Lubanga verdict exposes Hague court to scrutiny

By Standard Team

The International Criminal Court won praise for the guilty verdict handed down against Congolese warlord Thomas Lubanga, but its effectiveness has come under scrutiny from insiders.

The current editions of Time magazine quotes Ambassador Christian Wenaweser, who was the President of the Assembly of States Parties to the Rome Statute of the ICC until December, questioning the quality of judges.

Paul Seils, a Scottish criminal defence attorney, who had been the ICC’s Head of Analysis between 2004 and 2008, when the case against Lubanga was being built, also criticised the prosecution’s decision to deploy human rights activists in collection of evidence.

And writing separately in the New York Times, British MP Ian Paisley suggests the ICC intervention in Kenya takes out Prime Minister Raila Odinga’s main opponent, Deputy Prime Minister Uhuru Kenyatta, who faces ICC trial.

Serious snag

Wenaweser, a diplomat from the European country of Liechtenstein, named the uneven quality of judges as the most serious problem facing the ICC.

"This is the biggest challenge we face," he told Time. "If you have, on a consistent basis, the best qualified people, you’ll end up with a high-quality Bench."

But he says the mode of appointment of the court’s 18 judges, who are chosen from nominees submitted by governments, does not always mean the candidates are chosen for their top-flight legal skills.

Politically powerful countries, or those who finance the ICC heavily, Wenaweser suggests, "have a better chance of getting their people in".

Equally there’s a high chance only those in good books with their governments get to be nominated. "The temptation for countries to choose people as a way of rewarding them for certain services they’ve done at the end of their careers is big," he says.

Other failings highlighted in the verdict by a three-judge panel in the trial of Lubanga, against whom investigations began in 2005, include the challenge of ICC prosecution.

Legal process

ICC Prosecutor Luis Moreno-Ocampo’s staff was reprimanded for hiring local human-rights groups to find witnesses to testify, which opened the legal process to accusations of bias.

Judges discarded much of the testimony of witnesses who had been forced to testify by some of the rights groups. "There was a very significant lack of scrutiny of these intermediaries," Seils told Time.

The prosecution had opted to ‘outsource’ investigators because its own faced an uphill task collecting evidence against the warlord, who operated deep in a country the size of Western Europe, torn in ethnic acrimony.

Venturing into rural DRC, investigators faced hostility from locals, who themselves risked deadly retaliation for being seen to cooperate with those pursuing a warlord.

"It was considered that all the witnesses, not just from the prosecution, were at risk," noted the international court’s 624-page judgement against Lubanga.

Now the Vice President of the International Centre for Transitional Justice, a research organisation in New York, Seils noted: "You’re deploying people from The Hague into countries they aren’t from, to deal with situations which are impenetrably difficult."

Separately, Paisley, a British MP from Northern Ireland, wrote in the New York Times that Raila had called for the arrest of his main political opponent, Uhuru, who faces ICC charges.

He says Raila and Uhuru are leaders in a coalition government cobbled up to reconcile Kenya’s opposing political and tribal groupings.

"Yet the ICC’s intervention is increasingly likely to drive this government and the country further apart, allowing a political leader from one ethnic group to try to remove an opponent from another ethnic group from the scene," argued the British legislator.

"This is particularly perilous when the root of the post-election violence in Kenya is tribal conflict."
Paisley wrote that where the court intervenes, it must be an exemplar of justice at its best, with standards that are above question.

"This has not always been the case: The Kenyan case rests on a main witness who has changed his statements several times, and is under a witness protection plan partly funded by the British government, which has publicly supported the trial. This has fuelled the erroneous belief among some Kenyans that the Western powers that fund the court are seeking to divide and rule the country themselves," Paisley wrote.

The British lawmaker suggests the ICC intervention must not always be at the expense of reconciliation. He cites the experiences of Northern Ireland and South Africa that there is nothing more important than peace.

"If this means the International Criminal Court does not intervene or deliver justice, it may be a price that is worth paying," he says.