As part of our program, we had the opportunity to visit several of the international tribunals based here in The Hague. At the ICC, we witnessed part of the trial of Thomas Lubanga Dyilo (left), the first defendant to be tried before the fledgling Court. The witness on the stand was under protective measures, his identity hidden from those of us in the public gallery by blinds and a pixelated image on screen. The testimony culminated in the showing of a video in which very young children sang and chanted about the glory of "Papa Tom," as he watched on. Children carrying weapons on their shoulders weaved throughout the crowd, and a jeep with two additional child soldiers patrolled behind everyone.
Lubanga has been charged with the offense set forth in Articles 8(2)(b)(xxvi) and 8(2)(e)(vii):
Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.
Sub-sections (b) and (e) of Article 8 relate to international and non-international armed conflicts, respectively. Interestingly, the prosecutor had originally charged Lubanga only with respect to the crime within a non-international armed conflict. At the time the indictment was confirmed, the pre-trial chamber insisted on adding the charge with respect to an international armed conflict. The Prosecutor sought leave to appeal this change in the indictment, but such leave was denied. Accordingly, the Court will directly address the question of whether the conflict in the relevant region of the DRC amounted to an international armed conflict within the meaning of international humanitarian law.
It was a judge--Judge Adrian Fulford (United Kingdom) (right)--who asked the most pointed questions, specifically calling the attention of the witness to the child soldiers depicted in the video. (We entered the gallery mid-examination, so it is not clear if the witness was also depicted in the video).
The video was introduced by the prosecution, who according to the guiding Elements of Crimes much show:
- The perpetrator conscripted or enlisted one or more persons into the national armed forces or used one or more persons to participate actively in hostilities.
- Such person or persons were under the age of 15 years.
- The perpetrator knew or should have known that such person or persons were under the age of 15 years.
- The conduct took place in the context of and was associated with an international or non-international armed conflict.
- The perpetrator was aware of factual circumstances that established the existence of an armed conflict.
Unlike other international crimes that require a showing of intent or actual knowledge, the crime of conscripting, enlisting, or using child soldiers applies more of a negligence mens rea ("knew or should have know" that such persons were under 15). In addition, it is not necessary to use child soldiers in combat; it is enough that the defendant conscripted or enlisted them. The video certainly suggested that Lubanga was aware of the existence of child soldiers in his ranks.
Next, we visited the chambers of Judge A. A. Cançado Trindade (left), a member of Santa Clara's overseas faculty until he was recently elected to the International Court of Justice (winning the most votes of any judge to that court (163)).
Finally, we attended two trials at the International Criminal Tribunal for the Former Yugoslavia. The first was of Momcilo Perisic (below left), former Chief of the General Staff of the Yugoslav Army (VJ). After the death of former President Milosevic, this defendant is crucial to linking crimes committed in Croatia and Bosnia-Herzegovina back to Belgrade. He is charged with various war crimes and crimes against humanity, including murder, inhumane acts, persecutions, and extermination. Perisic's case was one of the ones subject to Rule 73bis, whereby the Trial Chamber may invite the prosecutor to reduce the scope of the indictment in an effort to streamline the case. While the judges of the ICTY adopted this rule to help implement the tribunal's Completion Strategy, the judges of the International Criminal Tribunal for Rwanda have determined that it interferes with prosecutorial discretion and have not followed suit.
When Perisic's trial went into closed session, we sat in on the trial of Popovic (right) et al., another Srebrenica case. All 7 defendants are former members of the Bosnian Serb Army (the VRS). They are charged with genocide, conspiracy to commit genocide, extermination, and murder. So far, the Srebrenica massacre has yielded convictions for complicity to commit genocide, but not straight genocide. Today's testimony contained a somewhat numbing presentation of evidence (including transcripts of intercepted conversations) concerning fuel requisition. The trial has been ongoing since 2006.
They don't call The Hague the International Law Capital of the World for nothing.