What price international justice?

The first ever verdict in the almost decade-long existence of the global war crimes court will leave a feeble record, unprecedented in the history of international justice, writes Thierry Cruvellier

The trial of Congolese ex-rebel leader Thomas Lubanga, who was found guilty last month by the International Criminal Court (ICC) of recruiting and using child soldiers, has been sharply criticised for the conduct of Prosecutor Luis Moreno-Ocampo and accused of weak investigative procedures, insufficient charges and questionable ethics and loyalties. A hearing will be scheduled for later this year to determine Lubanga’s sentence. Ituri, the region of the Democratic Republic of the Congo (DR Congo) from which Lubanga hails, was the first to receive attention from the prosecutor of the nascent ICC in July 2003. However, the investigation, which began in 2004, raised concerns from the start.

To begin with, the investigative team comprised a dozen people, only two of whom were police officers. As the region was deemed too dangerous for investigators to settle in for the long haul, the investigation took place in sevento ten-day periods, making use of local “intermediaries” or activists to identify witnesses. It looked like a token and irresolute process. In his statement before the court, Bernard Lavigne, chief investigator in the case from 2004 to 2007, described it as “dragged down” by security concerns, by the prosecutor’s vacillations and by the quality of those recruited for the job. These “long-distance” investigative methods ultimately poisoned the trial. Before the court, Lavigne testified that “there were no investigators on the ground to go in families’ homes to gather any information whatsoever” on the credibility of witnessesidentified by the investigative team’s intermediaries.

He described how investigators made their own safety and the safety of potential witnesses priority over actually collecting any evidence. All witnesses identified as former child soldiers were placed in protection programmes and relocated away from their homes. In a ruined, war-torn country, the prospect of such protection increased the risk of false testimony.

During the trial, the defence pointed out that one of the child witnesses had “all of his expenses – room, board and medical care – taken care of during nearly two years, as well as school fees for an entire academic year”. Attention was also drawn to an intermediary who had contacted 10 witnesses for the prosecution and who “was paid at least $23,000 by the office of the prosecutor over the course of three years and [whose] ... living expenses were covered beyond that period”. The defence denounced the prosecutor’s case as “gangrenous through and through, due to the investigative methods used,” including “fraudulent dealings.” According to the defence, none of the nine witnesses the prosecution presented as former child soldiers told the truth under examination. To discredit their testimony, the defence often provided material proof – school files, electoral rolls – or simply relied on retractions.

One witness testified: “I wasn’t a solder – it was more a question of plans we’d prepared. We met with intermediary 0316 to tell these lies. I was supposed to carry out my mission, the agreement I had with intermediary 0316.” Lavigne explained: “As soon as the news got out in Bunia [Ituri’s capital] that being a threatened witness meant you could be evacuated, well, of course there were a few latecomers who discovered they had a calling as a witness if it could help them get a free ride out.” The defence was then able to argue that it had “become convinced that behind these false witnesses were individuals who, protected by anonymity, organised the construction of false testimony”.

The accusations were so serious that in May 2010, the trial chamber ordered that the identities of all intermediaries working for the prosecution be disclosed to the defence. When prosecutors refused to reveal the identity of one of their intermediaries, judges, infuriated by their unwillingness to respect the court’s rulings, ordered a stay in the proceedings. Never in the history of international tribunals had such a decision been handed down. This was not the first suspension in the Lubanga case. The first stay, accompanied by an order for Lubanga’s release, was issued in July 2008, before the trial even began. Just as in 2010, the issue was the prosecution’s unwillingness to disclose information, based on working methods denounced by defence lawyers as reckless.

The prosecutor had obtained more than 200 documents subject to confidentiality agreements signed with various organisations, including the United Nations. Under these agreements, the documents could not be disclosed to either judges or the defence. However, the prosecutor intended to submit some of them as evidence, while others appeared to contain exculpatory information. Judges, faced with the prosecutor’s inability to comply with the Chamber’s request for disclosure, concluded that the trial could not continue.

“The trial process has been ruptured to such a degree that it is now impossible to piece together the constituent elements of a fair trial,” they stated in their order to suspend the trial and free Lubanga. As would be the case two years later, the Appeals Chamber saved the prosecutor from total humiliation by overturning that decision. No matter its conclusion, the sole verdict to be handed down during the nineyear reign of Moreno Ocampo will necessarily be seen as an assessment of his legal prowess – as well as that of his successor, Fatou Bensouda, who took over the controversial case one month before it opened in January 2009.

Thierry Cruvellier is author of Court of Remorse: Inside the International Criminal Tribunal for Rwanda and The Master of Confessions about the trial of Duch at the Khmer Rouge Tribunal.

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