Analysts are split over merits of holding part of the Lubanga proceedings in the Congo.
By Sonia Nezamzadeh in The Hague (AR No. 138, 11-Oct-07)
His trial hasn't yet begun, but it is already possible that the International Criminal Court's sole detainee will return to the Democratic Republic of Congo, DRC, for at least part of the proceedings.
The court confirmed last month that it had begun a preliminary investigation into the possibility of holding some or all of the case against Congolese militia leader Thomas Lubanga Dyilo in the Congo.
But analysts interviewed by IWPR are divided on whether an in situ trial - a proceeding that takes place in the affected region - is the best option for Lubanga, who is scheduled to go on trial in The Hague next year.
Some suggested that hearings in the country where crimes occurred should be encouraged as they would be more relevant for the Congolese people, particularly the victims of atrocities.
Others, however, believe that bringing Lubanga back to the Congo will increase tension and conflict in this war-torn country where peace is still fragile.
Lubanga headed the Union of Congolese Patriots, UPC, a Hema tribal militia, and was indicted in 2003 on charges of conscripting and enlisting children in the Ituri region of the Congo. He was transferred from Kinshasa to The Hague in March 2006.
ICC prosecutor Luis Moreno-Ocampo, a proponent of in situ trials, told IWPR, "We believe it is important to be close to victims as much as possible and agree with the principle."
He says a trial in the Congo could foster reconciliation among communities still on bad terms. "We are dealing with grave crimes so controversy is normal, and society is divided? so outreach is important in a deeply divided community, and trials help a lot," he said.
Anneke van Woudenberg, senior researcher on the Congo for Human Rights Watch, agrees that an in situ trial for Lubanga will have a dramatic impact in the region. She told IWPR that taking proceedings into the communities where the events took place is how justice is done.
"Justice is most effective when it's seen to be done," she said. "And it's hard to make it seen? in the Congo. It's hard to have these things resonate with people without TV screens, which many people don't have. It is important that these people have this opportunity."
However, some activists on the ground disagree, saying now is not the right time to bring Lubanga back to the Congo.
Beck Bukeni Waruzi, director of the AJEDI-Ka/Child Soldiers Project, an NGO in eastern DRC, says holding Lubanga's trial in the Congo will increase tension in the country where two conflicts over nearly eight years resulted in more than four million deaths.
"Thomas Lubanga is still popular. He still has confidants," said Waruzi. "Even if some soldiers have been integrated into the national army. UPC soldiers? are still armed. They can't really tolerate their leader being judged in this country without [retaliating]."
Though Waruzi agrees generally that bringing proceedings into affected regions does bring justice closer to victims, he views this case as an exception, largely because it is the ICC's first.
"I think the court has to be careful," he said. "I don't think they need to bring Thomas Lubanga here. This court is looking too far ahead and overstepping its boundaries? and it may jeopardise the trial."
Waruzi said with the reputation of the ICC already on shaky ground with the Congolese people, who aren't confident that the court is working to benefit them, an in situ trial would be a giant leap of faith, that may further disrupt the country's political climate rather than facilitate peace.
Sonia Robla, the head of public information at the ICC, told IWPR that the inquiry is at an early stage and the final decision to move any part of the case to the Congo rests with the plenary, or complete body of ICC judges.
She refused to comment more on the Lubanga case, saying it is too early in the process to speculate about costs or the timeline for moving the trial. Robla would say, however, that security for witnesses and victims is a primary concern.
"All participants will be approached before a decision [is made]," she said.
Moving parts of this trial - or even the trial in its entirety - would undoubtedly be an enormous task to organise and one that would fall to the ICC's registry.
"The registry must accept organising this," said Luc Walleyn, a legal representative for victims in the Lubanga case. "But I'm not sure [in situ proceedings are] a good idea."
He doesn't know when, or even if, the hearings will move to the Congo but said all participants should be ready to go at a moments notice.
"Even if the hearings start in The Hague, it's quite possible to decide that in June, we need to go [to the Congo]. It could be possible that the court goes there to question witnesses or visit some places," he said.
Walleyn doesn't anticipate the entire trial taking place in the Congo but acknowledges that moving the court for short periods of time would present a host of difficulties.
"Everybody needs visas and permission [to enter the country] from local authorities. The main problem will be organising the machine of movement," he said.
Relocating a sophisticated system like the ICC into an unstable country where tensions still run high could be a logistical nightmare, said Walleyn.
Judges and lawyers rely heavily on the Internet, for instance, exchanging thousands of electronic documents and communications online. This could be problematic as technology is often unreliable in Congo and elsewhere in the region, potentially hampering the trial process and posing difficulties for lawyers and court staff.
Walleyn told IWPR that another serious obstacle to an in situ trial would be security - for witnesses, for the court in general and for Lubanga.
"Some people [in the Congo] might try to organise an escape for [Lubanga]," he said. "There is also a problem for the accused," Walleyn continued, suggesting that Lubanga's enemies on Congolese territory could try to kill the former militia leader.
Walleyn is not convinced that the ICC will follow through with an in situ trial but said that if it does, his job won't necessarily be more difficult. He said that holding proceedings in the Congo could actually benefit some of his clients - the victims and witnesses.
"If a witness appears in court in The Hague? the village knows he's away [from the DRC] for a whole period [of time]." In sharp contrast, Walleyn said that if a witness appeared in the Congo to testify, he or she might be able to do so more discreetly, and in some cases, even anonymously. The ability to appear in court for a few hours then return to daily life may be an advantage that paves way for more victims and witnesses to come forward, agreeing to participate in the proceedings, without the fear of backlash from other Congolese.
The question of witness protection in the Lubanga case is a key one - no matter where the trial takes place.
At hearings last week, prosecutors pointed to the need to further evaluate security in the region before transporting witnesses between the Netherlands and the Congo. The prosecution expects to call between 35 and 50 people to testify, the identities of one quarter of whom it would like to conceal for safety purposes.
Victims' lawyers echoed the sentiments of the prosecution, saying their clients need the protection of the court. There are two dozen potential witnesses who have requested specific protection. Many witnesses are opposed to disclosing their identities due to fear of Lubanga and his supporters, said prosecutors.
But the defence objected, claiming that such emphasis on witness protection made it seem as though Lubanga was threatening witnesses. Catherine Mabille, Lubanga's lawyer, called these "completely unreasonable" accusations that created a mini-trial within the trial.
Aside from logistics, Bukeni said the ICC should conduct thorough psychological and cultural investigations prior to making a decision on moving the trial to Africa.
Having children testify against Lubanga in the Congo, he explained, would break African cultural norms - particularly the notion that children are to always respect, believe and trust their elders.
"These are kinds of beliefs which are seeded into African culture and to attack that is taboo and sinful," he said, noting that some of the children who would testify against Lubanga would be his relatives.
"When you go into Africa, you have to think about what are the cultural norms here that you have to respect. The court [wasn't established] to break cultural norms or attitude, it came to strengthen these values that already exist in these communities."
Bukeni told IWPR that rather than in situ trials, the Congolese people need the court to focus on searching for those who committed war crimes in the country, "[The] Congolese need to see other Lubangas brought to the court. They need to see criminals brought to justice. That is the key point of need of the Congolese at the moment, not to bring [Lubanga] here."
Sonia Nezamzadeh is an IWPR reporter in The Hague.