Analyst Says Rushed International Criminal Court Trials Need Rethinking

By Brent Latham

Dakar

03 July 2008

　While one former Congolese warlord has been ordered released by the International Criminal Court at The Hague, proceedings are just beginning against another one. One analyst says the ICC needs to be more careful about the timing of such cases, especially when conflicts are on-going. From our West and Central Africa bureau in Dakar, Brent Latham has more.

An African analyst says that the International Criminal Court, or ICC, needs to be more careful in the future about intervening in on-going conflicts, after the ICC ordered the release of former Congolese warlord and accused war criminal Thomas Lubanga.

Judges at the court said Lubanga, however, should not leave detention until the court deals with the prosecution's appeal.

Issaka Souare, Democratic Republic of Congo analyst at South Africa-based Institute for Security Studies, says that the possible release of Lubanga casts doubt on the ability of the court to handle cases against suspected war criminals from areas still in conflict.

"Now that the case is going to be thrown out of court because of the same issues it casts a doubt or begs many questions with regard to the procedure and whether the ICC rushed into the case, or whether the evidence actually was there but there was something in the process that makes them believe today that this evidence is not pertinent," he said.

Lubanga had been accused of enlisting child soldiers. He has pleaded not guilty. Lubanga has been in ICC custody since 2006.

The prosecution's case is based on evidence which was not shared with the defense, for fear of reprisals against those who had provided it. The U.N. had collected the information from witnesses in areas in the eastern part of DRC which are still engaged in conflict.

The ICC judges ruled on Wednesday that because the evidence could not be shared with Lubanga's defense, a fair trial would not be possible.

Souare says the ICC rushed into the case while the conflict in the DRC was still on-going. He suggested that the ICC may now have to rethink its ability to deal with cases which involve unresolved conflicts.

"There was some criticism about the court's decision to deal with armed conflict situations that are on-going, which is unprecedented," he said. "In the past, all the processes have been tried on post-conflict situations or where one side had decisively won the war."

Souare added that ICC intervention in on-going conflicts may also affect future cases.

He cited the case of the Lord's Resistance Army in Northern Uganda, the leaders of which have agreed to sign a comprehensive peace agreement if the ICC agrees to cancel outstanding arrest warrants against them.

Souare also mentioned the case of former DRC vice president, rebel leader, and failed presidential candidate Jean-Pierre Bemba, who has been accused of rape and torture. Bemba denies the charges.

"Just yesterday the lawyer of Bemba said that they would actually ask the UN Security Council to intervene, to ask the ICC to suspend the proceedings because Bemba, according to his lawyer, was very much instrumental in bringing about peace in the DRC," said Souare. "One could predict a similar thing, not to do with the evidence itself, but with the possible effect of his arrest on the peace process in the country."

Souare worries that the procedural violations will lead to impunity for war criminals, and deprive their victims of justice. He says the Lubanga case could help the ICC rethink its overall approach.

"It would probably strengthen the argument of skeptics about the effectiveness of the approach in the first place, or those who are calling for more prudence in the activities of the court," said Souare.

The ICC was established by statute in 1998 and began functioning at The Hague in 2002. With more than 100 member states, it is the first ever permanent, treaty based, international criminal court established to promote the rule of law and ensure that the gravest international crimes do not go unpunished.