1.ICC: International Criminal CourtInternational Case ControversyInternational Court Calamity? The first case to reach a verdict in the International Criminal Court A landmark case in more ways than one International Criminal Justice Thursday 6th February 2014 Anthony Veluz International Law LLM University of Lincoln

2. Outline Summary of case and verdict Initial reactions to the case Criticisms of the case Suggestions for improvement Conclusion 3. Summary Thomas Lubanga Dyilo was found guilty, on 14 March 2012, of the war crimes of enlisting and conscripting of children under the age of 15 years and using them to participate actively in hostilities. Sentenced, on 10 July 2012, to a total of 14 years of imprisonment. Subject to appeal. Verdict: On 14 March 2012, Mr Lubanga Dyilo was convicted of committing, as co-perpetrator, war crimes consisting of: Enlisting and conscripting of children under the age of 15 years into the Force patriotique pour la liberation du Congo [Patriotic Force for the Liberation of Congo] (FPLC) and using them to participate actively in hostilities in the context of an armed conflict not of an international character from 1 September 2002 to 13 August 2003 (punishable under article 8(2)(e)(vii) of the Rome Statute). The verdict was rendered by Trial Chamber I, composed of Judge Adrian Fulford (United Kingdom), as Presiding Judge, Judge Elizabeth Odio Benito (Costa Rica) and Judge Ren Blattmann (Bolivia). Although the first two judges have written separate and dissenting opinions on some issues, the verdict was unanimous. On 10 July 2012, Trial Chamber I sentenced Thomas Lubanga Dyilo to a total period of 14 years of imprisonment. The time he spent in the ICCs custody will be deducted from this total sentence. He is detained, for the time being, at the Detention Centre in The Hague. 4. Thomas Lubanga Dyilo Lubanga is allegedly the leader of the Union des Patriotes Congolais pour la Reconciliation et la Paix (UPC) and Commander-in-Chief of its military wing, the Forces Patriotiques pour la Liberation du Congo (FPLC). 5. Seems like a victory on the face of it First of all, the ICC has finished a trial a truly historic feat! Secondly, it is one of few international criminal cases to prosecute the enlistment and conscription of children, which has heightened global awareness of this particular war crime, and some argue has even led to the prevention of the enlistment and conscription of children. International opinion has welcomed Lubangas conviction as an important step forward in the worldwide struggle against impunity for grave crimes. The Lubanga verdict has been hailed as a landmark ruling and a great victory for child soldiers in Congo and elsewhere. So far so good 6. However, this case is not without its criticisms Critics have been vocal on a variety of procedural shortcomings, ranging from trial length, rights of the accused, victim participation, disclosure of evidence, to the role of intermediaries in investigations. There have also been criticisms on the Prosecutor for failing to charge any offences of sexual violence or other serious crimes punishable under the Rome Statute. A number of Non-Governmental Organisations (NGOs) have concluded that lessons need to be learned for future cases 7. Does the judgment represent a victory, however flawed? Of the nine witnesses who claimed to have been child soldiers in the FLPC and gave evidence at the trial none of them were found by the Court to have been honest and reliable. Roughly a third of the judgement (157 out of 593 pages) is taken up with the Courts detailed and careful findings on these witnesses and the intermediaries (liaison officers facilitating contact with potential witnesses) who may have manipulated them. 8. The judgement is scathing about the investigative failures of the Prosecutor and particularly the excessive reliance on these intermediaries. Lubanga was convicted, but not on the evidence of those who were alleged to be the victims of the crimes he had committed. 9. Response to criticisms At the Atrocity Crimes Litigation Year-in-Review 2011 Conference, which took place as the Lubanga judgement was handed down, the Prosecution Coordinator of the ICC claimed that the judges criticism concerning intermediaries was overly harsh. Mark Harmon, former Senior Trial Prosecutor at the ICTY, underlined the difficulties faced by investigators looking for witnesses in conflict zones with poor infrastructure: This is a raw, difficult process, and the reality in the field, actually rolling up your sleeves and having to do one of these cases differs significantly from the reality in a courtroom in The Hague. 10. Counter-arguments do carry some weight The collection of evidence in international criminal justice is difficult. HOWEVER, more questionable is whether the ICC Office of the Prosecutor (OTP) made adequate efforts to deal with problems it encountered in conducting investigations in the Lubanga case Did they roll up their sleeves or did they abandon their responsibility to conduct proper investigations? 11. Criticisms of the Lubanga case Limited Scope of Charges Given the widespread allegations of systematic rape, sexual enslavement and other forms of sexualised violence by the UPC military group in the Ituri region of the Democratic Republic of Congo, the charges against Lubanga were too narrow, with special criticism that gender-based crimes were not prosecuted. This became even more apparent as evidence of such crimes came out repeatedly through documentary and other evidence during the trial. 12. After the Court heard multiple witnesses testify of alleged sexual violence, on 22 May 2009, legal representative for these victims filed to amend the characterization of the facts supporting the charges pursuant to Regulation 55 of the Regulations of the Court, arguing that the evidence justified additional charges of sexual slavery and cruel and inhumane treatment. In July 2009, Trial Chamber I ruled in favour of the application that they would consider adding the new charges. 13. However, the Appeals Chamber later reversed Trial Chamber Is decision on 8 December 2009, holding that while a legal re-characterization of the facts is permissible under certain circumstances , Regulation 55 (2) and (3) of the Regulations of the Court may not be used to exceed the facts and circumstances described in the charges or any amendment thereto as in accordance with Article 74(2) of the Rome Statute. The Appeals Chamber also stressed that only the Prosecutor may request to add new facts and circumstances under Article 61(9), in which case a hearing would first need to take place to determine whether the charges may be amended. 14. Counter-argument to limited scope Almost the opposite criticism was given to the ICTY when multiple charges were brought against Slobodan Milosevic. If multiple charges were brought against Lusanga, the added trial length would have likely enraged a whole other group of critics. The Appeal could be seen as a victory for Lubanga, as he has the right to a fair hearing, to be informed promptly and in detail of the charges and to have adequate time to prepare his defence, under Article 67 of the Rome Statute. The rights were at risk mid-way in the trial. Renowned rule of law advocates, such as the International Bar Association (IBA), have been watching defence issues closely since there is the risk that Lubangas human rights are marginalised by the intense drive to end impunity for mass crimes. IBA is essentially a watchdog and reminds the ICC of the importance of the presumption of innocence which must be a centrepiece of ICC trials. 15. Disclosure of Evidence and Fairness There was prohibited non-disclosure of evidence throughout the trial, rendering the trial unfair to Lubanga. Allegations of non-disclosure and other malfeasance (i.e. prosecution witnesses lied about their identities as child soldiers and even fabricated evidence) led to the Defence filing a claim of abuse of process on 10 December 2010 requesting a permanent stay in the proceedings. The Trial Chamber tat it was unnecessary to reach findings on the various factual allegations raised by the defence because a permanent stay would be a disproportionate remedy even if the prosecution was at fault. 16. Some critics argue the Lubanga case was unfair from the start. Ten days before the trial was set to begin, it was suspended for four months after Trial Chamber I ordered a stay in proceedings on 13 June 2008 because of the prosecutions violation of its obligations under Article 67(2) to disclose potentially exculpatory evidence to the Defence, and endangered the fairness of the trial. Victims groups were also critical as they said the trial delay held up victims access to justice in the Court proceedings. The prosecution said they were bound by confidentiality agreements with several sources (including the UN) under Article 54(3)(e) of the Rome Statute, wic meant they would not reveal over 200 documents. Trial Chamber I disagreed finding that confidentiality agreements should only be used to generate or lead to new evidence and it should be used exceptionally, but the Prosecutor had erroneously used the provision to widely collect evidence. After the trial was suspended, on 2 July 2008, the judges further ordered Lubangas unconditional release since he could no longer have a fair trial. The prosecution appealed and Lubanga was never released, to the outcry of defence advocates. The Appeals Chamber unanimously dismissed the Prosecutors appeal and confirmed the stay on 21 October 2008, but nonetheless reversed the decision to release Lubanga, remanding the case back to Trial Camber I so they could reassess the situation and documents in dispute. In the end Trial Camber I decided to lift the stay of proceedings in the Lubanga Trial as the reasons for imposing the stay had fallen away. 17. Intermediaries Intermediaries are not adequately screened and used indiscriminately especially by the prosecution, resulting in accusations of corruption and bribes. The Defence alleged the prosecution subcontracted local intermediaries who found false or unreliable witnesses for the prosecution. In July 2010 Trial Chamber I ordered a second stay of proceeding after the prosecution failed to comply with the order to disclose the identity of intermediary 143 who the prosecution ad been using to identify potential witnesses. Not only that, but the defence also claim that the particular intermediary encouraged potential witnesses to fabricate testimony in exchange for cash. The Appeals Chamber reversed the decision on 8 October 2010 holding that Trial Chamber I erred by immediately staying of proceedings without first imposing sanctions to persuade the Prosecutor to comply with its orders. 18. Victim Participation Another criticism of the Lubanga trial was that there was no room for extensive victim participation in the ICCs trials which are already too long. Some defence advocates argue further that legal representatives of victims act as de facto second or third prosecutor adding even more resources and ammunition against the accused. Even further, there is uneasiness that by recognising victims of the alleged crimes of the accused from the beginning of the trial, the Court is eroding the presumption of innocence and minimising the burden of proof. From the prosecutions perspective, some say prosecutorial authority and strategy is diminished by victims participating and meddling with the overall prosecution theory and trial plan. Finally, victims advocates ask how can one legal representative adequately speak for tens or hundreds of victims at trial, whom he or she has probably not even met in person. 19. Trial Length There have been criticisms that the trial was too long after being suspended three times. The longer the trial, the more expensive the proceedings for States Parties; the more removed the parties are from the alleged crimes as the accused and witnesses memories fade with time; the longer the wait for potential reparations for victims in case of a guilty verdict; this may create the need for judges to work past their elected postings; and since the ICC has only two courtrooms, newer trials have to sit outside of business hours. For many reasons the ICC needs to speed up trials for more effective international justice. 20. What does the Lubanga case tell us? First of all, we should not forget what is at stake. The crimes which are subject to OTP investigations are the most serious crimes of concern to the international community as a whole committed in the worlds most vulnerable locations. (ICC Statute, Preamble). To outsource the responsibility for investigations not only undermines the ICC as an institution, it also deprives the victims of accountability. There seems to be an overwhelming focus on the fact there was an arrest, there was a trial, and someone was convicted. BUT when an individual is tried and sentenced on the basis of flawed investigations, the principal losers are the victims they are entitled to a better quality of justice!!!! 21. Giving the victims a voice One of the objectives of International Criminal Justice is to give the victim a voice. The Chamber was not satisfied that even a single one of the witnesses whom the prosecution called purporting to be victims had, in fact, been child soldiers. In other words, not a single one of Lubangas victims ever got the chance to tell his or her story to the court and have it count. This objective has clearly not been met in the Lubanga case. 22. So is the judgement in Lubanga really a victory? To answer the question I asked on slide 5, can the judgement be seen as a victory despite its apparent flaws? I dont believe you can. You cannot say that the Lubanga judgement is a victory; if anything, it is a shameful outcome for the OTP. 23. Lessons can be learned from this Everyone makes mistakes and it is better to make them early on so you can learn for the future. The Lubanga case is the first completed case under the ICC and hopefully this will be the only one to have encountered controversy when we look back years from now. Given that is has taken this long for the ICC to have completed a case, we have to acknowledge that the Court is here to stay and improvements need to be made in its procedure 24. Rooms for improvement Revision of Vision the systematic problems with the OTP investigation needs to be addressed. Elena Baylis, Chris de Vos, and Brenda Hollis, prosecutor at the Special Court for Sierra Leone, have all suggested adopting guidelines that govern the relations between the court and third parties. Julie Flint and Alex de Waal suggest that the Prosecutor should increase the investigation budget and employ more investigators to carry out more thorough investigations. These suggestions should help ensure that the OTP complies with the highest investigation standards, keeps greater control over the investigation methods and provide more clarity about its relationship with third parties. 25. Increased or improved management of investigation budget to increase the efficiency of the investigations, a sufficient number of investigators must be employed for each situation. If the pool of investigators is too small then new investigators should be recruited and some of them should have experience in conducting criminal investigations and expertise in collecting forensic evidence, little of which has been done so far. Investigators should further be provided with sufficient funds to cover their travel and other expenses accrued during the course of the investigations. To do so, the investigation budget needs to be increased. In 2009, Whiting stated that additional funds were required for the ICC to be as successful as the ad hoc Tribunals in investigating and prosecuting suspected war criminals. The only problem here is that the current budget is frozen and the state parties are unwilling to raise their financial contributions. 26. Review of Investigation Strategy Human Rights Watch (HRW) has been very critical on the Prosecutors investigation strategy. The claim that the OTP simply doesnt get what is needed to redress the serious crimes committed. HRW also stated that there is a need for more coherent and effective strategies in each situation. The main aspect of investigation strategy that needs to be review is the policy of focused investigation. The OTP will investigate and prosecute those who bear the greatest responsibility for the most serious crimes based on the evidence that emerges in the course of an investigation. The OTP selects a limited number of persons at the highest echelons of responsibility and a limited number of incidents. This policy allows the OTP to carry out short investigations. 27. In the case of Lubanga, former investigators apparently had been collecting evidence of various crimes in the course of a year and a half but were then told to focus on child soldiers only. There is concern the focus on specific crimes and perpetrators cannot be determined properly before a thorough field-investigation has taken place. It should be the OTPs own independent investigation that determines the focus, not the other way round. If the ultimate evidence focus were determined solely on third party evidence, the Prosecutor would act in violation of his statutory duty to conduct independent investigations. In selecting the focus of the investigation policy it is important that the Prosecutor listens closely to those with experience on the ground the investigators. 28. Permanent Presence in the Region The HRW stated that the OTP must improve its field presence and the involvement of its field-based staff in policy setting. You could have at least one international investigator present in the region under investigation on a permanent basis. Through a permanent presence, the investigator(s) could attain knowledge and interest in the history of the conflict, local culture and language. If third party activity is necessary in certain activities without an investigation, the investigator could ensure there is sufficient supervision and scrutiny. The investigator could also cooperate closely with local and international NGOs, as well as the UN without outsourcing the investigations. The permanent presence of investigators could improve security in the region. Individuals or groups seeking to discourage potential witnesses from testifying might think twice before doing so if immediate action by the ICC was a possibility. 29. Verification of the Evidence the process of presuming the reliability of a witnesss account, or failing to support it with other evidence should stop. Investigators must show due diligence in scrutinizing this information. Investigators should be allowed to contact family members and other people with relevant information about the potential prosecution witnesses. This can be done without putting the witness at risk, and investigators should be trained accordingly. 30. Clear Guidelines The main view appears to be that the recruitment of intermediaries is essential for successful investigations. The main concern, there, is the method and extent to which intermediaries have been deployed thus far. A solution could be the adoption of clear guidelines governing the relationship with intermediaries. It may not be necessary to recruit them and the OTP could employ local persons directly as investigators, who would be accountable and their activities, role and mandates transparent. 31. Erga Omnes An obligation owed to the whole world/international community. The ICC has an obligation to ensure criminal justice is served, if it is presented with a case. The OTP has an obligation to ensure they are conducting investigations and prosecution properly and ensuring that the victims do have a voice. 32. The ICC is seen as being the future At the 2009 Inter-sessional Meeting of the Crimes against Humanity Initiative, Hague Prize winner Cherif Bassiouni made a striking observation on international justice. He said, In five years, we will mainly have the ICC in the landscape of international institutions. The two ad hoc tribunals for the for Yugoslavia and Rwanda will close down and perhaps deal with some outstanding transitional issues. Other institutions will be completing their mandates. The ICC is here to stay and we must assume rather than hope that they will get it right from now on, in future cases. 33. Conclusion Lubanga committed a grave crime and was prosecuted and convicted = good result However, this was achieved at the expense of the victims and of a properly conducted investigation, procedure, and conduct = not a good result Some criticism are valid, others not so much but the right result must be obtained in the right way. The ICC and OTP can learn its lesson from the Lubanga case and drive towards correct criminal justice in the future and repair its reputation and credibility.