Global Policy Forum

By Katy Glassborow

The new judge in the war crimes trial of Thomas Lubanga would like to conduct part of the proceedings in the Democratic Republic of Congo, DRC, to make it more relevant to people affected by the crimes. The ICC is based in The Hague in the Netherlands but Judge Adrian Fulford told IWPR, "I believe that in so far as it is practicable and appropriate, we should ensure trials at the ICC are relevant to the countries from which they emanate." As former leader of the Union des Patriotes Congolais, UPC, a Hema tribal militia, Lubanga was indicted by the ICC on suspicion of having conscripted and enlisted children to fight in bloody inter-ethnic fighting around the Ituri region of the DRC. He was transferred from Kinshasa to The Hague in March 2006, and judges ruled in January that the evidence was sufficient to proceed to a full trial. Judge Fulford, who was electing as presiding judge on July 12, told IWPR, "[There would be a] far greater degree of relevance if the trial is taken home so it can be witnessed first hand and become part of the life of the country where the critical events took place."

The ICC is the world's first permanent war crimes court and any country can sign up for it, and ask for help in investigating and prosecuting war crimes suspects. The government of the DRC referred the situation there to the ICC in April 2004, and Judge Fulford is aware that security remains a concern due to persistent inter-ethnic tensions. However, he insists that taking part of the trial home would make justice relevant to Congolese, and "stop this being distant and removed proceedings in northern Europe". Heeding lessons from the International Criminal Tribunals for Rwanda and the former Yugoslavia, the ICC is keen to involve victims as much as possible, so that the verdicts have a durable impact on the countries involved. But the court is also trying to work as quickly as possible, and despite pre-trial judges giving the green light to a full trial of Lubanga, Judge Fulford said it would not start until the end of this year at the earliest. Proceedings have stalled due to security issues in Ituri. Separately, the resignation of Lubanga's defence lawyer Jean Flamme led to a period of negotiation between the court and his newly appointed lawyer Catherine Mabille over resources allocated to the defence.

Never before has an international tribunal given victims the opportunity to participate both during investigations into war crimes, and also in the trials of suspects. Judge Fulford is aware that the extent to which victims participate could very well affect the trial's length. There are also questions about what participation will actually mean. According to the rules of the court, victims can apply to participate "where their personal interests are concerned". They have to demonstrate they suffered the crimes which the accused is charged with. "This will not necessarily lead to a three-party fight," said Judge Fulford, because the court's rules say any involvement by victims must not render the trial of the defendant unfair. How much victim participation lengthens the trial depends on what they are allowed to do, and Judge Fulford says he is "extremely interested in the extent to which we can afford a real role for victims, whilst protecting the fair trial rights of the defendant". Because victims can potentially put questions to the accused in court, Judge Fulford conceded that there is a potential tension between the roles of the prosecution, defence and victims which trial judges "need to keep a clear eye on".

Human rights groups have criticised the ICC for only accusing Lubanga of conscripting child soldiers, when they say he is responsible for a plethora of other crimes resulting from inter-ethnic fighting over access to gold, diamonds and timber since the late 1980s. Pressure groups have campaigned for charges to be widened to encompass crimes of sexual violence. They say that when being questioned, former girl soldiers will mention experiences including rape, but these charges are not included in the indictment. Judge Fulford said that criminal trials tend to be "organic in the way they develop", and whether there is a later opportunity to amend charges during the life of the trial will be decided by the jurisprudence of - or precedents set by - the court. The court has considerable leeway in how it decides the trial should develop. "We are starting not with an empty sheet of paper, but one with only a limited amount of writing on it," said Judge Fulford. He is also keen to explore different forms of collecting witness testimonies from the places the court operates. A single judge could, for example, hear the evidence of a witness in the presence of lawyers for the prosecution, defence and victims, with the results incorporated into the trial. "We need to explore what the most appropriate ways are for a modern international court to receive evidence," he said.

There is an assumption that proceedings are going to be adversarial in as much as the lawyers for the prosecution, defence and victims present opposing arguments to judges, but Judge Fulford says this should not be assumed as a given. "We have sufficient flexibility, and need to be responsive to the particular issues that arise with individual witnesses," said the judge. If the court had a procedure whereby witness testimonies were recorded in the DRC or any of the ICC's situation countries under the supervision of judges, "we would thereby take a proactive role in how witnesses are dealt with," he said. The judges said the cross-examination of witnesses in court, which may be a useful tool in determining the truth, may not be the kindest process for psychologically damaged or fragile witnesses, "We have to make sure we are establishing for ourselves the best way to conduct these trials, and we are not excluding other options, and keep our eyes wide open to the different possibilities." A preliminary hearing will be held on September 4 to set a timetable for dealing with pretrial issues.