The chamber concludes that the prosecution has proof beyond reasonable doubt that Mr. Thomas Lubanga Dyilo is guilty of the crimes of conscripting and enlisting children under the age of 15 years into the FPLC. And using them to participate actively in hostilities. With these words Trial Chamber One convicted Thomas Lubanga on 14 March 2012 as first defendant of the ICC. An epilogue to the 593 page judgement. A different scenario, the radio voice in boneyad DNC first December 2014 After the 14 year sentence has been announced. The correspondent says we are live in the studio with a communications officer for the Bully office of the IPC. They are people who are happy. There are those who are unhappy. I don't know how you handle the situation. It is often a historical day when a judgement is pronounced. The trial has offered different narratives Based on testimony or documents. After the closure of the trial, the curtain drops. Judges deliberate in secret. The parties and the victims await resolution. The judgment is meant to provide an authoritative account on guilt and innocence and to bring a sense of closure. Can it fulfill these functions? How does it do so? This is what we will discuss in the next two videos. We will start with a function of the judgement and its process. Technically, the judgement marks the end of the trial. It's a main function is to answer to the motions of parties and participants. And to make a final determination on guilt or innocence. The judgment is of particular significance to the accused person who is the last word to trial. But it read to extend beyond accused the judgement is a response to all participants in the case, often the reaffirmation of the law. And it's application makes the most visible contribution to the cause of victims and specific cases the determination of criminal responsibility of the defendant as a basis for reparation. Moreover, the judgment provides legitimacy to the relevant institution. The process of judgment produces an authoritative account of the law and the facts. However, there's a certain tension between purpose and form. The judgment must be understandable by the public, but anyone who reads a judgment will soon notice that judgments are difficult and lengthy. For instance, the Charles Taylor judgment went 2,500 pages while the Karadžić judgment came close to 3,000 pages. This may be explained by the complexity of facts and the multiplicity of audiences. Judgment typically, respond to claims and concerns by a broad range of actors. Legal and political agents, local actors, or specific knowledge communities. The special value of the judgement lies in the fact that it translates to different narratives of the trial into one authoritative account. How is this done? The task of the judges is to apply the law to the fact and to evaluate the evidence. Parties have typically filed more evidence than needed. And judges have admitted evidence that later turns out to be of minor importance. Guilt or innocence is decided through the deliberation of the judges. This process typically requires an element private discovery or intuition. This freedom is protected by the principle of the secrecy of deliberations, this means that judges must be free to discuss, develop, or even change views. Otherwise they might refrain from speaking freely during the deliberations. The responsibility of the accused must be determined based on the content of the trial and the assessment of the totality of the evidence rather than cherry picking. But it is difficult to base this decision solely on the overall impression at the end of the case, often several years after hearing the evidence. Much of the groundwork for the deliberations is laid by internal memoranda and preparatory work undertaken during the trial. Judgements are mostly collective products that emerge in bits and pieces over the years. One of the main challenges is to reach agreement. The ICC statute contains an express obligation of judges to attempt to achieve unanimity in their decision. This principle reinforces the obligation to conduct common deliberations but no judge can be forced to vote with the others. This is why separate, or dissenting opinions are typically allowed. Like in other highest courts, they're often the rule, rather than the exception. Separate opinions and dissents undoubtedly serve useful functions in the legal process. There maybe an expression of the conscience and the impartiality of the judges. For instance Justice Pal's legendary dissent at Tokyo. Challenge the clear distinction between the guilt of the vanquished and the victim hold of the victors of law. He argued that the domination and colonial practices of western powers in the late 19 century. Shall be considered before passing judgment on Japan's responsibility for acts of aggressive war. Other individual opinions or dissents have provided nuance to argument of the majority or contributed to the development of the law. This may improve the quality of a decision. In some cases, the minority of today becomes the majority of tomorrow. A key example is a dissenting opinion by the late Judge Antonio Cassese in the Ademovic Case. His claim that duress may serve as a defense to murder rather than as a mitigating factor became the prevailing view in the codification of defenses in ICC statute. But there are also drawbacks the reasons for the issuance of separate opinions and descents are not always clear. In certain cases they are a means to avoid common deliberation of hard questions or to express individual opinion on point of law that are only remotely connected to the case. This may compromise the quality of the judgement or invite future challenges. Some types of whistle blowing may infringe on the secrecy of deliberations. Moreover, certain fundamental dissents may undermine the authority of the judgement. A drastic illustration is the dissenting opinion of in the Seselj case. Vojislav Sesel, President of the Serbia Radical Party, was acquitted by the trial chamber of the Yugoslavia Tribunal after several years of trial. The majority of the Trial Chamber concluded that Seselj public appeals to forcibly remove croats from Serbia by trucks and trains rather than to kill them did not constitute a criminal offense such as incitement to genocide. Rather, the appeals were considered as an expression of an alternative political program. Seselj called to clean areas and to take revenge where interpreted by the Trial Chamber as statements meant to boost the morale of the troops. The provisions of busses by Serbia forces to deport civilians in municipalities under attack were qualified as a humanitarian measure. With this reasoning the judgement deviates from many of the narratives established in other tribunal judgments. Judge Lattanzi qualified the judgment as a big accident that it's reasoned so poorly that it lacks authoritative force. She argued that in order to acquit Seselj the majority set aside all of the rules of international humanitarian law that existed before the creation of the tribunal, and all of the applicable law is established since its inception. With this argument, many Nazi leaders could have been acquitted. When the reasoning of the majority does not engage with fundamental objectives of the minority argument, it may be difficult to explain how the required threshold of beyond reasonable doubt is meant. That's ultimately the legitimacy of separate opinions and descents depends largely on how they are used. In this video, we've examined the space of the judgement and criminal procedure and the deliberative process. In the next video, we will explore the authority of judgement and some of their main problems.
