International Criminal Court starts first war crimes trial

Today the trial of Thomas Lubanga at the International Criminal Court (ICC) will (finally) begin. After much confusion and delay inter alia regarding the issue of disclosure of evidence from the prosecutor to the defence/judges of the court (we reported earlier here, here and here), the first trial will start after almost three years of preparation with the examination of charges against the founder of the Union of Congolese Patriots (UPC) rebel forces in Congo’s eastern Ituri district.

Short history of the case

The situation in the Democratic Republic of the Congo (DRC) was referred to the ICC by the DRC itself in 2004. The referral was with regard to all the possible crimes committed during the Second Congo War and afterwards (the ratione temporis was limited due to the entry into force of the Rome Statute with regard to Congo on 1 July 2002). During this conflict, Lubanga was a military commander in the Mouvement de Libération and later the founder of the Union of Congolese Patriots (UPC). The UPC was involved in the large-scale murder, torture and rape of civilians, and the forced conscription of child soldiers. Following the murder of nine members of the UN peacekeeping mission in the DRC, Lubanga and other militia leaders were captured by Congolese authorities and subsequently, after the ICC issued a warrant of arrest, transferred to the ICC. In August 2006, Lubanga was formally charged with war crimes, in particular enlisting and conscription of children under the age of fifteen (Art. 8(2)(b)xxvi or Art. 8(2)(e)vii Rome Statute) and using children under the age of fifteen to participate actively in hostilities (Art. 8(2)(b)xxvi and Art. 8(2)(e)vii). The Pre-Trial Chamber I (‘PTC’) granted status of participants to four victims in the proceedings in the case, which constituted the first time in international criminal law, victims have been able to participate in criminal proceedings before an international court. The charges were confirmed by the PTC in early 2007. A preliminary hearing took place in September 2007 and the trial was scheduled to begin on June 23, 2008. On June 13, however, the Trial Chamber imposed a stay of proceedings because the Prosecutor could not disclose a large number of documents containing potentially exculpatory information and information relevant to the preparation of the defence, which rendered a fair trial impossible. The Prosecutor had obtained the documents in question from several information providers, in particular from the United Nations, on the condition of confidentiality; these information providers had refused to consent to their disclosure to the defence and, in most instances, also to the Trial Chamber. On July 2, the Trial Chamber ordered the release of Mr. Lubanga due to the impossibility to guarantee a fair trial. The Prosecutor appealed these two decisions, which led to the Appeals Chamber upheld the decision to stay the proceedings and decided that Lubanga nonetheless would stay in custody pending a new decision. On 18 November 2008 the Trial Chamber lifted the stay of the proceedings because the reasons for the suspension had “fallen away”. The trial was scheduled to begin on 26 January 2009.

The case has generated a lot of attention in the media and sometimes overly enthusiastic expectations are being connected to the trial; some see that „Days of Impunity Could Be Over“ and that the „Lubanga trial will open eyes“ whereas others are more moderate and simply see in the „Lubanga Trial a Landmark Case“. And the latter is surely true not just with regard to how the case is perceived by the general public but also from the perspective of international (criminal) law.

Besides being the first trial before the ICC it is also the first case before an international court where victims will fully participate in the proceedings. Eight legal representatives will try to defend the interests of 93 persons who have been recognized for the purpose of taking part in the proceedings.

Another “first” for this trial is that it will be the first international court case in which the use of child soldiers, defined as children under the age of 15, is prosecuted as a crime of war. Lubanga is formally charged with war crimes, in particular enlisting and conscription of children under the age of fifteen (Art. 8(2)(b)xxvi or Art. 8(2)(e)vii Rome Statute) and using children under the age of fifteen to participate actively in hostilities (Art. 8(2)(b)xxvi and Art. 8(2)(e)vii). The prosecutor was in part criticized for not also including other crimes due to the alleged involvement of Lubanga’s militia in rape and other forms of sexual violence.

The awareness of the ICC of the seriousness of the case is also well reflected in the press release published last Friday announcing the commencement of the trial:

“[The] trial will be held before Trial Chamber I, composed of Judges Adrian Fulford (United Kingdom of Great Britain and Northern Ireland), Presiding Judge; Elisabeth Odio Benito (Costa Rica); and René Blattmann (Bolivia). These independent magistrates will ensure that the trial is fair and expeditious and is conducted with full respect for the rights of the defence, the equality of arms and the principle of adversarial debate, having further due regard for the protection of victims and witnesses.” (Emphasis added)

The highlighted sections demonstrate vividly that the court does not want there to be any doubt regarding the fairness of the trial and the adherence to the various standards set by the Rome Statute.

The trial is expected to take several months and it will be continuously covered by several NGOs such as Trial Watch and WITNESS.