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Delay in Lubanga judgment demonstrates ICC weaknesses Delay in Lubanga judgment demonstrates ICC weaknesses
(40 minutes later)
With three months left to serve of his nine-year term as prosecutor of the international criminal court (ICC), Luis Moreno-Ocampo has finally achieved his first conviction. Thomas Lubanga has been found guilty of conscripting and enlisting children under the age of 15 and using them to participate actively in hostilities.With three months left to serve of his nine-year term as prosecutor of the international criminal court (ICC), Luis Moreno-Ocampo has finally achieved his first conviction. Thomas Lubanga has been found guilty of conscripting and enlisting children under the age of 15 and using them to participate actively in hostilities.
Moreno-Ocampo is holding a press conference on Thursday and will no doubt tell us that Lubanga's conviction will send out a warning to other war criminals. If so, it's a message that has not yet reached the Syrian president Bashar al-Assad. Other tyrants, including, Muammar Gaddafi and Saddam Hussein, appeared equally unconcerned about the ICC. Even Bosco Ntaganda, Lubanga's co-accused, is living openly in eastern Congo with little fear of arrest, according to Human Rights Watch.Moreno-Ocampo is holding a press conference on Thursday and will no doubt tell us that Lubanga's conviction will send out a warning to other war criminals. If so, it's a message that has not yet reached the Syrian president Bashar al-Assad. Other tyrants, including, Muammar Gaddafi and Saddam Hussein, appeared equally unconcerned about the ICC. Even Bosco Ntaganda, Lubanga's co-accused, is living openly in eastern Congo with little fear of arrest, according to Human Rights Watch.
And without wishing to diminish the importance of Lubanga's crime - conscription of children by rebel leaders must have a life-long impact on those concerned, quite apart from making them legitimate military targets while they are in uniform - this can hardly be said to be the most serious crime in the ICC's Rome statute.And without wishing to diminish the importance of Lubanga's crime - conscription of children by rebel leaders must have a life-long impact on those concerned, quite apart from making them legitimate military targets while they are in uniform - this can hardly be said to be the most serious crime in the ICC's Rome statute.
Moreno-Ocampo was right to choose a relatively straightforward case as his first prosecution. But the extraordinary length of time it has taken to get this far- and sentencing is at least another couple of months off, never mind any appeal - demonstrates the weaknesses of the ICC model, as well as the prosecutor's own failings.Moreno-Ocampo was right to choose a relatively straightforward case as his first prosecution. But the extraordinary length of time it has taken to get this far- and sentencing is at least another couple of months off, never mind any appeal - demonstrates the weaknesses of the ICC model, as well as the prosecutor's own failings.
Moreno-Ocampo's investigation opened in 2004. Lubanga was arrested on other charges in 2005 and has been detained for seven years, which will no doubt count towards his sentence.Moreno-Ocampo's investigation opened in 2004. Lubanga was arrested on other charges in 2005 and has been detained for seven years, which will no doubt count towards his sentence.
He was handed over to the ICC in 2006, the year that pre-trial confirmation hearings began. The case was sent for trial at the beginning of 2007 but halted the following year because the prosecutor had failed to disclose potentially exculpatory material.He was handed over to the ICC in 2006, the year that pre-trial confirmation hearings began. The case was sent for trial at the beginning of 2007 but halted the following year because the prosecutor had failed to disclose potentially exculpatory material.
After a successful challenge by the prosecutor, the trial began early in 2009. It ran into difficulties again when victims - who were, as intended, represented in the proceedings - applied for additional charges to be brought against the defendant. That application was dismissed, but only on appeal.After a successful challenge by the prosecutor, the trial began early in 2009. It ran into difficulties again when victims - who were, as intended, represented in the proceedings - applied for additional charges to be brought against the defendant. That application was dismissed, but only on appeal.
The trial was stopped for the second time in 2010 because of the prosecution's refusal to disclose the name of one of its witness intermediaries. Again, the trial was reinstated on appeal.The trial was stopped for the second time in 2010 because of the prosecution's refusal to disclose the name of one of its witness intermediaries. Again, the trial was reinstated on appeal.
Little wonder, then, that the verdict ran to more than 600 pages. There was little that the court could say about a system which allows victims an active role in undermining a prosecutor's discretion. Victims are likely to want as many charges as possible to be brought; prosecutors must limit an indictment to make trials manageable and may sometimes accept guilty pleas to lesser charges to avoid the expense and risk of a contested hearing. The two interests are bound to be in conflict.Little wonder, then, that the verdict ran to more than 600 pages. There was little that the court could say about a system which allows victims an active role in undermining a prosecutor's discretion. Victims are likely to want as many charges as possible to be brought; prosecutors must limit an indictment to make trials manageable and may sometimes accept guilty pleas to lesser charges to avoid the expense and risk of a contested hearing. The two interests are bound to be in conflict.
But the three judges, headed by Sir Adrian Fulford, were highly critical of the prosecutor's decision to delegate his investigative responsibilities to locally recruited intermediaries, mainly human rights activists whose job it was to track down former child soldiers. Some were alleged by the defence team to have suborned witnesses.But the three judges, headed by Sir Adrian Fulford, were highly critical of the prosecutor's decision to delegate his investigative responsibilities to locally recruited intermediaries, mainly human rights activists whose job it was to track down former child soldiers. Some were alleged by the defence team to have suborned witnesses.
The court found it likely (para 291) that intermediary 143 had "persuaded, encouraged or assisted" up to four witnesses to give false testimony. The judges took the view (para 373) that there were "strong reasons to conclude: that intermediary 316 had persuaded witnesses to lie about whether they had been child soldiers. There was also a real possibility that intermediary 321 had encouraged and assisted witnesses to give false evidence (para 449).The court found it likely (para 291) that intermediary 143 had "persuaded, encouraged or assisted" up to four witnesses to give false testimony. The judges took the view (para 373) that there were "strong reasons to conclude: that intermediary 316 had persuaded witnesses to lie about whether they had been child soldiers. There was also a real possibility that intermediary 321 had encouraged and assisted witnesses to give false evidence (para 449).
It followed that some of the witnesses these intermediaries had introduced could not be relied on, although there were enough reliable witnesses to prove the case against Lubanga. More to the point, the court said (para 482) that prosecutors should not have delegated their investigative responsibilities to these intermediaries, despite the extensive security difficulties that investigators faced.It followed that some of the witnesses these intermediaries had introduced could not be relied on, although there were enough reliable witnesses to prove the case against Lubanga. More to the point, the court said (para 482) that prosecutors should not have delegated their investigative responsibilities to these intermediaries, despite the extensive security difficulties that investigators faced.
The court continued: a series of witnesses have been called during this trial whose evidence, as a result of the essentially unsupervised actions of three of the principal intermediaries, cannot safely be relied on. The chamber spent a considerable period of time investigating the circumstances of a substantial number of individuals whose evidence was, at least in part, inaccurate or dishonest. The court continued:
"A series of witnesses have been called during this trial whose evidence, as a result of the essentially unsupervised actions of three of the principal intermediaries, cannot safely be relied on. The chamber spent a considerable period of time investigating the circumstances of a substantial number of individuals whose evidence was, at least in part, inaccurate or dishonest".
The prosecution's negligence in failing to verify and scrutinise this material sufficiently before it was introduced led to significant expenditure on the part of the court. An additional consequence of the lack of proper oversight of the intermediaries is that they were potentially able to take advantage of the witnesses they contacted.The prosecution's negligence in failing to verify and scrutinise this material sufficiently before it was introduced led to significant expenditure on the part of the court. An additional consequence of the lack of proper oversight of the intermediaries is that they were potentially able to take advantage of the witnesses they contacted.
These intermediaries now face prosecution before the ICC, the judges said.These intermediaries now face prosecution before the ICC, the judges said.
Even though the Lubanga trial took more than five years to complete, it might never have concluded without a firm hand from the presiding judge. Fulford's trial chamber had no hesitation in overruling the prosecutor at various times and ordering the defendant to be released. Though these decisions were overturned on appeal, they demonstrated the independence of mind required of the judiciary.Even though the Lubanga trial took more than five years to complete, it might never have concluded without a firm hand from the presiding judge. Fulford's trial chamber had no hesitation in overruling the prosecutor at various times and ordering the defendant to be released. Though these decisions were overturned on appeal, they demonstrated the independence of mind required of the judiciary.
Fulford was also one of the few judges at the ICC with hands-on experience of conducting demanding criminal trials. He delivered a separate opinion disagreeing with his fellow judges on how the law of joint enterprise should be applied.Fulford was also one of the few judges at the ICC with hands-on experience of conducting demanding criminal trials. He delivered a separate opinion disagreeing with his fellow judges on how the law of joint enterprise should be applied.
Fulford now leaves the ICC and returns to England, where he sits as a high court judge. He is expected to preside over the trial of the former energy secretary Chris Huhne and Huhne's ex-wife Vicky Pryce in October.Fulford now leaves the ICC and returns to England, where he sits as a high court judge. He is expected to preside over the trial of the former energy secretary Chris Huhne and Huhne's ex-wife Vicky Pryce in October.
Moreno-Ocampo made no immediate response to the verdict. His press office confined itself to an announcement that Angelia Jolie had watched the verdict being delivered, illustrated by a photograph showing the back of the actress's head.Moreno-Ocampo made no immediate response to the verdict. His press office confined itself to an announcement that Angelia Jolie had watched the verdict being delivered, illustrated by a photograph showing the back of the actress's head.