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Tuesday, December 18, 2012

Bombshell Acquittal at the ICC

The ICC acquitted Mathieu Ngudjolo Chui today -- only the second case at the permanent court to go to a verdict.  For the Office of the Prosecutor, this gives them a 1-1 record (after the Lubanga guilty verdict).

Ngudjolo Chui was originally prosecuted with Katanga, but in a controversial decision last month, the ICC Trial Chamber decided to sever the two cases, announcing that a judgment in the matter of Ngudjolo Chui was forthcoming, while legal proceedings against Katanga would proceed.  Many observers speculated that this meant that the Trial Chamber was preparing to deliver an acquittal for Ngudjolo Chui, and this turned out to be exactly correct.

In today's decision announcing the acquittal, the Trial Chamber was confronted with several important legal issues, though the combined opinion mostly concentrates on the Office of the Prosecutor's inability to demonstrate beyond a reasonable doubt that Ngudjolo Chui was guilty of perpetrating international crimes.

The real action, however, was in a concurring opinion filed by Judge Christine Van den Wyngaert.  In her 34-page separate opinion, she tackled all of the crucial issues raised by the case, many of which were sidestepped by the full Trial Chamber's decision.

First, Van den Wyngaert argued that Article 25(3)(a) of the Rome Statute, which deals with perpetration "through another person," does not directly include Claus Roxin's famous theory of perpetration-through-an-organization, also known as Organisationsherrschaft.  Although Van den Wyngaert conceded that many cases described under this doctrine inevitably include perpetration through another person (since organizations are made up of individuals after all), she insisted that this was a factual element of the analysis, not a legal element of the doctrine.  In other words, Roxin's theory does not belong in Article 25(3)(a) of the Statute, and the correct legal standard is whether the defendant perpetrated the crime through another individual (or individuals), not whether the defendant perpetrated the crime through an organization.

Second, Van den Wyngaert also flat out rejected the new doctrine of indirect co-perpetration, which she described as a "radical expansion" of Article 25(3)(a).  The doctrine was created in previous decisions of the ICC by combining the pre-existing notions of indirect perpetration with co-perpetration, yielding a new hybrid notion of indirect co-perpetration, where multiple individuals cooperate together to direct a horizontal organization that carries out the crime.  There is nothing in the Rome Statute that mentions this doctrine.  I raised many skeptical questions about this new doctrine in my recent essay called "Second-Order Linking Principles", and I suggested that the new doctrine required far more doctrinal and theoretical justification than had previously been offered by either scholars or courts.  Van den Wyngaert has now concluded that such a justification, consistent with the text of the Rome Statute, is not possible.

Third, Van den Wyngaert offered a sophisticated analysis of the minimum standards for mens rea under the Rome Statute, and specifically rejected the application of dolus eventualis -- a civil law doctrine that closely resembles common-law recklessness (but may not be identical).  Indeed, she specifically picked up on the fact that the Lubanga Trial Judgment pretended to reject dolus eventualis but then offered a definition of the phrase "knowledge" that was so expansive (including the risk of future events) that it effectively smuggles in dolus eventualis through the back door.  Not many people have noticed this conceptual error in the Lubanga Trial Judgment, but Van den Wyngaert not only noticed the problem but hit the nail on the head.

At some point, the ICC Appeals Chamber will need to confront not just the fate of indirect co-perpetration, but also the fundamental question of the mens reas standards under the Rome Statute, and whether dolus eventualis qualifies.  When it does, hopefully the Appeals Chamber takes a close look at Van den Wyngaert's concurring opinion.

As for Ngudjolo Chui, the Trial Chamber ordered him released pending the prosecutor's appeal, although the release order (as well as the underlying acquittal) will be appealed to the Appeals Chamber.


Unknown said...

Although cogent in its criticism of the Court's jurisprudence to date, van den Wyngaert's opinion does not offer any interpretation of the Statute which is any more convincing. Her discussion of the planning and conspiracy proposals essentially seems to say that if a proposal was made and not obviously incorporated into the final text (which the planning and conspiracy proposals actually were - in Article 25.3.d) then that's an impermissible interpretation of the Statute. However, the drafters of the Statute did not enact a provision to the effect that co-perpetration means direct engagement in the actus reus, but instead sprung for the open-ended term "committed ... jointly with another". Yet this doesn't seem to bother van den Wyngaert in proposing exactly that interpretation. What her concurring opinion really tells us is that Article 25(3) is probably unworkable, or at any rate not the model of theoretical unity that the pre-trial chambers suppose it to be.

Jens David Ohlin said...

Thanks for your excellent comment.

I agree with you that article 25 is not a model of clarity -- I've been saying that ever since I published "Joint Criminal Confusion," where I advocated for its repeal and replacement with a more coherent article 25bis.

Also, I currently support a subjective theory of perpetration (based on mens rea and joint intentions), so van den Wyngaert's argument for an objective approach (based on the actus reus) is obviously something that I cannot agree with. Though we both obviously share some skepticism about Roxin's incorporation into the Statute by the PTCs. The difference is that she solves that problem by running to the objective approach, while I solve that problem by resorting to a subjective approach.

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