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(Mark Drumbl) There’s been a lot of talk about the referral by the United Nations Security Council of the Darfur situation to the International Criminal Court(ICC). Yet, the ICC is involved in more than just Darfur. Its first case, now moving toward trial, involves a Congolese national, Thomas Lubanga Dyilo, who is in custody at The Hague. Lubanga is accused as a co-perpetrator of conscripting and enlisting child soldiers to fight in Ituri, a region in north-east Democratic Republic of Congo (DRC).
On January 29, 2007, a Pre-Trial Chamber of the International Criminal Court confirmed charges against Lubanga. Although the Lubanga Pre-Trial Chamber moved the case to trial, the judgment was controversial. In part, this was because the judges held certain phases of the Congolese conflict to be international as opposed to internal in nature, owing to the presence of Ugandan and Rwandan troops. International criminal law differentiates internal from international armed conflict. The Pre-Trial Chamber in fact substituted a charge brought by the Prosecution with a slightly different charge applicable in international armed conflict. This substitution, however, has considerable implications for the burden of proof the Prosecution will have to discharge at the actual trial.
The Prosecution is appealing the ruling. It does not believe it can prove beyond a reasonable doubt that an international armed conflict actually existed at the relevant time. An American Society of International Law Insight reports that the Prosecution, in its application for leave to appeal, pleads that the Pre-Trial Chamber “is effectively forcing the Prosecution to, contrary to its professional assessment, include a specific crime in its charging instrument and prove it at trial.” Controversy also has separately emerged on questions of defense representation.
This is not the first time that tension has emerged between judges and the Prosecution in regard to this case. An earlier decision on victims’ involvement, in which the judges sided with a generous interpretation of the provisions of the ICC’s constitutive document (the Rome Statute) permitting victim participation in the proceedings, also encountered Prosecutorial resistance.
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