Recent Developments at the International Courts: A Cheat Sheet

Confused about recent developments in international criminal jurisprudence? Tired of excusing yourself to powder your nose when the cocktail chatter inevitably turns to the law of self-determination? Wishing you had some handy reference material that would enable you to sound like you've taken two to three advanced undergraduate level seminars on international law? Well, look no further; this is the blog post for you.

Below are summaries of four recent developments in international justice and some suggested beginner and advanced level pithy commentary to amaze your friends and colleagues with at your next social occasion. Try saying them in a fake British accent for increased impressiveness.

1. Naomi Campbell's testimony before the Special Court for Sierra Leone.

Supermodel Naomi Campbell finally showed up to Charles Taylor's war crimes trial yesterday to answer the question of whether Taylor gave her some diamonds in 1997. (Taylor's defense maintains that he never had possession of any blood diamonds.) Her answer: Yes, he did, but they were dirty.

JV level cocktail banter: "So he had time to clean off the blood, but not the dirt?"

Varsity caliber smartassery: "Taylor lied about not having diamonds? What's next, the news that his conversion to Judaism isn't for real either?"

2. The Extraordinary Chambers in the Courts of Cambodia decision in the Duch case.

On July 26th, the Trial Chamber of ECCC handed down a verdict in its first trial. Kaing Guek Eav (known as "Duch"), the head of the S-21 prison (now known as Tuol Sleng), was found guilty of crimes against humanity as well as domestic crimes of murder and torture and sentenced to 35 years jail time. Because he has already been incarcerated for 11 years, and received a 5 year credit for unlawful detention, the sentence was reduced to 19 years. Initial reports suggest that victims are dissatisfied with what they perceive as an overly lenient sentence.

Sound informed: Ask "How will this impact the ECCC's second case, the trial of Khieu Samphan, Ieng Sary, Ieng Thirith and Nuon Chea? Will the Trial Chamber feel compelled to hand down a harsher sentence in that case to appease the victims? If so, what does this mean for the court's status as an independent judicial body?"

Sound obsessed: Redirect the conversation to the issue of marriages imposed by the Khmer Rouge. Point out that forced marriage is not included in the Tribunal's list of crimes against humanity, but could (should?) be added in the aftermath of the Special Court for Sierra Leone's groundbreaking convictions last year.

*For extra "I totally know what I'm talking about" points, remember that "Duch" is pronounced to sound like "doik" rather than "dutch." You're welcome.

3. The stay of proceedings and near-release of the defendant in the Thomas Lubanga case at the ICC.

Earlier this month the ICC's first case to go to trial hit another bump when the prosecutor's office (OTP) refused to comply with an order to disclose the identity of an intermediary who had helped them identify witnesses. The OTP alleged that disclosure would violate its obligation to protect witnesses. The judges of Trial Chamber I concluded a fair trial was no longer possible for Lubanga under these conditions and ordered a stay of proceedings, and subsequently, the defendant's release. The Appeals Chamber has suspended Lubanga's release pending a final decision of the Prosecution's appeal of the stay of proceedings. (On the theory that if they let him wander off now and then the trial is reopened they're probably going to have a tough time getting him to turn up.)

Smart stuff to say: "This is basically the same issue that resulted in a stay of proceedings in the case in 2008, when the prosecution withheld potentially exculpatory evidence. And didn't the Appeals Chamber refuse to allow Lubanga's release on the grounds that a solution would probably be worked out and they'd better hang on to him in the meantime? It's like déjà vu all over again..."

Double-plus-smart stuff to say: "There's no clear legal basis for the OTP's argument that disclosing the intermediary's identify would violate its obligation to protect witnesses. In fact, the Rome Statute requires that the protection of witnesses be managed in a manner that does not prejudice defendants' rights to a fair trial." (Hattip Kevin Jon Heller at Opinio Juris, who also argues that the OTP's protection obligation is subordinate to the Trial Chamber's and that there is therefore no justification for disobeying a witness protection-related order from the judges.)

4. The ICJ's Advisory Opinion on Kosovo's declaration of independence.

Last month the International Court of Justice issued an Advisory Opinion on the legality of Kosovo's unilateral declaration of independence. The Court addressed itself to a very narrow question - whether Kosovo's declaration violated international law - and ruled that no, it did not.

International law punditry 101: "What does this mean for the referendum on the status of Southern Sudan in January?"

Advanced topics in territorial integrity: "Given that the Court didn't touch the issue of the legality of third party state recognition of the newly independent state, does this opinion really offer anything new in the way of guidance on the law of state sovereignty?"

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Thomas Lubanga Looks at Angelina Jolie, Media Feels Strongly That This Is News

I moved back to New York this weekend (yay!), thereby missing the Most Exciting Thing Ever to Happen in The Hague: Angelina Jolie's visit to the ICC on Tuesday.

(Actually, I probably got out just in time. You know how it goes: First Angelina Jolie shows up, then the gay men, and before you know it, the place will be full of trust fund kids in ironic t-shirts. And I'll be grumbling to anyone who will listen that I lived there before gentrification, back when it was real. Just war criminals and Dutch families, some of whom didn't even speak English.)

Jolie stopped by on her way to Cannes to observe the trial of Thomas Lubanga. As we've discussed previously, Lubanga is charged with using child soldiers during Congo's Ituri conflict. Prosecution of the use of child soldiers is of tremendous personal importance to Jolie, who is slowly assembling her own child army. Or she was there in her capacity as UNHCR goodwill ambassador. Whichever.

She sat in on proceedings in the Lubanga case and later met with ICC prosecutor/international man of mystery Luis Moreno-Ocampo. But OMG, while she was in the trial chamber, Lubanga totally looked directly at her! This was apparently significant enough that one media outlet titled their coverage "Angelina Jolie Faces Congo Warlord at Hague Trial."

Jolie managed to bring it all back to the children, though, noting that Lubanga scared the crap out of her and imagining "how difficult it must be for all the brave young children who have come to testify against him." Too bad she wasn't on hand to point that out when the first witness for the prosecution freaked out and recanted his testimony after being subjected to Lubanga's death stare for a couple of hours...


*Picture of Jolie with Moreno-Ocampo is from People Magazine, taken by Kim Vermaat.

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Breaking Lubanga News!!!

Hours after testifying as the first witness in the first case to go to trial at the ICC, an alleged Congolese former child combatant recanted his testimony and announced that he wasn't a child soldier after all.

According to AP, in testimony this morning the witness "had told the court that armed troops plucked him off the street while he was on the way home from school and sent him to a military camp." When the court resumed session after a lunch break and the prosecutor summarized the morning's testimony the witness suddenly denied the story:

"In a complete turnaround in his testimony, he said workers of a nonprofit organization had spoken to him and his friends at school. "They took our addresses and told us they could help us. After that we went back home," he said, speaking through an interpreter."

The prosecution immediately requested a delay in the proceedings that Judge Adrian Fulford granted in order to "to find out whether something has happened that could destabilise ... the witness in such a way that he would deviate from the evidence." AFP hints that the witness might've gotten spooked by Lubanga staring at him all creepy-like during his testimony.

God, I guess running an international criminal court is harder than it looks...


*Lubanga picture is from the AP article cited above.

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ICC Begins First Trial, Four Horsemen of the Apocalypse Inexplicably Fail to Appear

Well, I think the post title pretty much says it all.

But if for some reason you need more info, here it is: The trial of Congolese warlord Thomas Lubanga opened today at the International Criminal Court. (Which you may know as the harbinger of the destruction of apple pie and everything else that is good and American by slavering rule of law obsessed European bureaucrats).

Lubanga is charged with war crimes, including the use of child soldiers, during the less-talked-about-these-days-but-seriously-just-as-hardcore-as-the-stuff-in-the-Kivus Ituri conflict.

As we've reported previously, "irregularities" in the prosecution's handling of potentially exculpatory evidence nearly derailed the trial. This would have been way embarrassing for the ICC, whose credibility kind of hangs on being able to, you know, actually try people under international criminal law.

But check it out, after 6 years, they're totally doing it. Take that, ghost of Jesse Helms!


*Picture of Lubanga in court from the New York Times.

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Breaking News!!! Lubanga Trial to Go Forward

At this morning's status conference, Trial Chamber I of the ICC announced that the trial of Congolese warlord Thomas Lubanga will reopen on January 26, 2009.

As we previously reported, the eagerly awaited first ever ICC trial almost broke down over findings that the prosecution's use of a blanket confidentiality agreement during evidence-gathering precluded a fair trial. Apparently, the conflict has now been resolved by an agreement to allow the judges to review the confidential material. (I thought this solution had already been discarded for excessive goofiness, but I guess they've modified it into something workable?)

Looks like the Appeals Chamber knew what it was doing last month when it announced that yeah, the prosecutorial withholding of evidence justified suspending the trial, but maybe they'd better just keep Lubanga around in case someone came up with a clever solution.

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October War Crimes Roundup

So, with all the Congo-related excitement, we missed reporting on a bunch of war crimes trial news last month. Check it out:

1. Sudanese President Omar Hassan al-Bashir, target of an indictment requested by ICC Prosecutor Luis Moreno-Ocampo, announced that allegations of mass rape by Sudanese government-aligned forces in Darfur are false. What makes him so sure, you ask? Well, apparently, "The Darfurian society does not have rape. It's not in their tradition." Big relief, huh?
2. Meanwhile, Khartoum claims that it will prosecute government-allied Janjaweed leader Ali Kushayb, who has been charged with crimes against humanity by the ICC. So far, the international community seems profoundly unmoved by the Sudanese government's claims that this is absolutely, totally, 100% not about blocking the ICC's complementary jurisdiction with a domestic show trial.
3. Down the street (from me, not from Khartoum) at the ICTY, Pre-Trial Chamber judge Iain Bonomy got a bit cranky about the slow pace of Radovan Karadžić's trial. When Karadžić complained that things were moving too fast for him to mount an effective defense, Judge Bonomy pointed out that this was his own damn fault for insisting on representing himself. The prosecution then narrowly escaped a spanking when it was inexplicably unable to tell the Judge how many pages of evidence still needed to be given to Karadžić in translation. Hearings will reconvene on January 20; Karadžić is testifying today at former ally Momčilo Krajišnik's trial.
4. The ICC Appeals Chamber affirmed the suspension of Congolese warlord Thomas Lubanga's trial but disagreed with the trial chamber's holding that he should be released back into the wild. So he'll get to hang out at the Scheveningen penitentiary a while longer, and maybe fit in a few games of foosball with Karadzic. (Probably not though, given the strict "No Cross-Pollination of War Crimes Tribunals" rules keeping the ICTY and ICC prisoners separate.)
5. Lawyers for Guantanamo prisoner Omar Khadr (of "Hells yeah, the U.S. will torture and prosecute a child soldier" and "Canada, for the love of god, just ask to have him repatriated already" fame) brought a habeas petition challenging the military commission's authority to try juveniles and requesting to have him moved to a rehabilitation facilty. Khadr, who was 15 years old when he was captured in 2002, is the only detainee from a NATO country left at Guantanamo. The Canadian Supreme Court has held that the Canadian government violated its obligations under international law by providing assistance to the U.S. government's efforts to build a case against Khadr. The trial has now been delayed until January 26, 2009, after the inauguration of Barack Obama (hooray!!!), who has vowed to close the Guantanamo camp.

Consider yourselves updated.

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How to Become an Expert on the Congo in Just Five Minutes a Day, Cont'd Some More

Yesterday's story left off at the official end to the Second Congo War. A new transitional government had been set up, the UN peacekeeping force was already facing accusations of incompetence, and northeastern Congo was still crawling with armed militias. Let's see how things progressed from there:

• The transitional government made up of the former government, the political opposition, civil society members, three RCDs (seriously), the MLC, and the Mai-Mai takes office in July 2003. The former government, the opposition, RCD-Goma, and the MLC all get vice-presidents. You can probably guess how well that's going to work out...
• Everybody demobilizes verrrry slowly throughout the latter of half of 2003, various media outlets start counting some seriously unhatched chickens.
  
• In early 2004, the situation in the Kivus starts to get ugly(er) as shockingly still-mobilized RCD-Goma elements clash with government forces.
  
• Under "dissident General" / former-RCD-flunkie-on-the-take Laurent Nkunda's direction, the rebels take control of Bukavu, capital of South Kivu on June 2, 2004, meeting no resistance from notoriously unimpressive Uruguayan UN peacekeepers. Nkunda insists that he is acting to protect the Banyamulenge from being genocided by government troops. MONUC says "nuh-uh." (Nkunda was later accused of pretty much all the war crimes in connection with his forces' actions in Bukavu.)
• Tens of thousands of people flee into North Kivu before UN negotiations secure the withdrawal of Nkunda's forces from Bukavu.
• Meanwhile, RCD-Goma leader and transitional government vice-president Azarias Ruberwa announces that things aren't really working out, so his faction's going to go ahead and pull out of the transitional government. Also, a coup attempt fails.
  
• Two months later, following the massacre of 160 Congolese Tutsis in a Burundian refugee camp, Nkunda suggests he might need to go "protect" Bukavu some more. This prompts another mass flight; the number of displaced persons is now possibly as high as 150,000.
  
• MONUC sends in 5,900 more peacekeeping troops to watch as 1,000 people / day die as the rebels and the army take pot shots at each other in the Kivus.
• Rwandan troops figure no one will notice them amidst all the other armed groups operating in the eastern Congo, sneak across border to chase after remaining Hutu militias.
  
• The IRC releases report in December 2004 pointing out that "seriously guys, everyone in the Congo is totally dying." World community nods solemnly, goes back to searching for internet porn.
• First MONUC sex scandal breaks in the media, everyone is majorly grossed out.
  
• In February 2005, 9 UN peacekeepers are killed in Ituri. This packs more of a punch than the 4.5 million dead Congolese - several militia leaders are arrested, including Thomas Lubanga, head of the Union des patriotes Congolais (UPC).
  
• On March 30, 2005, main Hutu rebel group FDLR agrees to pack it in, head back to Rwanda to participate in the political process. They turn out not to mean it, though.
• MONUC announces that, the disarmament process's deadline for chilling-the-fuck-out having passed, it will now be forcibly disarming the remaining combatants in Ituri. As it happens, the militias can arm themseves faster than the UN can disarm them, though.
  
• Southern province of Katanga figures no one is looking, attempts to secede.
  
• In May 2005, the National Assembly adopts a new Constitution, plans for first elections in four decades. And there was much rejoicing...
• Human Rights Watch releases report noting that all this bad stuff probably wouldn't be happening if it weren't for the Congo's vast mineral wealth, and specifically the gold mines of northeastern Congo. Good point. (AngloGold Ashanti's response to HRW's allegations regarding their direct role in fueling the Ituri conflict seems to have disappeared from their website in the intervening three years. Odd.)
  
• Members of Uganda rebel group the Lord's Resistance Army cross into the Congo in late 2005. Uganda threatens to come after them, UN says "sorry, we've don't have room for any more armed forces right now, please check back later."
• Congolese take a break from being alternately raped, starved, and massacred to vote at a referendum on the new Constitution in December 2005. It is formally adopted in February 2006, and they get a new flag, too!
• ICC issues an arrest warrant for Thomas Lubanga on charges that the UPC (like virtually everybody else in the Congo) used child soldiers during the Ituri conflict. In March 2006 the Congolese figures "we're sick of feeding this guy," hands him over. ICC gets physical custody of a suspect for the first time ever!
  
• In July the first multi-party elections since independence are held. (Because it's their first time, it takes till November to get an actual result.) Vice-president / former MLC leader Jean-Pierre Bemba challenges Joseph Kabila for leadership of the country. Kabila responds with a masterful "no one's going to elect a pygmy-eater, you pygmy-eater" campaign. Bemba attempts to refute the charges that his troops committed acts of cannibalism in 2002 by suggesting that someone count the pygmies, but no one feels like doing this, so Kabila carries the day.

So, that takes us up to late 2006. Here's hoping I can cover the last two years (War crimes prosecutions! A rape "epidemic"! Renewed hostilities with Rwanda! And so much more!) in just one more post, because Congo Week ends on Saturday and we can all get back to ignoring it.

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Le Life, Sometimes it is Too Le Much

I'm exhausted today (long weekends are so tiring, dahling), but I thought you'd want to know that, despite a false alarm over the weekend, Lubanga's not going anywhere.

Last Wednesday, ICC Chief Prosecutor Luis Moreno Ocampo announced that the obstacles to the trial had been lifted. The U.N., which had provided the prosecution with evidence under a confidentiality agreement, has now sent a letter authorizing the release of that evidence to the court and Lubanga's defense team.

I'm sure it was a complete coincidence that the announcement came just in time for the ICC's 10th anniversary celebration. We wouldn't have wanted Lubanga to be let out for that -he'd probably have forcibly recruited Royal Princess Maxima of (The ICC and) The Netherlands.

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Lubanga Trial Update: Not So Much with the Progress

The U.N. has offered a novel compromise to solve the problems with inadmissable evidence in the Lubanga trial that I previously blogged about here.

Namely, "Hey, judges! How about you come to our office, where we will wave the secret evidence in front of you real fast, and then you decide if you think it is evidence or not. If you think it is evidence, then we will write a little story about it, and show that story to the defense."

Amazingly, I'm barely kidding.

Unsurprisingly, the judges don't seem to be biting. Judge Adrian Fulford has responded that the Court is "unlikely to approve a system that depends on its ability to memorize large quantities of information which it is unable to retain and study." Lubanga's probably calling the caterers for his welcome-home party right now.

(Should you require a more detailed analysis, the ever-servicey Professor Heller has one at Opinio Juris here.)

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ICC Update

I know you were all waiting with bated breath to find out the result of the ICC's hearing today in the Lubanga case, previously blogged about here.

Sadly, you'll just have to bate your breath a while longer: Judge Adrian Fulford said today that he will make a decision regarding Lubanga's release "hopefully during the course of next week."

The lawyer representing the victims, Carine Bapita Buyangandu, warned that if Lubanga is released, "[t]here will be a fire ball in Ituri and we will all be held accountable throughout history for this." I think that Buyangandu might be a little over-optimistic. After all, it's not like history noticed the fireball in Ituri the last time around.

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Better Know a Congolese War Criminal III: Thomas Lubanga

So, after Amanda's post on the possible release of Thomas Lubanga following prosecutorial abuses at the ICC, some of you may be wondering "who's this Lubanga guy anyway?" Others (you know who you are) may be thinking "Lubanga? Ha! He's no Bemba."

In any event, Thomas Lubanga Dyilo was the brains behind the Union des Patriotes Congelais (UPC). He formed the UPC in 2000, right around the time the official Keeper of the Scrolls of Congolese Rebel Group Names stopped allowing people to name their militias RCD-xx. (Seriously, it got really confusing with all the RCD-Goma, RCD-Congo, RCD-O, and RCD-K/Wambas running around.)

Lubanga had done a sufficiently good (read: bloodthirsty) job as a commander in the Uganda-backed RCD-ML that he was able to secure Kampala's support when he decided he wanted to have more of a management role in the mass-atrocity-committing business. He assembled a militia drawn primarily from the Hema ethnic group and launched them headlong into the middle of Ituri conflict.

He made a name for himself in 2002 when his forces effected the particularly rape-y/torture-y capture of the town of Bunia and he announced that the local Hema had best tithe him either "money, a cow, or a child" if they expected to live to be raped/tortured another day. (Try not to let your head explode over the fact that Lubanga and the UPC were on the Hema's side.)

Anyway, Lubanga was arrested by the Congolese authorities in March 2005 after the murder of nine UN peacekeepers by UPC and FNI forces. The he hung out in a sort of legal limbo (which probably looked a lot like a prison cell) for almost a year until the ICC issued an arrest warrant on charges of forced conscription of child soldiers. No mention was made of the cows.

On March 17, 2006, Lubanga gained the distinction of being the first person actually arrested on an ICC warrant. His trial, the ICC's first, was scheduled to begin today, but as we've already discussed, that's all gone to hell. Stay tuned for coverage of tomorrow's hearing to consider his release...

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Let's Hear it For (ICC) Failure!

So, remember that time when Kate wrote about how Charles Taylor's war crimes trial had been stalled as he demanded proper funding for his defense, and she thought that was a little bit nuts because he has a $100,000 a month defense budget? And then that other time when I responded and said how I am all about properly funding defense work, and Charles Taylor should totes call me if he wants a lawyer because I think that being one of the Worst Humans Alive Today is no reason not to have a stellar legal defense?

Yeah, I remember too. That was awesome. (And I didn't even know about the poodle then!)

So, anyway, yesterday or the day before, during my daily read of the whole internet, I came across this article on the BBC's website, all about how Thomas Lubanga (an also-ran candidate for Worst Human Alive Today) may be released by the International Criminal Court before his trial even starts. Apparently, the prosecution has over 200 pieces of possibly-exculpatory evidence that it is refusing to hand over, and the ICC has responded by postponing his trial. According to the article, the court's ruling stated that " "The trial process has been ruptured to such a degree that it is now impossible to piece together the constituent elements of a fair trial."

The BBC, with their annoying focus on "news," of course went straight to the blah blah blah about how we shouldn't let Lubanga roam around free due to his nasty habit of abducting children and forcing them to engage in brutal ethnic warfare. (Yes, I know, it's totally unbelievable that they would skip straight to the human suffering and leave out all of the juicy law bits. And they call themselves journalists...)

Luckily, into the breach stepped Kevin Jon Heller over at Opinio Juris with this excellent analysis. Apparently, the prosecution has attempted to shield a large body of evidence from Lubanga's defense team and the court itself by relying on Article 54(3)(e) of the Rome Statute, allows the Prosecutor to enter into confidentiality agreements that prohibit him from disclosing "documents or information that the Prosecutor obtains on the condition of confidentiality and solely for the purpose of generating new evidence, unless the provider of the information consents."

The prosecutor apparently entered into dozens of these agreements with witnesses, leading to a great deal of evidence which it is not permitted to show to anyone without the provider's permission. Unfortunately, this creates a conflict with Article 67(2) of the Rome Statute, which requires the Prosecutor to disclose to the defense all evidence that could show innocence, mitigate guilt, or affect the credibility of the prosecution evidence.

In other words, the ICC Prosecutor gathered evidence in such a way that it is now impossible for it to comply with the rules for actual prosecution. (According to the opinion, this included giving blanket confidentiality agreements to sources that all of the information they provided would be protected, and then choosing trial evidence from among the confidential documents.) The prosecution can't produce the evidence without violating the 54(3)(e) agreements, but the trial can't go forward until the defense has access to evidence which could mitigate the guilt of the accused. So now Lubanga may go free. Instead of being the first successful ICC prosecution, it looks like his case is about to be its first major failure.

But you know what? I think that's kind of fantastic. It will show that the ICC is committed to doing justice, not just to achieving convictions -even though that is the only type of "success" that will be accepted by most observers. It is obviously unfortunate that someone like Lubanga could be set free to wreak more havoc. I do not dispute that he is factually guilty, all of the available information suggests that he has caused incredible pain and suffering. But that doesn't change the fact that the court must ensure that any trial it conducts is fairly conducted under the court's own rules. If the prosecution can't properly collect evidence, then it shouldn't win its cases.

And as I said last January, if we want international courts to be legally just, then we have to be willing to accept that a prosecution will sometimes fall apart if something goes awry with the evidence, even if the defendant is factually guilty. (That is, even if he definitely committed the crime for which he is being tried.) If we allow trials to go ahead despite those sorts of irregularities, then they're just kangaroo courts in which the powerful triumph over the weak. And while it may be amusing to see a formerly feared warlord suddenly cast in the role of "the weak," that's not legal justice. It's just revenge.

And one of the best things about the international criminal system is that it gives us the opportunity to have punishment instead of revenge. We can express our global-community outrage and condemnation, deter future crimes, and exact retribution legitimately. And that's pretty awesome.

So: three cheers for Judges Adrian Fulford, Elizabeth Odio Benito, and Rene Blattman. Your willingness to make an unpopular decision shows a dedication to the values of the court on which you sit rather than the court of popular opinion. Huzzah!

*Photo of Lubanga via BBC News

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