Court Looks Set to Issue Second DRC Indictment

More than a year has passed since militia leader Thomas Lubanga Dyilo first appeared before International Criminal Court, ICC, judges.



In the Democratic Republic of Congo, DRC, where he is alleged to have commanded an armed group responsible for wide-ranging war crimes in the northeastern district of Ituri, observers say the mood on the ground is impatient and frustration is growing at the slow pace of ICC justice.



But that looks set to change. There are suggestions that Lubanga’s trial could soon start and that he might be getting some company in the Scheveningen detention unit in The Hague where he has been held since March 2006.



Lubanga founded and led the Union of Congolese Patriots, UPC - a group made up primarily of members of the Hema community and whose armed wing, the FPLC, is accused of committing atrocities in Ituri.



Word in the international justice community, and from the ICC itself, is that a new arrest warrant could be coming soon.



A spokesperson for the Office of the Prosecutor, OTP, told IWPR this week it has conducted a second DRC investigation into crimes allegedly committed by another armed group in Ituri.



“We expect to present the case before the judges in the near future,” said the spokesperson. “And we are selecting a third case to investigate in the DRC, which we'll do before the end of 2007.”



What’s less clear, however, is whose name will be on any arrest warrants.



Some observers say the second case will target a member of the Lendu ethnic group – the Hema’s opponents in Ituri in a war that claimed thousands of lives and displaced hundreds of thousands of others.



That could be UPC rivals the Nationalist Integrationist Front, FNI. The FNI was led by Floribert Ndjabu Ngabu and Etienne Lona until their arrest in 2005 over alleged FNI involvement in the killing of Bangladeshi peacekeepers in Ituri. Peter Karim took over but is now a colonel in Congolese army under an ongoing plan to disarm and demobilise militias.



“It would have to be another group from Ituri,” said Suliman Bando, a deputy director at the International Centre for Transitional Justice.



“This was a conflict that was ethnically polarised, and there are expectations that the court would have to look into crimes on the other end of the ethnic [divide]. Otherwise it would appear as if they were going after one side in a conflict where both sides had committed atrocities.



“The longer this image prevails it affects the image of the ICC. All this tells us the second indictment will probably be someone from the Lendu community.”



Others, however, say Moreno-Ocampo will not be swayed by pressure to placate the Hema community by issuing warrants for Lendu suspects.



“The prosecutor.. resists that approach,” said John Washburn, convener at the American NGO Coalition for the ICC. “He does not think this is a Chinese restaurant menu where you have to take one from column A and one from column B.



“He says if you think someone is deserving of being tried by the court, then give me the evidence and I will go forward.”



Golzar Kheiltash, a Washington DC-based international criminal lawyer and ICC advocate, believes the credibility of the ICC depends on the court being able to resist political pressures.



Any indictments must be based solely on the facts and what is in the best interest of victims, she said.



“The politics is always there but the court is a legal body and its success rests in its adhering to its nature and not getting caught up in the politics of these cases,” said Kheiltash.



“There are rebels, counter rebels and factions. It’s really, really complex. But one thing is consistent in all these cases is why the court is here - to serve justice to victims … as opposed to addressing political interests and concerns.”



But those on the ground point out the court's approach so far has caused problems in Ituri.



They say some members of the Hema community feel discriminated against, that they alone have been singled out by the court as war criminals.



Lack of outreach by the ICC in Ituri has also caused unfounded rumours to spread, said one human rights worker who recently visited the northeast.



"In Bunia [the main town in Ituri] it is very tense. Former UPC people are on the lookout for people who may talk to investigators," said Geraldine Mattioli from Human Rights Watch. "There is a feeling of threat in Bunia at the moment to others outside the Hema community."



She described the mood there as impatient and said many Congolese are frustrated that the ICC work in the region is proceeding slowly.



Whether the situation in Ituri will improve or deteriorate with the beginning of Lubanga’s trial on charges of recruiting child soldiers remains unclear.



At a recent press conference, registrar Bruno Cathala said the court case would start in September, though this appears unlikely given recent setbacks.



Observers say the main hold-up so far has been the withdrawal of Lubanga’s lawyer Jean Flamme and the long delay in appointing his successor Catherine Mabille.



Lubanga wasted little time choosing Mabille, a well-regarded French lawyer, but she resisted signing on until she was sure the court’s registry would provide enough money to mount a proper defence. Though Flamme is believed to have resigned for health reasons, court insiders say he also had concerns about the amount of money allocated for the defence case.



“[Mabille] wanted to know what she’d get paid and how much support there was for a proper level of due diligence and investigation by the defence,” said Washburn.



Registry spokeswoman Claudia Perdomo confirmed that Mabille and her team began work earlier this month, adding the trial judges are aware “that they will need time in order to prepare the case”.



And there are other complications.



Prosecutors have been denied permission to appeal a decision by pre-trial judges labelling the conflict as international.



They had hoped to prove the charges against Lubanga against the backdrop of a local war between rival tribes.



That decision was criticised by many who said the role of Ugandan and Rwandan troops in Ituri is impossible to ignore.



Washburn believes prosecutors chose to disregard “clear evidence of the presence of foreign forces in Congo” and Lubanga’s relationship with them to keep their case “as uncluttered as possible”.



“Lubanga is a man not hooked up with the government of DRC. You’ve got a freestanding individual which is helpful in presenting a simple case,” he said. “The evidence against him seems clear and well established which is why they picked him out of a possible choice of warlords.”



But with Ituri now recognised by ICC judges as an international conflict, some say prosecutors will have little choice but to do more investigation in Congo, linking those foreign forces with Lubanga’s UPC.



“I imagine they will have to go back and find more evidence in support of the fact it was an international armed conflict that involved Rwanda and Uganda,” said Mariana Goetz, an ICC advisor with Redress, which seeks reparations for torture survivors.



The OTP is quiet on the subject of further investigations but insists the international conflict issue won’t delay the trial. “We have a strong case against Thomas Lubanga and we are eager to get to trial and we are ready,” said the spokesperson.



Lisa Clifford is an IWPR reporter in The Hague.