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Wednesday, March 14, 2012

First Judgment at the ICC: Some Random Thoughts on the Lubanga Verdict (part 1)

(see Part 2 and Part 3)

Today, the ICC issued its first judgment in the Lubanga trial. He was found guilty of the war crime of conscripting and enlisting children under the age of 15 and using them to participate in hostilities. There are a number of things to write about it, and I'll do so over the coming days, time allowing.

Before going into the substance of some of the issues considered, a few words on the conduct of the trial. There is no doubt that any ambition to have this trial as a sort of model trial, just as you have model houses that you can visit, evaporated long ago. This was meant to be a simple case.The Prosecutor decided to have a lengthy list of charges, a criticism often levelled at the prosecutiorial strategy at the ad hoc tribunals and essentially charged Lubanga with one crime relating to child soldiers. This should have been an easy case. However, as we all know, due to a combination of delays (prosecutorial misconduct, judicial activism on the requalification of charges, victim participation), the trial took way longer and went far less smoothly than expected.

This is the summary of the trial proceedings on the ICC website:

Over the course of 204 days of hearings, the Trial Chamber has delivered 275 written decisions and orders and 347 oral decisions. The Chamber heard 36 witnesses, including 3 experts, called by the Office of the Prosecutor, 24 witnesses called by the defence and 3 witnesses called by the legal representatives of the victims participating in the proceedings. The Chamber also called 4 experts. A total of 129 victims, represented by two teams of legal representatives and the Office of Public Counsel for Victims, were granted the right to participate in the trial. They have been authorised to present submissions and to examine witnesses on specific issues. The Prosecution submitted 368 items of evidence, the Defence 992, and the legal representatives of victims 13.
In comparison, in the Popovic et al. case at the ICTY, a case with 7 accused with counts including Genocide, Crimes against humanity and war crimes, 182 prosecution witnesses, around 130 defense witnesses several thousand exhibits, there were 425 trials days, a little more than twice the Lubanga trial.

The comparison need not stop here. The Popovic Judgment, again for 7 acussed and all the related evidence, is two volumes long and some 900 pages. The Lubanga Judgment, including the separate opinions is over 600 pages. For one accused, and essentially one count! One can only have nightmares at the thought of having to read the judgment in the Katanga and Chui case, with two accused and some 10 counts, or an hypothetical Bashir Judgment with its long list of charges... Something needs to be done about this judicial logorrhea. What is amazing is that I've heard some of the staff of these tribunals justify the length of judgments for reasons of pedagogy. Of course. It makes total sense that a layperson is more likely to read a 600 page judgment than a 200 page judgment...

And while we're on form rather than substance, I just came accross the first press release from the OTP following the judgment. It welcomed the first verdict of the Court, of course. It says nothing of the fact that the OTP was publicly chastised for its negligence and sloppiness in the gathering of evidence and use of intermediaries, of course (more on this in subsequent posts). But what it mostly does is celebrate the fact that Angelina Jolie attended the hearing! The first trial at the ICC, the first Judgment, the first conviction, the recognition of the criminal activity of Lubanga and his armed group for thousands of victims, the controversy about not charging sexual crimes, the upcoming sentencing proceedings... and the angle that the OTP chooses for this first press release is the presence of Angelina Jolie... a watershed moment indeed...

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