Dear readers – please find below a commentary written by Olivia Bueno at the International Refugee Rights Initiative in consultation with Congolese activists. The views and opinions expressed here do not necessarily reflect the views and opinions of the International Refugee Rights Initiative or of the Open Society Justice Initiative.
The October 8, 2010 decision by the Appeals Chamber of the International Criminal Court (ICC) was awaited with apprehension by victims of international crimes in Ituri, politicians, and others. While the Union des Patriotes Congolais (UPC) declared that they were eagerly awaiting Lubanga’s return, many victims feared the potential security consequences. The Ligue pour la Paix et les Droits de l’Homme (LIPADHO), based in Bunia, noted “victims and intermediaries were worried, unsure of the reaction from supporters of the Forces Patriotiques pour la libération du Congo (FPLC), the armed branch of the Union des Patriotes Congolais (UPC), still very active in the field.”
The Lubanga trial has been marked by a number of twists, at least two of which have seen the prosecutor challenged by chambers with regard to ensuring the fairness of proceedings: the first regarding the confidentiality of documents and the second surrounding maintaining the anonymity of ‘intermediary 143.’ As a result, many in Ituri expected that Lubanga would be released, so the decision of the chambers was something of a surprise.
Despite the fact that the ruling went against Lubanga, deciding that he should not be released and that the trial could resume, such security concerns have not materialized. Lubanga’s UPC colleagues had initially welcomed the trial, saying that it provided an opportunity to prove Lubanga’s innocence and explain the truth about what had happened in Ituri. Although they had viewed the intimation of release as vindication of this stance, they have also maintained a positive line about the recent decision. Pélé Kaswara, a member of the party, was quoted by Radio Okapi as saying, “We are satisfied with this decision of the appeals chamber of the court. We want this process to be taken to the end so that the innocence of our leader will be demonstrated. He himself is calm. He would like to continue with the process because all the truths will be made up to date.” Some observers have suggested that this positive rhetoric is aimed at positioning the UPC for the 2011 elections, during which the party has indicated that it hopes that Lubanga will be its candidate having returned exonerated from The Hague.
NGOs for their part, generally welcomed the decision. For example, the international NGO Redress, which has worked with victims in Ituri, said, “We are extremely relieved to see that this very landmark trial may finally resume. This is important for victims who feared that they would lose their chance at justice.” This relief was echoed by victims cited by LIPADHO, “Thank God, what we feared would happen to us did not occur, we were slowly getting ready to flee in the forest once Thomas would be released, there was a risk to see him return to Ituri and rally with his partner Bosco Ntaganga who keeps defying the International Criminal Court in order to silence us and even to exterminate us.” Other NGOs hailed the decision as an affirmation of the independence and credibility of the ICC.
At the same time, however, many have expressed concerns about the progress of the trial and the perception of the ICC in the court of public opinion in Ituri. The significant delays suffered to date in the process have undermined confidence in the institution. Others have expressed unease that the lack of information and understanding of the trial. This, as well as the twists and turns in the process have facilitated the spread of rumors and misunderstandings.
It is clear that some are frustrated. Xavier Maki, of the Ituri NGO Justice Plus reflected on the population’s impatience: “The population wants to know if Lubanga is guilty or not. The reality of going from reports to reports or seeing blockages in the unrolling of the process is tiring the population which is waiting impatiently for the process.” Echoing the voices of victims, Redress noted, “Protracted delays in this first case before the ICC have contributed to victims’ sense of hopelessness.” Another NGO, Association pour la promotion et la défense de la dignité des victims (APRODIVI), noted that it was “preoccupied with the slow pace,” commenting that “time is the enemy of evidence, as the process drags on victims will disappear with their stories.”
Beyond impatience, there appears to be an opinion emerging within the Iturian public that the delay is not simply unfortunate, but the result of manipulation of the court (with the prosecutor most often blamed for political machinations). This anxiety about the possibility of manipulation of the process has been exacerbated by a deficit in information about the ICC and the working of the trial. Although, there have been efforts on the part of the court to offer information, it is clear that the level of information about the proceedings is limited. Some with an interest in the proceedings, for example, were not aware of the date that the decision was to be handed down, despite fears of UPC reaction for which they would have liked to prepare.
Although increasingly there is awareness of the category of individuals known as intermediaries at the heart of the current debacle (and a corresponding protection issue as interest grows in identifying those people), there is no clear notion on the ground of precisely what role they may play. With understandings of fair trial and issues of confidentiality in general poorly understood, it is incomprehensible to many how the failure to reveal the name of an intermediary could stop or start the trial.
Misgivings about the ICC are also deployed in political rhetoric. Although the public line of response by the UPC to the most recent ruling is positive, there have also been allegations of manipulation. Some in the party, and members of Lubanga’s Hema ethnic group from which it draws its base more generally, see the ICC, and more precisely the Office of the Prosecutor, as politicized. As Andre Kitio, National Coordinator of the Congolese Coalition for the ICC, describes the sentiment among Hema (Lubanga’s ethnic group):
In their opinion, the judges demonstrated their independence from the ICC Office of the Prosecutor, and from politics [in ordering the suspension of the trial]. Furthermore, according to them the procedural challenges the prosecution encountered show that Lubanga should never have faced trial at all.
Some Hema believe that the prosecution is hounding Lubanga because they cannot provide evidence. It is not clear whether the chambers recent decision has impacted this view.
If some think that the process should proceed to the end in order to allow Lubanga to be exonerated, there are others for whom the twists and turns of the trial show that the prosecution suffers from a lack of credibility. For example, one high ranking cadre of the FNI, the political party which rivaled Lubanga’s UPC in the violence which sparked the ICC’s investigation in Ituri, asked why the prosecutor is still equivocating before presenting evidence of the crimes that he himself brought forward (presumably referring to the Office of the Prosecutor’s resistance to turn over the names of intermediaries). They argue that such action is unheard of in law. If the court has no proof, they say, then he should be set free.
Less openly, others on the ground whisper that the liberation of Lubanga might have consequences not only for witnesses and victims, but also in more general security terms. Some fear that his return to Ituri may reinforce the already strong ethnic mobilization, which has reportedly gained strength since the announcement of the suspension of the trial. Certain Lendu extremists have already express fury at what they consider to be the latest in a long string of injustices: that their people are being prosecuted while Lubanga may be set free. Although these fears have been momentarily assuaged by this latest ruling, this voice, if allowed to grow, could add fuel to the fire of tensions between groups – or eventual conflict. This fear of rising tensions and potential conflict is echoed by some in civil society.
The seed of the view on the part of the Lendu that the ICC is not treating their cause fairly had already been planted by the court’s approach to charges and the situation of victims. Although the victims of the Bogoro attacks (which are the basis of the charges against Ngudjolo and Katanga) are visible reminders of the victimization of Hema in the conflict, Lubanga’s victims do not provide a parallel. Because of the nature of the charges against Lubanga—recruitment of child soldiers—those who are recognized as victims are in fact mostly Hema, not Lendu. Because the trial is naturally unpopular within their group (Hema), they are also less visible: most who could be considered victims attempt to conceal rather than draw attention to their status. It is thus also difficult to gather the perspectives of victims.
The latest decision is a welcome step forward, but the responses also make clear that there are increasing misgivings about the court from impatience to suspicion of political manipulation. It is also apparent that the ICC must take seriously these concerns by both increasing outreach and addressing some of the procedural issues that led to the delay in order to improve the way that it is perceived on the ground.