Dakar
03 July 2008
While one former Congolese warlord has been ordered released by theInternational Criminal Court at The Hague, proceedings are justbeginning against another one. One analyst says the ICC needs to bemore careful about the timing of such cases, especially when conflictsare on-going. From our West and Central Africa bureau in Dakar, BrentLatham has more.
An African analyst says that the InternationalCriminal Court, or ICC, needs to be more careful in the future aboutintervening in on-going conflicts, after the ICC ordered the release offormer Congolese warlord and accused war criminal Thomas Lubanga.
Judges at the court said Lubanga, however, should not leave detention until the court deals with the prosecution's appeal.
IssakaSouare, Democratic Republic of Congo analyst at South Africa-basedInstitute for Security Studies, says that the possible release ofLubanga casts doubt on the ability of the court to handle cases againstsuspected war criminals from areas still in conflict.
"Nowthat the case is going to be thrown out of court because of the sameissues it casts a doubt or begs many questions with regard to theprocedure and whether the ICC rushed into the case, or whether theevidence actually was there but there was something in the process thatmakes them believe today that this evidence is not pertinent," he said.
Lubanga had been accused of enlisting child soldiers. He has pleaded not guilty. Lubanga has been in ICC custody since 2006.
Theprosecution's case is based on evidence which was not shared with thedefense, for fear of reprisals against those who had provided it. TheU.N. had collected the information from witnesses in areas in theeastern part of DRC which are still engaged in conflict.
TheICC judges ruled on Wednesday that because the evidence could not beshared with Lubanga's defense, a fair trial would not be possible.
Souaresays the ICC rushed into the case while the conflict in the DRC wasstill on-going. He suggested that the ICC may now have to rethink itsability to deal with cases which involve unresolved conflicts.
"Therewas some criticism about the court's decision to deal with armedconflict situations that are on-going, which is unprecedented," hesaid. "In the past, all the processes have been tried on post-conflictsituations or where one side had decisively won the war."
Souare added that ICC intervention in on-going conflicts may also affect future cases.
Hecited the case of the Lord's Resistance Army in Northern Uganda, theleaders of which have agreed to sign a comprehensive peace agreement ifthe ICC agrees to cancel outstanding arrest warrants against them.
Souarealso mentioned the case of former DRC vice president, rebel leader, andfailed presidential candidate Jean-Pierre Bemba, who has been accusedof rape and torture. Bemba denies the charges.
"Justyesterday the lawyer of Bemba said that they would actually ask the UNSecurity Council to intervene, to ask the ICC to suspend theproceedings because Bemba, according to his lawyer, was very muchinstrumental in bringing about peace in the DRC," said Souare. "Onecould predict a similar thing, not to do with the evidence itself, butwith the possible effect of his arrest on the peace process in thecountry."
Souare worries that the procedural violations willlead to impunity for war criminals, and deprive their victims ofjustice. He says the Lubanga case could help the ICC rethink itsoverall approach.
"It would probably strengthen the argumentof skeptics about the effectiveness of the approach in the first place,or those who are calling for more prudence in the activities of thecourt," said Souare.
The ICC was established by statute in 1998and began functioning at The Hague in 2002. With more than 100 memberstates, it is the first ever permanent, treaty based, internationalcriminal court established to promote the rule of law and ensure thatthe gravest international crimes do not go unpunished.