Global Policy Forum

By Katy Glassborow*

A decision by pre-trial judges to label the Ituri conflict "international" is causing controversy.

Judges at the International Criminal Court, ICC, have introduced significant alterations to the case against Congolese indictee Thomas Lubanga that prosecutors say could force them to put him on trial for crimes they don't have the evidence to support. Prosecutors wrote to pre-trial judges in early February asking them to reconsider the changes they made in the case against Lubanga, the founder of the Union of Congolese Patriots, UPC, and the alleged commander of its military wing, the Patriotic Forces for the Liberation of the Congo, FPLC.

Since transfer from prison in Kinshasa in March 2006 he has been in custody at The Hague, charged with conscripting and enlisting child soldiers to fight in Ituri, a mineral-rich region in northeast DR Congo which has witnessed bloody inter-ethnic fighting since the late Eighties, often over access to gold, diamonds and timber.

Pre-trial judges presided over a confirmation of charges hearing in November, and were then asked to decide whether there was sufficient evidence to proceed to trial on the charges brought by the prosecutors. They ruled on January 29 that the trial could go ahead but re-labelled the Ituri conflict "international" due to the presence of Ugandan and Rwandan troops. By doing so, they gave the prosecutors the burden of proving that the specific crimes with which they are charging Lubanga fit into this new international legal framework. That means making a direct connection between the UPC and others outside the country.

Legal precedent does exist to suggest the conflict in Ituri had an international dimension. Additionally, in 2003 Human Rights Watch documented Ugandan troops working directly with the UPC. However, their report detailed Ugandan involvement in massacres and killings, not especially in the recruitment of child soldiers. Chief prosecutor Luis Moreno-Ocampo recognised the "substantial involvement" of Uganda and Rwanda in DR Congo in a February 5 written request to appeal the decision, but said the case against Lubanga should be to establish the crimes of an individual, not a state. He says he is being "forced to prosecute a crime" containing specific elements which are "not supported by the evidence" currently in his possession.

ICC deputy prosecutor Fatou Bensouda told IWPR that unless the judges can be persuaded to change their minds, prosecutors might have to return to the DR Congo to gather evidence that these international influences "had control over Lubanga and the UPC". She warned this would take "a great deal of time and resources", though it's not clear how a reinvestigation in Ituri would affect prosecutors' plans to conduct two trials and six investigations into alleged war crimes over the next three years. "We do not deny the fact there has been substantial involvement [of foreign troops in Ituri], but the evidence we have now does not show there is this connection [with Lubanga]," said Bensouda. "We want to remain focused on our charges within a non-international conflict."

The International Court of Justice, ICJ, which arbitrates on disputes between states, ruled in 2005 that Uganda occupied territory in Ituri between 1998 and 2003 and provided military, financial and logistical support to rebels within DR Congo. Leading international legal authority Justice Richard Goldstone explained to IWPR that any decision of the ICJ is "strongly persuasive, but not binding" for other courts. He gave the example of the imminent verdict by the ICJ on the genocide case brought by Bosnia and Herzegovina against Serbia and Montenegro. If the ICJ were to rule that no genocide took place, this would be in direct contradiction of findings of the International Criminal Tribunal for the former Yugoslavia, ICTY.

The case is now raising questions about whether the pre-trial judges have overstepped the mark by altering the characterisation of the conflict. Goldstone suggests it should be up to the prosecutor to present the evidence available to him and the trial chamber to make the final determination when it has heard all the facts. "It is not for the pre-trial chamber to make that determination [whether the conflict is non-international or international]," he said. Moreno-Ocampo says if pre-trial judges felt the evidence presented during the confirmation of charges hearing led to a different crime than the one charged, they should have asked prosecutors to consider amending it rather than taking matters into their own hands. Prosecutors agree with Goldstone it is their job alone to determine which individuals should be charged and prosecuted with which crimes, and vehemently protect this autonomy.

They argue that the pre-trial judges are not vested with the power to modify legal characterisations of charges, and have "deprived the prosecution of its statutory right to consider and decide whether an amendment to the charges is warranted". Moreno-Ocampo added that the chamber's decision has "expelled" the prosecution from the final decision-making process surrounding the selection of crimes to be prosecuted, which goes against both the "letter and the spirit" of the rules governing the court. And this seems to be supported by the Rome Statute, which dictates how the court is run, and outlines in Article 61 the three options before the pre-trial chamber after completion of the confirmation of charges hearing. It says the pre-trial judges can either confirm the charges and commit the person to trial on the charges confirmed; decline to confirm the charges due to insufficient evidence; or adjourn the hearing and ask the prosecutor to provide more evidence or conduct further investigations. They can also ask the prosecutor to amend a charge because they feel the evidence submitted establishes a different crime than the one presented.

However, observers of the court like William Schabas, director of the Irish Centre for Human Rights, point out that those who wrote the Rome Statute added in various checks and balances to moderate the discretion of the prosecutor. Schabas points to one regulation in the statute which allows the trial chamber to modify the legal characterisation of facts and said perhaps this power is implicit for pre-trial judges too. Nonetheless, it is not entirely clear whether the pre-trial judges' amendment means now that if prosecutors can't prove that Lubanga's alleged crimes were committed within an international context the case may be thrown out. Or whether prosecutors could argue that the definition of the crime of conscripting child soldiers does not materially change whether committed in an international or national conflict. This whole discourse is frustrating for some observers of the court.

Schabas told IWPR that the use of child soldiers in armed conflict is "committed in essentially the same manner whether the conflict is international or non-international". The definitions are basically the same whatever the nature of the conflict, he says, adding that the quibbling "must seem a waste of time to those watching the court from outside". Sylvia de Bertodano from the International Bar Association says that the only way prosecutors can read the pre-trial judges' decision is as a failure to confirm the charges. She says the role of the pre-trial judges is "crystal clear - either to confirm or not confirm the charges, but not to change them". Even though the pre-trial judges merely changed the context of the charge, the context is one of the major things the prosecution has to prove, and de Bertodano argues that judges should have adjourned the hearing and requested the prosecutors review the charges.

This is not the first time that judges have clashed with prosecutors over the terms of an indictment in an international war crimes tribunal. Many weeks have been spent at the ICTY arguing over the national or international nature of the Nineties conflict in the former Yugoslavia. Over a decade ago, prosecutors from the International Criminal Tribunal for Rwanda, ICTR, did not initially charge Jean-Paul Akayesu, former mayor of Taba in central Rwanda, with crimes of sexual violence despite overwhelming evidence of mass rapes. After insightful questioning of witnesses giving evidence in the docks by the trial judge, which elicited stories of rape, Judge Navi Pillay requested in 1997 that the indictment against Akayesu be broadened to include charges of sexual violence. Akayesu was found guilty of inciting Hutus to murder and rape Tutsis and became the first person convicted of genocide in an international court. However, the difference here is that Judge Pillay was a trial judge, not a pre-trial judge, and was clearly invested with the power she exercised.

Proceedings are arguably more complex in international courts than domestic courts, as their rules of procedure and evidence are a complex mix of civil and common law, and the courts are staffed with attorneys cherry-picked from legal systems all over the world. In civil law systems, for example, the pre-trial chamber has the power to re-write indictments, which they do not possess in common law systems. Therefore, the ICC's prosecutor is keen to assert his power and restrict that of the pre-trial judges, because otherwise there would be nothing to stop the pre-trial chamber completely re-writing the indictment. Justice Goldstone agrees, adding that it is "not part of the judicial function of the pre-trial chamber to start amending the basis of an arrest warrant", because Moreno-Ocampo has to prosecute crimes on the evidence available to him. He told IWPR that it is unfortunate for a pre-trial chamber to substantially amend the charges, which is "not sensible as they do not know what evidence the prosecutor has accumulated, or more importantly, what evidence is not available to him".

But the prosecutors are left in a sticky situation, because the only way they can appeal the decision is via the pre-trial chamber - the very organ that made the decision in the first place. They will now have to wait and see whether the judges allow this matter to be transferred into the hands of the appeals chamber, and whether judges there decide to reverse the decision.

About the Author: Katy Glassborow is an IWPR reporter in The Hague.