The Prosecutor v. Thomas Lubanga Dyilo – a turbulent but promising retrospective
For the past two and a half years the world watched with trepidation as the International Criminal Court (ICC) conducted its very first trial. At times it seemed like the Court’s viability was being tested rather than the guilt of the accused, Thomas Lubanga Dyilo. The recent and headlines sum up critical mass - “The ICC’s First Trial: Milestones Mixed with Near-Disasters” and “Long Proceedings in Trial of Thomas Lubanga Finally Reach End”. Stepping back from the dramatic headlines, one really must ask, what lessons have been realized from the ICC’s first trial?
The good news is that the ICC has now finished a trial – a truly historic feat. This case was also special because 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.
The not so good news is that there were many bumps in the road of the Lubanga trial. Critics have been rightly vocal on a variety of mostly procedural shortcomings, ranging from trial length, rights of the accused, victim participation, disclosure of evidence, to the role of intermediaries in investigations. While close assessments of the first permanent global criminal court are warranted and necessary, critics have been unnecessarily harsh on this groundbreaking institution – unless of course they are actually vying for its decline, as arguably many of them are. This writer is not and finds (for the most part) that the ICC is made up of a global network of States Parties, civil society groups and committed individuals doing all they can to strengthen the Court, with the noble aim of more fair, effective and comprehensive trials. Even with the growing momentum, this remains an incredibly challenging task considering the lack of support from notable superpowers, and the daunting mandate of holding previously untouchable tyrants, even heads of states, accountable for the gravest crimes affecting humanity.
As Trial Chamber I now prepares to deliver its first verdict, it is an appropriate time to take a look back at some of the Lubanga Trial’s apparent procedural missteps, and also point out the key steps taken by the ICC to learn from them. Putting the substantive law aside - which will be better gleaned from the final decision - what can be learned from the running of the Lubanga Trial? This case has been too easy to criticize, in an almost tantalizing way, but for those of us vying for the ICC’s success in challenging impunity for the world’s worst crimes, perhaps the more useful and difficult question is: how can the ICC’s first trial be used to better guide the Court forward?
Here is some of what the critics are saying, followed by a few lessons learned:
Limited scope of charges
After nearly a year of being held in the ICC Detention Centre, in January 2007 Pre-Trial Chamber I confirmed charges against Lubanga – in the co-perpetration of war crimes in the Democratic Republic of the Congo, specifically enlisting, conscripting and using children under the age of fifteen years to participate actively in hostilities from early September 2002 to 2 June 2003. 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 Libération du Congo (FPLC). The charges made no mention of gender based crimes against young girls such as rape or sexual slavery.
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 DRC, 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 gender-based crimes came out repeatedly through documentary and viva voce evidence during the trial.
Since 2006 victims’ advocates and NGOs like the Hague-based Women’s Initiatives for Gender Justice have been vocal on the limited nature of the charges urging the Court to consider gender-based crimes as a central to civilian attacks. The Ituri region, where the alleged crimes took place, now has the telling moniker of the ‘rape capital of the world’.
After the Court heard multiple witnesses testify of alleged sexual violence, on 22 May 2009, legal representatives for 27 victims participating in the trial filed to amend the characterisation of the facts supporting the charges pursuant to Regulation 55 of the Regulations of the Court, arguing this evidence justified additional charges of sexual slavery and cruel and inhuman treatment. In July 2009, Trial Chamber I ruled in favour (by majority) of the victims’ application that they would consider adding the new charges.
However, the Appeals Chamber later reversed Trial Chamber I’s 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 it is only the Prosecutor who may request to add new facts and circumstances (not already in the charges) under Article 61(9), in which case a hearing would first need to take place to determine whether the charges may be amended.
What this appeal decision meant was that by the end of the trial, Trial Chamber I was left with repeated references to sexual violence and rape allegations, but no accompanying charges. During the Prosecutor’s closing statements on 25 August 2011, Judge Odio Benito indeed raised this inconsistency asking the Prosecutor, again in light of Article 74(2), “How is sexual violence relevant to this case, and how does the Prosecution expect the Trial Chamber to refer to the sexual violence allegedly suffered by girls if this is not in the facts and circumstances described in the charges against Lubanga Dyilo?” The Prosecutor, Mr. Luis Moreno Ocampo, explained in Court and in his closing brief that sexual violence to girls is relevant as an integral element of the child recruitment and a “gender aspect” of the conscription process.
When asked in an earlier interview why charges of sexual violence were not brought in the first instance since the trial has been peppered with evidence of such crimes, Deputy Prosecutor, Ms. Fatou Bensouda, explained the investigations were extensive but “took place under very difficult circumstances [in terms of] the security challenges and the heightened risks for victims. Given these challenges … and, [with] the approaching “confirmation of charges” hearing, we had to make a decision. We decided that our child soldier case was very strong… and this was evidence that we could present comfortably before the court… and we proceeded.”
Harsh criticism of the prosecution’s charge selection may be overstated. Almost the opposite disapproval was given to the International Criminal Tribunal for the Former Yugoslavia prosecution when multiple charges were brought against Slobodan Milošević, who ultimately died in custody as his four year trial was drawing to a close. Yes charges ought to best reflect the alleged criminality and significantly “the most serious crimes of concern to the international community as a whole must not go unpunished”. However there are other considerations and if the prosecution had brought multiple charges against Lubanga, as was done in the Milošević case, the added trial length would have likely enraged a whole other group of critics.
This interlocutory matter helped clarify several issues. First, it shows that the Prosecutor holds the reigns of investigations and the shaping and amending of charges, during the pre-trial phase. That said since prosecutorial discretion is so fundamental during the charging process, the charges should reflect as closely as possible the spectrum of alleged criminality in a given case. Nonetheless, the Deputy Prosecutor’s explanation regarding security concerns which hindered investigations is a serious obstacle for the ICC as a whole, and needs to be acknowledged as a serious limitation, considering the Court does not have its own police force to assist with investigations which often takes place while conflict is ongoing.
Second, victims groups now know they will need to get their advocacy done early in the pre-trial phase with the prosecution if they want to influence the inclusion of certain charges as it is highly unlikely victims will be able to request new charges once the trial has commenced. The Appeal decision dealing with the re-characterization of facts has therefore helped clarify the Prosecutor’s preeminent role in shaping the charges and sheds light on the boundaries of victim participation.
Last but not least, the Appeal was a victory for the accused Lubanga who, under Article 67 of the Rome Statue, is owed among other things a fair hearing, to be informed promptly and in detail of the charges and to have adequate time to prepare his defence. These fundamental rights were at risk with the possibility of the addition of new charges mid-way in the trial. Renowned rule of law advocates, like the International Bar Association (IBA), have been watching defence issues closely since there is the risk that Lubanga’s human rights are marginalised by the intense drive to end impunity for mass crimes. Almost like a watchdog, the IBA has consistently reminded the ICC of the importance of the presumption of innocence which must be a centrepiece of ICC trials.
Disclosure of Evidence & Fairness
According to Article 64(2) of the Rome Statute the Trial Chamber needs to ensure that a trial is “fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses”. And at the heart of fairness in criminal procedural law is the prosecution’s positive obligation to disclose material in to the accused in a timely manner to allow Mr. Luganga time to effectively prepare his defence, as provided for in the Rome Statute and Rules of Procedure and Evidence (RPE).
The provisions to watch are Article 67(2) of the Rome Statute and Rule 77 of the RPE, which obliged the Prosecutor to disclose to Lubanga’s team all evidence “material to the preparation of the defence”. On 11 July 2008 the Appeals Chamber found this even goes beyond the incriminating or potentially exonerating evidence the Prosecutor has gathered, and widely encompasses all objects relevant to the preparation of the defence. There are exceptions, like the need for the Prosecutor to keep classified certain pieces of evidence received confidentially from third parties for the purpose of generating new evidence, as governed by Article 54 (3)(e). This is necessary since informants will likely only provide information on alleged mass crimes if their anonymity and security is protected.
There was prohibited non-disclosure of evidence throughout this trial, rendering the trial unfair to Lubanga. Allegations of non-disclosure and other malfeasance (e.g. prosecution witnesses lied about their identities as child soldiers and even fabricated evidence) culminated in the Defence filing an application of abuse of process on 10 December 2010 requesting a permanent stay in the proceedings. This was not to be as the Trial Chamber found in a 23 February 2011 decision, that 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.
In fact the Lubanga Trial was unfair from the start so say critics. Ten days before the trial was set to begin, it was suspended for almost four months after Trial Chamber I ordered a stay of proceedings on 13 June 2008 because of the prosecution’s violation of its obligations under Article 67(2) to disclose potentially exculpatory evidence to the Defence, which endangered the fairness of the trial. Victims groups were also critical as they said the trial delay held up victims’ access to justice through the Court proceedings.
The prosecution said they were bound by confidentiality agreements with several sources (including the United Nations) under Article 54(3)(e) of the Rome Statute, which 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 Lubanga’s 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 Prosecutor’s appeal and confirmed the stay on 21 October 2008, but nonetheless reversed the decision to release Lubanga, remanding the case back to Trial Chamber I so they could reassess the situation and documents in dispute. In the end Trial Chamber I decided to lift the stay of the proceedings in the Lubanga Trial as the reasons for imposing the stay had ‘fallen away’.
Disclosure has been one of the most contentious procedural issues in the Lubanga Trial arising again and again even after the 2008 stay of proceedings. One important lesson for the prosecution is the widespread and almost total obligation to disclose materials in their possession to the accused.
While much has been said to discredit the prosecution, their insistence on confidentiality is due to real security risks for individuals and organizations that genuinely fear retributions for handing over evidence that may implicate Lubanga in war crimes. The Prosecutor must keep his informants at ease or else they will stop providing useful information in confidence. Nonetheless this decision calls into question the certainty of confidentiality agreements with informants if they are not executed correctly or if they infringe the rights of the accused. The decision likely impacted the way the prosecution negotiates confidentiality agreements to ensure they comply with Article 54(3)(e), Rule 77 and the fundamental right to disclosure for the accused who is innocent after all until proven guilty.
Disputes over disclosure continue to arise in new ICC trials, and the IBA recently produced a report on fairness at the ICC which points to several landmark decisions in the Mbarushimana and Kenya cases which in the IBA’s view will strengthen the fairness of ICC proceedings. Judges have gone beyond the ‘bulk rule’ applied in the Lubanga Trial, whereby the prosecution must disclose the bulk of potentially exonerating materials prior to the confirmation of charges, to a ‘totality rule’ whereby full disclosure of all evidence material to the preparation of the defence must be handed over. Another innovation since the Lubanga Trial is that judges have required the prosecution in some instances to submit summaries of evidence to help the defence understand the relevance of each item of evidence.
While these new obligations may be onerous to the prosecution, the rights of the accused are being taken seriously. Further, the prosecution has more clarity on how they need to manage the vast quantities of evidence they must sort through. With this clarity it is hoped that evidence review and disclosure will become more systematic and less controversial.
Another matter which is hardly ever raised when fairness is at issue, is the incredible burden placed on the Prosecutor in these mega trials – that is the burden of proving Lubanga’s guilt beyond a reasonable doubt. While the Court should always be alive to the principle of the equality of arms (defence and prosecution must have procedural equality and equal access to evidence adduced), if defence pokes even one hole in the Prosecutor’s theory he will be acquitted. In other words equality of arms is somewhat of a misnomer since the Prosecutor has a much more arduous task, so there should not be an equality of means and resources for example.
While unforeseen by the drafters of the Rome Statute, and with no official ICC texts offering guidance or even a definition of ‘intermediaries’ their significant role in ICC proceedings is now abundantly apparent. Loosely defined, intermediaries are local persons or organisations (NGOs, lawyers, journalists, community leaders, etc.) who are engaged by various ICC parties for a range of important work which links the Court to affected communities.
Intermediaries are not adequately screened and used indiscriminately especially by the prosecution, resulting in accusations of corruptions and bribes. Defence allege 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 in the Lubanga Trial after the prosecution failed to comply with the order to disclose the identity of intermediary 143 who the prosecution had been using to identify potential witnesses. Not only that, but defence says the particular intermediary encouraged potential witnesses to fabricate testimony in exchange for cash. However 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.
The Luganga Trial exposed a vacuum in regulations of the definition, role and arguably the protection of intermediaries, and the trial showed there is a serious need for better management and oversight of third parties engaged by the prosecution and others. Various units of the ICC work with intermediaries with no Court endorsed guidelines, resulting in inconsistent relationships with third parties.
Nonetheless, intermediaries have become a major contributor to investigations and outreach with victims and witnesses. For instance third parties are often necessary in conflict situations where it would be otherwise impossible for an ICC staff member to safely work in the field. In complex trials like that of Lubanga, local intermediaries can open the door to potential witnesses and leads and can immensely help streamline investigations. This makes for a more efficient trial which is crucial in this time of economic austerity.
Significantly, the ICC has reacted to this issue and established an inter-organ working group on intermediaries with a court-wide policy currently being finalised. One of the working group’s aims is to bring transparency and clarity for third parties who interact with the ICC. Several NGOs have offered input to this working group’s proposed guidelines. The new model on intermediaries is accounted for in the ICC’s 2012 Proposed Programme Budget. On another note, in July 2011, the Victims Participation and Reparations Section of the ICC Registry conducted a training seminar in Bangui, capital of the Central African Republic, to build capacity amongst local intermediaries working with victims. All in all there is concrete momentum on remedying this issue.
One of the most novel and forward thinking features of the ICC is Article 68(3) of the Rome Statute which provides for victim participation in proceedings, where the personal interests of the particular victims are affected. Rule 85 of the Rules of Procedure and Evidence defines victims as those who have “suffered harm as a result of the commission of any crime within the jurisdiction of the Court”. Direct participation is meant to give more voice to survivors within ICC trials, since criminal proceedings have a long history of sidelining victims who are in fact a main stakeholder in the outcome of the cases. For the first time in an international criminal trial, 123 persons were granted special participatory status as victims in the Lubanga trial.
There is no room for extensive victim participation in the ICC’s mega trials which are already too long. Some defence advocates go further and argue that legal representatives of victims act as de facto second or third prosecutor adding even more resources and ammunition against the accused. Taking 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 prosecution’s 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 she or he has probably not even met in person.
While victims’ participation throughout ICC’s first trial has been challenging, it has also been groundbreaking in many ways. It must be said that the overall policy objective of bringing justice to victims and survivors outweighs these difficulties, which can be remedied to ensure the accused has a fair trial.
The above challenges were teased out in the Lubanga proceedings with a number of instructive decisions. On 11 July 2008, the Appeal Chamber clarified the type of victim who can participate. Individual persons, directly or indirectly, must have personally suffered harm emanating from the alleged offence, whether material, physical or psychological. This decision confirmed the possibility of victims leading and challenging evidence relating to the guilt or innocence of the accused, and to challenge the admissibility or relevance of evidence in the trial proceedings. In January 2010, three victims for the first time in an ICC trial were given the opportunity to independently testify in person and present evidence in Court. These decisions have given some important clarity to the role of victims in future trials.
International criminal trials run at a notoriously slower pace than national proceedings due to several factors like the volume of documentary evidence and their translation into two or more languages, the number of witnesses and the simultaneous interpretation of their testimony in Court and the broader time span of alleged criminality to name a few. The Lubanga Trial was no exception with Trial Chamber I issuing 307 oral decisions and 624 written decisions. The parties and participants exchanged more than 3,560 filings adding up to more than 53,000 pages.
The two and a half year Lubanga trial was far 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.
While necessarily longer than national trials, there is room for improvement and making the trial as expeditious as possible without rushing proper fact and truth finding. According to the person who may have the best insight, presiding Judge in the Lubanga Trial Sir Adrian Fulford, there are several ways that ICC trials could be shortened without affecting the integrity of the trial. Contrary to popular opinion, Judge Fulford does not blame victim participation for eating the most court time. He sees other more pressing issues. A few of his proposals on how to streamline trials include: having a court-appointed expert who can submit reports on the context and background information rather than several experts giving oral testimonies during the trial; having the prosecution and defence agree on which parts of a given witness’ anticipated testimony they consent to before the hearing, so the witness does not need to be asked questions on those issues which are uncontested; and possibly amending the Rome Statute to allow for a judge to sit alone for some of the less central parts of the trial, as this is currently prohibited under Article 74 and once again adds unnecessary time delays if a judge is ill or unavailable. In Judge Fulford’s words, “it is crucial to learn quickly from the delays of the past and to ensure they are not repeated.”
After two and a half years, 220 hearings and 62 witnesses, the parties and participants in the Lubanga Trial presented closing statements on 25 and 26 August 2011. The prosecution argued they have proven beyond any possible doubt that Mr. Thomas Lubanga is guilty of the war crimes charged against him, affecting hundreds of children. These children were trained in about 20 camps around Ituri, and used to fight in conflicts, specifically to kill, rape, and pillage throughout the 12‐month period of the charges in 2002-2003. Meanwhile the Defence maintains the prosecution witnesses lied about being child soldiers, and that ICC contracted intermediaries encouraged these lies through bribes and threats. Further, they say the UPC did not strategically recruit child soldiers and rather some children volunteered to participate and Lubanga was actively trying to demobilize these minors.
Bearing this in mind, Trial Chamber I is now rendering its decision on the guilt or innocence of Mr. Luganga. ICC watchers eagerly await the final verdict which will add tremendously to international criminal law jurisprudence no matter the finding of innocence or guilt. Of course the number of ICC convictions is not a measure of the Court’s success. Rather measuring the level of fairness, rule of law and respect for victims’ voices should be the criteria to measure its success.
Putting aside the procedural aspects ICC’s first trial, at minimum this case has done the tremendous job of elevating the devastating reality of child soldiers in the international legal and political arena. There will now be substantive jurisprudence on the war crime of enlisting, conscripting and using children in hostilities. And at best, the increased global awareness will lead to prevention if and when military commanders think twice about this practice in light of their potential prosecution at the ICC.