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

Trial Proceedings
Alleged individual criminal responsibility
of Lubanga
Counsel for the Defence, Jean-Marie Biju-Duval,
addressed the individual criminal responsibility
of Lubanga alleged by the Prosecution, including
the alleged common plan, the alleged role of
Lubanga in that common plan, and his alleged
contribution to the recruitment policy of the
UPC/FPLC. Biju-Duval questioned the foundation
of the accusations against Lubanga – namely,
the theory of criminal co-perpetration – and the
choices made by the Prosecutor in exercising his
power to prosecute. 1221 He noted the ‘judicial
paradox’ of a case charged as co-perpetration,
which by definition requires several perpetrators,
but with only one accused. 1222 Biju-Duval noted
that one of Lubanga’s alleged co-perpetrators,
Floribert Kisembo, Chief of Staff of the FPLC, had
never been the subject of criminal proceedings
before the ICC, and suggested that this may have
been due to Kisembo’s loyalty to President Kabila
and the Congolese Government. 1223
Biju-Duval claimed that the absence of
Lubanga’s involvement in the military activities
of the armed force that would become the UPC/
FPLC prior to September 2002 proved that his
contribution was not necessary to establish
the armed force, recruit military personnel,
or carry out military operations. Instead, Biju-
Duval argued that Lubanga’s only essential
contribution was to act as a political leader. 1224
Biju-Duval claimed that no orders were issued
by Lubanga relating to the recruitment or
training of soldiers because he did not intervene
in military affairs on recruitment or military
operations. 1225 He underscored that the only
instructions issued by Lubanga related to the
prohibition of child soldier recruitment and
provisions for demobilisation. 1226 He went on to
argue that Lubanga did not issue orders to the
civilian population regarding the recruitment
of child soldiers, and that any public statements
made by Lubanga were political in nature and
designed only to encourage support for his
movement among the civilian population. 1227
Biju-Duval dismissed the Prosecutor’s argument
that the responsibility of Lubanga was based
on the fact that he exercised effective control
over the FPLC commanders responsible
for recruitment, as this mode of criminal
responsibility had been dismissed by the Pre-
Trial Chamber and had not been charged in the
case. 1228 Biju-Duval claimed that Lubanga ‘did not
have the effective power to impose his will on
the military leadership’, and that this was proven
by the establishment of breakaway military
movements by former commanders and the
defection of Floribert Kisembo as Chief of Staff in
December 2003. 1229
Biju-Duval acknowledged that there was a risk
that children under the age of fifteen would
attempt to enlist in the FPLC, 1230 but argued that
the mode of criminal responsibility charged
required awareness on the part of the accused
that his conduct would lead to the commission
of the crimes charged ‘in the normal course of
events’. 1231 Biju-Duval referenced existing ICC
jurisprudence from the Bemba and Katanga
& Ngudjolo cases, and interpreted this
requirement to require that ‘the crime has to
1221 ICC-01/04-01/06-T-357-ENG, p 25 lines 5-10; ICC-01/04-
01/06-2773-Red, paras 52-53, noting that none of the
parties requested a modification pursuant to Regulation
55.
1222 ICC-01/04-01/06-T-357-ENG, p 25 lines 11-13; ICC-01/04-
01/06-2773-Red, paras 52-53, para 57; ICC-01/04-01/06-
2786-Red, paras 21-30.
1223 ICC-01/04-01/06-T-357-ENG, p 25 lines 11-25; p 26, lines
1-18.
1224 ICC-01/04-01/06-T-357-ENG, p 29 line 14-25; ICC-01/04-
01/06-2773-Red, paras 63, 792, 795.
1225 ICC-01/04-01/06-T-357-ENG, p 31 lines 1-4; ICC-01/04-
01/06-2773-Red, para 72.
1226 ICC-01/04-01/06-T-357-ENG, p 31 lines 5-18; ICC-01/04-
01/06-2786-Red, para 22.
1227 ICC-01/04-01/06-T-357-ENG, p 32 lines 1-8; ICC-01/04-
01/06-2773-Red, para 72, citing a confidential filing.
1228 ICC-01/04-01/06-T-357-ENG, p 32 lines 13-20.
1229 ICC-01/04-01/06-T-357-ENG, p 33 lines 1-22.
1230 ICC-01/04-01/06-T-357-ENG, p 35 lines 2-10.
1231 ICC-01/04-01/06-T-357-ENG, p 36 lines 10-13; ICC-01/04-
01/06-2773-Red, paras 74-83.
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