OPINION:THE INTERNATIONAL Criminal Court celebrates its first 10 years of existence in July. The court is the first permanent international court with jurisdiction to prosecute the most serious cases of genocide, crimes against humanity and war crimes.
A fortnight ago marked a milestone in its short history when Congolese warlord Thomas Lubanga was found guilty of war crimes in recruiting and using child soldiers. The prosecutor, Luis Moreno-Ocampo, has vowed to seek the maximum sentence for Lubanga and called the conviction a victory for humanity.
Lubanga was not the only person waiting anxiously for the verdict on the day. The prosecution team also had reason to be apprehensive. The Lubanga trial had come to court mired in controversy over the prosecutor’s handling of the evidence and charges. Before the guilty verdict was reached, the prosecution team received a serious reprimand from the judges when they said the prosecution team was guilty of negligence in the way it conducted aspects of the investigation. Consequently, a number of prosecution witnesses were found to be unreliable or dishonest.
Moreno-Ocampo’s period in office has been plagued by controversy involving his personal and professional behaviour. The referral of the situation in Darfur to the International Criminal Court in 2005 was a major breakthrough, but the subsequent strategy of the prosecutorial investigation was subject to widespread criticism.
The now deceased eminent international judge and scholar, Antonio Cassese, and the former UN high commissioner for human rights, Louise Arbour, were among those critical of the prosecutors methods. Cassese had led the UN Commission of Inquiry into Darfur in 2004. Unlike Moreno-Ocampo, Cassese had spent time on the ground in Darfur conducting the investigation with his team. With his background and experience, he was well placed to criticise the prosecutors investigative methods.
It is worth recalling that the three most powerful states in the world, Russia, China and the United States, have at times opposed and blocked the work of the court. Russia and China are currently preventing the situation in Syria being referred to the court by the UN Security Council. This is in contrast to their agreement in 2011 to refer the situation in Libya.
While the International Criminal Court will remain at the mercy of realpolitik, it still needs to have its own house in order. Amnesty International reacted positively to the Lubanga decision, stating the conviction of the leader of a Congolese armed group shows that the court can bring the world’s worst offenders to justice. Amnesty also criticised the length of the proceedings.
The case was twice delayed due to stays imposed by the judges in response to the office of the prosecutor’s failure to disclose information to the defence. The late or incomplete disclosure of potentially exculpatory information to the defence was among a number of issues that reflected badly on the prosecutor. At one point the trial chamber ordered the release of Lubanga and the trial almost came to a premature end.
There was much criticism of the fact that other charges were not listed in Lubanga’s indictment. However, how much longer would it have taken to investigate and prosecute if other serious crimes were added? Lubanga spent seven years in prison awaiting the outcome of this trial, and some of those indicted by the International Tribunal for Rwanda wait over twice that length of time. The question must be asked if this is an acceptable way to dispense international justice. While the conviction is an undoubted success, there are many lessons.
The prosecutor has been a controversial figure from the beginning. Too often he seemed overly concerned with courting publicity and the court of public opinion. On occasion, he opted to publicly announce he was about to arrest a major figure, instead of seeking sealed warrants and retaining the element of surprise to improve the chances of success. At times, he seemed to make key public statements to deflect attention from other matters. If you subscribe to the view no publicity is bad publicity, then perhaps Moreno-Ocampo’s term can be deemed a success. He certainly kept the court in the limelight. Many argue that this was not his role and his legacy has damaged the court and the office of prosecutor. The deputy prosecutor, Fatou Bensouda, is also associated with the Lubanga case. She is set to succeed Moreno-Ocampo when his term expires this year. The impact of the Lubanga judgment on the reputation of others involved in the case is difficult to calculate.
As a prosecutor from Gambia, she offers the prospect of improving relations between the court and the African Union, which has been hostile to Moreno-Ocampo and critical of the focus on Africa. She must urgently address the shortcomings and work to restore the tarnished reputation of the office of prosecutor.
Prof Ray Murphy, Irish Centre for Human Rights, school of law NUI Galway