This week, all eyes were focused on the International Criminal Court (ICC) at The Hague, as Chief Prosecutor Luis Moreno-Ocampo, in an historic move, requested an arrest warrant for Sudanese President Omar al-Bashir on charges of genocide, war crimes, and crimes against humanity.
However, the ICC has seen other dramatic developments in recent weeks that, while slightly below the media’s radar right now, could have serious implications for the Court’s future and for civilians in the Democratic Republic of the Congo (DRC).
On the 10th anniversary of the Rome Statute that established it, the ICC is attempting to conduct its first-ever trial, that of former DRC militia leader Thomas Lubanga Dyilo. The process is off to a shaky start.
On June 13th, judges indefinitely suspended proceedings after defense lawyers raised doubts that Lubanga would receive a fair trial. The prosecution was found to be withholding critical evidence from the defense after signing confidentiality agreements with the United Nations. Defense lawyers argued that this made it impossible for Lubanga to prepare a proper case and persuaded judges to order Lubanga’s release in early July. The Prosecutor immediately filed an appeal, and Lubanga remains in custody pending a final decision.
This week, prosecutors expressed optimism that the trial would move forward after the UN agreed to allow judges to review parts of the evidence in question.
Lubanga is the founder and former leader of the Union of Congolese Patriots (UCP), a militia group based in Ituri province. He is currently facing charges of war crimes and crimes against humanity, and is specifically accused of enlisting child soldiers between 2002 and 2003.
The situation highlights many of the complexities involved in pursuing criminal proceedings related to an area still embroiled in a conflict. One is the critical balancing act needed to conduct a fair trial while taking measures to protect witnesses in conflict zones. Another is the potential for judicial proceedings to have a direct impact on the ground – Lubanga’s alleged victims have warned that, in addition to continuing the cycle of impunity, releasing him would ignite a “fireball” in Ituri.
Not surprisingly, these concerns, and others raised over Lubanga, are closely linked to the speculation that has been dominating the headlines this week on the Darfur case. Human Rights Watch released an in-depth report this week examining the various issues the ICC has faced during its first five years in existence, evaluating Court’s progress, and presenting recommendations for improvements in the future.
In any case, the proceedings and outcome of the ICC’s first trial will prove critical in determining its likelihood of future success.
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The DRC case was referred to the ICC in April 2004 and officially opened by the Court in June of the same year. In its referral, the UN Security Council asked the Prosecutor to investigate war crimes committed within the territory. To date, the ICC has issued four indictments in conjunction with the case: Germain Katanga, Mathieu Ngudjolo Chui, Bosco Ntaganda, in addition to Lubanga. Ntaganda, the second-in-command to CNDP militia leader General Laurent Nkunda, is still at large.
Jean-Marie Bemba, former DRC vice president and ex-militia leader, who is separately charged with commiting war crimes in the Central African Republic, was successfully arrested in Brussels in late May and was brought into custody at The Hague on July 3.
-Nina McMurry, DR Congo Education Coordinator