After nearly seven years and after wasting hundreds of millions of Euros of taxpayers’ money (mainly from Europe, Canada and Japan) the first trial in the history of the ICC finally got off to a kind of start last week. Thomas Lubanga, an insignificant local warlord from Eastern Congo who has been waiting nearly three years in remand prison for his trial to start, is the only person the ICC so far has been able to bring before a trial judge.

I wrote “kind of start” because as usual at the ICC and as usual when Prosecutor Luis Moreno-Ocampo is involved it was more like a sputter when the first trial got under way.

Eastern Congo has seen horrible crimes in the past 15 years and there are credible estimates that some three million human beings have been killed directly or indirectly as a result of a succession of wars and armed conflicts in the area.

So is Thomas Lubanga one of the major brains behind this wild murder spree? Is he a national political leader in the Congo? Does the charge sheet cover all the crimes committed by the militia he operated?

Unfortunately, the answer is “no” to all questions. Lubanga is small fish in the conflict in the Congo and even though more cases may come before the Court
(don’t be too sure, if the confusion at the ICC continues) none of those who are the main perpetrators have yet been brought to justice. And the only crime he is accused of is to have forced children (mainly teenagers, in fact) to become soldiers in his private army.

The trial started with a sputter, as I wrote. However, nobody is very surprised.

In December last year Chief Prosecutor Luis Moreno-Ocampo (of Argentina) fired the highly experienced German trial lawyer who has been working on the case for five years. Ekkehard Withopf, a former judge and prosecutor from Germany, never attempted to hide his disdain for his much less experienced and much less competent boss. They repeatedly clashed in open meetings and the vain chief prosecutor no doubt could not live with having one of his most fierce internal critics run the first trial.

The trial has instead been handed over to Deputy Prosecutor Fatou Bensouda (of the Gambia). Deputy Prosecutor? But then she must of course be in the top class of lawyers, highly experienced, with vast academic and practical experience? Not so, unfortunately. Bensouda was elected Deputy Prosecutor mainly because she is an African, and a woman. Her legal experience, mainly working with the UN Rwanda tribunal, is limited. She was derided even by her own staff who would regularly bypass her with complaints to Moreno-Ocampo.

The trial started with Moreno-Ocampo strenuously reading an opening statement for the prosecution. “Strenuously”, because Moreno-Ocampo has a problem reading even a simple phrase in correct English. Press reports were not favourable. “Ocampo Underwhelms in Landmark Trial“, wrote Lisa Clifford from the respected legal newsletter IWPR. Much of his statement actually wasn’t about child soldiers, but about rape and other sex crimes against girls and women. Lubanga’s defence lawyer immediately bit back and protested: rape is not included in the charge sheet against Lubanga. “She makes a good point”, wrote Lisa Clifford in her comment, it is “unreasonable for Lubanga to answer charges that were never issued”.

But the real disaster came on the third day of the trial, after the initial statements were over. By now the inexperienced Bensouda had taken over the trial, while Moreno-Ocampo had flewn to Davos to rub shoulders with the high and mighty.

The first witness, an alleged former child soldier, was giving testimony from behind a screen and with his voice distorted. At first, he said he was snatched by Lubanga’s militia on his way home from school. But some time later he recanted everything, denying his first account and saying he was told to lie by staff from a humanitarian NGO.

To read the transcript from the first real trial day of the ICC is truly hilarious. The curtain to the galleries goes up and down when the judge intervenes with the amateurish Bensouda, the court is either in closed or open session and then suddenly comes the moment (it’s on page 40-41) when the witness decides to take everything back. Even through the dull transcript it’s palpable how the atmosphere in the court room must have been, with the embarrassed Bensouda completely thrown off balance when the witness recants everything he has said before.

“A shambolic opening day’s testimony”, wrote The Times of the UK the next day under a title proclaiming that “Chaos reigns at International Criminal Court Trial of Thomas Lubanga”.

It’s not very difficult to poke fun with the chaos in the court room (which is, of course, just a vague reflection of the complete chaos behind the scene, in the office of the prosecutor). But this is about much more than two incompetent prosecutors: it’s about a court that costs tax payers 102 million Euros per year to pay for almost 600 staff members, including 18 overpaid judges and three equally overpaid prosecutors and deputy prosecutors.

And again the question must be: for how long will the governments of the 100 plus member states accept circus Moreno-Ocampo in the ICC? When will a coalition of states finally take the elevator up to the 12th floor and tell Moreno to fly home to Buenos Aires for the last time?

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