Wednesday’s verdict in the trial of Thomas Lubanga, the first ever in the almost decade-long existence of the International Criminal Court (ICC), will leave a feeble record, unprecedented in the history of international justice. The trial has been sharply criticised for the conduct of its prosecutor and accused of weak investigative procedures, insufficient charges and questionable ethics and loyalties.

(This article is an excerpt from our "Special Lubanga" issue, to be published on March 14 in the International Justice Tribune.)

by Thierry Cruvellier*

The Congolese ex-rebel leader’s lead defence attorney, Catherine Mabille, noted in her closing statement in August 2011: “Today marks the end of an extremely long procedure, characterised, it must be said, by serious dysfunctions, which on two occasions led the court to suspend its proceedings and order that Thomas Lubanga be set free.”

Ituri, the region of the Democratic Republic of the Congo (DR Congo) from which Lubanga hails, was the first to receive attention from the prosecutor of the nascent ICC in July 2003. However, the investigation, which began in 2004, raised concerns from the start.

To begin with, the investigative team comprised a dozen people, only two of whom were police officers. As the region was deemed too dangerous for investigators to settle in for the long haul, the investigation took place in seven- to ten-day periods, making use of local “intermediaries” or activists to identify witnesses. It looked like a token and irresolute process.

In his statement before the court, Bernard Lavigne, chief investigator in the case from 2004 to 2007, described it as “dragged down” by security concerns, by the prosecutor’s vacillations and by the quality of those recruited for the job. These “long-distance” investigative methods ultimately poisoned the trial.

A “gangrenous” investigation

Before the court, Lavigne testified that “there were no investigators on the ground to go in families’ homes to gather any information whatsoever” on the credibility of witnesses identified by the investigative team’s intermediaries. He described how investigators made their own safety and the safety of potential witnesses priority over actually collecting any evidence. All witnesses identified as former child soldiers were placed in protection programmes and relocated away from their homes. In a ruined, war-torn country, the prospect of such protection increased the risk of false testimony.

During the trial, the defence pointed out that one of the child witnesses had “all of his expenses – room, board and medical care – taken care of during nearly two years, as well as school fees for an entire academic year.”

Attention was also drawn to an intermediary who had contacted 10 witnesses for the prosecution and who “was paid at least $23,000 by the office of the prosecutor over the course of three years and [whose] ... living expenses were covered beyond that period.” The defence denounced the prosecutor’s case as “gangrenous through and through, due to the investigative methods used,” including “fraudulent dealings.”

“False witnesses”

According to the defence, none of the nine witnesses the prosecution presented as former child soldiers told the truth under examination. To discredit their testimony, the defence often provided material proof – school files, electoral rolls – or simply relied on retractions.

One witness testified: “I wasn’t a solder – it was more a question of plans we’d prepared. We met with intermediary 0316 to tell these lies. I was supposed to carry out my mission, the agreement I had with intermediary 0316.”

As investigator Lavigne explained, “As soon as the news got out in Bunia [Ituri’s capital] that being a threatened witness meant you could be evacuated, well, of course there were a few latecomers who discovered they had a calling as a witness if it could help them get a free ride out.”

The defence was then able to argue that it had “become convinced that behind these false witnesses were individuals who, protected by anonymity, organised the construction of false testimony.”

The accusations were so serious that in May 2010, the trial chamber ordered that the identities of all intermediaries working for the prosecution be disclosed to the defence. When prosecutors refused to reveal the identity of one of their intermediaries, judges, infuriated by their unwillingness to respect the court’s rulings, ordered a stay in the proceedings. Never in the history of international tribunals had such a decision been handed down.

Proceedings suspended twice

This was not the first suspension in the Lubanga case. The first stay, accompanied by an order for Lubanga’s release, was issued in July 2008, before the trial even began. Just as in 2010, the issue was the prosecution’s unwillingness to disclose information, based on working methods denounced by defence lawyers as reckless.

The prosecutor had obtained more than 200 documents subject to confidentiality agreements signed with various organisations, including the United Nations. Under these agreements, the documents could not be disclosed to either judges or the defence. However, the prosecutor intended to submit some of them as evidence, while others appeared to contain exculpatory information.

Judges, faced with the prosecutor’s inability to comply with the Chamber’s request for disclosure, concluded that the trial could not continue. “The trial process has been ruptured to such a degree that it is now impossible to piece together the constituent elements of a fair trial,” they stated in their order to suspend the trial and free Lubanga.

As would be the case two years later, the Appeals Chamber saved the prosecutor from total humiliation by overturning that decision.

But some court staff noted that the entire incident served as a lesson to those involved in the trial of Lubanga’s former enemies in Ituri, Germain Katanga and Mathieu Ngudjolo Chui, where similar confidentiality agreements did not have the same detrimental effect on the proceedings, at least in part because the prosecutor had already been warned in the first trial. But the Katanga/Ngudjolo verdict, which is pending, may be significantly affected by the Lubanga judgement when it comes to the question of intermediaries, several of whom were also involved in the Katanga/Ngudjolo case.

“This happens”

Béatrice Le Fraper, special adviser to the Prosecutor from 2006 to 2010, responded sharply to criticism of the prosecution’s methods. “We made the right decisions. The only way the ICC could work was with mobile teams, since it was running multiple investigations in several dangerous territories. For the office of the prosecutor, the issue of protecting witnesses had to be dealt with immediately, and it was. The UN should have the right to protect its documents, and we assured them they would be protected. It’s a trial--some witnesses withdrew, their testimony won’t be retained – this happens. The court will go on.”

In 2006, the prosecutor’s office announced the charges against Thomas Lubanga, president and commander-in-chief of the Union of Congolese Patriots, a major armed faction in Ituri. At that time, an estimated 50,000 people had been killed in the region since 1998. Reports of rape campaigns by different rebel factions had been circulating for years; Human Rights Watch estimates that between September 2002 and August 2003, the period covered by the indictment, some 5,000 civilians were killed, in addition to widespread pillaging.

And yet, after two and a half years of analysis and a 19-month investigation, Lubanga was charged with just one war crime, described in three iterations: conscripting, enlisting and actively using child soldiers under the age of 15.

Preventive action

For a country where there have been millions of conflict deaths since 1996, the ICC signed the most modest indictment in the history of contemporary tribunals. But Le Fraper dismisses the bitterness expressed by certain NGOs: “The use of child soldiers was the crime for which charges had to be brought, and in 2006 it was the crime for which there was enough evidence for an indictment. This affair has allowed us to make major strides in terms of prevention.”

The trial picture looked gloomy: a long, disjointed investigation, a minimal indictment, suspicions of conspiring to bring false witnesses by the prosecution’s intermediaries, late or incomplete disclosure of potentially exculpatory information to the defence, opportunistic charges that served the interests of the Congolese government [see our interview with Jason Stearns] or those of the United Nations – all of this exacerbated by the fact that, whatever the verdict, Lubanga will have already spent seven years in prison waiting to hear his fate, a record surpassed only by the International Criminal Tribunal for Rwanda, some of whose defendants have waited 16 years for a verdict.

System or court of law?

However, for Le Fraper, casting the trial in such a negative light is a mistake, the fault of “clichéd” misinterpretations. “Criticizing the everyday workings of the proceedings is normal, but that’s not the lesson we should bring away from the Lubanga trial,” she says. “The ICC is a system, not just a tribunal. How do we ensure that the Lubanga case helps to prevent war crimes, furthers the United Nations’ work to demobilize child soldiers, contributes to the peace process in Sudan? These are the most difficult aspects. The ICC has put forward an enormous and undervalued effort in terms of prevention in Columbia, in Georgia, in Guinea. We’re looking at the tip of the iceberg.”

No matter its conclusion, the sole verdict to be handed down during the nine-year reign of Prosecutor Luis Moreno Ocampo will necessarily be seen as an assessment of his legal prowess--as well as that of his successor, Fatou Bensouda, who took over the controversial case one month before it opened in January 2009.

(*) Thierry Cruvellier is author of "Court of Remorse: Inside the International Criminal Tribunal for Rwanda" and "The Master of Confessions," about the trial of Duch at the Khmer Rouge Tribunal.