By Alison Cole
Some six years ago, the International Criminal Court started proceedings in the case of Thomas Lubanga Dyilo, a militia commander from Eastern Congo accused of conscripting, enlisting and using child soldiers. His trial was the first to open at the ICC in The Hague in January 2009; it is now entering its final stages, with the scheduled hearing of final arguments from the prosecution and defense. The judges will then move to preparing their judgement, deliberating on proceedings that have been a mix of milestones and near-disasters for international justice.
Starting with the good news, over the course of the Lubanga trial, the ICC has established itself as the world’s watchdog over crimes that shock the conscience of humanity. In a testament to the critical role the ICC now plays, the UN Security has referred two situations to the ICC for investigation—Darfur and Libya—even though some members of the Security Council have not signed the ICC Statute. The concept of “positive complementarity” has also taken root, such that increased efforts are being made globally to ensure that the ICC “complements” domestic jurisdictions which should also prosecute of international crimes in national courts. The Lubanga case itself has brought increased attention to the need to stop the use of child soldiers in armed conflicts. In total, there are seven situations currently under consideration at the ICC, with hearings relating to six cases taking place over the course of this year.
Moving on to the not-so-good-news, there were several stages in the Lubanga trial where the entire process was nearly derailed. Before the trial even began, the judges suspended the proceedings in June 2008 and ordered the unconditional release of Lubanga. The judges found that the prosecution had failed to disclose information to the defense due to assurances of confidentiality that the prosecution had made to the information providers. Some of this information was potentially exculpatory—favorable to the defendant—and thus disclosure to the defense was essential to the maintaining of a fair trial. The prosecution was faced with a conundrum: whether to obey the court order or honor their prior assurances to information providers. The prosecution opted to disobey the court order. Although a solution was eventually found, the defense leveraged the incident throughout the trial and consistently accused the prosecution of falling short of its disclosure obligations.
Two years later, the case was suspended again in July 2010 with the judges issuing a warning of sanctions to the prosecution and ordering the release of Lubanga after another refusal of the prosecution to comply with a court order, this time to disclose the identity of an intermediary whom the prosecution had been utilizing to identify potential witnesses. Intermediaries are generally local persons or organizations who are not Court staff but facilitate Court tasks such as locating potential witnesses, usually with compensation such as the payment of expenses. The defense alleged that this particular intermediary was, unbeknown to the prosecution, encouraging potential witnesses to fabricate testimony.
Again, although a solution was eventually found, the defense utilized the incident to bring the methodology of investigations into question. Throughout the trial, the defense argued that all prosecution witnesses lied about their identities as child soldiers, even accusing two witnesses of identity theft in order to fabricate claims they were former child soldiers. Two prosecution witnesses also admitted fabricating evidence, causing chaos in the courtroom by unexpectedly recanting their written statements during their oral testimony (although one later stated he did so due to security threats and therefore reverted to his original testimony once he received adequate protective measures). The defense later consolidated all such purported irregularities to request the judges to throw out the case due to abuse of process.
Although the judges dismissed this claim, thereby permitting the trial to continue, they stated that they had not entirely disposed of the question whether the prosecution had abused the process in “certain particulars” which sets a worrying tone as the case moves to judgment.
The Lubanga case provides important insights into the complexities of managing investigations and prosecutions of international crimes, particularly in situations of armed conflict where security and infrastructure challenges limit access. The need to pursue open-ended, evidence-lead investigations must be reconciled with the need to maintain focused and efficient inquiries. Given their local knowledge, intermediaries can be instrumental in maintaining this balance.
However, the court must clearly define the manner of its interaction with intermediaries, particularly the modalities of compensating, supporting and protecting intermediaries. The court will finalize new guidelines on this issue this December at the annual meeting of countries who signed the ICC statute. The Open Society Justice Initiative has provided the court with detailed comments on these guidelines. It is crucial to the proper functioning of the court that sufficient attention and funding be dedicated to the issue of intermediaries.
There are also valuable points of reflection with respect to the management of evidence and the defining of the prosecution case. Disclosure obligations are non-negotiable, and there are positive signs that lessons with respect to evidence management are being internalized within the court, given the absence of this matter arising to the same degree in other ICC cases. With respect to the defining of the case hypothesis and the translation of this into the selection of charges, it has been frequently pointed out that the charge of a single crime pertaining to child soldiers in the Lubanga case was too limited given the terrible breadth of criminality taking place in that region of the Congo.
Of particular concern is the failure of the prosecution to charge sexual violence, and the refusal of the judges to re-characterize the charges to permit the inclusion of sexual violence charges, which is in stark contradiction to the repeated testimony of the prevalence of the crime. It is critical that the exercise of prosecutorial discretion in case selection and charging adequately reflect that range of criminality.
Teething problems are always to be expected in any new institution. Although some matters may have been anticipated and averted, the closing arguments represent an opportunity to reflect on the practical realities behind efforts to end impunity for international crimes. The Lubanga case has stretched through the entire term of the ICC’s first prosecutor, Luis Moreno-Ocampo, and it will be down to his successor, who will be announced at the December meeting of State Parties to the ICC, to receive the trial judgment and create a constructive environment for continual improvements in investigations and prosecutions in order to safeguard the future of international justice.
