By Mary Elizabeth Grant, VP of International Human Rights Law Society
Several challenges currently facing International Criminal Court (ICC) could undermine its credibility and efficiency for years to come. The court’s first trial opened under a wave of controversy. Issues of disclosure almost led to the release of the court’s first suspect. Concern over protection of witnesses and informants compromised the veracity of the testimony given by the first witness. Political pressure emphasizing a need for peace over justice is undermining the court’s authority as they relate to current proceedings. How the court overcomes the challenges could greatly impact the ICC’s international authority.
In March 2004, The Democratic Republic of Congo (DRC) asked the ICC to investigate war crimes committed in the country since the enactment of the Rome Statute. The court issued warrants against Thomas Lubanga and three other warlords in March 2006. Lubanga was the first suspect charged by the ICC to be apprehended and held in custody at the Hague. Lubanga is charged with recruiting and using children under the age of 15 to fight. Lubanga headed the miltia group, UPC, who raged war against an ethnic group, the Lendu, over gold and mining rights in the Ituri region of DRC. During the five year conflict, 30,000 children were used by all sides in the conflict to pillage, rape, mutilate, and kill civilians. 60,000 people lost their lives during the conflict.
The trial against Lubanga was due to start in June 2008 but was almost derailed when the court ordered Lubanga released because his right to a fair trial had been violated. The prosecutor had obtained evidence from the United Nations and other sources on condition of confidentiality. The court ruled that the prosecutor misapplied Article 54(3)(e) of the Rome Statute regarding disclosure. The court ruled that the error rendered a fair trial impossible. On appeal, the prosecutor agreed to supply the court with the confidential information. (ICC-01/04-01/06-T-94) The prosecutor has been widely criticized for acquiescing. Any promises, whether of confidentiality or protection, to potential sources of information will be viewed with skepticism about the prosecution’s ability to keep its word.
Protection of witnesses and informants is an important issue in determining the effectiveness of the trial. The prosecution plans to call thirty four witnesses. Nineteen of those witnesses will testify behind a screen with their voices distorted in order to protect their anonymity. The first of the witnesses, a former child soldier, testified on January 28. While he testified behind a screen and was hidden from the public gallery, he was visible to the defendant. Witnesses stated that the defendant glared at the witness while he testified. When the witness returned from a break, the witness retracted his testimony. Prosecutors immediately requested a delay in the trial in order to investigate security for witnesses who fear reprisal when they return to DRC. (http://news.bbc.co.uk/2/hi/africa/7857230.stm)
The recent sentence of an ICC informant to seventeen years in jail in Sudan emphasizes the need for protection of witnesses and informants if the ICC does not want its evidence gathering ability compromised. Mohammed Ibrahim was convicted of spying, criminal conspiracy, and passing on confidential military documents to the ICC about Ahmed Haroun, the state minister for humanitarian affairs. (http://jurist.law.pitt.edu/paperchase/2009/01/sudan-man-imprisoned-for-aiding-icc-war.php) The ICC issued an arrest warrant for Haroun in April 2007. He is charged with fifty one counts of war crimes and crimes against humanity. President Bashir, refuses to turn Haroun over to the ICC. In September 2007, he assigned Haroun to lead an investigation in to human rights violations in Darfur.
Lack of political pressure on Sudan has lent force to Bashir’s flagrant disregard for the authority of the ICC. Many African and Arab nations, along with four of five permanent members of the UN Security Council, support suspending the case against Sudan officials in the hope that Bashir will change his policies regarding Darfur. Despite the pressure though, on February 12, 2009, a panel of judges at the ICC decided for the first time to seek detention of a sitting head of state by issuing an arrest warrant for President Bashir. The nature of the charges has not been revealed although the chief prosecutor, Luis Moreno Ocampo, requested the warrant based on evidence that Bashir masterminded crimes against humanity, genocide, and war crimes committed in Darfur. The decision to issue a warrant against Bashir has been conveyed to the United Nations secretary general, Ban Ki-moon, and is expected to be formally announced. The question though is whether the Security Council will decide to exercise its power to suspend the case against Bashir for a year in order to further the peace negotiations. (http://www.nytimes.com/2009/02/12/world/africa/12hague.html?scp=1&sq=icc%20arrest%20warrant%20for%20bashir&st=cse) The dilemma though is that such action could send a message to war criminals and perpetrators of egregious crimes against humanity that justice is negotiable and that they can commit atrocities with impunity. The danger is that such a precedent could send a message that heads of state can completely disregard the ICC as long as they can convince the rest of the world that they have an ‘interest in furthering the peace process.’
The outcome of the current trial will greatly impact the ICC’s role in and its authority for implementing international justice. Internationally there are 250,000 child soldiers, primarily in Chad, DRC, Sudan, Uganda, Burma and Philippines. International attention has been directed towards the increased use of children in armed conflicts. 58 countries recently signed the Paris Principles, promising to prevent the use of child soldiers and to work towards disarming underage fighters. The trial against Lubanga is the first trial in history to focus exclusively on the use of child soldiers as a war crime and it is the first time that victims are being allowed to participate fully in an international trial. In DRC, the trial is being given wide media coverage. 400 people gathered around a giant screen in the Ituri region capital, Bunia, to observe the trial proceedings. Whether the global perception is that justice was served, proceedings were fairly conducted, and witnesses and informants protected will affect the perception of war criminals as to the impunity they can attain from their crimes.