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.
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