NGOs Defend ICC Role in Lubanga Case

NGOs and human rights groups have hit back at criticism from the lawyer defending the Democratic Republic of Congo’s Thomas Lubanga that they’re providing too much support to prosecutors at the International Criminal Court.



Jean Flamme told IWPR he is concerned that some NGOs have gathered evidence against Lubanga, the first accused to stand before judges in the ICC’s courtroom, and given it to the ICC’s chief prosecutor.



The hearing to determine whether there is enough evidence against Lubanga to proceed to a full trial on the charge he conscripted children under the age of 15 to fight in the DRC came to an end this week.



Local and international NGOs are campaigning for the charges against the leader of the militia Union of Congolese Patriots, UPC, to be widened.



In August, the Women’s Initiatives for Gender Justice provided the prosecutor with a report on rape and sexual violence in the Ituri region of DRC, including interviews with over 50 women victims of gender-based crimes committed by a number of militias.



Flamme, however, is concerned that the NGOs are handing over their evidence to chief prosecutor Luis Moreno-Ocampo and suggests it is “very questionable” that his file against Lubanga contains their reports.



“He must be careful because the court has to be independent from the UN Security Council [which has the right to refer cases to the ICC], the states [that are signatories to the ICC's charter] and NGOs,” said Flamme.



In September, Moreno-Ocampo celebrated his third year as chief prosecutor and called for the continued help of NGOs in raising awareness about the court across Africa, in supporting witnesses and victims and in collecting evidence from the field.



He told the audience of NGOs and journalists, “I want to increase your participation so that you help me to get gender-based evidence, as we cannot present a case without evidence.” He added, “To enlarge victim participation, we encourage your help.”



Flamme, however, is concerned about the power that NGOs and support groups can exercise over victims and questions their legitimacy in the legal process.



He accused humanitarian organisations such as Human Rights Watch, HRW - which have reported mass rape by Lubanga's militia - of hypocrisy for proclaiming trust in international justice whilst criticising Moreno-Ocampo for bringing limited charges.



He also suggested that he will sue for damages against groups that "accuse Lubanga falsely, without proof" of other crimes.



Richard Dicker from HRW dismissed Flamme’s threats to sue.



He explained that the Rome Statute - which governs the workings of the ICC - allows NGOs to submit information to the ICC prosecutors, but that NGOs cannot, in reality, prompt the prosecutor to do anything.



He admitted that NGOs and human rights organisations are strong supporters of the ICC but also the court’s fiercest critics.



“We want to see Lubanga receive the benefits of a fair trial,” said Dicker, adding that if HRW had information that cleared Lubanga of blame that also would be handed over to the defence. “It is incumbent upon us to do this.”



Dicker agrees with Flamme that it is unfair for the defence to have only one investigator while prosecutors have a team of 20. “This is not right for a fair trial,” he said.



Flamme, however, finds it hard to believe that the NGOs have not yet found evidence in the field which could support his defence case. "If they say that, they admit they are lying," he said.



Flamme said that after one day in Bunia (in the DRC), "I found what I was looking for: the confirmation by dozens of credible people of every single word my client told me."



Brigid Inder from the Women’s Initiative for Gender Justice told IWPR that the evidence NGOs give to ICC prosecutors will never be “trial ready” but that NGOs can provide “useful documentation for the court to follow up and check out”.



However, she made it clear that it is not the work of NGOs to do “shadow investigations for the court”, which has the resources to conduct good investigations on its own.



She explained that the focus of NGO work is to “urge the prosecutor to explore more information and other allegations or other crimes as part of their work in the DRC”.



Mariana Goetz from REDRESS – a human rights group seeking reparation for torture survivors – told IWPR that the crimes included in Lubanga’s indictment are “not representative of what happened to many victims during the conflict” in the Ituri region of DRC”.



She said that when NGOs help to bring evidence of other crimes like rape and sexual violence to the attention of the prosecutor, they are “relaying the rights and interests of victims in the DRC”.



Inder said she is surprised the prosecutor’s office did not follow up on the information contained in their report on rape and sexual violence in Ituri, which she said indicates that “widespread gender-based crimes have been committed”.



Victims and witnesses are “willing to come forward”, she added.



In June, Moreno-Ocampo said he would not amend the charges and would temporarily suspend investigations into the other allegations against Lubanga until the close of current proceedings.



ICC deputy prosecutor Fatou Bensouda told IWPR that prosecutors are aware of reports that Lubanga allegedly committed sexual offences, but that in deciding what charges to bring “must be guided by the evidence gathered throughout the investigation”.



They must be able to prove beyond a reasonable doubt “that the crimes were committed, including linkage to the accused”, said Bensouda.



She added that when Lubanga was transferred to the court, prosecutors were “only able to do this for the crimes of enlisting and conscripting children under the age of 15 and using them to fight actively in hostilities”.



Bensouda said that after the close of this case, the prosecutor might decide to continue the investigation and bring new charges against Lubanga.



Goetz told IWPR she believes it is fair that NGOs do research and provide factual research to authorities and states. She said that NGOs are not accusing Lubanga – who is still only a suspect – of any additional crimes, but bringing information to the prosecutor. “These are allegations and alleged facts which need to be fought out in court,” she said.



Beck Bukeni T Waruzi from Ajedi-Ka/Projet Enfants Soldats said his charity, which rehabilitates child soldiers, is also calling for Lubanga’s indictment to be widened to include crimes of sexual violence, because of the evidence they have gathered from girl soldiers.



This week he screened footage of girl soldiers from the DRC saying they are still in shock because of being raped by the militia commanders.



One girl explained that her family does not have enough money to go to the doctor to see “whether I am damaged inside” and that she cries whenever she thinks about the rape she endured during her time in the militia.



He thinks it is important that NGOs put pressure on the ICC, because community groups feel that prosecutors are not impartial because of the limited charges against Lubanga.



He urged the ICC to “deal with this misperception of people and show its impartiality”, and warned that there needs to be prosecutions on both sides of the ethnic divide in Ituri – the Hema and Lendu.



Moreno-Ocampo told representatives from over 100 countries which support the ICC - meeting for an annual conference about the running of the court - that investigators are now pursuing crimes allegedly committed by other armed groups in Ituri and expect arrest warrants during the first half of 2007.



He also told the audience that his investigators are selecting a third case to investigate in the DRC, and that “in addition to the situation in Ituri my office continues to assess the situation in the DRC’s other provinces”.



Judges will announce in January if Lubanga’s case will proceed to a full trial in The Hague.



Katy Glassborow is an IWPR reporter in The Hague.