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

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.