Whole host of factors said to lie behind hold-up to start of ground-breaking trial.

By Lisa Clifford and Katy Glassborow in The Hague (AR No. 158, 29-Feb-08)

The judge hearing the case against Congolese militia leader Thomas Lubanga has expressed concern at continuing delays to the start the International Criminal Court's first-ever trial.

The case was set to begin March 31at ICC courtrooms in The Hague but now seems unlikely to start before mid-June and could be pushed back even further. "I will make no secret of the fact of my real frustration, already expressed in no uncertain terms in open court, about delays in getting our first trial up and running," said British judge Adrian Fulford recently to a group of diplomats and human rights representatives in The Hague.

The warrant for Lubanga's arrest was issued in February 2006 when he was in custody in his native Congo, and one month later he was transferred to the ICC. Judges confirmed the charges - conscripting and enlisting child soldiers - in January 2007.

"We are now over a year later and the inevitable and pressing question is why has the case not started?" said Fulford.

Failure by prosecutors to disclose to the defence all its evidence and the identities of witnesses testifying against Lubanga is one reason for the sluggish preparations for the trial, said the judge. That was supposed to happen by mid-December but by mid-February the defence had received the identities of less than half the witnesses. Other crucial evidence had been provided only in redacted or summary form, said the judge.

"In order for [Lubanga] to prepare to meet the witnesses and the documentary material that will be used against him, he is entitled to have been in possession of that evidence, essentially in its entirety, not later than three months in advance of the trial," said Fulford.

"Our view, founded in basic notions of fairness, is that he should not be expected to confront a case which he has not had adequate opportunity to investigate, analyse and meet."

A spokesperson for the office of the prosecutor told IWPR that the disclosure delays related to witness protection and the difficulties of conducting a trial during an ongoing conflict when "violent militias" are still "active and influential" in Ituri.

"Unredacted evidence - meaning evidence with names of witnesses or details which could identify them - can be disclosed to the defence only when such disclosure does not affect the security of witnesses, members of their families and those who may be at risk on account of the statements," said the spokesperson.

"The prosecutor will not put any of the witnesses at risk by disclosing information before they are adequately protected," she added, stressing that prosecutors have "disclosed to the defence all the identities of witnesses who have been adequately protected by the registry".

But there are other reasons for the long delay to the ICC's historic first case.

Judge Fulford said the ICC is a "brave new court" and explained every step it takes is on untrodden ground - a time consuming process. "We have no internal precedents. We are constructing our jurisprudence from scratch," said the judge.

He also pointed out that judges at the pre-trial, trial and appeal levels are all "thinking at different times about many of the same issues that affect our court". "That takes time, and we need to consider over the long term whether there are ways of reducing the time these processes take and we need to address their potentially repetitive nature," he said.

The extent and circumstances of victim participation in the trial is also causing the slowdown.

That war crimes victims have a right to participate at all stages of ICC proceedings - including the trial - is one of the foundations on which the court is built. But how it will work in practice is still unclear, with both the prosecution and defence asking to appeal a January decision widening the criteria by which victims can participate in the Lubanga trial.

Until that appeal is heard, the trial can't begin.

"There are legitimate differences of opinion as to the extent and the circumstances of victim involvement and I hope that in due course, the appeals chamber will be able to describe the superstructure in which we will live and operate," said the judge.

Lubanga's lawyer Catherine Mabille told IWPR that she is concerned about the January decision that allows victims to participate anonymously.

She also believes any victims allowed to take part in the Lubanga case must have a direct connection with the charges against her client. She says a broader criteria would see a flood of victims applying and delay further the beginning of the trial.

"I think we are going to have 1,000 victims [otherwise]," said Mabille, joking the case could last ten years unless numbers are restricted.

Mabille is also doubtful of suggestions from the bench that part of the trial could be held in the Congo, saying the country is not ready to play host to ICC proceedings. "There is no infrastructure to do it," she said. "It would be nice that in the future the ICC could work closely to the country where the drama is done. I think that is a good idea, but I think it is unrealistic that we could go to the Congo at the moment."

While the legal wrangling continues and the ICC's first case inches toward implementing a lexicon of untried and untested rules and regulations formulated by the nations in Rome in 1998, the person perhaps most affected by all the delays sits waiting in his cell.

Before the recent arrival of rival rebel leaders Germain Katanga and Mathieu Ngudjolo, Lubanga had just Liberian president Charles Taylor for company. "They are almost obliged to speak to each other,"said Mabille, referring to Lubanga, Katanga and Ngudjolo. In the Congo, Lubanga's Union of Congolese Patriots was bitter enemies of Katanga's Patriotic Resistance Force and Ngudjolo's National Integrationist Front.

Mabille said her client is lonely in The Hague and would prefer to be imprisoned in Kinshasa, even though conditions there are grim.

"Can you imagine being in a country where it is cold and where you don't see your family?" said Mabille, explaining that Lubanga dislikes Dutch food and misses his wife and children, who he only sees twice a year. "He would like to have African food, but he would also like to have the kisses of his wife and his kids."

Lisa Clifford and Katy Glassborow are IWPR international justice reporters in The Hague.