Gender Report Card on the International Criminal ... - YWCA Canada

Trial Proceedings
Moreno-Ocampo:
I think your question was very
important, the (*indiscernible)
submission of the Prosecutor is very
important on this point. I have to be
clear. We agree with the Chamber idea:
their act, they are not used in hostility.
However, factually we believe when a
commander is ordered to abduct girls
to use them as sexual slaves or rape
them, this order is using the children
in hostility. That is the submission we
are doing. So to summarise, we agree
with the Chamber that there is a line,
there’s a border between hostilities
and no hostilities, and cooking could be
a good example, maybe, but ordering
to abduct girls in order to rape them
is an order to – and use children in
hostilities. Thank you. 1145
After Moreno-Ocampo had once again taken his
seat, Judge Fulford said: ‘That’s very clear. I’m
not sure if it’s the same as the submission given
by Ms Samson, but nonetheless, your position is
clear, Mr Ocampo’. 1146 Moreno-Ocampo replied:
‘Yes, because I am the Prosecutor, I think the
Chamber should take my word as the position of
the office.’ 1147 After a pause, Judge Fulford said,
‘I’m going to ignore that last remark’. 1148
Lubanga’s alleged individual criminal
responsibility
Trial lawyer for the Prosecution, Manoj
Sachdeva, subsequently provided an overview
of the evidence that was intended to prove the
knowledge, intention and individual criminal
responsibility of Lubanga. He argued that
Lubanga was President and Commander-in-
Chief of the UPC, and made final decisions
and dictated the strategy and policy of the
hierarchical UPC and its military wing, the FPLC.
1145 ICC-01/04-01/06-T-356-ENG, p 55 lines 11-21.
1146 ICC-01/04-01/06-T-356-ENG, p 55 lines 22-24.
1147 ICC-01/04-01/06-T-356-ENG, p 55 line 55; p 56 line 1.
1148 ICC-01/04-01/06-T-356-ENG, p 56 lines 2-4.
The Prosecution thus argued that he had both
functional and de facto control over all levels
of the organisation, 1149 therefore proving his
‘essential contribution’ to the commission of
the crimes charged pursuant to Article 25(3)(a)
of the Rome Statute. 1150 The Prosecution argued
that the crimes were committed with Lubanga’s
direct intention and his knowledge: Lubanga
was regularly put on notice of the crimes
committed and was in a position to order their
cessation. 1151 The Prosecution noted that: he
had children in his own personal protection
unit; he took charge of recruitment activities;
he went to Rwampara training camp, where
he addressed and encouraged soldiers; he was
responsible for military appointments and the
planning of military operations; and, he had
regular military meetings with commanders and
his Chief and Deputy Chief of Staff. Furthermore,
the Prosecution argued that the supposed
demobilisation decrees, which it claimed were
intended to provide a cover-up for the crimes
being committed, proved Lubanga’s knowledge
of the presence of child soldiers within his
military. 1152
In its closing brief, the Prosecution also set
forth the legal criteria and evidence to support
its theory of co-perpetration. The objective
element of the crime of co-perpetration is the
existence of a common plan over which the
accused had functional control. Subjectively,
the crime requires that the accused acted with
intent and had the requisite knowledge to do
so. The Prosecution argued that, the accused
‘exercised functional control over the crimes
1149 ICC-01/04-01/06-T-356-ENG, p 27 lines 8-14; ICC-01/04-
01/06-2748-Red, paras 250-285.
1150 Article 25(3)(a) provides: ‘In accordance with this Statute,
a person shall be criminally responsible and liable for
punishment for a crime within the jurisdiction of the
Court if that person: (a) Commits such a crime, whether
as an individual, jointly with another or through another
person, regardless of whether that other person is
criminally responsible.’
1151 ICC-01/04-01/06-T-356-ENG, p 27 lines 19-25.
1152 ICC-01/04-01/06-T-356-ENG, p 32 lines 6-16; ICC-01/04-
01/06-2748-Red, paras 286-348.
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