Finally, it is here. After many months of delay, and the chance that Congolese militia leader Thomas Lubanga Dyilo would go free because of fair trial concerns, he is now in the dock and the International Criminal Court’s first ever trial is ready to start.
So was it worth the wait?
Some say no. Critics point to the increasing disillusionment with the ICC, particularly in Africa, where even ardent supporters of the fledgling institution have begun to wonder if the court has lost its way. The delays and reversals at the Lubanga trial only add to the litany of concerns about the ICC. These concerns include:
- The well-orchestrated, and high level political backlash against the ICC after the prosecutor issued an arrest warrant for Sudanese President Omar al-Bashir in July 2008. This led to a serious push in September 2008 by states in the African Union, Non-Aligned Movement, and Organization of the Islamic Council to have the Security Council suspend the Bashir investigation for 12 months or longer.
- The growing sense that the ICC is picking on poor African states while rich powerful ones (such as the United States) are not prosecuted for abuses in their own wars.
- The strong reactions in the DRC in January 2009 to the confirmation of charges against former Congolese presidential candidate, Jean-Pierre Bemba, who was arrested in May 2008 for his alleged crimes in the Central African Republic. Some argue that Bemba’s trial indicates that the ICC has been politicized and is controlled by DRC President Joseph Kabila.
Anxiety over the ICC’s actions are heightened by the limited visibility of the court’s outreach efforts, investigation tactics that some say endanger people, and public statements by the ICC which may put human rights defenders in danger from their own governments.
In Lubanga’s case, there are concerns that the charges against him were too limited in scope, and that the prosecutor’s broad use of confidentiality agreements had undermined confidence in his respect for due process and basic defense rights. The delay of seven months while the prosecutor addressed the confidentiality problem seemed excessive. For some, the prosecutor’s efforts seemed too little, too late, and only made under duress.
The start of the Lubanga trial cannot alleviate all of these concerns. Many of the broader perceptions and worries about the ICC will take months, if not years, to address, and will require careful thought and action by the ICC and others who care about international justice.
But the delay leading up to the start of the ICC’s first trial does teach important lessons: that the court as an institution can be impartial and fair to those who come before it, and that it is determined to correct itself of any internal excesses, perceived abuses of power, or incursions against a defendant’s rights—even if it means setting a man free before he is prosecuted for the serious charges leveled against him.
Let’s remember: Ten days before Lubanga’s trial was to begin on June 23, 2008, the judges suspended the trial because they were concerned that the prosecutor’s use of evidence did not adequately safeguard Lubanga’s legal rights, to the point where a fair trial for Lubanga was “impossible.” Specifically, they were concerned that Lubanga lacked access to material that could help prove his innocence. Three weeks after this decision, the judges decided to set Lubanga free. On appeal, the judges decided to keep Lubanga in jail but asked the prosecutor to fix the problem—but his failure to do so completely led to further delays. In November 2008, the judges decided that the problem was fixed, Lubanga’s fair trial rights had been respected, and the trial could go ahead in January 2009.
The triumph of fair trial rights in the Lubanga pretrial process shows an admirable ability for the ICC to rectify itself. It demonstrates the checks and balances between the different arms of the court actually work: in this case, misuse of evidence or procedural missteps by the prosecutor were not tolerated by the judges. This in itself can help to alleviate some of the arguments swirling about the court’s perceived politicization, or concerns about the prosecutor’s lack of accountability.
The ICC still must prove itself worthy of people’s trust, but this pretrial process has helped to build confidence that the ICC is an institution determined to be fair. That alone has made the Lubanga trial worth waiting for.
The next question: will the trial continue to live up to its principled start? We will be watching closely to see.
please write on the tension re the right to a fair trial and child witness protection- central to this and many recent cases…
Hi Tracey — I just wanted to offer a small correction to your excellent piece: the Prosecutor did not actually issue the arrest warrant for Al Bashir last July as you say. The Prosecutor at the ICC does not have the authority to issue arrest warrants on his own, but instead must apply to the Pre-Trial Chamber, who must rule on whether his application discloses reasonable grounds for believing that the person for whom the warrant is sought has committed a crime within the jurisdiction of the Court. If the Pre-Trial Chamber so rules, then it, not the Prosecutor, issues the arrest warrant. In the case of Al Bashir, Pre-Chamber I has been considering the Prosecutor’s application since last July and is expected to deliver its decision on the 4th of March.
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