so far as the conflict was one between the occupying State and an armed group, the consideration I set out above would suggest that the conflict should indeed be governed by the law of international armed conflicts. However, this appears to have been only a minor part of the conflict in Ituri involving Lubanga’s militia.

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Valentina Azarov says

March 23, 2012

These are indeed some interesting questions, which are incidentally also relevant to the Palestinian context, and in particular the hostilities between Israel and the Gaza Strip. The most recent report of the OHCHR to the Human Rights Council on the human rights situation in the Occupied Palestinian Territory (A/HRC/19/20) that treats three authorities as duty-bearers - Israel, the Palestinian Authority and the de facto Hamas authorities). Despite the somewhat esoteric category of 'de facto authorities', it can be implied from the manner in which Hamas' obligations are set out in the report (entailing the obligations incumbent on states by virtue of international human rights law) that Hamas has a sufficiently developed international legal personality and should therefore, at the very least, be granted the same treatment in international law as the Palestinian Authority, which operates primarily in the West Bank. On this basis, it seems safe to assume that Hamas is an actor with state-like characteristics, especially for the purpose of the classification of the conflict between Hamas' armed forces and the Israeli army, resulting in such a conflict being classified as international.

As for the other Palestinian armed groups operating in the Gaza Strip and involved in hostilities with Israel, the OHCHR report states, "The Palestinian armed groups that fire these rockets and mortars are responsible for the related violations of international humanitarian law. As noted above, Hamas claimed direct responsibility for one of these attacks during the reporting period. In addition, the de facto authorities in Gaza failed to take measures to ensure that other such attacks were not carried out. Yet it appears that the de facto authorities have some capacity to stop or reduce the number of indiscriminate rocket attacks launched by other Palestinian armed groups." Hence, to the extent that the armed groups that are not part of Hamas' armed forces are nevertheless 'controlled' by Hamas, they may also be engaged in an international armed conflict with Israel. This also raises questions with regards to the standard of control of the group or its actions by the state actor that should be applied - is this the standard of international state responsibility law concerning attribution of de facto state agents or a less demanding one.

On these terms only, it can be suggested that the conflict between Israel and Hamas' official armed forces is an international armed conflict, whilst the hostilities between the Israeli army and some of the other Palestinian armed groups operating in the Gaza Strip are non-international armed conflict(s) that take place within the larger context of an international armed conflict.

Nonetheless, when it comes to a situation of belligerent occupation, none of this matters, because the law of belligerent occupation is effectively a 'trump card' for the qualification of all conflicts involving the occupying power. Since Israel remains the occupying power in the Gaza Strip - as affirmed by the international community, including the ICRC and UN - all of Israel's engagements, including its confrontation by armed resistance from the occupied population, is regulated by the law of belligerent occupation, hence as a situation of international armed conflict. This is the case regardless of the legal status of the group (state or non-state), thereby including both the hostilities between the Israeli army and Hamas' forces, and those between the Israeli army and other groups. Extending the application of the law of occupation to all of the occupying power's activities in the occupied territory is inherent to the function and protective objective of the law of occupation and the heavy burden the law of occupation intended to place on the occupier, precisely in order to deter and make exceptional the practice of military occupation by states, as well as ensure the prompt termination of occupations through the restrictive provisions of occupation law which make it nearly impossible for an occupier to sustain its control over a foreign territory within the limits of the law (lawfully), beyond a certain point in time.

(See also, Konstantinos Mastorodimos, 'The Character of the Conflict in Gaza: Another Argument towards Abolishing the Distinction between International and Non-international Armed Conflicts', available on SSRN)

Dapo Akande says

March 29, 2012

Dear Valentina,

The point you make in your final paragraph is precisely the point that I am making in that chapter in the Wilmshurst book on Classification on Conflicts (forthcoming later this year). The occupying power is always bound by the law of international armed conflicts to the extent that it is involved in an armed conflict in occupied territory. It matters not that the conflict is with a non-State grup. You put the point well when you say that this is "inherent to the function and protective objective of the law of occupation".

You make the point regarding the status of the Palestinian authority and Hamas that they are state-like entities with international legal personality and extrapolate from that this means that they should therefore be treated like States with regard to classification of conflicts. I am not sure that being State like and having some sort of international personality automatically means that a conflict with that entity should be an international armed conflict. Afterall, APII applies to entities that control territory and with a capacity for sustained operations. These sorts of rebel groups will be state-like but the conflict will still be non-international.

Valentina Azarov says

April 1, 2012

Dear Dapo,

I am agog to read your chapter in the Wilmshurst book, it sounds promising.

I agree with your point that 'state like' character does not necessarily mean that the entity is a belligerent party to an international armed conflict, and should shed some clarity on my abrupt discussion of these issues previously. To be sure, the Hamas authorities in the Gaza Strip are not just 'state like' actors - Hamas' institutions are an administrator of part of the territory of the state of Palestine; the other administrator of the territory being the Palestinian authorities in the West Bank.

In March 2008, Hamas and PLO reached a “reconciliation” agreement in the city of Sanaa whereby Hamas and PLO acknowledged the unity of the territory of Palestine, and Hamas acknowledged the role of the PLO in representing Palestine at the international level. In April 2011, Fatah and Hamas reached an agreement on forming an interim government and fixing a date for a general election (http://www.aljazeera.com/news/middleeast/2011/04/2011427152119845721.html). Implicitly, thereby, the authorities in the West Bank, which are already represented by the PLO, and Hamas are both legitimate administrators of the unified territory of the state of Palestine. The institutions in the Gaza Strip and West Bank together make up the current institutions of the government of the state of Palestine, which is represented by the PLO in its international relations.

Despite the indeterminacy of the definition of a state in international law, Palestine has been treated as a state by states and international organisations for a number of decades. See, for more on Palestine's statehood in the context of Palestine's application for UN membership and the questions raised in the public debate about the representation of the Palestinian people by existing representation bodies, 'Al-Haq's Questions and Answers: Palestine's UN Initiatives and the Representation of the Palestinian People's Rights', which can be found here: http://www.alhaq.org/publications/publications-index/item/al-haq-s-questions-and-answers-palestine-s-un-initiatives

One of the issues examined in the legal briefs, the importance of which cannot be overemphasised, concerns the current Palestinian representational structures and the difference in representational capacity and international legal personality between the existing three bodies: the PLO, the State of Palestine and the Palestinian Authority (PA). Given these differences and the reconciliation agreement between Hamas and Fatah, the current institutions of the State consist of both those belonging to Hamas, on the one hand, and those belonging to the Palestinian authorities in the West Bank, on the other.

Accordingly, there is an argument to be made about the equal treatment of the Palestinian authorities governing the West Bank and those in the Gaza Strip under international law, including international humanitarian law. Even though the armed forces of the Palestinian authorities in the West Bank, are not engaged in armed conflict with Israel, the fact that the ongoing hostilities are between the Israeli army and part of the current armed forces of the state of Palestine, namely the official armed forces of Hamas, arguably result in their classification as an international armed conflict (notwithstanding the fact that this result is brought about by the application of the law of belligerent occupation).