Justice delayed is justice denied

The first trial at the International Criminal Court — which begins tomorrow — is likely to take “some months”, the court has announced.

A month or two would be reasonable. But prosecutors at The Hague have said privately that the trial of Thomas Lubanga will continue for nine months. That is far too long. The court simply does not have the resources to run trials at this sort of length.

Lubanaga is accused war crimes. He is said to have enlisted and conscripted children under the age of 15 years into the Forces patriotiques pour la libération du Congo, and used them to participate actively in hostilities in Ituri, a district of the Eastern Province of the Democratic Republic of the Congo, between September 2002 and August 2003.

The prosecution will call 34 witnesses, including some former child soldiers. Nineteen witnesses are expected to give evidence anonymously. Prosecution witnesses will be available for cross-examination. It is not known how many witnesses will be called by the defence.

It is hard enough to conduct a trial when everything spoken has to be translated into three languages. But the presiding judge should make his position very clear at the beginning of the trial. Sir Adrian Fulford should tell prosecuting and defence counsel that the court, not the parties, will decide how much time is devoted to oral evidence. That is not to say that any evidence should be rejected simply for reasons of time. But evidence does not have to be taken in full and in open court during the trial.

One option, of course, is for the court to rely — in whole or in part — on the written statements that witnesses have presumably made already. These could be used for repetitive or undisputed matters in which cross-examination cannot be justified.

Another, more interesting, option would be for witnesses to give their evidence orally to another judge at the International Criminal Court, one who is not taking part in the trial. This could take place in another courtroom while the main hearing was continuing, with junior lawyers from the prosecution and defence in attendance. The court's regulations envisage the possibility of "recorded evidence,including the transcripts and the audio- and video-record of evidence previously given": see regulation 54(i).

If parts of the evidence are contentious, the witness could be brought before the full court to be examined on those areas alone. Everything else would simply be reported in writing to the full court.

These are unusual steps. But they are necessary to prevent the case getting out of hand. If Sir Adrian establishes a brisk working method for this court’s first case, other trials will adopt similar procedures and the cause of international criminal justice will be strengthened immeasurably.

Posted at January 25, 2009 11:16 AM