While one former Congolese warlord has been ordered released by the
International Criminal Court at The Hague, proceedings are just
beginning against another one. One analyst says the ICC needs to be
more careful about the timing of such cases, especially when conflicts
are on-going. From our West and Central Africa bureau in Dakar, Brent
Latham has more.
An African analyst says that the International
Criminal Court, or ICC, needs to be more careful in the future about
intervening in on-going conflicts, after the ICC ordered the release of
former 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.
Issaka
Souare, Democratic Republic of Congo analyst at South Africa-based
Institute for Security Studies, says that the possible release of
Lubanga casts doubt on the ability of the court to handle cases against
suspected war criminals from areas still in conflict.
"Now
that the case is going to be thrown out of court because of the same
issues it casts a doubt or begs many questions with regard to the
procedure and whether the ICC rushed into the case, or whether the
evidence actually was there but there was something in the process that
makes 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.
The
prosecution's case is based on evidence which was not shared with the
defense, for fear of reprisals against those who had provided it. The
U.N. had collected the information from witnesses in areas in the
eastern part of DRC which are still engaged in conflict.
The
ICC judges ruled on Wednesday that because the evidence could not be
shared with Lubanga's defense, a fair trial would not be possible.
Souare
says the ICC rushed into the case while the conflict in the DRC was
still on-going. He suggested that the ICC may now have to rethink its
ability to deal with cases which involve unresolved conflicts.
"There
was some criticism about the court's decision to deal with armed
conflict situations that are on-going, which is unprecedented," he
said. "In the past, all the processes have been tried on post-conflict
situations or where one side had decisively won the war."
Souare added that ICC intervention in on-going conflicts may also affect future cases.
He
cited the case of the Lord's Resistance Army in Northern Uganda, the
leaders of which have agreed to sign a comprehensive peace agreement if
the ICC agrees to cancel outstanding arrest warrants against them.
Souare
also mentioned the case of former DRC vice president, rebel leader, and
failed presidential candidate Jean-Pierre Bemba, who has been accused
of rape and torture. Bemba denies the charges.
"Just
yesterday the lawyer of Bemba said that they would actually ask the UN
Security Council to intervene, to ask the ICC to suspend the
proceedings because Bemba, according to his lawyer, was very much
instrumental in bringing about peace in the DRC," said Souare. "One
could predict a similar thing, not to do with the evidence itself, but
with the possible effect of his arrest on the peace process in the
country."
Souare worries that the procedural violations will
lead to impunity for war criminals, and deprive their victims of
justice. He says the Lubanga case could help the ICC rethink its
overall approach.
"It would probably strengthen the argument
of skeptics about the effectiveness of the approach in the first place,
or those who are calling for more prudence in the activities of the
court," said Souare.
The ICC was established by statute in 1998
and began functioning at The Hague in 2002. With more than 100 member
states, it is the first ever permanent, treaty based, international
criminal court established to promote the rule of law and ensure that
the gravest international crimes do not go unpunished.
