NAIROBI // The International Criminal Court's first case, seen by many as setting the tone for the fledgling body, is off to a rocky start. Judges this week ruled that the trial of Thomas Lubanga, a Congolese militia leader, should remain suspended but ordered Mr Lubanga to stay in custody, effectively leaving the war crimes suspect in legal limbo.
The trial was originally suspended in June just days before it was to be the six-year-old court's first trial. A panel of judges suspended the trial because prosecutors would not share evidence with the defence. Mr Lubanga is accused of recruiting child soldiers to fight in his Union of Congolese Patriots militia during the bloody Ituri conflict in the eastern Democratic Republic of Congo from 2002 to 2003. More than five million people have been killed in the 10-year civil war.
The Ituri conflict has raged in north-eastern Congo after the war officially ended. Analysts said the botched trial is a serious blow to Hague-based ICC and to the victims of the conflict, who were hoping for justice.
The court's appeals chamber ruled that the trial chamber must again decide on whether to release Mr Lubanga with or without conditions. "Pending the new determination, Mr Lubanga shall remain in the custody of the court," said presiding judge Sang-Hyun Song, of the tribunal's appeal chamber. "The trial chamber was wrong in finding that the inevitable consequence of the decision to stay the proceedings was his unconditional and immediate release."
In gathering evidence for the case, prosecutors promised witnesses confidentiality, which is allowed under ICC statutes. However, Sylvia Steiner, an ICC judge, ruled in June that prosecutors were not using confidentiality agreements as a last resort to get their hands on evidence, but were "extensively gathering documents under such provision". Much of the confidential testimony is from UN peacekeepers, who are still operating in the region and fear reprisals if they are not kept anonymous.
Luc Walleyn, a lawyer for victims in the Lubanga case, said the trial should continue or risk undermining victims' trust in the court. "People could feel that if there is no national justice that can stop them, and international justice is not able either, then it would be logical to go on with recruiting child soldiers, and other crimes under the jurisdiction of the court," he said according to the IWPR.
In another blow to the ICC, the pretrial hearing of Jean-Pierre Bemba, scheduled for Nov 4, was postponed on Wednesday to allow the defence more time to prepare. As a result, the court is now without a functioning trial. The ICC accuses Mr Bemba, the former vice president of DR Congo, of a wide range of crimes allegedly committed by his men when they fought a coup attempt in the neighbouring Central African Republic at the request of the then president Ange-Felix Patasse.
The ICC said Mr Bemba's Movement for the Liberation of Congo carried out attacks against civilians in the Central African Republic "during which rape, torture, outrages upon personal dignity and pillaging were committed". The ICC was established by treaty 10 years ago and began work in 2002 as the world's first permanent war crimes court. It was designed to replace the need for ad hoc courts, such as the ones set up to try suspects of the Rwanda, Yugoslavia and Sierra Leone conflicts.
So far, the court has only investigated crimes committed in African conflicts. The court has been criticised in Africa for pursuing justice at the expense of peace. In July, the ICC prosecutor asked the court to indict the most high profile suspect to date - Omar al Bashir, the president of Sudan. Judges are currently deciding whether to indict Mr Bashir on charges of war crimes and genocide in Sudan's Darfur conflict.
The ICC's first indictments were for Joseph Kony and his commanders of the Lord's Resistance Army, a rebel group from northern Uganda. Mr Kony has refused to sign a peace deal to end Uganda's 22-year civil war until the ICC drops its arrest warrants. The leader remains at large. Local mediators trying to end Uganda's civil war want the ICC warrants dropped to facilitate the peace process. International human rights groups, however, have urged African governments to arrest the LRA leaders and bring them before the ICC.
