A great piece from Africa expert Howard French on Chinese involvement in African infrastructure, particularly Congolese in the south.
On my last visit to eastern DRC I spoke to a guy from an NGO who complained the beautiful Chinese road being built into the South Kivu interior was unusable by locals because of the insecurity caused by the FDLR militia group.
Wednesday, 28 April 2010
Bemba trial politically motivated?
Lawyers for Congo's former vice-president Jean-Pierre Bemba came to the ICC yesterday to allege that his case was politically motivated.
Here'sthe Reuters story on the hearing.
Bemba's lawyers have long claimed collaboration between the court and Congo's president Joseph Kabila to keep Kabila's main political rival away from the 2011 presidential elections.
His trial should start July 5th.
Here'sthe Reuters story on the hearing.
Bemba's lawyers have long claimed collaboration between the court and Congo's president Joseph Kabila to keep Kabila's main political rival away from the 2011 presidential elections.
His trial should start July 5th.
Poor Prosecutor
Another setback for the ICC prosecutor in Sudan.
Judges decided this week that Luis Moreno-Ocampo could not appeal their verdict throwing out the charges against the one and only cooperative indictee from Sudan Idriss Abu Garda, a rebel leader from the Justice and Equality Movement,JEM.
This comes the same week as Omar al-Bashir was confirmed as the president of Sudan. Bashir is wanted - never to be had - by the ICC for war crimes in Darfur. His re-election only reinforces the ICC's powerlessness to enforce its indictments. Two other Bashir allies wanted by the court remain free, along with all the still living indictees from the Lord's Resistance Army and everyone's favourite DRC warlord, Bosco Ntaganda. He's now a general in the Congolese army and reportedly enjoys a mean game of tennis at one of the smarter hotels in the North Kivu capital Goma.
Judges decided this week that Luis Moreno-Ocampo could not appeal their verdict throwing out the charges against the one and only cooperative indictee from Sudan Idriss Abu Garda, a rebel leader from the Justice and Equality Movement,JEM.
This comes the same week as Omar al-Bashir was confirmed as the president of Sudan. Bashir is wanted - never to be had - by the ICC for war crimes in Darfur. His re-election only reinforces the ICC's powerlessness to enforce its indictments. Two other Bashir allies wanted by the court remain free, along with all the still living indictees from the Lord's Resistance Army and everyone's favourite DRC warlord, Bosco Ntaganda. He's now a general in the Congolese army and reportedly enjoys a mean game of tennis at one of the smarter hotels in the North Kivu capital Goma.
Tuesday, 13 April 2010
Congo Mining
Check out this great Congo blog by Jason Stearns. He's talking about the misconceptions of the Congo conflict, one of which is that its all about minerals.
He says that to reduce these long and complex wars to one single thing oversimplifies the situation. Read the blog posting here
He says that to reduce these long and complex wars to one single thing oversimplifies the situation. Read the blog posting here
New ICG Report
International Crisis Group has published a new report on Congo's stalled democratic agenda. They say that nearly four years after Joseph Kabila won the presidency in elections hailed as a milestone in the peace process, power is being centralised at the presidential office, checks and balances barely exist, and civil liberties are regularly undermined, despite growing signs that the regime is unable to manage local conflicts. It says the regime has undermined the independence of the judicial branch by running an anti-corruption campaign that is politically biased.
Read the press release here. Unfortunately the full report is en francais only.
Read the press release here. Unfortunately the full report is en francais only.
Thursday, 8 April 2010
Lubanga Witnesses Lied Lawyers Say
A very interesting piece from the Radio Netherlands international justice portal.It's an interview with Thomas Lubanga's defence lawyers complaining about the poor quality of ICC investigations. Essentially they contend that intermediaries working with the court fed false statements to witnesses who subsequently went on to testify in The Hague. The intermediaries aren't investigators, just a liason between the ICC and the victims on the ground in DRC. The defence lawyers say they're planning to ask the trial be stopped as a result of the sheer amount of false evidence presented by prosecutors. The ICC's first-ever case, five years in the making, looks to be on shaky ground if the judges buy the defence arguments.
Here's the original story.
Catherine Mabille and Marc Desalliers represent former Congolese militia leader Thomas Lubanga Dyilo, who stands trial at The Hague’s International Criminal Court (ICC) for conscripting and using child soldiers. The lawyers have complained about ongoing problems during the trial.
By Thijs Bouwknegt
How do you perceive this trial so far?
CM: Some intermediaries have prepared witnesses and told them to present the court with false allegations. It is very difficult for the court to face these kinds of problems. It seems that investigations have not been done properly, which is a big issue. I think that how our case has been handled is exactly what the international court must not do. Right now we are in the middle of our defence, but I think the way things have been carried out so far is very problematic for this court.
What about the credibility of the prosecution’s witnesses?
MD: What we said to the court is that some individuals have given false testimonies on purpose, and we are trying to provide evidence (for this). Some people were being prepared to tell lies. That is a major issue.
In court you have mentioned problems with the ICC intermediaries in Congo. Can you explain this?
CM: Some witnesses said that they were told by intermediaries of the prosecutor to say things. After an investigation, it turns out that the child soldiers brought to court were fake child soldiers. They have been prepared by intermediaries who told them how to tell things to the court. We are now trying to find official documents, like school records, to counter this evidence.
Who are these intermediaries?
MD: We know who some of them are, but we don’t know all of them. The intermediaries are not investigators. They bring people to the investigators of the OTP [Office of the Prosecutor] and facilitate contacts between potential witnesses and the OTP.
How is the ICC compared to the other tribunals?
CM: I would say it is more difficult than working at the ICTR [International Criminal for Rwanda] for a number of reasons. First of all, this was the first case for the ICC, so the statute had never been used before and everything was discussed.
Secondly, there were a lot of organisational problems, for example with translations. When I was at the ICTR, the tribunal was already working for six or seven years, so things were better organised. With regards to the victims, we must beware that they do not become ‘co-prosecutors’.
MD: It will be interesting to see how ICC would handle, say, its 20th case. Right now, it is a learning process for everyone. Victims are a regular part in civil court cases, but at the ICC cases are not build up in the same way as in a civil court.
Right now we have a trial that’s more like a common law trial, where the prosecution presents its case, and then the defence presents its case, and the judges are there to make sure that it’s fair. So if you add the victims to this balance, and give them a role that is equivalent to the prosecution, the balance is gone. It is very difficult to know exactly what their place is in the trial. It will take time to figure this out.
Will there be a 20th case?
MD: I definitely hope so. If not, it would be because the institution could not find a solution to function in the long term. This would be very sad. The world will always need a trial (court) to judge the most serious crimes.
When do you expect to finish the defence?
CM: We would be very pleased if somebody could answer that. The trial cannot go on because the false evidence has been so massive that it is difficult for the judges to go on.
In the first phase of the trial we had twenty witnesses. We have already heard fifteen of them, so we have five more. Then we’re going to ask to the judges for a pause of the process, and will wait for their decision on this.
If the judges want to go on, we will proceed with a positive case, wherein we have ten new witnesses to hear. But I cannot schedule that.
Here's the original story.
Catherine Mabille and Marc Desalliers represent former Congolese militia leader Thomas Lubanga Dyilo, who stands trial at The Hague’s International Criminal Court (ICC) for conscripting and using child soldiers. The lawyers have complained about ongoing problems during the trial.
By Thijs Bouwknegt
How do you perceive this trial so far?
CM: Some intermediaries have prepared witnesses and told them to present the court with false allegations. It is very difficult for the court to face these kinds of problems. It seems that investigations have not been done properly, which is a big issue. I think that how our case has been handled is exactly what the international court must not do. Right now we are in the middle of our defence, but I think the way things have been carried out so far is very problematic for this court.
What about the credibility of the prosecution’s witnesses?
MD: What we said to the court is that some individuals have given false testimonies on purpose, and we are trying to provide evidence (for this). Some people were being prepared to tell lies. That is a major issue.
In court you have mentioned problems with the ICC intermediaries in Congo. Can you explain this?
CM: Some witnesses said that they were told by intermediaries of the prosecutor to say things. After an investigation, it turns out that the child soldiers brought to court were fake child soldiers. They have been prepared by intermediaries who told them how to tell things to the court. We are now trying to find official documents, like school records, to counter this evidence.
Who are these intermediaries?
MD: We know who some of them are, but we don’t know all of them. The intermediaries are not investigators. They bring people to the investigators of the OTP [Office of the Prosecutor] and facilitate contacts between potential witnesses and the OTP.
How is the ICC compared to the other tribunals?
CM: I would say it is more difficult than working at the ICTR [International Criminal for Rwanda] for a number of reasons. First of all, this was the first case for the ICC, so the statute had never been used before and everything was discussed.
Secondly, there were a lot of organisational problems, for example with translations. When I was at the ICTR, the tribunal was already working for six or seven years, so things were better organised. With regards to the victims, we must beware that they do not become ‘co-prosecutors’.
MD: It will be interesting to see how ICC would handle, say, its 20th case. Right now, it is a learning process for everyone. Victims are a regular part in civil court cases, but at the ICC cases are not build up in the same way as in a civil court.
Right now we have a trial that’s more like a common law trial, where the prosecution presents its case, and then the defence presents its case, and the judges are there to make sure that it’s fair. So if you add the victims to this balance, and give them a role that is equivalent to the prosecution, the balance is gone. It is very difficult to know exactly what their place is in the trial. It will take time to figure this out.
Will there be a 20th case?
MD: I definitely hope so. If not, it would be because the institution could not find a solution to function in the long term. This would be very sad. The world will always need a trial (court) to judge the most serious crimes.
When do you expect to finish the defence?
CM: We would be very pleased if somebody could answer that. The trial cannot go on because the false evidence has been so massive that it is difficult for the judges to go on.
In the first phase of the trial we had twenty witnesses. We have already heard fifteen of them, so we have five more. Then we’re going to ask to the judges for a pause of the process, and will wait for their decision on this.
If the judges want to go on, we will proceed with a positive case, wherein we have ten new witnesses to hear. But I cannot schedule that.
Tuesday, 6 April 2010
Welcome To My Blog
Below are few stories that I wrote for the Institute for War and Peace Reporting on the International Criminal Court - an important institution based here in The Hague that doesn't always work as well as it should. Not that they'd ever admit that. I'll be keeping an eye on the latest developments at the ICC but also in the Congo where justice, if adminstered properly and fairly, could actually make a real difference.
New Blow for ICC
By Lisa Clifford in The Hague (16-Feb-10)
From the website of the Institute for War and Peace Reporting, www.iwpr.net
International Criminal Court, ICC, judges last week threw out the case against Sudan’s Bahr Idriss Abu Garda, describing prosecution evidence against the rebel leader as scant, weak and unreliable.
They said prosecutors had failed to prove that Abu Garda, the commander of a splinter group of the Justice and Equality Movement, JEM, was behind the September 29, 2007 attack on an African Union base in Haskanita, north Darfur. Twelve peacekeepers died and eight were wounded.
Their verdict followed an eight-day confirmation of charges hearing last October, a process unique to the ICC held to decide whether the case should proceed to trial.
The judges decided unanimously that it should not, citing inconsistent and contradictory witness statements. They said key prosecution witnesses failed to back up claims that Abu Garda directed the attack on Haskanita, and that some called to testify seemed to support the defence who said that he wasn’t there during the attack.
“The chamber finds that the evidence tendered by the prosecution, far from establishing Mr Abu Garda's participation in the attack, seems to concur with the submissions made by the defence to the effect that Mr Abu Garda did not personally participate in the attack on Haskanita,” reads one section of the judgement.
The collapse of the Abu Garda case is an ICC public relations disaster in Africa – coming at a time when prosecutor Luis Moreno-Ocampo’s pursuit of Sudanese president Omar al-Bashir has divided opinion and caused support to waver on the continent.
A free and fair trial with a cooperative Sudanese defendant - Abu Garda appeared voluntarily before the ICC - would have given the court’s reputation a much needed boost. Instead, the case against the rebel leader was thrown out less than a week after the ICC appeals chamber found that Bashir could face genocide charges.
The timing could hardly have been worse, and the government-controlled press in Sudan will relish the opportunity to bash the ICC for, what they will perceive as, siding with rebels. Clearly this isn’t the case – the prosecutor takes great pains to point out that he only follows where the evidence leads – but convincing the Sudanese people will be the ICC’s next challenge.
However, it faces an uphill struggle. It is banned from Sudan and is instead forced to confine its outreach efforts to the refugee camps of Chad and to members of the diaspora in The Hague. Outreach has long been an ICC weakness, even in more cooperative countries like Congo, and the court has been much criticised for failing to connect with ordinary people.
Outside Africa, the collapse of the Abu Garda case is also likely to have repercussions.
Pressure is mounting on the court to deliver results. Seven years after Moreno-Ocampo was appointed, the ICC has yet to complete a trial. It’s first-ever case – against Congolese militia leader Thomas Lubanga who has been in ICC custody for nearly four years – is now at the defence stage after numerous delays, including a stay of proceedings when the prosecution withheld evidence from the defence.
The case against Congolese militia leaders Germain Katanga and Mathieu Ngudjolo began in January, and Congo’s former vice-president Jean-Pierre Bemba is due to go on trial later this year. But the court’s remaining nine suspects are all at large. Many have evaded capture for years and two from Uganda died while on the run.
Abu Garda was far more cooperative. He appeared voluntarily in The Hague on May 18, 2009 saying he welcomed the opportunity to clear his name. Other JEM leaders had also pledged their cooperation with the ICC.
With this level of cooperation, it’s all the more regrettable that a case compiled by the prosecution did not contain sufficient evidence to persuade judges to bring it to trial.
That serious crimes took place at Haskanita is beyond doubt – the judges agreed with that – but the case failed to clear the first hurdle - the pre-trial judges.
Nonetheless, the ICC needs to take any small positives it can from this unfortunate turn of events. That means good outreach.
The court must point out that the Abu Garda decision – though bad news for prosecutors – proves beyond doubt the high calibre of ICC judges and their ability to be fair and balanced, free from any political pressure. Those like Bashir or Uganda’s Joseph Kony who insist an ICC trial would not be fair should take note.
One option for Moreno-Ocampo is to gather more evidence and ask the judges to look at the case again. However, his next step will undoubtedly be to ask the judges for leave to appeal their verdict. It will be interesting to see how the prosecutor explains this troubled case.
Lisa Clifford is IWPR’s international justice project manager.
The views expressed in this article are not necessarily the views of IWPR.
From the website of the Institute for War and Peace Reporting, www.iwpr.net
International Criminal Court, ICC, judges last week threw out the case against Sudan’s Bahr Idriss Abu Garda, describing prosecution evidence against the rebel leader as scant, weak and unreliable.
They said prosecutors had failed to prove that Abu Garda, the commander of a splinter group of the Justice and Equality Movement, JEM, was behind the September 29, 2007 attack on an African Union base in Haskanita, north Darfur. Twelve peacekeepers died and eight were wounded.
Their verdict followed an eight-day confirmation of charges hearing last October, a process unique to the ICC held to decide whether the case should proceed to trial.
The judges decided unanimously that it should not, citing inconsistent and contradictory witness statements. They said key prosecution witnesses failed to back up claims that Abu Garda directed the attack on Haskanita, and that some called to testify seemed to support the defence who said that he wasn’t there during the attack.
“The chamber finds that the evidence tendered by the prosecution, far from establishing Mr Abu Garda's participation in the attack, seems to concur with the submissions made by the defence to the effect that Mr Abu Garda did not personally participate in the attack on Haskanita,” reads one section of the judgement.
The collapse of the Abu Garda case is an ICC public relations disaster in Africa – coming at a time when prosecutor Luis Moreno-Ocampo’s pursuit of Sudanese president Omar al-Bashir has divided opinion and caused support to waver on the continent.
A free and fair trial with a cooperative Sudanese defendant - Abu Garda appeared voluntarily before the ICC - would have given the court’s reputation a much needed boost. Instead, the case against the rebel leader was thrown out less than a week after the ICC appeals chamber found that Bashir could face genocide charges.
The timing could hardly have been worse, and the government-controlled press in Sudan will relish the opportunity to bash the ICC for, what they will perceive as, siding with rebels. Clearly this isn’t the case – the prosecutor takes great pains to point out that he only follows where the evidence leads – but convincing the Sudanese people will be the ICC’s next challenge.
However, it faces an uphill struggle. It is banned from Sudan and is instead forced to confine its outreach efforts to the refugee camps of Chad and to members of the diaspora in The Hague. Outreach has long been an ICC weakness, even in more cooperative countries like Congo, and the court has been much criticised for failing to connect with ordinary people.
Outside Africa, the collapse of the Abu Garda case is also likely to have repercussions.
Pressure is mounting on the court to deliver results. Seven years after Moreno-Ocampo was appointed, the ICC has yet to complete a trial. It’s first-ever case – against Congolese militia leader Thomas Lubanga who has been in ICC custody for nearly four years – is now at the defence stage after numerous delays, including a stay of proceedings when the prosecution withheld evidence from the defence.
The case against Congolese militia leaders Germain Katanga and Mathieu Ngudjolo began in January, and Congo’s former vice-president Jean-Pierre Bemba is due to go on trial later this year. But the court’s remaining nine suspects are all at large. Many have evaded capture for years and two from Uganda died while on the run.
Abu Garda was far more cooperative. He appeared voluntarily in The Hague on May 18, 2009 saying he welcomed the opportunity to clear his name. Other JEM leaders had also pledged their cooperation with the ICC.
With this level of cooperation, it’s all the more regrettable that a case compiled by the prosecution did not contain sufficient evidence to persuade judges to bring it to trial.
That serious crimes took place at Haskanita is beyond doubt – the judges agreed with that – but the case failed to clear the first hurdle - the pre-trial judges.
Nonetheless, the ICC needs to take any small positives it can from this unfortunate turn of events. That means good outreach.
The court must point out that the Abu Garda decision – though bad news for prosecutors – proves beyond doubt the high calibre of ICC judges and their ability to be fair and balanced, free from any political pressure. Those like Bashir or Uganda’s Joseph Kony who insist an ICC trial would not be fair should take note.
One option for Moreno-Ocampo is to gather more evidence and ask the judges to look at the case again. However, his next step will undoubtedly be to ask the judges for leave to appeal their verdict. It will be interesting to see how the prosecutor explains this troubled case.
Lisa Clifford is IWPR’s international justice project manager.
The views expressed in this article are not necessarily the views of IWPR.
Can Excess of Justice Lead to Injustice?
By Lisa Clifford in The Hague
(26-Jun-08)
From the website of the Institute for War and Peace Reporting, www.iwpr.net
A man who does public relations for Sudan’s foreign ministry recently asked me if I thought Ahmed Harun would get a fair trial at the International Criminal Court, ICC. He insisted it was impossible, and in the 45 degree heat of a Sudanese summer afternoon it was simply too hot to talk ICC politics. As it happens, I do think Harun – accused of war crimes in Darfur – would get a fair hearing in The Hague, but instead of arguing I stared glumly into my Coca Cola.
Recent developments in the case against another ICC indictee – Thomas Lubanga from Sudan’s neighbour the Democratic Republic of Congo – makes me wish I had tried harder to make the point.
Judges have indefinitely suspended proceedings after prosecutors failed to hand over key evidence to the defence. They accused the prosecution of abusing its power and in a June 13 decision said the trial “has been ruptured to such a degree that it is now impossible to piece together the constituent elements of a fair trial”.
Next could come Lubanga’s release from a prison in The Hague beach resort of Scheveningen where he has been for more than two years.
The idea of accused war criminals going before answering such serious charges is an unpleasant one for many reasons. But that the court is prepared to scrap its first-ever case to ensure Lubanga’s rights are preserved says a lot. It legitimises the ICC. Despite the noisy anti-Sudan rhetoric of prosecutor Luis Moreno Ocampo, Harun or fellow Sudan war crimes suspect Ali Kushayb could get a fair trial in The Hague. Lubanga’s judges have proved that.
That’s not to say the current situation isn’t a disaster for the court and more importantly the victims of the crimes that Lubanga allegedly committed.
The ICC’s already shaky credibility has taken another serious blow in the Congo where people are understandably asking whether it is acceptable to release him, even if mistakes were made in the case.
As a lawyer for the victims said in court this week, “An excess of justice can lead to injustice.” He said the Congolese justice system has already let down the victims and now in their eyes international justice is doing the same. They neither understand nor care about court politics or the myriad interpretations of the various subsections of the Rome Statute. Instead of a trial, they see Lubanga’s supporters holding prayer vigils for his release, citing recent events as proof of his innocence.
What’s unfolding in Courtroom One in The Hague has nothing to do with Lubanga’s guilt or innocence, but many in Ituri and elsewhere in Congo don’t see it that way. They don’t know anything about the law.
The ICC’s outreach teams need to move in, to explain what has happened and why.
But whether they’ll do this effectively is uncertain. This situation had been brewing for many months as prosecutors consistently failed to meet their disclosure obligations to the defence. Yet no one from the ICC had prepared the Congolese for the possibility that this failure could jeopardise the trial. Does the court even care what ordinary Congolese people think?
If he does go free, speculation is rampant in Congo that ICC indictee and former rebel leader Jean-Pierre Bemba will be next to walk. That is possible if prosecutors built their case against this one-time vice-president in the same way they did against Lubanga – with confidential documents and agreements with the United Nations.
Ituri milita commanders Germain Katanga and Mathieu Ngudjolo Chui have already made a bid for freedom on the same grounds. Their lawyers also asked for an indefinite halt to that case, citing hundreds of documents from the UN obtained by prosecutors on the condition they wouldn’t be seen by judges or the defence. The judge this week denied the stay but strongly criticised prosecutors.
It’s worth mentioning that the ICC isn’t the first international tribunal to have a secret documents crisis.
At the International Criminal Tribunal for the Former Yugoslavia, ICTY, parts of transcripts from wartime meetings of Serbia’s Supreme Defence Council, SDC, were reportedly granted confidential status by tribunal judges at Serbia’s request. They cited rules which allow a state to keep its documents secret if their disclosure could affect national security interests.
Later, judges at the International Court of Justice, ICJ, found that Serbia was not to blame for the genocide in Bosnia. While ICJ judges never requested the SDC documents from the tribunal, many observers believe their confidential status meant that they were not submitted as evidence during the case – and some speculate that this could have altered its outcome.
It wasn’t hidden documents that jeopardised the case against Jean Bosco Barayagwiza at International Criminal Tribunal for Rwanda, ICTR, but the length of time it took to bring him to trial. He also complained of delays in hearing the charges against him – inciting genocide and crimes against humanity.
Barayagwiza was the director at the notorious Milles Collines radio station that encouraged Hutu militias to kill Tutsi “cockroaches”.
ICTR appeals judges in 1999 found prosecutors had violated his rights and ordered him released. Carla del Ponte, the ICTR prosecutor at the time, led efforts to have the case reviewed, arguing that releasing Barayagwiza violated the rights of victims. She was successful, and the chamber reversed its decision in March 2000.
Whether ICC judges will be swayed by similar arguments in the Lubanga case is as yet unclear. Defence lawyers say judges have no choice but to release him. The victims in Ituri are asking them to consider the consequences if they do.
Lisa Clifford is an international justice reporter in The Hague.
The views expressed in this article are not necessarily the views of IWPR.
(26-Jun-08)
From the website of the Institute for War and Peace Reporting, www.iwpr.net
A man who does public relations for Sudan’s foreign ministry recently asked me if I thought Ahmed Harun would get a fair trial at the International Criminal Court, ICC. He insisted it was impossible, and in the 45 degree heat of a Sudanese summer afternoon it was simply too hot to talk ICC politics. As it happens, I do think Harun – accused of war crimes in Darfur – would get a fair hearing in The Hague, but instead of arguing I stared glumly into my Coca Cola.
Recent developments in the case against another ICC indictee – Thomas Lubanga from Sudan’s neighbour the Democratic Republic of Congo – makes me wish I had tried harder to make the point.
Judges have indefinitely suspended proceedings after prosecutors failed to hand over key evidence to the defence. They accused the prosecution of abusing its power and in a June 13 decision said the trial “has been ruptured to such a degree that it is now impossible to piece together the constituent elements of a fair trial”.
Next could come Lubanga’s release from a prison in The Hague beach resort of Scheveningen where he has been for more than two years.
The idea of accused war criminals going before answering such serious charges is an unpleasant one for many reasons. But that the court is prepared to scrap its first-ever case to ensure Lubanga’s rights are preserved says a lot. It legitimises the ICC. Despite the noisy anti-Sudan rhetoric of prosecutor Luis Moreno Ocampo, Harun or fellow Sudan war crimes suspect Ali Kushayb could get a fair trial in The Hague. Lubanga’s judges have proved that.
That’s not to say the current situation isn’t a disaster for the court and more importantly the victims of the crimes that Lubanga allegedly committed.
The ICC’s already shaky credibility has taken another serious blow in the Congo where people are understandably asking whether it is acceptable to release him, even if mistakes were made in the case.
As a lawyer for the victims said in court this week, “An excess of justice can lead to injustice.” He said the Congolese justice system has already let down the victims and now in their eyes international justice is doing the same. They neither understand nor care about court politics or the myriad interpretations of the various subsections of the Rome Statute. Instead of a trial, they see Lubanga’s supporters holding prayer vigils for his release, citing recent events as proof of his innocence.
What’s unfolding in Courtroom One in The Hague has nothing to do with Lubanga’s guilt or innocence, but many in Ituri and elsewhere in Congo don’t see it that way. They don’t know anything about the law.
The ICC’s outreach teams need to move in, to explain what has happened and why.
But whether they’ll do this effectively is uncertain. This situation had been brewing for many months as prosecutors consistently failed to meet their disclosure obligations to the defence. Yet no one from the ICC had prepared the Congolese for the possibility that this failure could jeopardise the trial. Does the court even care what ordinary Congolese people think?
If he does go free, speculation is rampant in Congo that ICC indictee and former rebel leader Jean-Pierre Bemba will be next to walk. That is possible if prosecutors built their case against this one-time vice-president in the same way they did against Lubanga – with confidential documents and agreements with the United Nations.
Ituri milita commanders Germain Katanga and Mathieu Ngudjolo Chui have already made a bid for freedom on the same grounds. Their lawyers also asked for an indefinite halt to that case, citing hundreds of documents from the UN obtained by prosecutors on the condition they wouldn’t be seen by judges or the defence. The judge this week denied the stay but strongly criticised prosecutors.
It’s worth mentioning that the ICC isn’t the first international tribunal to have a secret documents crisis.
At the International Criminal Tribunal for the Former Yugoslavia, ICTY, parts of transcripts from wartime meetings of Serbia’s Supreme Defence Council, SDC, were reportedly granted confidential status by tribunal judges at Serbia’s request. They cited rules which allow a state to keep its documents secret if their disclosure could affect national security interests.
Later, judges at the International Court of Justice, ICJ, found that Serbia was not to blame for the genocide in Bosnia. While ICJ judges never requested the SDC documents from the tribunal, many observers believe their confidential status meant that they were not submitted as evidence during the case – and some speculate that this could have altered its outcome.
It wasn’t hidden documents that jeopardised the case against Jean Bosco Barayagwiza at International Criminal Tribunal for Rwanda, ICTR, but the length of time it took to bring him to trial. He also complained of delays in hearing the charges against him – inciting genocide and crimes against humanity.
Barayagwiza was the director at the notorious Milles Collines radio station that encouraged Hutu militias to kill Tutsi “cockroaches”.
ICTR appeals judges in 1999 found prosecutors had violated his rights and ordered him released. Carla del Ponte, the ICTR prosecutor at the time, led efforts to have the case reviewed, arguing that releasing Barayagwiza violated the rights of victims. She was successful, and the chamber reversed its decision in March 2000.
Whether ICC judges will be swayed by similar arguments in the Lubanga case is as yet unclear. Defence lawyers say judges have no choice but to release him. The victims in Ituri are asking them to consider the consequences if they do.
Lisa Clifford is an international justice reporter in The Hague.
The views expressed in this article are not necessarily the views of IWPR.
ICC Risks Losing the Plot in Congo
By Lisa Clifford, IWPR international justice reporter, in Goma
(21-Nov-08)
From the website of the Institute for War and Peace Reporting, www.iwpr.net
The attack came at night on a road in the east of Congo’s North Kivu province.
The country’s army, the FARDC, battled Tutsi rebels with machine guns and heavy weapons. By morning, two FARDC soldiers sprawled dead on their backs, bare feet protruding from tattered olive uniforms. One reached upwards, his hand frozen. A rebel soldier said more FARDC bodies lay in the long grass. “If they want they can come again. We are going to beat them as usual,” he boasted.
Fifteen minutes along the road is Kibumba, now under the CNDP rebels loyal to Laurent Nkunda. “We are suffering. We are tired. But we are going to fight,” shouted one soldier. In the market, a young girl looked for food, saying there was nothing to eat in her own village. She hadn’t been to school for more than a year.
Fighting flared between the army and CNDP in late 2006 and intensified in August with the collapse of the latest peace deal, the so-called Goma accord. Nkunda claims to be protecting Congolese Tutsis, and earlier this month came within 20 kilometres of the provincial capital Goma.
Schools in North Kivu are now packed with refugees from the war. A series of grim IDP camps scattered around this beautiful region of volcanic soil and green hills house thousands of others. The United Nations estimates more than 800,000 people have been displaced.
People are fleeing their homes for good reason. Incidents of rape have soared since August, this in a country already described as the worst place in the world to be a girl or woman. In Rutshuru and Masisi, armed groups are reportedly recruiting both children and adults.
In towns like Kibumba, Kiberisi, Kanyabayonga, Kirumba, Kayna and Kiwanja murder, rape, looting and pillage are being committed every day, by all sides, with impunity.
In a plea to the international community for help, a coalition of North Kivu NGOs and community groups described the desperate situation in Kiwanja, “[The] civilian population are being summarily executed by bullets or blows from machetes, knives, hoes and spears. Corpses line the streets of the city and the odour of decomposing bodies greets passers-by.
“We don’t know what saint to pray to. We are condemned to death by all this violence and displacement. We have been abandoned. Who will protect us? Who will help us?”
That is a good question.
Politicians including British foreign secretary David Miliband have visited the east, expressing shock and concern at the violence and the scale of the humanitarian crisis. But so far there has been little appetite for the fast deployment of European Union soldiers to protect civilians and drive back the rebels.
At UN headquarters, the Security Council has agreed to send more troops to shore up the huge UN force, known by its French acronym MONUC. But it is still unclear who will provide those troops and when they will arrive.
It is Nkunda who has garnered most of the press attention during the latest incarnation of this long-running conflict. Journalists and international mediators have all trekked to his headquarters in the hills near Goma.
But another man stands at Nkunda’s side, invisible to the outside world but no less important. He is International Criminal Court, ICC, indictee Bosco Ntaganda, Nkunda’s second-in-command, who is running the devastating campaign that has routed the army and brought the CNDP uncomfortably close to Goma.
But it’s not for war crimes in North Kivu that the ICC wants Ntaganda in The Hague.
He is accused of recruiting children to fight in a different – unrelated – war, in the Ituri region of northeastern Congo. The ICC issued an arrest warrant in April but, like others wanted by the court in Uganda and Sudan, Ntaganda remains free and the ICC powerless to bring him in.
One Goma-based human rights advocate worries that with an ICC warrant hanging over his head Ntaganda will show little restraint in his North Kivu campaign. “What does he have to lose?” he said.
It’s hard to blame the court for failing to arrest Ntaganda. With no police force of its own, an inadequate Congolese army and little interest from MONUC in helping execute the warrant, the ICC is in a difficult position. What can it do from The Hague with no cooperation?
What is harder to understand is the court’s near invisibility in North Kivu during the last 12 months of violence and chaos. With people asking, “Where is the ICC?”, a spokeswoman for the office of the prosecutor told IWPR that Luis Moreno-Ocampo was last in Congo in April 2006, and has never been to Goma – although there have been ICC missions to the provincial capital. A mission to Congo planned for the autumn was cancelled for security reasons.
Moreno-Ocampo recently told the Assembly of States Parties – the court’s governing body – that an investigation focused “on the Kivus” began in November but offered no specifics. A press release on the ICC’s impenetrable website, expressing “concern about the situation in the Kivus”, that talks of “closely monitoring converging information about attacks”, is unlikely to bring much comfort to Congolese, or instill any fear into those committing war crimes.
The OTP spokeswoman declined to comment on whether investigators are currently on the ground in the east.
What is clear is that any arrests in North Kivu are months – probably longer – away and that the failure to arrest the man leading the violence there, Ntaganda, has made the ICC look desperately weak in Congolese eyes.
A series of high profile mis-steps by prosecutors in the on-off Thomas Lubanga case haven’t helped the ICC’s image in Congo. Judges blamed prosecutors for jeopardising Lubanga’s right to a fair trial and temporarily halted the case. It has been rescheduled for January 26.
Elsewhere, the arrest of former vice-president Jean-Pierre Bemba for crimes in the Central African Republic has also created distrust of the court. Many Congolese are convinced Moreno-Ocampo is working for Joseph Kabila, taking out his main political rival in time for the 2011 presidential elections.
The court insists its Congo outreach campaign, intended to debunk the myths and rumours about the ICC, is robust and effective. But evidence on the ground suggests differently. North Kivu is an opportunity to correct that. All sides in the conflict have committed war crimes and the ICC’s long-promised case or cases must reflect that, to refute the commonly held belief that the ICC is biased.
Hutus, Tutsis and others driven into North Kivu’s many refugee camps for the second, third, fourth or fifth time aren’t much interested in discussions of justice.
Stéphanie has been in the Mugunga II camp outside Goma for more than a year and wonders how she will feed her six children with the meager rations on offer. The plastic that covers her shelter leaks during the frequent downpours, but she has no idea when she can return home.
A male IDP says the residents of Mugunga all want the same thing – and it isn’t justice. “Peace is most important. If we have peace, everything works well,” he said.
The views expressed in this article are not necessarily the views of IWPR.
(21-Nov-08)
From the website of the Institute for War and Peace Reporting, www.iwpr.net
The attack came at night on a road in the east of Congo’s North Kivu province.
The country’s army, the FARDC, battled Tutsi rebels with machine guns and heavy weapons. By morning, two FARDC soldiers sprawled dead on their backs, bare feet protruding from tattered olive uniforms. One reached upwards, his hand frozen. A rebel soldier said more FARDC bodies lay in the long grass. “If they want they can come again. We are going to beat them as usual,” he boasted.
Fifteen minutes along the road is Kibumba, now under the CNDP rebels loyal to Laurent Nkunda. “We are suffering. We are tired. But we are going to fight,” shouted one soldier. In the market, a young girl looked for food, saying there was nothing to eat in her own village. She hadn’t been to school for more than a year.
Fighting flared between the army and CNDP in late 2006 and intensified in August with the collapse of the latest peace deal, the so-called Goma accord. Nkunda claims to be protecting Congolese Tutsis, and earlier this month came within 20 kilometres of the provincial capital Goma.
Schools in North Kivu are now packed with refugees from the war. A series of grim IDP camps scattered around this beautiful region of volcanic soil and green hills house thousands of others. The United Nations estimates more than 800,000 people have been displaced.
People are fleeing their homes for good reason. Incidents of rape have soared since August, this in a country already described as the worst place in the world to be a girl or woman. In Rutshuru and Masisi, armed groups are reportedly recruiting both children and adults.
In towns like Kibumba, Kiberisi, Kanyabayonga, Kirumba, Kayna and Kiwanja murder, rape, looting and pillage are being committed every day, by all sides, with impunity.
In a plea to the international community for help, a coalition of North Kivu NGOs and community groups described the desperate situation in Kiwanja, “[The] civilian population are being summarily executed by bullets or blows from machetes, knives, hoes and spears. Corpses line the streets of the city and the odour of decomposing bodies greets passers-by.
“We don’t know what saint to pray to. We are condemned to death by all this violence and displacement. We have been abandoned. Who will protect us? Who will help us?”
That is a good question.
Politicians including British foreign secretary David Miliband have visited the east, expressing shock and concern at the violence and the scale of the humanitarian crisis. But so far there has been little appetite for the fast deployment of European Union soldiers to protect civilians and drive back the rebels.
At UN headquarters, the Security Council has agreed to send more troops to shore up the huge UN force, known by its French acronym MONUC. But it is still unclear who will provide those troops and when they will arrive.
It is Nkunda who has garnered most of the press attention during the latest incarnation of this long-running conflict. Journalists and international mediators have all trekked to his headquarters in the hills near Goma.
But another man stands at Nkunda’s side, invisible to the outside world but no less important. He is International Criminal Court, ICC, indictee Bosco Ntaganda, Nkunda’s second-in-command, who is running the devastating campaign that has routed the army and brought the CNDP uncomfortably close to Goma.
But it’s not for war crimes in North Kivu that the ICC wants Ntaganda in The Hague.
He is accused of recruiting children to fight in a different – unrelated – war, in the Ituri region of northeastern Congo. The ICC issued an arrest warrant in April but, like others wanted by the court in Uganda and Sudan, Ntaganda remains free and the ICC powerless to bring him in.
One Goma-based human rights advocate worries that with an ICC warrant hanging over his head Ntaganda will show little restraint in his North Kivu campaign. “What does he have to lose?” he said.
It’s hard to blame the court for failing to arrest Ntaganda. With no police force of its own, an inadequate Congolese army and little interest from MONUC in helping execute the warrant, the ICC is in a difficult position. What can it do from The Hague with no cooperation?
What is harder to understand is the court’s near invisibility in North Kivu during the last 12 months of violence and chaos. With people asking, “Where is the ICC?”, a spokeswoman for the office of the prosecutor told IWPR that Luis Moreno-Ocampo was last in Congo in April 2006, and has never been to Goma – although there have been ICC missions to the provincial capital. A mission to Congo planned for the autumn was cancelled for security reasons.
Moreno-Ocampo recently told the Assembly of States Parties – the court’s governing body – that an investigation focused “on the Kivus” began in November but offered no specifics. A press release on the ICC’s impenetrable website, expressing “concern about the situation in the Kivus”, that talks of “closely monitoring converging information about attacks”, is unlikely to bring much comfort to Congolese, or instill any fear into those committing war crimes.
The OTP spokeswoman declined to comment on whether investigators are currently on the ground in the east.
What is clear is that any arrests in North Kivu are months – probably longer – away and that the failure to arrest the man leading the violence there, Ntaganda, has made the ICC look desperately weak in Congolese eyes.
A series of high profile mis-steps by prosecutors in the on-off Thomas Lubanga case haven’t helped the ICC’s image in Congo. Judges blamed prosecutors for jeopardising Lubanga’s right to a fair trial and temporarily halted the case. It has been rescheduled for January 26.
Elsewhere, the arrest of former vice-president Jean-Pierre Bemba for crimes in the Central African Republic has also created distrust of the court. Many Congolese are convinced Moreno-Ocampo is working for Joseph Kabila, taking out his main political rival in time for the 2011 presidential elections.
The court insists its Congo outreach campaign, intended to debunk the myths and rumours about the ICC, is robust and effective. But evidence on the ground suggests differently. North Kivu is an opportunity to correct that. All sides in the conflict have committed war crimes and the ICC’s long-promised case or cases must reflect that, to refute the commonly held belief that the ICC is biased.
Hutus, Tutsis and others driven into North Kivu’s many refugee camps for the second, third, fourth or fifth time aren’t much interested in discussions of justice.
Stéphanie has been in the Mugunga II camp outside Goma for more than a year and wonders how she will feed her six children with the meager rations on offer. The plastic that covers her shelter leaks during the frequent downpours, but she has no idea when she can return home.
A male IDP says the residents of Mugunga all want the same thing – and it isn’t justice. “Peace is most important. If we have peace, everything works well,” he said.
The views expressed in this article are not necessarily the views of IWPR.
Ocampo Underwhelms in Landmark Trial
By Lisa Clifford, International Justice/ICC project manager
(29-Jan-09)
From the Institute for War and Peace Reporting, www.iwpr.net
The first day of the first trial at the court which has promised justice for Africans was always going to be a very big deal. Not surprisingly then expectations were high when International Criminal Court, ICC, prosecutor Luis Moreno-Ocampo stood to make his opening statement on January 26. After all the prosecutor of the world's first permanent war crimes court had almost three years to prepare his case against Congo’s Thomas Lubanga.
But devoid of fire and passion, the prosecutor hardly seemed worth the wait.
Watching from the gallery it looked like any other Monday morning for Moreno-Ocampo. One observer whispered that he came across as a student who hadn’t prepared properly for his final exam, like someone who had stepped in at the last minute. His remarks conveyed none of the history being made in Courtroom One, nor of the momentous nature of this occasion and the trial itself. His first sentence, “The prosecution will present evidence proving beyond a reasonable doubt that Thomas Lubanga Dyilo committed crimes under the Rome Statute.”
He seemed to be texting on his mobile phone when Lubanga’s lawyer Catherine Mabille said “not guilty” on behalf of her client and didn’t return for the second day for her opening presentation and response to the charges. She wasn’t impressed and said so.
Those charges are recruiting children to fight in the Ituri conflict but listening to Moreno-Ocampo’s opening statement you could have been forgiven for feeling confused. Although Lubanga has not been charged with crimes of sexual violence, stories of sexual slavery and the rape of young girls featured prominently. “As soon as the girls’ breasts started to grow, Lubanga’s commanders could select them as their forced ‘wives’ and transform them into their sexual slaves,” he said.
Moreno-Ocampo said it was his “mission” to show that Lubanga was criminally responsible for the “atrocities committed against those little girl soldiers”.
That Lubanga was not accused of crimes of sexual violence has always been controversial and listening to Moreno-Ocampo, it was hard not to think the prosecutor himself realised he had made a serious mistake in not adding rape to the list of charges.
Lawyers for the victims picked up where Moreno-Ocampo left off, also focusing on the rape of kidnapped girl soldiers. Mabille protested, pointing out that rape does not feature in the indictment against Lubanga.
She makes a good point. That brutal rapes happened during the Ituri conflict is undeniable but it seems unreasonable for the prosecutor – backed up by an army of victims’ lawyers who seem to be mini-prosecutors – to expect Lubanga to answer charges that were never issued.
Mabille and her co-counsel Jean-Marie Biju-Duval were strong and clear in their opening presentations.
Lubanga was described as a scapegoat for others who were far more responsible, particularly Rwandan, Ugandan and Congolese government officials. “The ICC cannot prosecute all suspects, but should resist the temptation to convict Lubanga as a proxy for those who are absent,” said Biju-Duval.
In the Lubanga case, the defence was highly compelling. Moreno-Ocampo was not. He left the overwhelming impression that not only had he laid the wrong charges but also targeted the wrong person – a small fish in a sea of sharks.
What an inauspicious way to start a week so important to the future development of international justice and the hopes of so many Congolese people.
Speaking of the Congolese, they were noticeable in their absence this week. Those who follow the work of the court had expected a strong turnout for the first day. After all, a hearing earlier in January to confirm the charges against the country’s former vice-president, ICC indictee Jean-Pierre Bemba, was packed with his supporters and detractors, many of whom had travelled from Belgium. Their absence this week suggests the endless delays to this case and the immense time it has taken to bring Lubanga to trial – almost three years – has caused them to lose interest.
Or worse still have they lost faith in the ICC?
Lubanga’s trial date was delayed numerous times for various reasons – many relating to the protection of victims and witnesses. A huge misstep by prosecutors last year nearly scuppered the trial entirely, forcing judges to stay the proceedings.
It was Judge Adrian Fulford who stopped the case in June, suggesting that the prosecutorial errors meant Lubanga could not receive a fair trial. Mabille raised the same question again this week, citing numerous pre-trial hearings that excluded the defence, undisclosed evidence and an imbalance of resources.
Once again, it seems she may have a point.
The views expressed in this article are not necessarily the views of IWPR.
(29-Jan-09)
From the Institute for War and Peace Reporting, www.iwpr.net
The first day of the first trial at the court which has promised justice for Africans was always going to be a very big deal. Not surprisingly then expectations were high when International Criminal Court, ICC, prosecutor Luis Moreno-Ocampo stood to make his opening statement on January 26. After all the prosecutor of the world's first permanent war crimes court had almost three years to prepare his case against Congo’s Thomas Lubanga.
But devoid of fire and passion, the prosecutor hardly seemed worth the wait.
Watching from the gallery it looked like any other Monday morning for Moreno-Ocampo. One observer whispered that he came across as a student who hadn’t prepared properly for his final exam, like someone who had stepped in at the last minute. His remarks conveyed none of the history being made in Courtroom One, nor of the momentous nature of this occasion and the trial itself. His first sentence, “The prosecution will present evidence proving beyond a reasonable doubt that Thomas Lubanga Dyilo committed crimes under the Rome Statute.”
He seemed to be texting on his mobile phone when Lubanga’s lawyer Catherine Mabille said “not guilty” on behalf of her client and didn’t return for the second day for her opening presentation and response to the charges. She wasn’t impressed and said so.
Those charges are recruiting children to fight in the Ituri conflict but listening to Moreno-Ocampo’s opening statement you could have been forgiven for feeling confused. Although Lubanga has not been charged with crimes of sexual violence, stories of sexual slavery and the rape of young girls featured prominently. “As soon as the girls’ breasts started to grow, Lubanga’s commanders could select them as their forced ‘wives’ and transform them into their sexual slaves,” he said.
Moreno-Ocampo said it was his “mission” to show that Lubanga was criminally responsible for the “atrocities committed against those little girl soldiers”.
That Lubanga was not accused of crimes of sexual violence has always been controversial and listening to Moreno-Ocampo, it was hard not to think the prosecutor himself realised he had made a serious mistake in not adding rape to the list of charges.
Lawyers for the victims picked up where Moreno-Ocampo left off, also focusing on the rape of kidnapped girl soldiers. Mabille protested, pointing out that rape does not feature in the indictment against Lubanga.
She makes a good point. That brutal rapes happened during the Ituri conflict is undeniable but it seems unreasonable for the prosecutor – backed up by an army of victims’ lawyers who seem to be mini-prosecutors – to expect Lubanga to answer charges that were never issued.
Mabille and her co-counsel Jean-Marie Biju-Duval were strong and clear in their opening presentations.
Lubanga was described as a scapegoat for others who were far more responsible, particularly Rwandan, Ugandan and Congolese government officials. “The ICC cannot prosecute all suspects, but should resist the temptation to convict Lubanga as a proxy for those who are absent,” said Biju-Duval.
In the Lubanga case, the defence was highly compelling. Moreno-Ocampo was not. He left the overwhelming impression that not only had he laid the wrong charges but also targeted the wrong person – a small fish in a sea of sharks.
What an inauspicious way to start a week so important to the future development of international justice and the hopes of so many Congolese people.
Speaking of the Congolese, they were noticeable in their absence this week. Those who follow the work of the court had expected a strong turnout for the first day. After all, a hearing earlier in January to confirm the charges against the country’s former vice-president, ICC indictee Jean-Pierre Bemba, was packed with his supporters and detractors, many of whom had travelled from Belgium. Their absence this week suggests the endless delays to this case and the immense time it has taken to bring Lubanga to trial – almost three years – has caused them to lose interest.
Or worse still have they lost faith in the ICC?
Lubanga’s trial date was delayed numerous times for various reasons – many relating to the protection of victims and witnesses. A huge misstep by prosecutors last year nearly scuppered the trial entirely, forcing judges to stay the proceedings.
It was Judge Adrian Fulford who stopped the case in June, suggesting that the prosecutorial errors meant Lubanga could not receive a fair trial. Mabille raised the same question again this week, citing numerous pre-trial hearings that excluded the defence, undisclosed evidence and an imbalance of resources.
Once again, it seems she may have a point.
The views expressed in this article are not necessarily the views of IWPR.
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