war crimes – Diane Marie Amann

Honored to discuss “Children and the Women, Peace and Security Agenda,” at Transitional Justice Institute, University of Ulster, seminar series

Published on 28 October 202028 October 2020 by Diane Marie AmannLeave a comment

It was an honor to speak today on “Children and the Women, Peace and Security Agenda,” my contribution to a year-long “WPS@20” seminar series hosted by the Transitional Justice Institute at the University of Ulster.

As its title indicates, the series, which began in February, has featured numerous speakers’ reflections on the WPS Agenda, which began with the passage on October 31, 2000, of UN Security Council Resolution 1325 on Women and Peace and Security. Since that date this agenda has inspired a range of activities, in the United Nations (as depicted in this UN Women 20-year timeline) and other international organizations, and also in nongovernmental organizations and academia.

My contribution to the series benefited greatly from the team of University of Georgia School of Law student researchers with whom I worked this summer, and to whom I am very grateful: Zoe Ferguson (JD’20), 3L Charles Wells, and 2Ls Courtney Hogan and Michael Ramirez.

This online seminar focused not on women, but on an adjunct constituency cited in Resolution 1325; that is, on children. Here’s the abstract:

UN Security Council Resolution 1325 on Women, Peace and Security contains more than a dozen mentions of young people; to be precise, it refers twice to “women and children” and more than a dozen times to “women and girls.” Since the resolution’s adoption 20 years ago this week, many initiatives have arisen to combat conflict-related harms to children. These include the Children and Armed Conflict Agenda launched by Security Council Resolution 1612 (2005) and other inter- and non-governmental efforts. This seminar will evaluate the WPS resolution, 20 years on, as a child-rights instrument. Consideration of the interim initiatives will help frame that assessment, as will evolving understandings of children’s sexual and gender identities, of children’s agency and children’s autonomy – all factors that may counsel against too-quick conjoinments of “children,” or “girls,” with “women.”

A rich set of questions followed my presentation. Ably moderating was Dr Catherine O’Rourke, Senior Lecturer in Human Rights/International Law at Ulster Law and TJI’s Gender Research Coordinator, to whom I am grateful for the invitation to speak.

The seminar is available as a PowerPoint presentation and as an audio podcast at TJI’s Apple and Spotify accounts.

At the centenary of chemical warfare, a visit to Flanders’ World War I battlefields

Published on 11 November 201810 November 2018 by Diane Marie AmannLeave a comment

(In recognition of today’s 100th anniversary of the signing of the armistice that ended World War I, I reprint a 12 July 2017 post on my visit to Flanders Fields)

YPRES, Belgium – Beautiful vistas and bright sunlight cannot blind the visitor to the pain of this place.

This place is Flanders Fields, the name given to the part of west Belgium, close to the French border, that saw intense battles and horrendous casualties during World War I. This town – Ypres in French and Ieper in Flemish, but called “Wipers” by British WWI soldiers – played a central role. So too nearby Passchendaele/Passendale. Both towns were leveled, and like many in the region, were rebuilt in the old manner after the war ended.

During the war, upwards of half a million persons died in this area alone.

Our visit to Flanders Fields occurred on the 4th of July. Memories linger, and were sparked again by today’s commemoration of the 100th anniversary of the 1st large-scale use, in Ypres, of chemical weapons; mustard gas, to be precise. It was the 3d compound to be attempted, after chlorine and phosgene proved less reliable as lethal weapons, according to our tour guide, Raoul Saracen, a retired history teacher. Initial efforts to fight back against chemicals also were crude: before the development and widespread distribution of gas masks, Canadian troops resorted to breathing through kerchiefs soaked in ammonia-rich urine.

The cruelty of chemical warfare did not stop its use. Recording other places where chemicals have been used was a signpost in Langemark, the cemetery where German soldiers (including several with whom I share a surname) are buried. Tokyo, Japan, Halabja, Iraq, and Ghouta, Syria, receive mention, though more recent gassing sites in that last country have yet to be added.

The thousands of headstones in the many Flanders Fields cemeteries of course give pause. So too the cramped trenches, still on display at Sanctuary Wood Museum.

Yet it was a different site that stole my breath – the “dressing station,” a kind of field hospital, at Essex Farm Cemetery. The station’s cement-bunker cells were small, dark, and saddening, a truly concrete reminder of the scourge of war.

On Holocaust Remembrance Day, gratitude for archives preserving histories of post-WWII war crimes trials

Published on 27 January 20187 January 2019 by Diane Marie AmannLeave a comment

LOS ANGELES – On this International Holocaust Remembrance Day, I am honored to be spending this month at the USC Shoah Foundation, reviewing testimonies of persons who did their part to set right one of history’s terrible wrongs.

Seventy-three years ago today, Soviet troops liberated Auschwitz-Birkenau, the infamous Nazi concentration camp located about 45 miles west of Kraków, Poland. Liberations of other camps by other Allied forces soon followed; among them, the U.S. liberation of Buchenwald on April 11, 1945, and the British liberation of Bergen-Belsen 4 days later.

Sixty years later, a 2005 U.N. General Assembly resolution set this date aside for commemoration of World War II atrocities (image credit); to quote the resolution, of

“… the Holocaust, which resulted in the murder of one third of the Jewish people, along with countless members of other minorities …”

The resolution further:

honored “the courage and dedication shown by the soldiers who liberated the concentration camps”;
rejected “any denial of the Holocaust as an historical event”;
envisaged the Holocaust as “a warning to all people of the dangers of hatred, bigotry, racism and prejudice”;
denounced “all manifestations of religious intolerance, incitement, harassment or violence against persons or communities based on ethnic origin or religious belief, wherever they occur”; and
encouraged initiatives designed to “inculcate future generations with the lessons of the Holocaust in order to help to prevent future acts of genocide.”

Among the many such initiatives are memorial centers and foundations throughout the world – 2 of which have helped me in my own research into the roles that women played during postwar international criminal trials at Nuremberg.

In December, the Holocaust Memorial and Tolerance Center of Nassau County, located in Glen Cove, New York, opened its archives to me. Special thanks to Helen Turner, archivist and Director of Youth Education, for her assistance.

This month, as the inaugural Breslauer, Rutman and Anderson Research Fellow, I am in residence at the University of Southern California, examining documents in USC Shoah Foundation’s Visual History Archive. It has been a fruitful and moving scholarly experience, and I look forward to sharing my research at a public lecture on campus at 4 p.m. this Tuesday, Jan. 30, video available here (as I was honored to do last week at UCLA Law’s Promise Institute for Human Rights; video here). Special thanks to all at the foundation’s Center for Advanced Research – Wolf Gruner, Martha Stroud, Badema Pitic, Isabella Evalynn Lloyd-Damnjanovic, and Marika Stanford-Moore – and to the donors who endowed the research fellowship. (Fellowship info here.)

As reflected in the 2005 General Assembly resolution, the work of such institutions helps to entrench – and to prevent backsliding from – states’ promises to ensure and respect human rights and dignity norms, set out in instruments like the 1945 Charter of the United Nations, the 1948 Convention on the Prevention and Punishment of Genocide, the 1948 Universal Declaration of Human Rights, and the 1966 International Covenant on Civil and Political Rights. To this list I would add the many documents establishing international criminal fora to prosecute persons charge with violating such norms – from the Nuremberg-era tribunals through to today’s International Criminal Court.

At the centenary of chemical warfare, a visit to Flanders’ World War I battlefields

Published on 12 July 201712 July 2017 by Diane Marie Amann1 Comment

YPRES, Belgium – Beautiful vistas and bright sunlight cannot blind the visitor to the pain of this place.

During the war, upwards of half a million persons died in this area alone.

The thousands of headstones in the many Flanders Fields cemeteries of course give pause. So too the cramped trenches, still on display at Sanctuary Wood Museum.

ICC Prosecutor’s Policy on Children, an international criminal justice capstone

Published on 7 December 20167 December 2016 by Diane Marie AmannLeave a comment

Children have become the unwilling emblems of armed conflict and extreme violence.

Searing images have surfaced in news stories, aid workers’ alerts, and rights groups’ dispatches: a 5 year old pulled from Aleppo rubble, orphans at a Goma children’s center, a young Colombian woman struggling to readjust after years as a child soldier, and, face down on a Turkish beach, a drowned 3-year-old refugee. Images of this nature were shown yesterday at the International Criminal Court, during the opening statement in Ongwen, with Prosecutor Fatou Bensouda herself warning “that some of these images are extremely disturbing.”

There is no better time than now to press for strategies both to combat such harms and to bring the persons responsible to justice. Presenting an important step toward those goals is the Policy on Children of the International Criminal Court Office of the Prosecutor.

Prosecutor Bensouda launched the Policy on Children at an event during last month’s meeting of the ICC Assembly of States Parties. Bensouda quoted from the U.N. expert Graça Machel’s pathbreaking 1996 report on children and armed conflict, then commented:

“[I]t is indeed unconscionable that we so clearly and consistently see children’s rights attacked and that we fail to defend them.
“It is unforgivable that children are assaulted, violated, murdered and yet our conscience is not revolted nor our sense of dignity challenged. This represents a fundamental crisis of our civilisation and a failure of our humanity.
“By adopting the Policy on Children, which we launch today, we at the Office of the Prosecutor seek to ensure that children suffering the gravest injustices are not ignored. That through the vector of the law, we do what we can to protect and advance the rights of children within the framework of the Rome Statute.”

Leading the event was journalist Zeinab Badawi. Among the many others who offered live or video interventions were: Mamadou Ismaël Konaté, Mali’s Minister of Justice and Human Rights of the Republic of Mali; Zeid Ra’ad Al Hussein, U.N. High Commissioner for Human Rights; Leila Zerrougui, Special Representative of the U.N. Secretary-General for Children and Armed Conflict; Angelina Jolie, Special Envoy of the U.N. High Commissioner for Refugees; Nobel Peace Prizewinner Leymah Gbowee; Lieutenant General Roméo-Dallaire, Founder of the Roméo Dallaire Child Soldiers Initiative (see also IntLawGrrls post by Kirsten Stefanik); Marc Dullaert, Founder of KidsRights and the Netherlands’ former Children’s Ombudsman; and Coumba Gawlo, U.N. Development Programme Goodwill Ambassador and National Goodwill Ambassador for the U.N. High Commissioner for Refugees.

I am honored also to have offered brief remarks – and am especially honored to have assisted in the preparation of this Policy in my capacity as the Prosecutor’s Special Adviser on Children in & affected by Armed Conflict, working alongside a dedicated Office of the Prosecutor team led by Shamila Batohi, Gloria Atiba Davies, and Yayoi Yamaguchi. Preparation included experts’ gatherings at the University of Georgia School of Law Dean Rusk International Law Center, at Leiden Law School, and at the ICC itself, as well as consultations around the globe with young persons who had endured armed conflict. (Legal research produced by my students, in seminars on Children & International Law and through the work of the Georgia Law Project on Armed Conflict & Children, also was invaluable.)

The result is a Policy on Children spanning 47 pages, published simultaneously in Arabic, English, French, Spanish, and Swahili. Identifying children as persons under eighteen (paragraph 16), it covers a gamut of issues related to children and the work of the Prosecutor; for example, general policy, regulatory framework, and engagement with children at all stages of the proceedings. Among many other landmarks, the Policy:

► Embraces a child-sensitive approach grounded in the 1989 Convention on the Rights of the Child, a treaty ratified by every U.N. member state save one: the United States, which is also an ICC nonparty state. (My remarks happily noted that my other state of citizenship, the Republic of Ireland, is a state party to both the Child Rights Convention and the ICC’s Rome Statute.) Paragraph 22 of the Policy on Children thus states:

“In light of the foregoing, the Office will adopt a child-sensitive approach in all aspects of its work involving children. This approach appreciates the child as an individual person and recognises that, in a given context, a child may be vulnerable, capable, or both. The child-sensitive approach requires staff to take into account these vulnerabilities and capabilities. This approach is based on respect for children’s rights and is guided by the general principles of the 1989 Convention on the Rights of the Child: non-discrimination; the best interests of the child; the right to life, survival and development; and the right to express one’s views and have them considered.”

► Views children, like all human beings, as multi-faceted individuals and, simultaneously, as members of multi-generational communities. (See, for example, paragraph 100.) Paragraph 25 states:

“Children, by the very fact of their youth, are frequently more vulnerable than other persons; at certain ages and in certain circumstances, they are dependent on others. Notwithstanding any vulnerability and dependence, children possess and are continuously developing their own capacities – capacities to act, to choose and to participate in activities and decisions that affect them. The Office will remain mindful, in all aspects of its work, of the evolving capacities of the child.”

► Acknowledges in paragraph 17 “that most crimes under the Statute affect children in various ways, and that at times they are specifically targeted” – and then pledges that “the Office will, in order to capture the full extent of the harm suffered, seek to highlight the multi-faceted impact on children, at all stages of its work.” The regulatory framework thus enumerates a range of crimes against and affecting children:

recruitment and use by armed forces and armed groups of children under fifteen as war crimes (paragraphs 39-43);
forcible transfer of children and prevention of birth as acts of genocide (paragraphs 44-46);
trafficking of children as a form of enslavement constituting a crime against humanity (paragraphs 47-48);
attacks on buildings dedicated to education and health care as war crimes (paragraph 49);
torture and related war crimes and crimes against humanity (paragraph 50);
persecution as a crime against humanity (paragraph 50); and
sexual and gender-based violence as war crimes and crimes against humanity (paragraph 52).

► Details the Office’s plan for applying the child-sensitive approach, with respect both to all stages of proceedings, including preliminary examinations, investigations, and prosecutions, and to cooperation and external relations, institutional development, and implementation.

Even as cases involving crimes against and affecting children, like Ongwen, go forward, the Office is working on implementation of its new Policy on Children. The implementation phase will include developing versions of the Policy accessible to children. I’m looking forward to the opportunity to contribute this phase – and to hearing others’ views on the Policy.

ICC Prosecutor’s opening addresses Ongwen as alleged “victim-perpetrator”

Published on 6 December 2016 by Diane Marie Amann3 Comments

Since accused Lord’s Resistance Army leader Dominic Ongwen surrendered to the International Criminal Court in January 2015, there’s been much discussion of the effect, if any, of reports that he was abducted as a child into the Uganda rebel group, and eventually committed international crimes himself.

ICC Prosecutor Fatou Bensouda responded in her opening statement this morning, on the 1st day of trial in Prosecutor v. Ongwen (transcript, video, and audio available here). First she discussed the crimes with which he is charged, against children and adults alike. Then Bensouda turned to the accused himself:

“One aspect of this case is the fact that not only is Ongwen alleged to be the perpetrator of these crimes, he was also a victim.”

About this, Bensouda said:

“The reality is that cruel men can do kind things and kind men can be cruel. A hundred percent consistency is a rare thing. And the phenomenon of the perpetrator-victim is not restricted to international courts: it is a familiar one in all criminal jurisdictions. Fatherless children in bleak inner cities face brutal and involuntary initiation ordeals into gang life, before themselves taking on a criminal lifestyle. Child abusers consistently reveal that they have been abused themselves as children.

“But having suffered victimization in the past is not a justification, nor an excuse to victimise others. Each human being must be considered to be endowed with moral responsibility for their actions. And the focus of the ICC’s criminal process is not on the goodness or badness of the accused person, but on the criminal acts which he or she has committed. We are not here to deny that Mr. Ongwen was a victim in his youth. We will prove what he did, what he said, and the impact of those deeds on his many victims.

“This Court will not decide his goodness or badness, nor whether he deserves sympathy, but whether he is guilty of the serious crimes committed as an adult, with which he stands charged.”

Antiquities trafficking said to fuel transnational mayhem by Daesh et al.

Published on 24 April 2016 by Diane Marie Amann1 Comment

Alumna Tess Davis, 2d from left, met with Georgia Law 1Ls after her lecture; from left, Hannah Williams, Ava Goble & Karen Hays. Hannah will work on cultural heritage issues this summer through a Global Externship Overseas (GEO) at the Cambodia Ministry of Culture & Fine Arts, Department of Intangible Cultural Heritage.

“As long as there have been tombs, there have been tomb raiders.”

So began the terrific talk on trafficking that Tess Davis, Executive Director of the D.C.-based Antiquities Coalition, delivered to a rapt University of Georgia audience a few days ago.

Having conceded the point quoted at top, Davis stressed that today the problem is much different and much greater. On the list of lucrative transnational organized crime, she asserted, antiquities trafficking places 3d, right behind arms trafficking and drug trafficking.

The threat is not simply one of criminal behavior, she continued. Rather, Davis stressed that profits from antiquities trafficking – profits believed to be in the millions of dollars – provide revenue vital for the nonstate actor waging armed conflict in Syria and Iraq. That entity calls itself “Islamic State” and is often labeled “ISIS” or “ISIL” in the media; taking a lead from diplomats in France and, recently, the United States, Davis preferred “Daesh,” the group’s Arabic acronym, for the simple reason that “they hate to be called that.”

Initially trained as an archeologist, Davis began to focus on legal means to combat antiquities trafficking while still a student at Georgia Law. Since earning her J.D. in 2009, she’s been a leader at the Lawyers’ Committee for Cultural Heritage and in the American Society of International Law Cultural Heritage & the Arts Interest Group, a researcher at Scotland’s University of Glasgow, a member of Georgia Law’s Dean Rusk International Law Center Council, and, as the photo above demonstrates, a mentor to Georgia Law students and other young lawyers interested in working in the field. Her efforts to help repatriate antiquities stolen from Cambodia earned multiple mentions in The New York Times.

Her talk drew links between the looting of cultural heritage during and after the 1970s Khmer Rouge reign of terror and current looting in the Middle East today. In both instances, she said, “cultural cleansing” – in the contemporary case, the destruction and thievery of monuments sacred to moderate Muslims and others – precedes and parallels efforts to erase and subjugate the humans who venerate those monuments. It’s a state of affairs documented in her Coalition’s new report, “Culture Under Threat.”

“The world failed Cambodia,”

Davis said, then expressed optimism at growing political will to do something about the Middle East. She advocated enactment of S. 1887, the Protect and Preserve International Cultural Property Act now working its way through Congress. The legislation, whose cosponsors include a Georgia U.S. Senator, David Perdue, is urgent: Davis estimated that U.S. buyers represent 43% of the current demand for looted Syrian antiquities.

(Cross-posted from Exchange of Notes blog)

To close America’s 4th of July weekend, reviewing un cri de coeur démocratique

Published on 5 July 20155 July 2015 by Diane Marie AmannLeave a comment

Amid this weekend’s reminiscences of the birth of the United States, I found much to ponder in one reading – not in English, but rather in French.

Entitled La démocratie dan les bras de Big Brother – that is, Democracy in the Arms of Big Brother – it’s the transcript of Le Monde journalist Franck Johannès‘ recent interview with a longtime colleague of mine, Mireille-Delmas Marty, emerita professor of the Collège de France de Paris. (photo credit; prior posts)

Delmas-Marty sounds a warning about the “downward spiral” that, in her view, has created an unwelcome “metamorphosis in criminal justice” in the years since terrorists attacked New York and Washington on September 11, 2001. 1st in the vortex was the United States, she says, and she fears that her own homeland, France – and, indeed, the planet – are following suit.

Contributing to this analysis, in her view:

► Characterization of terrorist acts as “exceptional” offenses, related to more to war than to ordinary crimes, coupled with the redefinition of unlawful association so that it may apply to “only one person,” without proof of actual association with another.

► Globalization of surveillance and “social control,” in an effort to predict offenses before they happen. Post-9/11, the United States moved from notions of preemption to notions of prevention, she notes. She argues that today the United States, and others, have moved further, to “prediction” – a shift that lends justification to confinement of persons deemed harmful, not only before they have been proved to commit an offense, but also after they have served postconviction sentences. She contends (all translations mine):

‘To lock up a human being, not to punish harm but rather to prevent harm, as if he were a dangerous animal, is in truth an act of dehumanization…’

► Persistence of nonstate actors that once would have been deemed exclusively “criminal organizations,” but now are seen as parties waging armed conflict. Not long ago, Al Qaeda dominated this discourse; today, it is “the so-called ‘Islamic State.'” Delmas-Marty continues:

‘With whom is a treaty of peace to be concluded? We now have all the ingredients for a global, and permanent, civil war.’

Among Delmas-Marty’s recent books is Libertés et sûreté dans un monde dangereux (2010). In the Le Monde interview, as in that book, she calls for restoring a balance between desires for security and the value of liberty. (It’s a balance that I’ve explored in my own writings, including “Punish or Surveil” (2007).)

“To dream of perfect security,” Delmas-Marty maintains, is an “illusion.” She allows that “[i]n the name of the struggle against terrorism, there can be restrictions on the right to respect for privacy,” yet she would require that such restrictions themselves be constrained in accordance with the principles “of legality, proportionality, and democratic control.”

Much to ponder as the United States begins its 240th year of democracy.

Reviewing charges against Ntaganda, now in International Criminal Court custody

Published on 23 March 201323 March 2013 by Diane Marie Amann4 Comments

Now that the story of the surrender of Bosco Ntaganda has ended with his transport to the International Criminal Court detention center, and given that his 1st court appearance set for Tuesday morning, it’s high time to review the precise charges against this former fugitive.

Pursuant to a request by the ICC’s 1st Prosecutor, Luis Moreno-Ocampo, a 1st warrant sought the arrest of Ntaganda in August 2006. It described him as “Deputy Chief of General Staff for Military Operations” for the Forces Patriotiques pour la Libération du Congo. Conjoined with the Union des Patriotes Congolais, the UPC/FPLC operated as a political-military organization made up mostly of members of the Hema ethnic groups in Ituri. The UPC/FPLC were among several armed groups at war in that region, located in the eastern part of the Democratic Republic of the Congo. (credit for map (c) BBC) The 1st warrant alleged that Ntaganda was No. 3 in the group, led by UPC/FPLC President Thomas Lubanga Dyilo, a co-accused who was himself a Hema born in the region (in contrast with Ntaganda, who is said to have been born in Rwanda).

Only child-soldiering then was charged. Applying the standard required by Article 58(1)(a) of the Rome Statute of the ICC, judges thus issued the 1st arrest warrant after finding “reasonable grounds to believe” that Ntaganda was responsible for

► (i) enlisting,
► (ii) conscripting, and
► (iii) using to participate actively in hostilities

children under the age of fifteen, in an armed conflict of an international or a non-international charter, in violation of Articles 8(2)(b)(xxvi) and 8(2)(e)(vii), respectively.

There matters lay for nearly six years – until last May 14, when the ICC’s second Prosecutor, Fatou Bensouda, sought to expand the list of charges against Ntaganda. Her request came 2 months to the day after the ICC conviction of Lubanga for unlawful enlistment, conscription, and use of underage children in an internal – but not in an international – armed conflict. As I wrote in an American Journal of International Law casenote, in its judgment of conviction, Trial Chamber I had refused to consider trial evidence of sexual abuse in Lubanga, for the reason that the indictment did not include stand-alone charges of sexual or gender-based violence. Expansion of the charges in Ntaganda could avoid a repeat of the result in Lubanga.

The request was granted on July 13 of last year. After reviewing allegations of attacks on non-Hema civilians in Ituri – “in Mongbwalu town and Sayo village between 18 and 23 November 2002” and “in Lipri, Bambu, Kobu and surrounding villages between 17 February 2003 and 2 March 2003” – a pre-trial chamber issued the 2d arrest warrant in Ntaganda. Judges agreed that the Prosecutor had shown the requisite reasonable grounds to believe the accused’s responsibility on 7 additional counts, which alleged crimes against humanity and war crimes in a non-international armed conflict, as follows:

► 1: Murder Constituting Crimes Against Humanity (Article 7(1)(a));
► 2: Murder Constituting War Crimes (Article 8(2)(c)(i));
► 3: Attack against a Civilian Population Constituting War Crimes (Article 8(2)(e)(i));
► 4: Rape and Sexual Slavery Constituting Crimes Against Humanity (Article 7(1)(g));
► 5: Rape and Sexual Slavery Constituting War Crimes(Article 8(2)(e)(vi));
► 6: Persecution Constituting Crimes Against Humanity (Article 7(1)(h)); and
► 7: Pillaging Constituting War Crimes (Article 8(2)(e)(v)).

The form of liability charged in both warrants is that set forth in Article 25(3)(a) of the ICC Statute, concerning commission of an offense

‘whether as an individual, jointly with or through another person, regardless of whether that other person is criminally responsible.’

As is not uncommon among ICC judges, the panel in the 2d arrest warrant decision referred to this as “indirect co-perpetrator” (para. 66), even though that label, derived from the practice of some ad hoc tribunals, does not appear in the ICC Statute. This is the same form of liability at issue in the first two ICC cases to be tried to verdict – not only in the March 2012 conviction in Lubanga, but also in the December 2012 acquittal in Ngudjolo. As is evident at para. 67 of the 2d arrest warrant decision, ICC jurisprudence has constructed a many-element test for whether Article 25(3)(a) has been satisfied. But in each of the cases tried to verdict, 1 out of 3 trial chamber judges objected to the burden that the construct places on the prosecution. (The opinion to this effect in Lubanga, by Judge Adrian Fulford of Britain is at pages 594-607 of the pdf document here; that in Ngudjolo, by Judge Christine Van den Wyngaert of Belgium, is here.) It is thus notable that at para. 66 of the 2d arrest warrant decision in Ntaganda, the pre-trial chamber “underline[d]” that its determination did “not prejudice any subsequent finding regarding the applicability of a different mode of liability at a later stage of the proceedings.”

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