The Trials and Tribulations of the ICC Lubanga Case

The International Criminal Court’s (ICC) first trial has already experienced more than its share of glitches, and it’s not over yet. The ICC indicted Thomas Lubanga Dyilo, the former leader of the Union of Congolese Patriots (UPC), one of the Democratic Republic of Congo’s many rebel groups, on charges of conscripting child soldiers and using them in hostilities. Human rights groups have documented a wide range of atrocities committed by the UPC, including torture, rape, and ethnically-motivated massacres, but the ICC chose to charge Lubanga only with the child soldier offenses. This narrow set of charges will ensure a shorter, simpler trial and speedier delivery of justice, they argue, although the corresponding gamble is that if they somehow fail to make the case that Lubanga used child soldiers, he’ll be acquitted.

The Lubanga trial has been plagued by delays and mistakes from the start. For those keeping score at home, the first major delay occurred when the trial chamber judges unanimously decided to suspend the trial, in June 2008. Why? Because the prosecution, in the judges’ view, had abused a Rome Statute provision allowing them to collect certain documents on condition of confidentiality. The prosecution amassed some 200 documents that the judges thought might support Lubanga’s defense, but which the prosecution claimed it could not disclose to defense counsel because the document sources were unwilling to be identified. This in turn jeopardized Lubanga’s right to a fair trial, and the trial chamber opted to suspend the trial indefinitely. Miraculously, the prosecution then managed to obtain consent from all of the various entities which had provided the confidential documents, the documents were released to the defense team, and the trial resumed in November 2008.

This illustrates a potential recurring problem for the ICC: While an independent court, it was formed through United Nations-driven action, and is closely associated with the UN. Some of the best sources for evidence of war crimes are UN peacekeeping missions and other UN agencies with offices in war-torn countries (many of the confidential documents in the Lubanga case were reportedly from UN sources). ICC prosecution teams will frequently be able to access documents from these UN sources, using the Rome Statute’s “confidential information need not be disclosed” rule (Art. 54(3)(e)). ICC judges will have to strictly police the use of this rule to ensure that the deck doesn’t become any more stacked in favor of the prosecution than it already is in an international war crimes trial.

Major problem #2: The prosecution’s first witness, allegedly a former child soldier who served under Lubanga, later recanted his testimony and claimed he was coached by an NGO to say he had been a child soldier. Lubanga attorney Catherine Mabille claims that all of the witnesses who said they were former child soldiers are lying. Moreover, some defense witnesses are now testifying that they were paid by ICC prosecution investigators to give false testimony.

Is it possible that prosecutors, or NGOs, coached these witnesses? Sure. There are several other equally troubling explanations, however. The prosecution’s first witness recanted after Lubanga stared him down for the duration of his testimony. Given Lubanga’s status and influence in DRC, and the absence of any law enforcement mechanism that could protect witnesses’ families within DRC, it is not hard to grasp why the witness might have felt the need to recant. Alternatively, someone within Lubanga’s network may have offered witnesses’ families money or other rewards in exchange for getting the witness to say he’d been coached. Whatever the explanation, these events indicate that the ICC needs to address holes in its witness protection framework, and to immediately investigate allegations that witnesses were coached and/or paid to lie on the stand.

A bungled prosecution is bad news in any trial. The ICC cannot afford to have its first war crimes prosecution remembered for prosecutorial misconduct and lying witnesses. Fix it before it’s too late, guys!

Photo credit: International Criminal Court (©ICC-CPI/Michael Kooren)