Global court starts with a fumble. Warlord grins.
Witness recants testimony during start of Congo militia leader Thomas Lubanga's trial.
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"Young rebels – warlords – find they get rewards in the Congo by taking up arms, killing civilians, and then making deals to find a place in the sun, either in the military or in Kinshasa," says Geraldine Mattioli, of Human Rights Watch in Brussels, who has closely followed Congo and the ICC. "This impunity feeds cycles of violence that need to be deterred."Skip to next paragraph
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Yet the legal body's performance in the court of world opinion remains an issue. The ICC has a staff of 745 people that has worked six years – only to find its first case nearly thrown out in June.
Lubanga's defense team claims his arrest was arbitrary and political and that other suspects have committed worse crimes. Human rights groups say the child-soldier charges, while important, ignored clear evidence of rape and thousands of killings.
Legal experts say the difficulty of creating a new world court can't be underestimated, and that protocols for conducting a safe and fair trial at a time when violent warlords and their deputies remain in the Congo is daunting.
Chief Judge Fulford started with an admonition on "Rule 74," which requires that the witness be fully informed that his evidence could possibly incriminate him in Congo. The court retired to allow a fuller explanation to the unnamed witness.
Malfunctioning microphones meant that the young witness, flown in from Congo to the small, brightly lit courtroom, was required to take his oath three times. In the visitors' area, Congolese diplomats were surprised to find that everyone in the court, including Lubanga, could see the witness, who identified himself.
The defense, credited by legal experts for developing an intelligent strategy, pointed out that testimony in Swahili had been improperly translated. Moreover, when the child soldier then recanted, Ms. Bensouda, who replaced another prosecutor only six weeks ago, could not seek counsel from Moreno-Ocampo, who had decamped to the celebrity economic forum at Davos, Switzerland, according to a court spokeswoman.
ICC-watchers say the child-soldier witness clearly did not feel safe in the same room as Lubanga – and may also have been frightened by the warnings that he could be held accountable for killings or rapes done at the behest of a warlord.
Lorraine Smith, of the International Bar Association office at The Hague, points out that ICC judges a year ago adopted a rule disallowing the defense from "proofing" its witnesses – advocating instead a "witness familiarization" approach that is carried out by another court agency.
She questions whether former child soldiers warned on the day of the trial about possible culpability will testify accurately.
"In the Yugoslav and Rwanda tribunals, combatants could testify as 'Witness X' from a separate room, using a voice modulator. The right for the defendant to confront his or her accuser does not require that they be face to face, but means that they can hear clearly what the witness says.
"A rule that allows a child soldier, who is already in a tenuous situation, to be further traumatized," says Mr. Williams, "seems an unrealistic conception of the notion of justice."