Jim Freedman joins JiC for this post examining the core issues covered in his new book on the trial of Thomas Dyilo Lubanga. Jim is a Professor Emeritus and a faculty member at the Centre for Transitional Justice and Post-Conflict Reconstruction at Western University. His book, A Conviction in Question: The First Trial at the International Criminal Court was published by the University of Toronto Press.
As they reflect on the International Criminal Court’s (ICC) on-going challenges, it may be some solace to ardent supporters of the ICC to recall the plague of disquieting matters in the Court’s first trial and how the institution has diligently addressed them in the ensuing five years. This first case involved the notorious warlord Thomas Dyilo Lubanga from northeastern Democratic Republic Congo who committed multiple war crimes and who, in March 2012, was convicted of the single crime of conscripting and using children less than 15 years as soldiers.
Certainly the first trial was something of a circus and the book — A Conviction in Question, the First Trial at the International Criminal Court — chronicles the legal histrionics, the cast of characters, the interminable delays and the awkward, ultimately vain, efforts to hold Lubanga responsible for all that he had done. The adversarial atmosphere in the courtroom was intensified by the ever-present media and the fact that the world was watching. The trial had a perverse quality. The length of time the trial took to arrive at a conclusion, six years in total, was one thing. The judge’s decision to stop the proceedings on the grounds that the prosecution had violated Lubanga’s right to a fair trial and send him home, not once but twice, was equally curious.
The discord in the Chamber was worthy of a lurid television series. The main actors in the Chamber turned even the most innocent of evidence into something hotly contested, generating a cacophony of opposing voices that drowned out much of what the Court needed to know to make an informed decision. The Chamber often saw fit to allow factual and moral matters to be trumped by other matters. Some of this could be discounted as the growing pains of an international court making its way through a first trial and, in truth, some of these unsavoury features were more colourful than anything. But the persistent discord in the Chamber did have some serious consequences.
A number of principled matters were shoved aside or dismissed altogether because they were thought to be making an already long and complicated case even more long and complicated. The status of the victims was one of these. During the trial, the Chamber preferred to keep the victims on the margins of proceedings since none of the actors in the trial wanted to compromise their own stakes in the trial by admitting yet another voice that might arouse an unpredictable element into the proceedings. This in itself might not have been so serious a matter except that, when the trial was over, the Court’s general dismissal of the importance of victims in the Chamber gave rise to a decision which limited the scope of reparations. This was a serious flaw.
Another was the Chamber’s embargo on sexual violence. The matter of sexual violence loomed large in the trial not by its presence but by its absence. It became the trial’s trademark shame, a conspicuous token of the Chamber’s failure to place the substance of the Ituri province’s tragedy above the Chamber’s perpetual legal jousting. For most of the trial the Chamber did what it could to hear as little as possible about how frequently young women were raped and enslaved.
Yet another shortcoming was the practice of gathering evidence, especially getting it by using individuals — or intermediaries as they were called — to identify key witnesses and prepare key witnesses for their appearance at the court. The Defense’s repeated claim that the Prosecution had conspired with intermediaries to introduce false information ended up consuming an inordinate amount of the trial’s time and consideration. The discordant atmosphere inflated this issue beyond all proportion.
These three matters, at different times, threatened to discredit and even on occasion derail the Lubanga trial. All this was important to describe in the book. But even more important was the constructive way the court has responded, following the Lubanga trial by embracing these concerns from the first trial and ensuring that the lessons learned were addressed. The Court has matured as a result. It is clear now that the participation of the victims cannot be an afterthought; being true to the Rome Statute means recognizing that real participation is essential and failing to ensure it is bound to have consequences for the credibility of the Court as well as for the inescapable obligation to provide reparations. Following the Judge’s decision at the conclusion of the trial to limit the scope of reparations, the decision was appealed, the Court reconsidered the issue and finally, this month, ordered US $10 million in reparations to 425 child soldiers as well as other victims who choose to come forward.
The exclusion of sexual violence from consideration in the Lubanga case is a thing of the past at the ICC. Subsequent trials have been careful to give sexual violence its essential place. In the landmark later trial of Jean-Pierre Bemba, rape was among the charges levelled against the accused. This was the first time in history that a criminal court adjudicated a rape case under international law. Bemba was found estilty in 2016.
The Court has also responded to the issue of using intermediaries for finding and preparing witnesses. The matter needed to be aired and in 2011, as the Lubanga case was nearing a close, the Court struck a working group to reflect on the issue of using intermediaries. This working group drafted a set of guidelines on the relationship between the court and intermediaries setting useful standards for the Court’s use of local agents.
The account of the Lubanga trial in A Conviction in Question, the First Trial at the International Criminal Court aims to provide a colourful record of the trial. But it also aims to show how the court has responded to critical issues of concern that arose in the course of its deliberations and how its attention to these matters has sharpened the Court’s capacity to serve the role for which it was intended.