As many of you probably have heard by now, Trial Chamber I of the International Criminal Court has ordered the release of Thomas Lubanga Dyilo in an oral hearing following a decision last week imposing an unconditional stay on the proceedings of the case. Mr. Lubanga is a Congolese warlord who was put on trial in the ICC on charges of war crimes committed in the rich Ituri region of Congo, war crimes related to the enrollment of children in his armed group. Arrested in March 2005, his trial started on 26 January 2009. He is the first accused to face trial before the ICC, and so far it’s looking like it’s heading towards a complete fiasco. The Trial Chamber gave the OTP 5 days before it implemented its decision and Mr. Lubanga can walk free, in order to give the Prosecutor a chance to appeal, which it probably will do (UPDATE: Prosecutor announced that he has appealed).
The issue at hand. So why did the Court decide to stay the proceedings of this case and a few days later order the release of Mr. Lubanga? Apparently, the OTP (Office of the Prosecutor) committed a series of procedural irregularities by trying to conceal documents, and in particular the name of a key witness – only known as ‘intermediary 143’, from the defense and the judges, and this despite several orders by the Trial Chamber to release such information.
Clearly, there’s something of a problem when the Prosecutor refuses to abide by the orders of the Chamber. As Kevin Jon Heller writes (in the comments sections): “Prosecutors do not get to ignore court orders. Period. If they do, they should be held in contempt and, if the relevant rules provide, removed.“
The OTP, for its defense (there’s some irony in there…), claims that it is bound by an “independent statutory obligation” to Protect Witnesses, on the grounds of article 54 of the Rome Statute. According to the OTP’s position, it has a statutory obligation to protect witnesses from foreseeable risk, independently from whether the Chamber itself considers that the circumstances do not pose a risk to the said witness. To which the Chamber answered rather dryly (from Dov Jacobs’ post): “No criminal court can operate on the basis that whenever it makes an order in a particular area, it is for the Prosecutor to elect whether or not to implement it, depending on his interpretation of his obligations.” (§27).
For a deeper discussion on the validity (or lack thereof) of the OTP’s claim that it is bound by an “independent statutory obligation,” see another one of Kevin Jon Heller’s post at Opinio Juris, where he considers that there is no such obligation.
My expertise in ICC Procedural Rules is still rather limited (hoping that will change in the future), but on principle I have to agree with the Court and Professor Heller. A Prosecutor must obey the Court. End of story, no discussion. Any exception to that rule opens a Pandora’s box that could lead to some serious judicial dysfunctionality.
The difficulty of protecting witnesses in a conflict zone. That being said, I think this situation raises the issue of protecting witnesses within the framework of the recent international criminal justice system that are still located in conflict zones. The purpose of international criminal justice is to bring law and order in lawless and chaotic situations, protecting victims from their tormentors, but as we have observed again and again since the 1990s, there’s only so much Justice can do without the international community’s backings, especially in terms of logistics and soldiers to enforce their decisions. International criminal justice has to make do with this reality, which won’t change anytime in the near future. This gives us the opportunity I believe to reflect a bit further on how far international criminal justice can go to protect its witnesses without causing the trial to be unfair.
How this is also good news for International Criminal Justice. So, how is this a good thing for international criminal justice? On a first approach, it looks bad. The trial of the first accused before the ICC, who was on trial for the past 18 months, is appearing to crash and burn due to errors by the OTP. The Court’s detractors and doubters (and there are many of them out there) will probably have a field day with this.
But there’s also good news involved. As Mark Kersten writes in his blog,
“The decision illustrates the effective working of procedural law at the ICC. (…) This decision flies against popular assertions by the Court’s detractors that it’s a Western, imperial Court meting victor’s justice. The decision to uphold important procedural law at the Court by its judges in the favour of the alleged war criminal severely weakens claims of victor’s justice.”
There has been a lot of muttering, in Africa and elsewhere, that the International Criminal Court is really the “African Criminal Court”, as it has so far only operated in Africa, and that it is, as Mark mentions, a neo-colonialist or imperialist European-based Court and the latest weapon white men found to dominate the Continent. This decision proves otherwise: the Judges of the ICC are independent, honest and rigorous. They will uphold procedural rules in order to guarantee a fair trial, even at the risk of letting a known warlord walk. And that’s, believe it or not, a very good thing for the credibility of the international criminal justice system.
Fairness is essential for international criminal justice. In the words of Judge Richard Goldstone: “the success of international tribunals will be tested by whether the trials were fair.” (in M. Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Beacon Press, Boston 1998), p. 26)
What future for ICC Chief Prosecutor Luis Moreno-Ocampo and Mr. Lubanga? This could put Luis Moreno-Ocampo on the hot seat. After several blunders as Chief Prosecutor, some legal scholars, such as previously mentioned Opinio Juris’ Kevin Jon Heller, are starting to call for his removal by the Assembly of State Parties, as is made possible by article 46 of the Rome Statute. As for Mr. Lubanga, maybe he will be having dinner with Professor William Schabas, while the rest of us hope he will not be going back to Congo and return to his former activities.