Institute for War and Peace Reporting | Giving Voice, Driving Change

ICC Enters Uncharted Territory

New court’s first trial throws up procedural challenges.
By Janet Anderson
With the first appearance at the International Criminal Court of Congolese warlord Thomas Lubanga Dyilo, the pressure is now on the prosecutor and the judges in The Hague to show that they can deliver a trial and verdict in reasonable time.



The ICC was set up in 2002 as the permanent court to deal with war crimes and crimes against humanity around the world.



Dyilo’s arrest by the ICC earlier this month - it’s first - was welcomed by human rights groups and governments around the world, but prosecuting him throws up procedural challenges because this is uncharted territory for the new court.



And in northeastern Congo, there are concerns that because only one leader of an ethnic group has brought to trial so far, the fragile situation in Lubanga’s home province of Ituri may be inflamed.



Dyilo appeared in The Hague on March 22 to face charges relating to the use of children in an armed conflict.



Lubanga was leader of one of the main militias in the province of Ituri in northeastern Congo where inter-ethnic violence erupted in 1999 in the aftermath of the invasion of DRC by Ugandan and Rwanda forces in support of rebels fighting to overthrow the government of President Mobutu Sese Seko.



Before one of the court’s two main courtrooms, with diplomats, journalists and NGO representatives attending, Lubanga was led in to confirm his identity and that he was aware of the charges against him.



Wearing a dark suit and a yellow tie, Lubanga did not have to plead to the charges, just confirm his identity.



“I’m a politician,” he said, when asked his profession.



In an interview with IWPR the chief prosecutor Moreno Ocampo explained that Lubanga is the first to be arrested because he “is the number one of one of the most dangerous groups in the DRC [Democratic Republic of Congo]. The group allegedly committed more than 2000 killings”.



The prosecution alleges that Lubanga founded Union des Patriotes Congolais, UPC, in September 2000 - a militia group of the Hema ethnic group - operating in the northeastern province of DRC and that in September 2002 he set up the Forces Patriotiques pour la Liberation du Congo, FPLC, the armed wing of the UPC after it became a political party.



Lubanga is charged with conscripting and enlisting children under the age of 15 years and using them to participate actively in hostilities.



Gaining evidence to support the prosecution of Lubanga – and others who may appear before the court in the future – has involved over 60 prosecution missions to the DRC.



Moreno Ocampo told IWPR, “Forcing kids to be soldiers is one of the most serious crimes. You don’t just jeopardise the kids. It also jeopardises the entire security of the community.



“And I have a special mandate to investigate these types of crimes. I have to emphasise this cannot happen – to recruit or enlist kids and turn them into killers. I must stop this.”



The prosecution alleges that when the FPLC seized control of Bunia – the main town in Ituri province, northeastern Congo – in 2002, “Young children – boys and girls alike – were taken from their families and forced to join the FPLC” and trained as soldiers.



The prosecution says Lubanga “exercised de facto control” over the policies and practises of the UPC and FPLC and that “he was aware of his unique position within the UPC and FPLC and made active use of it”.



Few specific details are yet available of the evidence the prosecution may bring.



Moreno Ocampo told a press conference last week that he would show pictures of Lubanga “inspecting camps where children as young as 7 years were trained to be soldiers”.



And there are considerable media reports about the situation concerning child soldiers in Bunia – during the height of the fighting.



According to 2002 report by the UN humanitarian new agency, IRIN, a UN official who had visited Bunia said, “I’ve never seen so many child soldiers… there were kids aged seven or eight guarding the presidency.”



UN sources at that time suggested that 50 per cent of the various armed groups in the region may be under 18 years of age.



In 2003, with Lubanga’s UPC firmly in control of Bunia and some of the surrounding area, Radio Okapi, a UN-run station in Congo, reported that Lubanga had decreed that each family in the area under its control must contribute to the war effort by providing a cow or money or a child for his UPC rebel militia.



GETTING ALL THE PROCEDURES RIGHT



Diplomatic sources in The Hague say that the court is now under pressure to get a result in the Lubanga case. “They need a speedy and well-run trial,” one diplomatic source told IWPR.



The court has been keen to demonstrate that they have been following all the procedures laid down in their rules and regulations to the letter.



But Lubanga’s defence has already shown that it will plan to challenge the circumstances of his arrest.



The Registrar – the court’s top administrator – Bruno Cathala personally delivered the arrest warrant to DRC on March 14. Lubanga was transferred to The Hague, following a court hearing in Kinshasa, with help of French military airplane on March 17.



Lubanga was actually arrested by Congolese authorities, along with other local Ituri militia leaders, in 2005, following the killings of nine Bangladeshi UN peacekeepers in the Ituri region.



The Congolese authorities referred the situation in their country to the court in April 2004.



The prosecutor Moreno Ocampo told IWPR that it had not been possible to try Lubanga in the Congo because the “DRC said at the beginning and also now confirmed that they do not have the ability to conduct such a complex investigation”.



Some reports suggest that Lubanga was facing charges of genocide, war crimes and crimes against humanity following his detention in Kinshasa.



The prosecutor told diplomats this week that under Congolese law Lubanga was “about to be released” because he could not have been held in prison any longer than a year without facing trial.



Lubanga’s provisional lawyer Jean Flamme said in court that his client had been “deprived of his liberty” since August 2003 – when Lubanga was brought to Kinshasa to attend peace talks.



According to media reports at the time, Lubanga resided in a hotel in the capital, under virtual house arrest, but gave interviews to the press in which he insisted he was in full control of FPLC forces.



Flamme further alleged that since his arrest in 2005, “he was kept incarcerated for approximately one year without having rights, access to any trial and without having been informed of any of the charges held against him”.



The ICC says in its press documents that he appeared before “competent judicial authority in Kinshasa” who agreed he be sent to The Hague.



The lawyer criticised the arrest warrant saying “this arrest was not under any specific warrant and that no hearing was held such as should have been held according to national and international standards”.



A decision still has to be made on whether the lawyer can challenge the arrest warrant, since the time limit normally allowed to file such a motion has passed.



Lubanga is now being held at the ICC’s detention facility in Scheveningen – on the outskirts of The Hague – where the court has leased a block of 12 cells, with the option to take on more, as the UN’s Yugoslav tribunal – the current main tenant of this area of the prison winds down its operation.



The heavy consequences of delays in sending an accused for trial have haunted international jurisdictions since the appeals chamber of the UN Rwanda tribunal decided in 1999 that a top accused should be released, because he had been held for eleven months in “illegal custody under the tribunal's authority" and had had to wait several more months before appearing before a judge in Arusha.



The decision concerning Jean Bosco Barayagwiza, former leader of a Rwandan Hutu extremist party and founder of the infamous radio RTLM, was later reversed by the appeals chamber.



ROLE OF VICTIMS IN ANY CONGO CASE



All eyes are on the Congo situation, not only because of the arrival of the ICC’s first accused, but because uniquely this is the first time that victims will play an official role in proceedings in an international court.



The ICC’s statutes allow for victims to be represented by their own lawyer in court, where they can argue, for instance, in favour of compensation for victims at the end of a case.



On January 17, the trial chamber in the DRC case ruled that six victims can be represented in court during the investigations, although the exact role they would play in terms of assisting the chamber is still be worked out.



The judges said their decision reflected the “growing emphasis placed on the role of victims by the international body of human rights law and by international humanitarian law”.



Karine Bonneau Federation Internationale des de Ligues des droits de l’homme, FIDH, the human rights body which brought the victims’ applications to the court, told IWPR that this “allows the victims to present their views to the court, to defend their interests and rights”.



So far the DRC case is the only one in which victims have applied for, and received, permission to take part.



Of the six Congolese who have been authorised to participate in the proceedings - two women and four men - describe crimes which they allege took place in Ituri and one in North Kivu province.



The victims say they have had relatives murdered, abducted, enslaved, tortured or houses burned and property looted.



But the chamber’s decision to allow victims a role at such an early stage while investigations are going on is proving controversial.



The judges have said “the applicants will not be given access for the time being to any non-public document contained in the record”.



The prosecutor has objected strongly.



He told IWPR, “We disagree with some areas [of the decision], which could be very dangerous for the victims… in the compensation part they will have participation [but] the investigation stage it is more complicated because security is a big issue.”



Bonneau, director of FIDH’s international justice programme, emphasises that this is the first time in international jurisdiction that victims have had a role, and that “to invent a new system” will “need some creativity” on the everybody’s part.



Even in national jurisdictions, such as in France where you have a lawyer representing the Parti Civile - the victims in a legal case - “it’s not the same”, she says. At the ICC the victims are dependent on the judges to allow them to participate. “There is no automatic right,” she explained, adding that this is “all very new”.



Some observers have interpreted the arguments over the victims’ role as evidence of the struggle between prosecution and judges in the pre-trial chamber over who will maintain control over the investigation stage.



Part of the new system that lawyers as well as court observers will have to get used to is the role the pre-trial chamber plans to play during investigations, which does not happen at the moment in other international criminal tribunals.



But many observers close to the court have played down this point of view, telling IWPR that this is just one of the examples of how this new institution is working out the rules, in practice.



SITUATION IN ITURI



Since late 1998 when war erupted in eastern DRC, the UN says at least 60,000 people have been killed in that part of the country, and at least 500,000 have been displaced in Ituri province alone.



The conflict, for control of the region’s natural resources, which include rich gold deposits, has taken on ethnic dimensions in Ituri.



There are a variety of ethnic groups in the region, of whom the two main groups are the waLendu and the waHema.



Deep-rooted conflicts over land and other resources escalated at the end of the 1990s, with both sides using the rhetoric of fear of “ethnic cleansing” or even genocide to justify their attacks on the others.



The struggle for control of Ituri, the cycle of attacks and counter-attacks between the different ethnicities came against the background of a full scale war in DRC which involved nine African states, 20 different armed factions, and is estimated to have killed four million people.



Following a peace agreement in 2002, including many of the main rebel groups, the situation across Congo became much calmer.



But Ituri militias were not part of those negotiations. In August 2002, Bunia, the main town in Ituri, was taken over by Lubanga’s UPC.



Human Rights Watch, among other human rights groups, have detailed how the UPC conducted a man-hunt for Lendus and other political opponents, detaining them in two notorious prison camps, where people were tortured and summarily executed.



HRW have also documented the slaughter of at least 800 civilians by Lubanga’s UPC on the basis of ethnicity in the gold mining region of Mongbwalau between November 2002 and June 2003.



At different times, the UPC has backed by both Rwanda and Uganda. Uganda’s role in Ituri has been criticised in particular by human rights organisations for fuelling the conflict there, through arming and training almost all the militia and rebel factions.



According to the UN mission in Congo, MONUC, the initial “political” and ethnic justification for forming the militias gradually dissolved, as the militias formed tactical alliances when it came to exploiting wealth.



“We were dealing with criminal enterprises they were lining their pockets by attacking villagers and looting natural wealth,” Kemal Saiki, the head of information for MONUC, told IWPR.



Since summer 2004, he says, when the militias in Ituri signed a disarmament deal, the situation in the province had dramatically improved as the Congolese army, backed by MONUC, has been able to put more pressure on the remnants.



“We gave them a clear choice and a deadline, and meantime prevented the militias from going about their usual business. Our pressure kept them from looting,” said Kemal Saiki, the head of information for MONUC.



A resident of Bunia, who did not want to be identified, has told IWPR that even though the situation “has not deteriorated into what it was formerly”, the streets of the town are empty by 8 pm and, he says, because the Congolese army and police are not being paid, at night they loot citizens.



Around 15,000 plus former militia members have gone through programme of disarmament and reintegration, says Saiki. The majority have chosen to go back into civilian life.



Around 2,000 militia members have refused to give up, he adds, forming a “hard core” that the Congolese army has been pressurising through coordinated raids backed up by MONUC.



Outside the town, say locals, the situation is not going well. “A week ago the militias who are getting bigger attacked six positions of the Congolese army in six different locations,” a Bunia resident told IWPR, “and the people are fleeing more and more.”



Nevertheless, says Saiki, with elections scheduled for June 2006 - the first time in four decades - there is a definite sense of “war fatigue in Ituri”.



When registering voters for elections, he points out, Ituri had one of largest percentages of turnouts. There’s a “huge grass roots will to go back to normal life”, he told IWPR.



REACTION IN BUNIA



Bunia residents, who did not want to be named, say that Lubanga’s appearance in The Hague came as a surprise to some of his supporters, who had expected him to be judged in the DCR – and found not guilty, and liberated. “The day that he was transferred, they were knocked back,” said one resident.



Victims, from other ethnic groups, however, were “expecting this development”.



Jennifer Bakody, the head of Radio Okapi in Bunia, confirmed to IWPR that reactions on the streets of Mudzipela - a Hema neighbourhood of Bunia - focused on why he had to be transferred to The Hague.



According to an observer in Bunia, a Hema former militia member asked, “What did we do to make them hate us like this? We laid down our arms like they asked, but it’s not enough. Do they want us to take them up again, or what?”



Emerging from a meeting at the UPC headquarters in Bunia the day after Lubanga was transferred, the UPC's acting national president Faustin Dz'bo Kalogi told Radio Okapi that the party supported Lubanga's transferral to The Hague for a number of reasons.



Kalogi said that the justice system in Congo could not manage such a complicated case; that his conditions of detention in The Hague would be more humane; and that the trial would give an opportunity to explain the true extent of the UPC’s involvement in the region.



It would provide “an opportunity to set the record straight”, he told Radio Okapi.



FURTHER CHARGES



The pre-trial chamber set a date of June 23 to hear a hearing to confirm the charges against him.



While praising Lubanga’s arrest, human rights groups have been quick to urge the prosecutor to press further charges against the UPC leader.



“The ICC prosecutor must also press additional charges…for massacres torture and rape,” said Richard Dicker, the head of HRW’s international justice programme.



Alpha Fall, the head of the International Centre for Transitional Justice programme, based in Kinshasa, said, “Lubanga and the scores of other militia leaders and their supporters must be held accountable for the full range of terrible crimes they have committed.”



An informed observer in Bunia, who preferred not to be named, told IWPR that “the charges must be expanded”.



He went on, “If one talks about the group, it’s because they are a group of leaders around Thomas who decided the crimes, sometimes with Thomas’s knowledge.”



Moreno Ocampo told IWPR that he may seek further charges against Lubanga “if I could I would amend the charges against him”. But he emphasised that “if not, I think these are very serious crimes”.



One element that may influence a decision to amend the charges or not, is the prosecutor’s desire to keep the trials at the ICC short and focused.



Moreno Ocampo told diplomats that he understood decisions by prosecutors of other international courts - such as in the Milosevic case in The Hague, which came to an abrupt halt after four years of trial - to try to present the full picture - “a rational choice” he emphasised.



“I am trying to do the contrary,” he said, bringing “very focused cases”.



The prosecutor told IWPR that he hopes the trial will be short but “that depends on the judges”.



The presiding judge of the pre-trial chamber dealing with the DRC, Judge Claude Jorda, formerly at the Hague tribunal, appears to agree, suggesting that eighteen months should be the maximum duration of any trial at the ICC.



He told International Justice Tribune in an interview published in December last year that “it is unthinkable to have trials that last over four years, such as the case with Slobodan Milosevic”.



“The issue of trial duration is essential for the credibility of international criminal justice. In the end, time is on the accused's side,” he said



Moreno Ocampo acknowledged to diplomats at his briefing this week that “we are working in deeply divided societies” because militias are protecting own people.



Sources in Bunia told IWPR that militia leaders from all sides told their supporters “when we get to an enemy village, we don’t want to see people from the other ethnic group. They will kill us and our ethnic group too”.



Bakody says that during an informal poll for the radio station, nearly everyone said Lubanga was not the only one who needs to face trial.



Bunia observers told IWPR that the cases against others from other ethnic groups “must be speeded up in order to provide balance, because many other have committed crimes just as bad”.



The prosecutor’s office has confirmed that Lubanga is the first in a series, and that his arrest “will subsequently lead to other warrants being sought against members of other armed groups active in the Ituri region”.



Moreno Ocampo told journalists, “This is our first case in the DRC, not the last.”

“It is a sequence,” he said. “We will investigate crimes committed by other militias and other persons.”



At the same time that Lubanga was arrested by the Kinshasa authorities, leaders of the rival Lendu-basked militias the Front des Nationalistses and Integrationniste, FNI, Floribert Nadjabu Ngabu, and two of his aides, were also picked up.



Informed sources suggest that one or more of these warlords may be the next to arrive in The Hague.



But Kemal Saiki, head of information for MONUC, cautions that others, still currently operating from the bush, may be more difficult to capture. “Some will never give up,” he told IWPR, “because if they do they will end up in the same place as Thomas Lubanga.”



Janet Anderson is the director of IWPR’s International Justice Programme in The Hague.