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The Court’s historic movement from theory to practice came with a round of investigations targeting specific conflicts and identifying specific suspects, centered mainly in Africa. The powers and constraints of the ICC Prosecutor were closely monitored by judges as the Court issued its first arrest warrants. The first three suspects to arrive in The Hague were Congolese men from the peripheral Ituri district; and a fourth Congolese suspect was soon apprehended for alleged crimes in the Central African Republic. Lasting more than a decade, each trial faced a series of crises and reversals, indicating fault-lines in the original design. Mixed evidence made it surprisingly difficult for the Court to establish crimes involving child soldiers, as well as sex and gender crimes; and even more difficult to attribute criminal responsibility to the individuals accused. The interests of victims had to be balanced with the legal principle of fair trials. From an initial overview, the reader understands the many difficulties – both practical and institutional – facing the new Court and its ambitious mission.
This is the first in-depth study of the first three ICC trials: an engaging, accessible text meant for specialists and students, for legal advocates and a wide range of professionals concerned with diverse cultures, human rights, and restorative justice. Now with an updated postscript for the paperback edition, it offers a balanced view on persistent tensions and controversies. Separate chapters analyze the working realities of central African armed conflicts, finding reasons for their surprising resistance to ICC legal formulas. The book dissects the Court's structural dynamics, which were designed to steer an elusive middle course between high moral ideals and hard political realities. Detailed chapters provide vivid accounts of courtroom encounters with four Congolese suspects. The mixed record of convictions, acquittals, dissents, and appeals, resulting from these trials, provides a map of distinct fault-lines within the ICC legal code, and suggests a rocky path ahead for the Court's next ventures.
The violence in Ituri also became the particular focus for international NGOs, which arrived on the scene largely after the main events had occurred. In an environment filled with intrigue and motivational obscurity, international groups sought to document serious atrocities, providing a direct source for master narratives taken up by the ICC Prosecutor. NGO reports showed their own evolution over time. At first, in covering violence across the whole eastern Congo, they laid the causes of disorder at the feet of national and regional players, with local groups merely caught in the crossfire. But the narrative changed in July 2003 when Human Rights Watch shifted to a criminological idiom. Using language from the Rome Statute, humanitarian agencies characterized the events in Ituri as crimes for which local actors should be held responsible under traditional legal paradigms. The moral battle against impunity for such crimes became a rallying cry that surrounded Hague legal proceedings with a sense of higher mission. The skeptical attack on victors’ justice was replaced with a new commitment to justice for victims, for which the ICC was the proper venue.
In July 2002, after hasty renovations to an old Dutch telecom building on the margins of The Hague, the International Criminal Court (ICC) opened its doors to the world. Created by treaty in 1998, the ICC was a bold response to the hopes of many nations for a more compelling way to enforce the fundamental rights of humanity. A permanent international court would soon begin to prosecute suspects accused of mounting attacks on innocent populations – even if those accused were government officials, including heads of state. Amid investigations into more than a half-dozen global trouble spots, the ICC launched its first courtroom trials by charging a handful of men from the Democratic Republic of Congo. The following chapters tell the story of these pioneering trials, which dominated the ICC’s first decade of operation.
The trial of Jean-Pierre Bemba grew out of a separate fact situation in the Central African Republic (CAR). Bemba was a powerful politician on the Congolese national stage, and was also the leader of an armed rebel force, a part of which had been sent across the border in a vain effort to halt a coup against the CAR President. Bemba’s men were accused of widespread crimes against civilians, including sexual crimes against both women and men. The trial tested a theory of criminal responsibility intended for remote commanders who fail to prevent or punish crimes on the ground. Although Bemba was convicted on this basis and sentenced to eighteen years' imprisonment, two years later his convictions were overturned by a bold Appeals Chamber majority. At stake on appeal were fair trial concerns about the need for greater specificity in criminal charges, which led the divided appeals panel to debate the meaning of core legal principles. Looking back to earlier judicial controversies, reversals, dissents, and acquittals, the dialogue surrounding Bemba’s successful appeal identified key questions for future judges to ponder.
An initial glimpse into the ICC courtroom introduces the lead participants on the first day of the Court’s first trial. This chapter contrasts the modern courtroom in The Hague with culturally distant conflicts arising in the Congo, which tested the Court’s stamina for implementing international legal norms. The Court’s legal mission was formulated in the Rome Statute, a treaty accepted after 1998 by some 120 member states, building on earlier court models from Nuremberg, Yugoslavia, and Rwanda. Its moral scope contained broad ideals: promoting long-term peace and justice by prosecuting those deemed most responsible for atrocities that “shock the conscience of humanity.” Among the ICC’s innovations was a commitment to elevate victims of mass atrocities, enabling their active participation in trial proceedings. The Court’s overall design included a series of tensions and conflicts that would emerge during the years covered by the Congo trials. In addition to the cultural contrast between The Hague and the Congo, there were tensions between the strictly legal courtroom proceedings and the inevitable political entanglements facing an international court.
The three trials examined in this book became the first generation of ICC prosecutions, all focused on Congolese suspects. Those proceedings yielded constant surprises, uncharted delays, and daunting complexities. Across all phases of the Congo trials, the network of judges remained fairly constant, until the slow pattern of rotations began to take effect. Those first trials could not avoid speaking to each other – and past each other, as rising dissension coalesced into opposing judicial styles. A mixed record of two convictions and two acquittals underscored emerging splits. Fault-lines in the Rome Statute reached the surface in courtroom practice, culminating in the multiple opinions issued by the Bemba Appeals Chamber.
The trial of Thomas Lubanga took eight years from the time of Lubanga’s arrival in The Hague. The very first case tested all of the actors involved, as judges struggled to master the statutory gaps in the official rules. Although based on a single criminal charge of using child soldiers in armed conflict, the trial was imperiled by a series of crises, including doubts about the truthfulness of the nine child-soldier witnesses brought by the Prosecution. The role of shadowy “intermediaries” became a focus of concern. The Trial Chamber found itself managing broad flows of evidence, emanating from the Prosecution’s investigations, so that the Defense team had an opportunity to conduct a fair trial. On two occasions, the crises were great enough to threaten the viability of the case. Despite serious questions about the integrity of evidence before the Trial Chamber, Lubanga was convicted and sentenced to fourteen years' detention (of which eight had been served during the trial itself). A final flourish for the Trial Chamber was the creation of a victim-reparations regime, which took an additional seven years post-conviction.
Responding to the humanitarian call, the ICC found its mission in conducting trials, and needed to build an implementation structure to support its outreach functions. While victims seeking justice may bring their claims to The Hague, it is up to the Court to build an apparatus for managing investigations, negotiating with member states, protecting witnesses in the field – all of it contributing to the resolution of serious conflicts. The neutrality of legal procedure protects the courtroom from political influence, but politics are inescapable as the Court deals with its practical environment. The ICC’s structural challenges include managing constraints on its jurisdiction, which favor deferring trials to national systems. As a legal body, the ICC must also conform with fixed definitions of crimes and modes of responsibility, even when the circumstances (such as African conflicts) may stretch those definitions to the limits. The dynamic enforcement of ICC rules is left to the interactive system of judges, arrayed on three different levels with distinct functions, checking and balancing the decisions of each other in a manner consistent with broad principles of legality.
At any given moment, it could all be quite tedious. And looking back, more than twenty years after the Rome Treaty was signed, the overall tempo was glacial. Judges came and went. The Court’s second Prosecutor was just entering the twilight of her nine-year term. There were three completed trials, memorialized in judgments running many hundreds of pages. The trials lasted seven years or more, hearing hundreds of witnesses, pondering thousands of documents – all with long identification codes announced in ritual tones. Motions were filed seeking extensions to the page limits for so-called “briefs” submitted by the parties. (Upon deliberation, some of those motions were denied, some not.) Much of it took place with curtains lowered in the public gallery, beyond the scrutiny of observers.
The joint trial of Germain Katanga and Mathieu Ngudjolo fell apart soon after closing arguments. Faced with insufficient evidence for convicting the pair as joint “masterminds” of a single ethnic-motivated attack against civilians, the Trial Chamber acquitted Ngudjolo but undertook to reconfigure the trial with a new theory about Katanga’s mode of liability. The military structure posited by the Prosecutor (taken from NGO reports) came under careful scrutiny, as it appeared that neither Katanga nor Ngudjolo matched the profile of the mastermind commander. Acting in striking independence of the Prosecution, two of the three trial judges found Katanga guilty under an improvised theory of criminal responsibility, based in part on questions put to Katanga during his testimony by the Presiding Judge. Although Katanga’s conviction and twelve-year sentence were not appealed, there was a powerful dissent by the third trial judge, clarifying some central controversies of the case. More controversy surrounded a later appeal of the Ngudjolo acquittal, which was upheld by a split judicial panel.
Turning to the local dynamics of Ituri district, the following chapter describes how internal forces reacted in a combustible mix under outside pressures. Drawing on the field research of social scientists, it is possible to reconstruct local governance patterns and initiatives, expressed most distinctly in fragile commercial alliances and networked political structures. These systems of loose confederation and brittle leadership provide a stark contrast to the standard paradigms of armed conflict coming out of twentieth-century Europe, which stand behind the concepts of crime and responsibility found in the Rome Statute. Based on comparative analysis of similar structures in weak or collapsed states, the events in Ituri stem from weak actors unable to surmount the challenges of governing with limited resources and overbearing outside pressures. Ethnic conflict is more likely the result rather than the cause of civilian violence. Explanations for that violence do not require the presumption of criminal plans, or ethnic hatred, or reckless risk calculations by rational actors.
Leaving aside the narrow framing of the international courtroom, this chapter focuses on the Congolese district of Ituri, caught in the crossfire of larger national and international forces. The collapse of the sprawling Congo nation in the 1990s prompted outside intrusions from Rwanda and Uganda, spreading conflicts across the entire territory. Military stalemates stirred competing national rebel movements, with patronage relations to Congo’s eastern neighbors and to global trading networks. In the midst of country-wide conflict and regional politics, the ICC Prosecutor selected a single outlying district for his criminal investigation. While the trials would reduce complex events and causes to the actions taken by three men placed on trial, the wider matrix of forces continued to shape the overall conflicts. Under international pressure to rebuild the Congolese state, the main national factions bargained over power-sharing political transitions. The fate of local players in Ituri remained outside the national discourse, even as it drew attention from the UN and NGOs about increasing ethnic violence.