The International Criminal Court (ICC) has all the trappings of a weighty institution: 18 judges, a large corps of prosecutors, a multimillion-dollar budget and its own prison. However, the court is facing mounting criticism over the handling of its first case, which may be coming apart after more than four years.
Even longtime supporters of the court, based in The Hague and created to deal with large-scale atrocities, say they are frustrated by what many call the unacceptably slow pace and numerous missteps that have dragged out the trial, in which Thomas Lubanga, a Democratic Republic of the Congo (DR Congo) militia leader, faces charges of committing war crimes by conscripting children.
Judges have twice ended proceedings and ordered Lubanga’s release, because, they said, the prosecution erred in dealing with evidence and refused to carry out their “unequivocal orders,” making a fair trial impossible.
Both times, appeals judges ordered the trial resumed and errors redressed. However, tensions over a range of issues between the prosecution and the judges continue.
Now, deep into the trial, the defense has produced new evidence that may undermine the entire case, namely claims by several witnesses that Congolese researchers for the prosecution enlisted some witnesses to fabricate evidence.
“The whole trial has been a nightmare since the disputes between judges and the prosecutor began in 2008,” said William Schabas, who teaches human rights law at the National University of Ireland, Galway, and follows the court.
Relations between the bench and the prosecution have become “ugly and unhealthy,” he said. “There appears almost a breakdown between the two sides.”
Lubanga, 49, a onetime psychology student, has sat through the proceedings variously wearing a dark suit or African robes, looking somber and impassive, sometimes staring at witnesses. He was sent to The Hague in 2006 by Congolese authorities who had imprisoned several militia leaders from the DR Congo’s complex wars — involving years of protracted fighting fueled by ethnic strife and rivalries for power and mineral riches. Lubanga’s group, the Union of Congolese Patriots, was among the militias accused of massacring civilians in 2002 and 2003.
Prosecutors say that Lubanga was accountable for the enlisting, often by force, of several thousand boys and girls, some as young as eight, who were drugged and trained to kill, steal or mutilate civilians, and in the case of girls, to provide sex to militiamen. The prosecution presented video of Lubanga visiting militia camps in the presence of child soldiers.
The defense maintains that Lubanga was only a political leader who did no military recruiting and instead tried to demobilize children fighting in his group. It argues that he is a scapegoat for more senior leaders, some now part of the DR Congo’s military or the government.
At the start of the trial, which was postponed numerous times, the chief prosecutor, Luis Moreno-Ocampo, presented it as a signature case that would show the world the atrocious plight of child soldiers and their destroyed lives.
The UN has estimated that child soldiers — defined as younger than 15 — fight in at least a dozen armed conflicts around the world.
However, public knowledge of the trial, even among victims’ groups trying to follow it in the DR Congo, has been limited by the mix of legal wrangling and the secrecy of the proceedings.
Many witnesses, including 10 presented as former child soldiers, have testified behind closed doors, either to protect their privacy or because they feared reprisals at home. Lawyers have also asked to close sessions to the public because they fear witnesses may inadvertently divulge confidential material.
“It’s still not clear to me if this is a strong case, if all this time and effort was worthwhile,” said Lorraine Smith, a lawyer monitoring the trial for the International Bar Association. “The substance of the case got lost in the procedural tangle; even the record is not clear because transcripts are missing or blacked out.”
Some chilling details have come out in the trial. One witness broke down in court when he talked of the moment when the militia killed his mother while he and his siblings hid under the bed. Another, a former girl soldier, told the court that she was abducted by the militia at age 13 and taken to a training camp.
She said recruits were shaved with broken glass and “some of us were wounded.” Training began at 4am, boys and girls were often whipped for the slightest mistake and girls had to sleep with the commanders, she said.
Victims, who have been allowed to join the case as “civil parties,” an innovation at the court, have protested that the prosecution has produced a narrow indictment of Lubanga, focusing on one charge and omitting the killing and the sexual violence of his group.
“Congo has among the highest sexual violence in the world — it’s unfathomable that they brought no such charges,” said Bridgid Inder of the Women’s Initiatives for Gender Justice, one of the rights groups following the trial.
She said that from the start, her group had brought large-scale rape in military camps and villages to the attention of the investigators, but that it was ignored.
“This was the chance to address the constant raping of the girl soldiers,” she said.
The panel of three international judges has heard regularly about rape from witnesses for both the defense and the prosecution, but defense lawyers stopped further questioning about it, saying it was not part of the charges against Lubanga.
Fatou Bensouda, the court’s deputy prosecutor, said in an interview that the trial intended to focus on child conscription as a whole, because it was a serious problem in many places. Lubanga was charged with child conscription, she said, “because that is where we had the best evidence at the time.”
Lawyers in The Hague say they are puzzled that the first trial, dealing with a single issue, has taken so long. They point to 15 years of experience in international tribunals dealing with Rwanda, Sierra Leone and the former Yugoslavia.
The most serious errors in the eyes of the judges is that investigators for the prosecution collected evidence from UN staff members and rights groups in the DR Congo and gave assurances that they would not disclose the identities of the sources. While the prosecution tried to use much of that anonymous evidence in its case, the rules dictate that such material cannot be used unless its sources are disclosed to the judges and the defense.
“Those investigators have now left, but we’ve spent three years undoing the damage and getting permission from sources,” said one prosecution official.
Another problem arose because investigators had worked with outside intermediaries in the DR Congo who served as local contacts and introduced possible witnesses. Prosecutors said such people were indispensable in a place where they have no office and are not familiar with the territory and the culture. However, judges were furious when prosecutors refused orders to provide the names of some intermediaries because they had to be moved first to a safer place.
Some lawyers following the trial believe that the court may expedite the pace now that a second trial was started this year and a third trial was to begin on Monday.
The optimistic view is that the pitfalls of the first trial will serve to strengthen the institution.
Tracey Gurd, senior advocacy officer for the Open Society Justice Initiative, a legal rights advocacy group, said in an appraisal of the case in January that the court’s effort to protect Lubanga’s rights as a defendant had “helped build confidence that the ICC is an institution determined to be fair.”
However, the outcome of the Lubanga trial is still uncertain. The defense will rest its case this month and Catherine Mabille, the lead lawyer, has said that she would ask the court to dismiss the case.
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