Imagine that the Director of Public Prosecutions had been found guilty of contempt of court for deliberately flouting the orders of an Old Bailey judge. Imagine, further, that the prosecutor’s disobedience was so fundamental that, in the court’s view, it was no longer possible for the defendant to receive a fair trial.
There would be two consequences. First, the defendant would be acquitted. And, second, the prosecutor would resign.
But that’s not the way the International Criminal Court has chosen to deal with just such a case. When the prosecutor, Luis Moreno-Ocampo, refused to comply with a court disclosure order, what the judges should have done was order him to pay fines of up to 2,000 euros a day until he changed his mind. The trial chamber should not have thrown out the case until it was clear that mounting fines had not persuaded him to obey the law.
So said a chamber of five appeal judges on October 8. Overturning a decision by the trial chamber to release Thomas Lubanga, the appeal judges allowed his trial to continue.
Lubanga is accused of conscripting children under the age of 15 to his Union of Congolese Patriots in order to kill members of a rival tribe during the five-year civil war in the Democratic Republic of Congo that ended in 2003 and cost millions of lives. He has pleaded not guilty to war crimes and says he was a politician, not a warlord.
More than seven years into his nine-year term at The Hague, Moreno-Ocampo has yet to achieve a single conviction — or even an acquittal. The Lubanga trial, which opened at the beginning of last year, was meant to be a short, simple case.
Moreno-Ocampo’s team had obtained some of their evidence through the use of intermediaries. These were people who introduced witnesses to the prosecutor or who contacted witnesses on his behalf. Intermediaries were granted anonymity for their own protection.
Lubanga’s lawyers allege that some of the intermediaries had tried to induce witnesses to give false evidence. So the trial judges, headed by Sir Adrian Fulford, agreed that Lubanga should be told the identity of a particular intermediary, after measures to protect him had been put in place. Moreno-Ocampo refused — deciding, in effect, that his duty to protect the intermediary’s identity from even limited disclosure trumped his duty to obey the court’s orders. Fulford’s court concluded that it had lost control of the case and could no longer do justice.
But the appeal chamber, headed by the court’s Korean president Sang-Hyun Song, pointed out that the trial chamber had not regarded the damage done by Moreno-Ocampo as irreparable. On the contrary, said the appeal judges: “The trial chamber considered that, if the circumstances changed, a fair trial could conceivably become possible once again.”
Would the prosecutor have complied with court orders if sanctions had been imposed? His first reaction would have been to appeal. If that failed, he would have paid the fines from his departmental budget — so the money would simply have gone from one organ of the court to another. Throwing out the case was the only sanction that would have mattered to the prosecutor because it was the only outcome that would have been noticed by the outside world.
But releasing Lubanga without a verdict would have led to distress and incomprehension among the victims of Congo’s civil war. Carla Ferstman runs Redress, a human rights organisation that works closely with these people. “Protracted delays in this case have contributed to victims’ sense of hopelessness,” she said. “Those who suffered the terrible events in Ituri deserve a full and fair consideration of these allegations.”
If this case had been tried at the Old Bailey, these victims would have had no rights at all. Under the common law system of prosecutions, the power of the state is invoked against the defendant and victims are relegated to the status of witnesses.
But the great innovation of the treaty that set up the ICC in 1998 is that it allows victims to participate in cases through lawyers appointed on their behalf. Convicted defendants may even be ordered to pay reparations.
Admirable though this may be, it has already led to delays and complications in the Lubanga case. And it seems to have influenced the appeals chamber, which said that allowing the trial to continue would be in the interests of victims as well as the accused.
But what an impact the appeal judges would have made if they had upheld the decision of the trial chamber. They would have shown that their court valued the right to a fair trial more highly than the tattered reputation of its lawless prosecutor.