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ICC Credibility at Stake

Concerns possible release of Lubanga may seriously undermine respect for international justice in Congo.
By Katy Glassborow
Lawyers for Congolese victims have warned that the crisis surrounding the International Criminal Court case against militia leader Thomas Lubanga could severely damage the credibility of the court in the central African country.

Prosecutor Luis Moreno-Ocampo suffered a setback this week as ICC judges ordered the release of Lubanga, saying he cannot get a fair trial.

Lubanga has been charged with using child soldiers to fight in the Ituri region’s bloody conflicts from September 2002 to August 2003 and was due in court on June 23 in the ICC’s inaugural trial.

Moreno-Ocampo appealed the decision in July 3.

In a statement, Moreno-Ocampo argued that it was possible to ensure justice for victims and the defendant’s right to a fair trial without setting Lubanga free.

“The prosecutor strongly believes that the need to do justice for the victims in [the Democratic Republic of] Congo and to respect a fair trial for Thomas Lubanga can and must be harmonized,” it said.

Pending the outcome of the prosecutor’s appeal, however, Lubanga will most likely remain in custody in The Hague, where he has been since his arrest in 2006.

Although the judges at the court said Lubanga should be freed, they also rejected requests by defence lawyers to lift the arrest warrant against him, saying that the original charges against the defendant remain.

Judges said that "the only correct course is to order the release of the accused, because.. a fair trial of the accused is impossible, and the entire justification for his detention has been removed. It would be unlawful for the Chamber to order him to remain in what, in reality, would be preventative detention or to impose conditional release".

The court also said that Lubanga will not be released until after the court’s appeals chamber has ruled on Moreno-Ocampo’s appeal, and until arrangements have been made for his transfer elsewhere.

The court in June ruled that a fair trial for Lubanga was not possible after it learned that Moreno-Ocampo had not shared “exculpatory materials” – information that could have helped with Lubanga’s defense.

Moreno-Ocampo reportedly obtained that information from the United Nations with the provision that it could only be viewed by the ICC prosecutors, but not the judges or the defence.

Luc Walleyn, a lawyer for victims in the Lubanga case, said the judge’s decision will undermine victims’ trust in the court.

"The situation is frustrating for the victims,” said Walleyn on July 3. “The perception of this decision in the field in Ituri, is that …[Lubanga] was arrested by mistake.”

As a result of the court’s decision, “the supporters of Lubanga are explaining this as proof that there shouldn't have ever been an arrest, and their leader was innocent from the beginning, which is not the decision of the court”.

The decision, continued Walleyn, has eroded respect for international justice.

"It is creating a feeling of impunity which is a dangerous situation,” he explained. “People could feel that if there is no national justice which can stop them, and international justice is not able either, then it would be logical to go on with recruiting child soldiers, and other crimes under the jurisdiction of the court.

"Victims have been waiting for the trial for two years and have invested a lot. Some were cooperating with the prosecution as witnesses and some had to be put under protection. What will happen to those witnesses?”

These fears were shared by Carine Bapita Buyangandu, another lawyer for some of the 105 victims listed in the case.

“Victims have no interest in the court's politics,” said Buyangandu recently. “I fear that [if there’s a] release, people will seek revenge. The population knows nothing about the law. For victims, [it will seem like] Lubanga will just be released.”

“There will be a fire ball in Ituri and we will all be held accountable throughout history for this.”

Geraldine Mattioli of Human Rights Watch suggested that prosecutors turned to the UN for information because of weaknesses in their investigations.

“We have criticised the prosecutors’ lack of investigative capacity,” she said. “If they don’t have enough investigators and means of investigating themselves, then the prosecutors will pick up information from other sources.”

“It is a good lesson for the prosecutors that they need to strengthen investigative capacity.”

Carla Ferstman of Redress said the court’s decision could cause problems for the victims in the case.

“Victims cannot understand this decision. Their immediate concern is what is going to happen to them in terms of security, what is going to happen to their communities [given] the feelings of victory of the UPC in relation to the release.”

Lubanga is the founder and leader of the Union des Patriotes Congolais, UPC, and his case is the first to come out of extensive investigations in the DRC.

“This is how it will work out in the field – the sense that the UPC has beaten the international justice system [will grow] stronger,” she said.

Ferstman said she hoped the lesson learned from this case could be applied to other cases from the Ituri region.

A second, involving militia leaders Germain Katanga and Mathieu Ngudjolo, is currently in the midst of a pre-trial hearing before the court. Arrest warrants in a third involving militia leader Bosco Ntaganda have been issued, but Ntganda is still at large.

A fourth case involving former DRC vice president Jean-Pierre Bemba, who was transferred to ICC custody on July 3, is pending, and he is due to make his initial appearance in court on July 4.

In Bunia, which is in the heart of the Ituri region, there was mixed reaction to the suspension of Lubanga’s trial.

A recent university graduate in Bunia, who did not give his name, said that the problems with the Lubanga trial could damage the ICC’s credibility in eastern DRC.

“For the Congolese population, this … can [damage] confidence [in] the ICC, since people believe that when the ICC launches an arrest warrant, it has all [the necessary] information to do so,” he said.

A taxi driver, who preferred to remain anonymous, said, “For me, the postponement of this trial shows that there is something wrong. It is not good for us, the population of Ituri. [Lubanga] should get a chance to defend himself. If he’s responsible, justice should deal with him, and if he’s guilty, he should bear the consequences.''

An official with Lubanga’s UPC party, who declined to be identified, said Lubanga’s supporters were pleased with the suspension of the trial, ''We are happy about the position of the judges who want to achieve a fair and transparent justice.”

Anticipating that Lubanga will be released, the official said, “We know for sure that the national president of the UPC will be set free. Since, according to procedures, the ICC wants to achieve fair trials so that it can have credibility.”

Katy Glassborow is an IWPR international justice reporter in The Hague. Peter Eichstaedt is IWPR’s African editor.

Anuarite Unyuthi, a Bunia journalist, contributed to this report.

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