ICC trial of Lubanga off to an ‘inauspicious’ start

From The East African
ICC trial of Lubanga off to an ‘inauspicious’ start
By PAUL REDFERN
Saturday, February 7 2009

The International Criminal Court is being accused of failing the first practical test of its status as a war crime tribunal — in the way in which it has failed to asses the merits of key witnesses in the trial of the Congolese warlord Thomas Lubanga.

The trial of Lubanga, which started in The Hague last week, faced confusion from the start over whether witnesses could face prosecution back in the Democratic Republic of Congo for what they say in The Hague.

Lubanga faces charges of using child soldiers, in a case which some hoped might pave the way for other show trials, such as for members of the Lord’s Resistance Army in Uganda.

The Times newspaper said that most worrying of all was the “botched handling of the first witness, a former child soldier.

“Incredibly, the main prosecutor, Luis Moreno-Ocampo, who has been preparing for six years for this momentous occasion, failed to stay after his opening remarks last Monday. It was left to his deputy, Fatou Bensouda, to examine the first witness last Wednesday, a young man purported to have been recruited into Mr Lubanga’s militia. But with her clumsy questioning, Ms Bensouda failed to coax any cogent evidence out of him and she was left floundering as he returned after the lunch break to retract that he had even been a child soldier.”

The court was hastily adjourned and it has now heard that this vulnerable young man is considered “not in a proper condition to continue giving evidence” by the ICC’s Victims and Witnesses’ Unit.

“It was an inauspicious start for a noble project,” the Times said. “Who could dispute, in principle, that the world is not a better place for a forum that can pursue and prosecute its worst renegades? But it is not just in Court One at The Hague that the ICC is not living up to high expectations.

“The story has been well told of how Joseph Kony, leader of the murderous Lord’s Resistance Army in Uganda, walked out of peace talks with the government the moment he heard that the ICC had issued a warrant for mass murder against him.”

Questions have also arisen as to whether the search for peace in Sudan has been set back by the charges of alleged genocide and crimes against humanity which the ICC issued last July against President Omar al-Bashir.

One consequence has been that the African Union has now agreed a one-year suspension of the process against Mr al-Bashir on the grounds that it would damage the peace process in Sudan — amid claims that Africa is being unfairly targeted as a testing ground for the court.

Critics said that despite these controversies, the Lubanga case was a golden opportunity to show what international justice means in practice.

However, the Times pointed out that the court president, the British High Court judge Sir Adrian Fulford, had nearly called off the trial in the summer when it emerged that the prosecution had used confidentiality agreements to withhold possible exonerating evidence.

As a result, Sir Adrian had ordered that Mr Lubanga be set free because he could not receive a fair trial but he then allowed an appeal, which eventually led to the disclosure by the prosecution that allowed the trial to go ahead.

But the UK paper points out that there has also been “widespread concern at the narrow scope of the charges against Mr Lubanga, all three of which focus on his recruitment and use of child soldiers under the age of 15 and say nothing of allegations of systematic rape and other atrocities said to have been committed by his Union of Congolese Patriots.

“Fundamental to the success of the charges that Mr Lubanga does face will be the testimony of the child soldiers themselves,” the report said. “But if the first witness was chosen to showcase the court’s competence in dealing with this sensitive challenge, it chose badly.

“Although screened effectively from the press and public, and his voice disguised electronically, the unnamed witness could be seen by all in the courtroom. From his seat in a corner of the court, Mr Lubanga could be seen craning his neck to get a good look at him, to the surprise of Congolese journalists who thought he would be shielded from the warlord.”

Moreover, despite assurances that his identity would be protected, the prosecution asked the young witness his date of birth in open court and also the names of the friends he was with when allegedly recruited by Mr Lubanga’s militiamen.

“For a young man traumatised by war and facing a roomful of 20 lawyers and three judges for the first time, under the impression he would have his identity protected, the whole experience must have been disturbing, to say the least,” the Times said

Critics acknowledge that international justice is not easy, but the success of the ICC may well “depend on how it cares for the most vulnerable people caught up in its pursuit of high-profile quarry,” the report concludes.