Frist ICC War Crimes Trial to Occur

>> Saturday, November 22, 2008

In light of all the domestic and other international problems that are going on right now the first international war crimes trial to be held by the International Criminal Court (ICC) has received almost no media attention here in the US. This is rather unfortunate as America is supposed to be a leader on human rights. Of course this reputation has taken a well deserved hit over the last eight years but in many ways the causes of that decline should raise awareness not decrease it. America has a rocky history with the court and we have decided not to sign on to it out of sovereignty concerns regarding possible modifications required to the constitution. As a result we must look on as bystanders at the courts first trial, that of Thomas Lubanga Dyilo.

Lubanga is charged with he recruitment of child soldiers into his Union des Patriotes Congolais (UPC) and its militia, the Forces Patriotiques pour la Libération du Congo. As his trial is the first for the ICC the court has been debugging itself dealing with procedural issues. Two of the most important of these issues are the participation of victims and the procedures for dealing with confidential and secret documents provided as evidence.

The participation of victims has not been previously allowed in the three previous war crimes tribunals, International Criminal Tribunals for Rwanda and for the former Yougoslavia, the Special Court for Sierra Leone. Victim participation is an important step for the trials. One of the most important factors in the success of the trials will be the backing of the victimized peoples. these people need to feel as though the trials are just and done with them and for them. Otherwise they lack a legitimacy and an important force in moving forward in international human rights and law. Victims testifying should be similar in nature to any trial where the victim takes the stand and there is no compelling reason, imo, to forbid it as long as their victim hood is established. Victims testifying can only help the population to feel like it is their justice and not something done simply to assuage foreigners guilt or sensibilities.

The second procedural issue deals with confidential evidence.

Shortly before Lubanga’s trial was scheduled to begin in 2008, the Trial Chamber of the ICC found fault with the prosecutor’s proposed use of evidence collected by the UN and NGOs. The evidence was in some 200 documents that could contain exculpatory material that might help the defense prove Lubanga’s innocence. These were documents the prosecutor had obtained on a confidential basis. The court ruled that the prosecutor should share the evidence with the Trial Chamber and the defense. Since the prosecutor did not immediately have permission to share the documents, the Trial Chamber canceled the trial and halted the proceedings.

Tuesday the stay was lifted after the prosecution agreed to allow the defense access to the evidence. The problem as a little more complicated than simple access to the documents Article 67 of the Rome Statute requires the prosecutor to allow the defense access to evidence in his possession that “tends to show the innocence of the accused, or to mitigate the guilt of the accused, or which may affect the credibility of prosecution evidence.” ICC judges found that Moreno-Ocampo had incorrectly relied on a provision in Article 54 of the Statute, under which he may agree not to disclose confidential information obtained “solely for the purpose of generating new evidence.”

The importance of proper and complete discovery cannot be overstated. One of the biggest complaints against the military commissions set up to try the detainees at Guantano Bay is the lack of complete disclosure of the evidence to the defense. Defense lawyers and prosecutors alike have walked away from the trials because of the governments refusal to grant the defense access to exculpatory evidence. Legitimate courts reveal the evidence that may support the defendants innocence. with out the procedure the ICC loses legitimacy completely in the eyes of any nation reluctant to participate. From there it is a short step to the failure of the institution.

The trial of Lubanga will be closely watched in many parts of the world and it should be no different in the US. The trial holds important consequences for the future of international human rights and justice.


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