In short, the ICC offers scope for victims to directly give evidence to the judges in their own right, and also to present their views and concerns to the judges (most often through their legal representatives) during the trial.   These three victims are the first ones to be able to take advantage of this opportunity to tell their experiences directly to the judges. That they were able to do so was triggered by a request made on their behalf by their legal representative, Joseph Keta, in April 2009.

In a case in which Mr. Lubanga is charged with the war crimes of conscripting, enlisting and using child soldiers to participate actively in hostilities, Mr. Keta had asked the court if  three of the victims he represents could either present evidence or provide their views and concerns to the court on four issues:

• their individual histories, within the context of the charges faced by the accused;
• the harm they individually experienced;
• the approach to be taken to reparations, focusing particularly on any relevant facts not canvassed thus far during the trial; and
• the issue of child recruitment, including its extent in their home region in the DRC.

In deciding this question in June 2009, Trial Chamber I, made up of three judges, first looked to the Rome Statute – the treaty which governs the law and operation of the ICC.  Article 68(3) says:

Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in
accordance with the Rules of Procedure and Evidence.

This article, the judges said, creates “the unequivocal statutory right for victims to present their views and concerns in person when their personal interests are affected.” However, such presentations must not must not be inconsistent with “the rights of the accused and a fair and impartial trial.”  Considerations impacting fairness had to be taken into account, including trial management concerns such as the number of victims wanting to share their views and concerns with the court. A large number could impact the speediness of the trial, the judges feared, and their common views might be best expressed through a legal representative.

The judges also considered whether victims had a right to give evidence as well as present their views and concerns.  As in their previous decisions, they decided yes — in part because the Court had a general right to ask for the presentation of all evidence needed to find the truth. This also meant, the judges said, that victim participants could tender and examine evidence, as long as certain safeguards were in place.  They also recalled an earlier decision of theirs that victims could also offer evidence on reparations during the trial if the court decided it was appropriate.

In coming to these conclusions, the judges highlighted an important distinction: victims “expressing their views and concerns” is not the same as victims “giving evidence”.  The expression of “views and concerns” – either by the victim in person or through legal representatives –  does not form part of the evidence of the trial, but instead is meant to help the judges in their approach to evidence in the case.   For victims to give evidence in the trial, they must take the oath from the witness box before testifying.

In the case of these three victims that are testifying now, the judges decided that each individual could give evidence in the case because they had showed (1) that their personal interests were affected and (2) that the evidence they wanted to give was directly related to the charges against Mr. Lubanga.  In rejecting prosecution arguments that the two former child soldiers would be duplicating previous evidence, the judges noted that “the account of each former child soldier is unique” and that the victims planned to give evidence about child soldier recruitment in a region that had not been discussed so far during the trial. Meanwhile, the former school teacher as an indirect victim of the charges in the case could still testify on a region which had not been covered in testimony.

The judges also recognized that the victims may also want to share their views and concerns in person on issues such as “the harm they individually experienced and the approach to be taken to reparations” after they give evidence. The judges said they expected the legal representatives to give “careful and detailed advice” to the victims on the best way to present their views and concerns, and the judges would listen to arguments about presenting victim views and concerns after the victims had given their evidence.

The victims testifying this week have all had face and voice distortion so their identities were not revealed to the public.  The former child soldier testified in the presence of a psychologist, and broke down at times during his testimony.  After the school teacher finished his testimony, Judge Fulford thanked him for his assistance to court and then told him his legal representative, Joseph Keta, would advise him on the ways in which he would continue to play a part in the trial. We will see the final victim, another former child soldier, testify next week.  Then the defense case will start in earnest.

What we are seeing this week, however, is historic — the first time that victims can tell their own stories in person to the court.   What we don’t know is how the victims experienced the process themselves.   Hopefully this opportunity will provide one extra way for the legal process to be more meaningful to those who suffered most, and directly, from the crimes being prosecuted in the ICC.

Mr. Lubanga has pleaded not guilty to war crimes charges of “Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.” Mr. Lubanga is also expected to appear in court today.

The person taking the stand, however, will be Radhika Coomaraswamy, the UN special representative on children and armed conflict, who appears today at the Trial judges’ request as an expert witness. She is expected to expand on her March 2008 submission to the Trial Chamber in which she argues for an understanding of the crimes of enlisting, conscripting and using child soldiers which provides the greatest possible coverage and protection for children, and which recognizes the particular plight and invisibility of girl soldiers when it comes to punishing the crime.

As background, here is an overview of her 10-page brief (which is available in full here:  http://www.un.org/children/conflict/_documents/AmicuscuriaeICCLubanga.pdf):

Ms. Coomaraswamy’s brief covers two questions:

• 1. the definition of conscripting or enlisting children, and how any distinction between the two might be approached
  2. with a specific focus on girl children, the interpretation of the term “using them to participate actively in hostilities”.

In turning to the definition question, Ms. Coomaraswamy notes the written commentary to the crimes which emerged after the Rome Conference where the ICC’s Statute was finalized. Both “conscription” and “enlistment” should be defined ordinarily, meaning:

“Conscription refers to the compulsory entry into the armed forces. Enlistment….refers to the generally voluntary act of joining armed forces by enrolment, typically on the ‘list’ of a military body or by engagement indicating membership and incorporation in the forces.”

Yet Ms. Coomaraswamy encourages the Trial Chamber to take a different approach, and follow the lead of another internationalized criminal court – the Special Court for Sierra Leone (SCSL), which is currently trying former Liberian President, Charles Taylor – in its formulation of the crimes.

The SCSL Trial Chamber in the AFRC case argued for “conscription” to include coercive acts, such as “abductions and forced recruitment by an armed group against children” for the purpose of using them to participate actively in hostilities.  Enlistment, meanwhile, entailed “accepting and enrolling individuals when they volunteer to join an armed force.”

The crucial difference between the two is that the SCSL definition, Ms Coomaraswamy argues, better takes into account contemporary forms of warfare, where armed factions may not be acting on behalf of a State when they conscript children – and also recognizes that children can be “enlisted” through more “informal means” which may not involve an “actual list.”

Regardless of which interpretation of the crimes is taken, a child’s consent is not a valid defense to any of the child soldier crimes.  All “voluntary” acts are rendered legally irrelevant if the child is younger that age 15 years. Neither is there a defense which rests on a “best interests of the child” argument.  “Recruitment is per se against the best interest of the child,” Ms. Coomaraswamy states.

She also warns the court that it is sometimes hard to tell the difference between a child who is conscripted and one who enlists. “The recruitment and enlistment of children in the DRC is not always based on abduction and the brute use of force.  It also takes place in the context of poverty, ethnic rivalry and ideological motivation.” For many children, she argues, even the most “voluntary” of acts are taken “in a desperate attempt to survive by children” who often have limited options – including the loss of family or community protection during war.

“The line between voluntary and forced recruitment is therefore not only legally irrelevant but practically superficial in the context of children in armed conflict,” Ms. Coomaraswamy argues.

She asks the court to consider the difficulty in parsing the two types of crimes – conscription and enlistment – and when it determines sentences proportionate to these crimes.

In short, she appears to argue that the two are of equal gravity. She notes the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (which the DRC ratified in 2004) which does not make a distinction between the two kinds of recruitment: “Armed groups….should not, under any circumstances, recruit….persons under the age of 18 years.”

When turning to the interpretation of “using them to participate actively in hostilities,” Ms. Coomaraswamy encourages the Trial Chamber to take a different view than that of their colleagues in the Pre-Trial Chamber in the Lubanga case.

The Pre-Trial Chamber, she said, had tried to draw a “bright line” between those children undertaking such tasks (active military combat, spying, scouts, sabotage, acting as decoys or bodyguards) that would allow them to be seen as being used to participate actively in hostilities — and those whose tasks would exclude them from falling into this category because they were “manifestly without connection to the hostilities.”   Falling into the latter category were tasks such as “food delivery and domestic help in an officer’s married accommodation.”

Any attempt to draw this “bright line,” Ms Coomaraswamy said, was “ill-conceived” and “threatens to exclude a great number of child soldiers – particularly girl soldiers – from coverage under the using crime.”

Instead, the relevant question for the Trial Chamber to ask itself was this:  did the child’s participation serve an essential support function to the armed group during conflict?  Again, she refers to the SCSL’s jurisprudence in the AFRC Trial Chamber’s judgment of June 2007: “Using children to participate actively in the hostilities encompasses putting their lives directly at risk in combat….[a]ny labour or support that gives effect to, or helps maintain, operations in a conflict constitutes active participation.” Ms. Coomaraswamy further gives examples of tasks that would fall under the “essential support function” category – including: “cooks, porters, nurses, spies, messengers, administrators, translators, radio operators, medical assistants, public information workers, youth camp leaders, and girls or boys who are used for sexual purposes.”

Indeed, she argues strongly for the Trial Chamber to “deliberately include any sexual acts perpetrated, in particular against girls, within its understanding of the “using” crime.”  During war, she says, “the use of girl children in particular includes sexual violence.”

In a plea which the ICC Prosecutor, Luis Moreno Ocampo, himself echoed in his opening statement in January 2009, Ms. Coomaraswamy concludes her submission with the need to make girls visible when it comes to counting – and re-integrating – child soldiers back into civilian life.

“Girl combatants are often invisible: Because they are also wives and domestic aides, they either slip away or are not brought forward for DDR programs.  Commanders prefer to ‘keep their women,’ who often father their children, and even if the girls are combatants, they are not released with the rest.  Their complicated status makes them particularly vulnerable. They are recruited as child soldiers and sex slaves but are invisible when it comes to the counting…..The actual experience of children in the DRC conflicts requires a more inclusive interpretation.”

Today’s testimony by Ms. Coomaraswamy, then, should see a powerful argument for the Trial Chamber to recognize both the contextual reality of children when they are recruited into armed forces, and the need to make visible the girl soldiers when considering these crimes.

Evidence heard included stories of the brutal treatment of boys and girls at the hands of the Union of Congolese Patriots (UPC) military groups. Various witnesses testified about continuous beating, rape, near starvation and other abuses suffered during their time with the UPC.

Although their testimony involved tragedy and suffering, the prosecution has a very difficult charge to prove. This is because Lubanga, president of the UPC and on trial for conscripting and using child soldiers in his militia, was generally removed from the front-lines. There is little evidence to suggest that he himself was involved in physically committing the acts described above.

Therefore, although it seems clear from the evidence that the use of children under the age of fifteen to fight in the DRC conflict was a wide-spread phenomenon, it is less clear whether Lubanga himself is responsible for those crimes.

As the trial moves into the presentation of the defendant’s case, probably in October, it is important to know exactly what the prosecutor set out to prove.

Nature of the conflict

Lubanga is charged for committing a war crime under Articles 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Rome Statute.

Because he is charged with a war crime, the prosecutor must first establish that there was a conflict in the DRC. Lubanga is charged for crimes that occur both during an international conflict as well as during a non-international conflict.

Evidence included testimony from historian Gerard Prunier, who told the court that it involved violence between Congolese ethnic groups, including the Lendu and Ngiti, and the Hema, which were represented by the UPC.

“Everyone was killing everyone,” Prunier told the court.

Prunier also explained that ethnic tensions contributed to the participation of Ugandan forces in the DRC conflict. Another witness testified about Rwanda and Uganda providing arms to the UPC.

Enlistment of child soldiers

The prosecutor must also prove that UPC soldiers conscripted or enlisted children under the age of 15 into armed forces or armed groups or used children under the age of 15 to actively participate in hostilities.

The prosecution must also prove that the perpetrator knew or should have known that such persons were under 15.

Finally, the prosecution must prove that the conduct took place in the context of, and was associated with, armed conflict, and that the perpetrator was aware of factual circumstances that established the existence of an armed conflict.

It is important to note that the prosecution does not have to show that the person who conscripted, enlisted or used the child specifically intended to do so. Nor does the prosecution have to show that this person knew the child was under 15. This significantly lowers the burden of what the prosecution has to prove, which is simply that the person should have known that the child was under 15.

However, proving the age of child soldiers has been challenging for the prosecution. Experts and witnesses have acknowledged that it is difficult to ascertain the age of the young soldiers.

One witness, a high ranking officer in the UPC, admitted that “it’s very difficult” to tell their ages, saying, “it could be they haven’t been well fed.”  Other witnesses also noted that malnourishment could make soldiers appear younger than they actually were.

A UN expert in child protection, Christine Peduto, also told the court that there was no absolute way to verify the age of children in Ituri, because so few people have identity cards or birth certificates. She verified the ages of children by questioning the child and based on circumstantial evidence, including their behavior, and to a lesser extent their appearance.

This type of evidence throws doubt onto testimony about observations of alleged child soldiers or bodyguards based solely on the physical appearance of the person.

However, two different medical experts testified that based on x-ray analysis, they could estimate the age of some former soldiers as well under 15. These experts, however, admitted that the data may be distorted when studying African populations as malnourishment, disease and levels of physical exercise could distort results.

Importantly, Lubanga cannot claim that he is innocent because the children or their families consented to the child becoming a soldier. Merely accepting children into the UPC can be enough to convict for this crime, even when those children were made available by parents or joined voluntarily.

This means that the testimony heard at trial about families giving their children to the UPC cause, or testimony about children joining the UPC of their own volition, will not necessarily harm the prosecution’s case.

For example, one former child soldier told the court how he had joined the rebels after returning from school and finding his home locked and abandoned.  Arriving at the UPC camp, he told the commander he was 10-years-old. The commander laughed, and took the child to be trained and armed at a UPC training camp, he told the judges. This type of evidence will help the prosecution prove the commission of the crime.

Because Lubanga is charged with using child soldiers as a war crime, the prosecution must prove that the use of child soldiers was closely related to the hostilities in the Ituri region between July 2002 and June 2003. Although the children must have been used to directly participate in the conflict, is it not necessary to prove that the children were used in combat situations.

The prosecution can prove that children participated in hostilities by showing that they were used for guarding military headquarters or as bodyguards. Indeed, the prosecution has led considerable evidence on the use of child soldiers in the UPC as guards and bodyguards. Much of this testimony came from the children themselves.

There also is ample evidence of children being used directly in the hostilities, including the testimony of one child soldier who claimed that “if you didn’t shoot at the enemy, the enemy would fire at you and you would die, and that is what would give you the strength to continue.”  The witness told the court that “the enemy” was the ethnic Lendu, a group involved in the Ituri conflict.

Personal responsibility

Despite the evidence of children being used by the UPC, there is not much evidence that Lubanga himself conscripted, enlisted or used child soldiers in the Ituri conflict. There is some evidence that Lubanga used children as young as nine or 10 years-old as bodyguards.

However, under ICC law, Lubanga can be guilty even if he himself did not physically commit the crime.

The prosecution argues that under Rome Statute Article 25(3)(a), Lubanga is vicariously responsible as a co-perpetrator for the alleged crimes.  In very simple terms, Lubanga is not charged with recruiting child soldiers himself, he is charged with being a part of a group of people that did.

Thus, even if there is no evidence of Lubanga committing the crime, a guilty verdict is possible if the prosecution can show several things.

Firstly, that Lubanga was part of a group of two or more persons and this group had a “common plan.”

This element seems fairly easy to prove, since there is ample evidence that Lubanga was the leader of the UPC and FPLC, with witness after witness testifying that Lubanga was the UPC president.

The group’s common plan does not necessarily have to be inherently criminal, but it has to involve the commission of the crime.

In this case, the prosecution alleges that Lubanga, along with other members of the UPC, had a common plan to “further the UPC/RP and FPLC war effort” by recruiting, voluntarily or forcibly, young people into the UPC or FPLC; subjecting them to military training; and using them to participate actively in military operations and as bodyguards.

Although this alleged common plan did not specifically target children under 15, the pre-trial chamber held that their involvement was an objective risk associated with recruiting “young people.”

Thus, even if the UPC did not set out to recruit children under 15, their inclusion in the recruits was a risk that the UPC allegedly took in carrying out its plan.

There is considerable evidence of young soldiers being kidnapped by the UPC or enlisting voluntarily. Many former child soldiers and former UPC commanders testified that these children went through brutal training sessions, after which they were armed and sent into combat or used as bodyguards.

Secondly, a guilty verdict is possible if the prosecution can show that Lubanga and the other members of the group each had an “essential task” in carrying out this plan, which they performed in coordination with each other; that Lubanga knew that he had this essential task necessary for the execution of the common plan; that he knew that by not performing this task, he could frustrate the purpose of the common plan.

“Essential” in this case means that if he didn’t perform his task, the plan would fail.  The task can be far removed from the actual commission of the crime, such as planning the crime or providing finances so that others could commit the crime.

This means that Lubanga must have had some kind of control over whether the plan was carried out, and by extension, whether the crimes associated with the plan would be committed.

Lubanga’s essential task was characterized by the pre-trial chamber as having “direct and ongoing contacts with the other participations in the common plan …, inspecting several FPLC military training camps to encourage the new FPLC recruits, including those under the age of 15, and prepare them to participate in the hostilities, and providing the necessary financial resources for the implementation of the common plan.”

The prosecution presented much testimony and video evidence of Lubanga’s presence at UPC training camps, where he would give inspirational speeches and inspect military troops.  In one video clip, Lubanga led a group of soldiers and new recruits, including children, in song.  He then gave a speech telling them they must be courageous in battle.  “This type of work is of great importance.  It can involve suffering,” Lubanga told the crowd.

There is also considerable testimony about Lubanga’s political authority over the UPC, and his distance from military activities.  Indeed, the prosecution entered over 80 documents into evidence that allegedly shows Lubanga’s authority over the UPC. Some of the documents demonstrate the structure of the organization, and others were letters addressed to “His Excellency, the president of the UPC, Thomas Lubanga.”

A former military leader of the UPC explained that the organization was split into several divisions, including administration, intelligence, logistics, public relations and morale.  This formal structure provides strength to allegations that the military and political branches of the UPC were tightly linked, and that each division was considered necessary for the functioning of the organization as a whole.

One witness testified that Lubanga had no role in military operations, because he was not a soldier. However, this witness said that Lubanga would receive reports on military activities from his staff.

The prosecution’s evidence has also included testimony about meetings between Lubanga and UPC military leaders, including Bosco Ntaganda, who has been indicted by the ICC on charges similar to those brought against Lubanga but who remains free in the DRC.  Documents introduced by the prosecution also allegedly demonstrate that Lubanga was aware of the UPC’s military activities.

Conversely, another witness who testified about Lubanga’s political role, said that he did not have control over military operations.  He claimed that Lubanga was not influential over the military and may not have known about child soldiers used by the UPC.

Finally, a guilty verdict is possible if the prosecution can prove that Lubanga either intended for the UPC to conscript, enlist or use child soldiers, or knew that it would happen as a consequence of trying to achieve the common plan and accepted the risk by going ahead with the plan. All of the other members of the group also knew and accepted that recruiting child soldiers was a possible outcome of implementing their plan.

This means that the prosecution must prove that Lubanga and everyone else who participated in the common plan were at least aware that under ordinary circumstances, recruiting, training and using “young soldiers” under the common plan would involve children under 15.

The prosecution must show that they accepted this possibility by reconciling themselves with it or by condoning it. This could explain why the prosecution has presented evidence that Lubanga himself used child soldiers as bodyguards and did not attempt to stop the recruitment or training of child soldiers.

However, in video evidence showed by the prosecution, Lubanga himself denies that the UPC used child soldiers. In the video, Lubanga places blame for the use of child soldiers on Ugandan forces.

This denial may be contradicted by other evidence, though.  For example, the journalist shooting the video later spots a child he estimates to be 11 or 12 years-old dressed in military fatigues carrying a gun. The young soldier is captured on film at a UPC military rally, where Lubanga is speaking to the troops. This would suggest that Lubanga knew about the child soldiers being used by the UPC, and took the risk that they would be recruited along with other “young” soldiers.

Ultimately, the evidence will be reviewed by the judges for credibility and weight.  The trial still has yet to hear the defense case, which could throw much of the prosecution’s case into doubt.  Ultimately, it will be up to the judges to determine Lubanga’s guilt or innocence under the legal principles discussed above.

Jennifer Easterday is a senior researcher with the U.C. Berkeley War Crimes Studies Center in California, USA.  The views expressed by the author do not necessarily represent the views of IWPR or the Open Society Justice Initiative.

 However, short and long-term problems plague the witness protection program, and will demand diligence and financial support from the court as more trials begin. 

 Legal Basis for Witness Protection

 The court has an obligation under its founding document, the Rome Statute, to protect witnesses.  At trial, the judges have the power to take all “necessary steps” to protect witnesses and their families, including the use of private hearings and the presentation of evidence electronically or by “special means.” 

The judges can raise issues about witness protection, as can any party or any state.  However, it is the party calling the witness that is ultimately responsible for requesting protective measures for witnesses.  Witness protection options include participating in a robust in-country witness protection plan managed by the Victims and Witnesses Unit (VWU) and called the ICC Protection Program (ICCPP), as well as measures to protect and hide the identities of witnesses during trial in The Hague.

Requests for protection must be based on objective grounds, such as actual threats.  “Personal preferences or subjective fears of individual witnesses” are not enough, Presiding Judge Adrian Fulford has said, although they can be considered by the court. 

Balancing the Defendant’s Rights and the Safety of Witnesses

In determining whether a witness can receive protection, the judges must balance the safety of the witness against Lubanga’s right to a fair and public trial. 

In a decision on applying protective measures, Fulford said the court recognized “the importance of truly open justice,” and noted that the principle of public trials has been repeatedly emphasized by the European Court of Human Rights as an essential element of a fair hearing. 

During the Lubanga trial, the prosecution has generally requested image and voice distortion and pseudonyms to protect witness identities.  The court can also go into closed session if particular elements of testimony could reveal the identity of the witness or others who are subject to protective measures.

The prosecution in the Lubanga trial has argued that the protected witnesses’ testimonies will still be accessible to the public, even if their identities are not.  The prosecution also has noted that the identity of witnesses will be known by the accused, which is an important concern given that Lubanga has a legal right to know the case against him. 

The Lubanga defense has argued against certain protective measures.

Although the defense maintains that witness safety is paramount, it has argued that witness protection measures provide a significant risk that Lubanga’s right to an open trial will be undermined.  For example, the proportion of anonymous witnesses is much higher in the Lubanga trial than at other international tribunals.

The judges have overwhelmingly granted requests for protective measures. 

By granting protective measures to 20 prosecution witnesses, who are all a part of the witness protection program, Fulford considered the effect of regional instability on witness safety. 

“All of these witnesses have been taken into the court’s protection program because of the risks to their personal safety …,” he said. “If any of their identities were to become known, the whole purpose of the protection which has been afforded to the witnesses would be undermined, and they, together with their families would be at risk for an indefinite period of time.” 

However, witnesses are not always granted the protective measures they seek.

In one case, a judge from the Democratic Republic of the Congo, who was testifying in the Lubanga trial, asked to be granted protective measures after arriving in The Hague.  The prosecution argued that because his testimony was going to include sensitive information about the current president and government of the DRC, the judge was afraid he would be in danger.  

Fulford pointed out that there were no objective reasons for his fears about testifying, given that he had agreed to testify openly before coming to The Hague.  Therefore, the court held, the request for protective measures was unfounded.  Moreover, Fulford noted that Lubanga had known for months that this witness was to testify against him, and yet the judge had not received any threats. 

Fulford said, “the principle of open justice is of high importance and requests for anonymity should not be lightly granted.  This witness is in a very different category from the previous witnesses in this trial who have enjoyed a high level of protection, and it is important that these applications are not routinely made in the expectation that they will be routinely granted.”

The witness ultimately agreed to testify openly.

Challenges to Witness Protection: Logistics, Communication, and Transparency

In spite of the rigorous approach to witness protection applied in the Lubanga trial, there are significant problems facing the court’s mandate to protect witnesses, including logistics, communication, and the need for transparency. 

Notably, each time such a problem has arisen at trial, the judges have taken a very active approach to solving the problem. Some have involved technical troubles in the courtroom.

For example, the transcript for a private hearing between the defense counsel and the judges was inadvertently broadcast and seen by the prosecution.  Fulford was irate at the breach of privacy and said, “this is a matter of extreme concern.  Lives could be lost if confidentiality in these circumstances is breached.”

It was the second time in two weeks that this had occurred, leading the court to refrain from holding any private sessions until it had assurances from the Registrar of the court that the problem would not reoccur.

Another issue related to the need for a system of lights to indicate to the witness and members in court whether the court was in closed or open session.  The order for this system of lights came after one witness gave testimony in public session, thinking the session was closed.

Slips such as this can lead to sensitive information being leaked by members of the public gallery watching the trial.

Communication between the parties and VWU is another significant issue the ICC faces.

Unlike other tribunals, the judges in the Lubanga case have forbidden parties to have contact with witnesses before their testimony; only the VWU can interact with witnesses after they arrive in The Hague.  Therefore, the party responsible for requesting protective measures cannot meet with witnesses to re-evaluate their need for protection.  Communication between the groups will have to be frequent and fluid in order to insure effective witness protection.

This communication is important on the ground in the DRC as well.  Human Rights Watch reported in 2008 that the prosecution relocated witnesses outside of the VWU program, apparently over a disagreement as to whether participation in the witness protection program was warranted.

This apparent breach of protection protocol by the prosecution’s office, even if made under the auspices of heightened witness protection, is extremely worrisome as it can ultimately lead to the breakdown of the court’s overall protection scheme.

Human Rights Watch argued that VWU, as the only department within the ICC that has protection expertise, should retain sole responsibility for the witness protection program. 

Another challenge is the frequent use of closed sessions.

Public hearings are not only a right of the accused, but are also critical for informing the public of what happens at trial.  Indeed, after the court went into private session on the first day of testimony, local groups expressed anger and frustration after the screen went blue on the first and long-awaited day of trial. 

Given the current poor reputation of the ICC in Africa, fewer closed sessions would help promote the image of justice and transparency.  However, these are delicate issues the court must balance and the safety of the witnesses should be the ultimate concern. 

Fulford acknowledged this in a recent apology for the lengthy closed sessions. 

“We have very heavy responsibilities to protect witnesses who come to give evidence at this court.  If they are at risk of retribution, if their identities become known, particularly if that retribution may involve some kind of real prejudice to them or their families, it is necessary for parts of their evidence, which would reveal who they are, to be given in private.  Although this means that the public are excluded, and that is something that we very much regret, the critical responsibility that we have is to ensure that nobody’s safety or security is put at risk because of their preparedness to come to give evidence before this court,” he said.

This apology reveals the active stance taken by the judges and the other organs of the court.  It demonstrates that witness protection is a key concern of the ICC.  Given this current emphasis on witness protection, it is hopeful that the ICC will continue to provide resources and the necessary attention to meet the long-term challenges it faces.

The views expressed are of the author and do not necessarily reflect the views or opinions of the Open Society Justice Initiative or IWPR-Netherlands.

Credibility is based in part on what the witnesses say and whether it is believable, but also on the way they say it and their physical demeanor in court. 

Lubanga is charged with conscripting and enlisting children under the age of 15 into armed groups, and using children to actively participate in armed conflict between July 2002 and December 2003.  As such, many witnesses have been former child soldiers. 

Lubanga’s defense attorneys have attacked their testimony as unreliable, highlighting inconsistencies and memory gaps.  When cross-examined about details of their testimony, some former child soldiers have had difficulty answering the questions or providing consistent evidence.

The Prosecution recently filed a report written by psychologist Elisabeth Schauer, Director of Vivo International, titled “The Psychological Impact of Child Soldiering” to the Trial Chamber.  The report outlines several studies on child soldiers and the resulting psychological disorders they may experience.  Schauer also provides recommendations for child witnesses testifying in legal proceedings. 

Schauer’s evidence was likely included by the prosecution to demonstrate the credibility of their witness’s testimony.  Schauer’s findings suggest that although former child soldiers who testify may not appear able to adequately and truthfully tell their stories, in reality, they are capable of providing credible evidence.

Her report can help the Judges recognize the specific challenges child soldiers may encounter during testimony, and thus better understand and interpret their evidence.

Prevalence of child soldiers

Schauer reports that children have been widely recruited as soldiers.  They are abducted, forcibly recruited, or some may join voluntarily to escape poverty, abuse, or because they are motivated by revenge.  Schauer argues, however, that a child’s choice to join an armed group cannot be considered “voluntary” from a psychological point of view. 

This analysis could help the Judges evaluate the testimony of witnesses who testify that they joined the UPC voluntarily.

One witness told the court, “we had nothing to do, so we went with [the soldiers].”  Although at the time he did not understand what military service was, he stressed to the court “I was not enlisted by force, and I wish to confirm that.”  Another witness who voluntarily joined the UPC told the court “I looked at my commander as my superior, but also as my family.”

Lubanga can be found guilty of conscripting child soldiers regardless of whether their service was forced or voluntary.  However, the defense could attempt to discredit the testimony of voluntary child soldiers by attacking their character or showing they have a propensity for violence.  Therefore, Schauer’s conclusions can help the prosecution dispel defense suggestions of bias or unbelievable evidence.

Exposure to trauma leads to higher risk for psychological disorders

“Children of war and child soldiers are a particularly vulnerable group and often suffer devastating long-term consequences of experienced or witnessed acts of violence,” Schauer writes.

According to Schauer, child soldiers-both boys and girls-are used as combatants, domestic servants, or to provide sexual services. 

One former child soldier described how he was punished by being locked in a trench for over a week, and was fed only once a day.  Another witness told the court that child soldiers were forced to kill and mutilate victims, and were beaten by multiple commanders at one time.  Other witnesses described being raped, being forced to rape, and being subjected to horrifying living conditions while with the UPC.

Exposure to repeated traumatic experiences can lead to psychological and developmental problems that can last throughout the child’s lifetime and even effect generations to come. 

“A single horrific experience with painful aftershocks can sear the psyche for decades,” Schauer reports. 

Many studies have concluded that child soldiers are at a much higher risk of developing post traumatic stress disorder (PTSD).  PTSD is characterized by symptoms such as recurrent memories or dreams of the traumatic event, unresponsiveness, avoidance of stimuli associated with the event, eating and sleeping problems, heightened risk taking, dissociation and withdrawal, and physical problems such as headaches and stomachaches. 

Specific challenges when testifying in court

Schauer provides several recommendations for when ex-child combatants are asked to testify in court.  She says that trauma and PTSD can interfere with the ability to testify.  Recalling such traumatic moments can cause immense suffering to the witnesses; the suffering increases in relation to the severity of the trauma symptoms.  Schauer writes:

“[T]raumatized survivors often cannot fully disclose their traumatic experiences.  [They] can be limited in their capacity to verbally express in detail and chronology, not because they do not remember what happened, but because they enter a state of great anxiety, visible or physiologically felt by the child as trembling, sweating, heart racing, headache, [or] body pain.

“Emotions felt by the child range from anxiety, anger, disgust to helplessness during recall.  The trade off here is of course that those potential child witnesses who have seen the most and the worst events, are also the ones [sic] probably most affected by their experiences.”

Schauer concludes that those witnesses suffering from PTSD will find it difficult to tell their stories.  This description will help the judges determine the credibility of witnesses who speak quickly, are nervous, or otherwise comport themselves poorly when testifying.  Rather than being indicative of lying, Schauer’s report shows this could be a normal reaction to discussing traumatic events.

These problems can be avoided or reduced, however, by using what Schauer calls a “therapeutic testimonial process.”  She recommends a therapeutic session before the witness’s courtroom appearance, in which the child is asked about the same specific events he or she will be asked about in court.  This will help the child recall events in a more clear, complete, and chronological order and can reduce the stress of narrating traumatic events.

Schauer notes that these sessions can be recorded by video to ensure that the evidence is not altered.

However, because of a November 2006 pre-trial ruling prohibiting this type of witness proofing, these sessions are forbidden in the Lubanga trial.

Based on Schauer’s report, this pre-trial decision could have severe consequences on the quality of evidence presented, as well as on the psychological wellbeing of witnesses who are forced to recount traumatic experiences in court for the first time in an unfamiliar and cold environment.

The consequences of this decision, and of the emotional difficulties faced by former child soldiers on the stand, were exemplified when the first witness recanted his testimony.  Upon retaking the stand several days later, the witness said that on the first day “a lot of things went through my mind.  I got angry and I wasn’t able to testify.”

Not only was this a blow to the prosecution’s case, but the court lost valuable time and resources in attempting to rectify the situation.

Witness assistance during testimony

If a child should experience a memory loss or other psychological problem during testimony, Schauer recommends that the court takes steps to help the child witness.  These include asking direct, detailed questions about the context of the event, or stopping the testimony so that the witness can recover.

She also recommends having a “supportive companion” in the court, someone who can be called upon to hold hands, reassure the child, and be a general source of comfort and support to the child during these episodes.

Furthermore, “children should not be asked to give testimony directly in the presence of the accused,” she writes.  She suggests that the testimony be given from another room via video link, or at least placing a sight barrier between the child and the accused. 

Although the ICC has rules, procedures and decisions in place to provide such measures, none of the child soldiers who have testified have done so via video-link or with a psychological counselor in the court room.  However, after the problems with the first witness, they have been allowed to testify from behind a screen, out of sight of the accused.

Finally, she suggests that child witnesses should be given verbal praise during their testimony, with phrases such as “I understand very well what you are telling me,” “this is a good description,” or “your explanations are useful.”  This, Schauer writes, will help the child feel encouraged and reduce anxiety.

When the first child soldier recanted his testimony, the presiding judge warned the parties that when he returned to testify “questioning to the maximum extent possible should be non-confrontational and should not be pressurizing.”

The witness was allowed to freely narrate his own story, which is normally not allowed.  The Presiding Judge also encouraged the witness’s testimony, telling him “you’ve done very well.  I wish I could speak as well as you have.”

Jennifer Easterday is a Senior Researcher/Trial Monitor, UC Berkeley War Crimes Studies Center. She received her J.D. from the UC Berkeley School of Law.  She is a member of the California State Bar and specializes in international human rights and international criminal law. She has written about the Special Court for Sierra Leone and is the author of “Deciding the Fate of Complementarity: A Colombian Case Study,” (Arizona Journal of  International and Comparative Law, Spring 2009) and numerous reports on the trial of Charles Taylor at the Special Court for Sierra Leone.  The views expressed here are personal ones of the author and do not necessarily reflect the views or opinions of the Open Society Justice Initiative or IWPR-Netherlands.

This was immediately apparent when the prosecution’s first witness recanted his story and told the court that he had been coached on what to say by members of an aid organization.

The witness was excused from the stand, but later returned and continued his testimony after he was shielded in the courtroom from Lubanga’s gaze.

While this was viewed as an initial setback, the prosecution has recovered, according to observers, and appears to be back on track.

Subsequent witnesses considered vulnerable to intimidation have been similarly shielded or have provided testimony in closed chambers.  

After 11 weeks of trial, prosecutors at the ICC have confirmed that their two main challenges are the need to ensure protection for vulnerable witnesses and the need to ensure the proper conditions for such witnesses to testify in court.

“We are continuously working with the Victims and Witnesses Unit of the court to take adequate protection measures wherever and whenever they are needed,” said Beatrice Le Fraper, special adviser to the ICC prosecutor.

“Should there be a doubt regarding the security of a witness, we will not call him or her,” Le Fraper said.

Since the January 26, 2009 start of the trial, 17 witnesses have testified and the prosecution hopes to call 13 more when the trial resumes on May 5.

The witnesses included former child soldiers and their relatives, former commanders and bodyguards who worked close to Lubanga, and others involved in the conflict in the Ituri region of the Democratic Republic of the Congo.

Two experts – a historian and a clinical psychologist – have also testified.

Lorraine Smith of the International Bar Association (IBA) said that the trial is being conducted efficiently, and the court has worked hard to protect vulnerable witnesses, some of whom travel long distances in order to testify.

Both the prosecution and the defense are making “tremendous effort” not to re-traumatize witnesses, Smith said. “Everyone is being quite cautious in terms of not trying to overstretch the witnesses.”

Nonetheless, the defense has been able to challenge the credibility of some witnesses due to conflicts between the witnesses’ previous statements and their testimony in court.

Smith welcomed the chamber’s indication that they will look at ways to give the defence team more time to spend with their client.

“That’s an important decision because it is crucial that the accused is able to give proper instructions to his lawyers concerning his defence,” Smith said.

Despite the additional time for the defense, Le Fraper was confident of the prosecution’s case.

“We believe we have presented evidence to prove that Lubanga is responsible for enlisting and conscripting children under the age of 15 and for using them to participate actively in hostilities,” said Le Fraper.

“We saw and heard compelling evidence, including the testimony of seven former child soldiers who described the modus operandi of Mr. Lubanga in abducting children under the age of 15, training them under unspeakable conditions, and using them to attack civilians,” Le Fraper said.

The court also heard testimony about children being beaten, tortured, raped, and killed during these activities, she said, and of “children who in turn beat, tortured, raped, and killed upon the instruction of Lubanga.”

Others have also expressed satisfaction with the progress of the trial.

“So far we don’t have any concerns about either the efficiency or the fairness of the trial,” said Param-Preet Singh, a counsel with Human Rights Watch in New York.

Singh attributed the efficiency to the court’s judicial oversight.

“The presiding judge seems to have a pretty good control over the courtroom,” Singh said.

The trial judges “are really keeping a close eye on how witnesses are questioned, and the direction of the questioning, making sure that things remain on point,” she said.

With the exception of the prosecution’s first witness who retracted his testimony, but later testified, the trial had been without incident, Singh said.

“And with all the problems that the Lubanga case had up until the trial started,” she noted, referring to months of procedural delays, “it’s good that nothing remarkable happened when the prosecution was questioning witnesses.”

“It is good for the perception of the Lubanga trial overall,” Singh said.

Procedural delays were to be expected and may have actually helped the trial move smoothly, said Mariana Pena, of the International Federation for Human Rights.

“There were lots of procedural issues before the trial started,” Pena said, “and that is why it makes sense that (the trial) moves fast now. We have seen more testimony than procedural issues.”

“It is important to have a fair and fast trial for the accused,” Pena said. “My sense is that it has been progressing well.”

Because the testimony has been provided by traumatized former child soldiers and some of the recorded statements were given three years ago, the inconsistencies can be explained, experts say.

 Such discrepancies, therefore, pose a small, but almost expected obstacle for prosecutors.

Dr. Susan Breau, a professor of International Law at the University of Surrey (UK), told IWPR that inconsistencies in the testimony of key witnesses often does little to damage the prosecution’s case.

The prosecution’s first witness, for example, a former child soldier from the Ituri region of the Democratic Republic of Congo, admitted that he had lied in his testimony, and that he had been coached by an aid group on what to say.

This led Lubanga’s defense team to grill other witnesses about details in their testimony in attempt to undermine the validity of the often powerful statements by the former child soldiers.

The defense has had some success at this.

In recent weeks, defense lawyer Jean-Marie Biju-Duval cross-examined a witness who claimed to have been a child soldier in Lubanga’s Union of Congolese Patriots.

Biju-Duval revealed inconsistencies between the story the witness told investigators in 2005 and the story he told to the International Criminal Court.

The witness explained this by saying he was afraid to give information to “the white man,” who had been asking him questions in 2005.

Lorraine Smith, an experienced prosecutor and program manager with the International Bar Association in The Hague, has followed the Lubanga trial closely.

Inconsistencies in testimony are common in criminal trials, she said, because memories change over time, especially since original statements were given to investigators years ago.

Still, Smith said, the prosecution needs to prove those inconsistencies are reasonable. The conflicting details could be explained by a witness who can discuss the trauma suffered by former child soldiers, resulting in memory gaps.

The defense is doing its job by pointing out the problems in the testimony, she noted. “The whole purpose of cross-examination is to reveal inconsistencies.”

Breau agrees with Smith about the inconsistencies. Before becoming a professor at the University of Surrey, she practiced criminal law in Canada.

“It’s surprising how much similarity a case like this bares to a domestic, criminal case that might take place in a small town in Canada,” she says, “The one big difference is the lack of a jury.”

The ICC trial is conducted by a three-judge panel, which will make a ruling, rather than a jury.

The judges in the Lubanga case will not only examine the legal aspects of the evidence submitted to the court, but also the “veracity,” or truthfulness of the witnesses, according to Breau.

“This,” she said, “will be evaluated in large part by their appearance, the looks on their faces.”

Other factors that differ from most domestic criminal trials are the ages and trauma experienced by key witnesses.

“You’re dealing with children,” explained David Crane, a former prosecutor for the Special Court to Sierra Leone. “And, they are being forced to re-live their experiences both as victims and as perpetrators.”

Crane said his team sought assistance to calm the fears of his child-witnesses, and also made arrangements so that some of them could testify on camera instead of in the courtroom.

Responding to this concern, the ICC has made efforts to ensure the comfort and sense of security for younger witnesses.

At the beginning of the trial, the witnesses sat in clear view of Lubanga, and were able to make eye contact with him.

This changed after the first witness withdrew his initial testimony. Known to the court as Dieumerci, the young man was allowed to tell his story to the court while he was shielded from Lubanga’s direct view.

Now, all former child soldiers are shielded in this way, with curtains pulled across the side of the witness box

Faced with similar testimonial inconsistencies, Crane insured that the testimony he presented was as strong as possible.

“When investigating our case, we went to areas of Sierra Leone where we knew the worst atrocities were committed, and focused on evidence coming from there,” he said.

“We also made sure we showed how other factors-like rape-could be used to manipulate people, used as a tool for terror,” he said.

Similarly, at the Lubanga trial, opening statements by prosecutor Luis Moreno Ocampo and the lawyer for victims, Hervé Diakese, focused on the rape and sexual-slavery that girl-soldiers were forced to endure, even though rape is not among the charges against Lubanga.

Additionally, Judge Elizabeth Odio Benito has repeatedly questioned witnesses on these subjects following their examinations by court lawyers.

After focusing on testimony of former child soldiers, the prosecution has shifted to experts who discuss historical aspects of the war in Ituri, and the origins of Lubanga’s militia.

Crane said it is important to place the key witnesses – the child soldiers – in the broader context of what was going on.

While the course of the prosecution’s case against Lubanga is taking shape, the outcome is far from certain, however, Breau noted.

“I’ve seen a lot of criminal trials, and been very surprised by their outcomes,” she said.

Meribeth Deen is a Canadian journalist based in London who has been covering the Lubanga trial for the Open Society Institute and IWPR.

After his initial testimony crumbled on January 28, 2009, international media outlets pointed fingers at the Prosecution team.  Headlines included “Chaos Reigns at the International Criminal Court” and references to a “shambolic” first testimony.  But some wondered whether this bad press was fair. What if the witness said he lied because he wasn’t fully prepared for what he would face in the courtroom, including the fact that he would have to tell his story while sitting only a few feet away from — and in full view of — Lubanga himself?

A reader commented on this site:  How can the courtroom prosecutors assess their own witnesses when Judge Jorda prohibited proofing of witnesses at ICC, a process which takes place at all other international tribunals?

“Witness proofing” is a practice which is common in some national criminal justice systems, particularly in the United States, where it is not only allowed but encouraged in preparation for trial.  Proofing allows for lawyers for any party to go through two different kinds of preparation for trial with their witnesses before they take the stand.  One is a familiarization process whereby, in the case of witnesses called by the Prosecutor, the Prosecutor can show the witness the courtroom and describe the other participants and their roles (for example, the defense lawyers, the judges, the victim representatives); introduce the witness to the lawyer who will take him through his testimony; talk about security and safety issues; remind the witness of his oath to tell the truth; explain the process (for example, that the prosecutor will examine the witness to bring out his testimony; the defense lawyers will then cross-examine the witness and then the prosecutor has an opportunity to re-examine him again).

The second kind of “proofing” process focuses on adequate preparation to ensure that the witness’s testimony at trial is accurate.  It allows the witness to read any prior statements they had given to the investigators to refresh their memories. It would also allow the Prosecutor to go through the questions that he or she would ask the witness during the testimony; and to ask the witness about any other information that could potentially help show the guilt or innocence of the person on trial. In those jurisdictions which permit or encourage such proofing, counsel is expected to operate in good faith, on the assumption that the testimony of a well-prepared witness assists in the truth-seeking process. To be sure, any efforts to “coach” a witness by telling him what to say are improper, and are forbidden in all jurisdictions.  The evidence should be what the witness recalls, not what he is told to recall.

In the Lubanga case, the prosecutors had sought to proof witnesses in the lead-up to the trial.  The defense objected.  In November 2006, the ICC’s Pre-Trial judges decided that witness proofing was not allowed..  The judges did allow the Victims and Witnesses Unit (VWU, run by the Registry) to familiarize witnesses with the courtroom and process, including meeting with the lawyers who would be examining him. However, the judges forbade the Prosecution from allowing the witness to read his statement, go through questions the Prosecutor intended to ask, or ask the witness about information which could help prove the guilt or innocence of Lubanga.  The Trial Chamber confirmed this decision in November 2007, but modified it to allow for witnesses to read over their prior statements to refresh their memories before testifying.

Even with this modification, some say these decisions make it difficult for the Prosecutor to work out in advance whether their witness is going to be credible to the judges: that is, whether he is likely to tell the truth, whether he will be believable, and whether his story is consistent and clear.  They would say the mishaps of the first day were foreseeable given the lack of opportunity to prepare the witness for his testimony in advance. This is of particular concern in the case of a witness who has never been in court, let alone in The Hague; where the witness is testifying about highly traumatic events which took place several years ago; where the witness was a child at the time of the events in question; where prior statements have been taken more than a year ago in one language and then translated into another; and where the testimony in the courtroom is itself conducted through interpretation from one language to another.

But for others, who come from different legal traditions, this practice of witness proofing raises serious ethical concerns. In fact, in some countries (even from the common law tradition, where the practice tends to be more prevalent), “proofing” can be considered unethical or illegal, because it may provide the opportunity for lawyers to coach or train witnesses on what to say, which may hinder the court’s ability to get to the truth about a defendant’s guilt or innocence. There is also a big difference in countries from the civil legal system where witnesses are not called by the parties but by the Judges, and so there is no concept of preparing ‘your’ witness.

That said, other international criminal tribunals allow witness proofing.  In fact, after the decision by the Pre-Trial judges in November 2006, both international criminal tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) specifically rejected the ICC decision on witness proofing.  The ICTY judges decided that discussions between a party – such as the prosecutor — and a potential witness about evidence can “enhance the fairness and expeditiousness of the trial.” The ICTR judges said that witness proofing “not only poses no undue prejudice, but is also a useful and permissible practice.” Meanwhile, the Special Court for Sierra Leone continued its practice of witness proofing as well. In September 2005, the Trial Chamber noted that in principle, proofing witnesses before their testimony is a “legitimate practice” which “serves the interests of justice” especially for witnesses “who are testifying about traumatic events  in an environment that can be entirely foreign and intimidating.” The ECCC appears to follow the civil law practice and forbids any proofing of witnesses, although the issue has not yet been argued before the Court. Other domestic war crimes tribunals such as the Court of Bosnia Herzegovina do not permit it.

The practice, then, between the ICC and its sister tribunals seem to be diverging. But for the Lubanga trial, this divergence does not really matter.  At least for now, witness proofing is prohibited at the ICC.  This means the Prosecution team may have no way of working out in advance whether their witnesses may change their stories on the stand. Instead, the prosecutors will simply have to be prepared for surprises in the courtroom, hope that their investigators did a good job in taking the original witness statements, and trust that the ICC’s Victims and Witnesses Unit familiarized the witness enough with the process to be prepared when the spotlight shines on them in the stand.

Today, the additional protective measures may help the witness to feel confident to tell the truth on the witness stand and to stick with his version of events as he remembers them.  But the Prosecutors still may have to expect the unexpected as they start their examination again this morning.

So was it worth the wait?

Some say no. Critics point to the increasing disillusionment with the ICC, particularly in Africa, where even ardent supporters of the fledgling institution have begun to wonder if the court has lost its way. The delays and reversals at the Lubanga trial only add to the litany of concerns about the ICC. These concerns include:

• The well-orchestrated, and high level political backlash against the ICC after the prosecutor issued an arrest warrant for Sudanese President Omar al-Bashir in July 2008. This led to a serious push in September 2008 by states in the African Union, Non-Aligned Movement, and Organization of the Islamic Council to have the Security Council suspend the Bashir investigation for 12 months or longer.
• The growing sense that the ICC is picking on poor African states while rich powerful ones (such as the United States) are not prosecuted for abuses in their own wars.
• The strong reactions in the DRC in January 2009 to the confirmation of charges against former Congolese presidential candidate, Jean-Pierre Bemba, who was arrested in May 2008 for his alleged crimes in the Central African Republic. Some argue that Bemba’s trial indicates that the ICC has been politicized and is controlled by DRC President Joseph Kabila.

Anxiety over the ICC’s actions are heightened by the limited visibility of the court’s outreach efforts, investigation tactics that some say endanger people, and public statements by the ICC which may put human rights defenders in danger from their own governments.

In Lubanga’s case, there are concerns that the charges against him were too limited in scope, and that the prosecutor’s broad use of confidentiality agreements had undermined confidence in his respect for due process and basic defense rights. The delay of seven months while the prosecutor addressed the confidentiality problem seemed excessive.  For some, the prosecutor’s efforts seemed too little, too late, and only made under duress.

The start of the Lubanga trial cannot alleviate all of these concerns.  Many of the broader perceptions and worries about the ICC will take months, if not years, to address, and will require careful thought and action by the ICC and others who care about international justice.

But the delay leading up to the start of the ICC’s first trial does teach important lessons: that the court as an institution can be impartial and fair to those who come before it, and that it is determined to correct itself of any internal excesses, perceived abuses of power, or incursions against a defendant’s rights—even if it means setting a man free before he is prosecuted for the serious charges leveled against him.

Let’s remember: Ten days before Lubanga’s trial was to begin on June 23, 2008, the judges suspended the trial because they were concerned that the prosecutor’s use of evidence did not adequately safeguard Lubanga’s legal rights, to the point where a fair trial for Lubanga was “impossible.”  Specifically, they were concerned that Lubanga lacked access to material that could help prove his innocence. Three weeks after this decision, the judges decided to set Lubanga free. On appeal, the judges decided to keep Lubanga in jail but asked the prosecutor to fix the problem—but his failure to do so completely led to further delays. In November 2008, the judges decided that the problem was fixed, Lubanga’s fair trial rights had been respected, and the trial could go ahead in January 2009.

The triumph of fair trial rights in the Lubanga pretrial process shows an admirable ability for the ICC to rectify itself.  It demonstrates the checks and balances between the different arms of the court actually work: in this case, misuse of evidence or procedural missteps by the prosecutor were not tolerated by the judges. This in itself can help to alleviate some of the arguments swirling about the court’s perceived politicization, or concerns about the prosecutor’s lack of accountability.

The ICC still must prove itself worthy of people’s trust, but this pretrial process has helped to build confidence that the ICC is an institution determined to be fair. That alone has made the Lubanga trial worth waiting for.

The next question: will the trial continue to live up to its principled start?  We will be watching closely to see.