The Court and this trial were different. It was a Court for nearly all places and all times promising something most everyone in the world wanted badly, even if some state authorities remained wary. It was to bring tyrants to account, punish them according to their crimes, and give pause to others with tyrannical pretentions.
It was not just what kind of justice would be rendered for Lubanga. The Court itself was on trial.… Lubanga’s atrocities spoke for themselves, or so it appeared. They were well known in his country. They were well known abroad among the international organizations that had been forced to intervene to protect his victims, and they were well known among human rights organizations whose reporting brought his crimes to word attention. Something would have to go woefully askew for the trial to end up questioning the severity of the crimes. And yet, as the trial unfolded, the crimes became strangely and increasingly beside the point, buried under a spectacle of legal combat between counsellors who seemed more concerned with prevailing in the courtroom than worrying about what atrocities had been committed in Ituri and how to assign responsibility.
A Conviction In Question: The First Trial at the International Criminal Court, by Jim Freedman, University of Toronto Press, 2017, $32.95, 219 pages, pp. xiii, xvi-xvii
After reading Mark Kersten’s review of A Conviction In Question: The First Trial at the International Criminal Court by Jim Freedman, Professor Emeritus at Western University Ontario’s Department of Anthropology, I was intrigued. Could I have been so off on my assessment of the Lubanga trial?
Though I did not assiduously follow the Lubanga proceedings, I was aware of the main issues in contention and the challenges faced by the parties. Kersten, an academic who blogs about the International Criminal Court (ICC) (primarily from a humanitarian / victim-based perspective) was spot on in noting the lessons learned from the ICC Office of the Prosecutor’s (OTP) unguarded (irresponsible) reliance on third parties or “intermediaries” in identifying witnesses and then preparing / coaching them on their evidence. However, on other contentious issues Kersten is off the mark. I particularly found disquieting his claims that:
During the trial, the Chamber preferred to keep the victims on the margins of proceedings since none of the actors in the trial wanted to compromise their own stakes in the trial by admitting yet another voice that might arouse an unpredictable element into the proceedings.
Another was the Chamber’s embargo on sexual violence. The matter of sexual violence loomed large in the trial not by its presence but its absence.… For most of the trial the Chamber did what it could to hear as little as possible about how frequently young women were raped and enslaved.
The Defense’s repeated claim that the Prosecution had conspired with intermediaries to introduce false information ended up consuming an inordinate amount of the trial’s time and consideration. The discordant atmosphere inflated this issue beyond all proportion.
Impliedly, I assumed, Kersten’s loaded and skewed claims were reflective of Freedman’s take. This led me to contact Freedman to see if his publisher would provide me with a review copy of A Conviction In Question to review. Freedman could not have been more gracious and generous. To avoid any delays, he immediately shipped his personal copy. No quarter was sought, and none given on how the review would come out.
Writing about the first trial of a new tribunal of such enormous complexity as the ICC can be a daunting and overwhelming task – even for legal experts steeped in the founding of the Court and the nooks and crannies of the debates surrounding the drafting of the Rome Statute and the Rules of Procedure and Evidence. Expectedly, everything is up for challenge and review in the first trial, everything effectively being of first impression. What may have seemed logical and reasonable to the drafters in the comfort of their serene study or during their collegial exchanges at their working groups, may prove to be quite the opposite when put to the test in practice. Quirks, cracks, ambiguities, lacunae, and incongruities tend to surface during the proceedings of the first case. Par for the course when negotiating a hybrid court with a hybrid procedure.
Thus, it should have come as no surprise that the first case to be tried at the newly established ICC was likely to be combative, confounding, and controversial. Writing about the first trial (including the pre-trial proceedings) would require considerable selectivity: what to cover, how far into the weeds to go, where should the emphasis be, how to be objective, measured, and balanced in making observations and drawing conclusions, etc. It is no easy task to develop the narrative from which the author’s point of view will emerge without overgeneralizing or distorting complex legal issues, arguments, and decisions by reducing them to absurdity. This is especially so for non-legal experts, and even more so if the author is predisposed to facts he or she thinks are beyond dispute, that, when taken at face value, lead to an inevitable and unalterable conclusion.
Arguably, Freedman can be considered an insider of sorts with an unalterable point of view well before he decided to author a text on the Lubanga case. To his credit, Freedman lets us know from the start that A Conviction In Question is “in part, a memoir” given that he was member of a “Panel of Experts” assembled by the UN “to keep track of why and where the fighting persisted in the DR Congo where Lubanga was prominently on the radar.” (p. xv) Freedman recounts his trip in June 2002, where his “job was to draw a line connecting the rebels and their guns to the theft of resources in the northern stretch of Congo’s border to the East.” (p. 10) Seeing first-hand what Lubanga was doing, he concluded that Lubanga was going to kill the local governor, raze settlements, kill anyone who supported President Kabila or his government, and establish himself as the ruler of an autonomous Ituri region. He also saw and heard about Lubanga’s use of child soldiers. When Lubanga finally found himself in the ICC dock, Freedman came to The Hague to observe the proceedings (not all, but a good deal of them), where the then-ICC Prosecutor Luis Moreno-Ocampo granted him “the status of professional-in-residence and encouraged those involved with the Lubanga case to speak openly.” (p. xvi)
Freedman’s first-hand experiences in the Democratic Republic of Congo (DRC) provided him with an invaluable insight into what was happening in situ when Lubanga was purportedly wielding his warlord authority. However, it also saddled him with intractable opinions, impeding his capacity for objective analysis, which, as we shall see, was further impeded by his lack of knowledge and appreciation of international criminal law and procedure.
The first four chapters are devoted to setting up the backdrop for the ICC proceedings. Freedman does not disappoint when he recounts what he saw and experienced. In simple and moderately emotive prose, he makes a compelling case against Lubanga as a warlord, plunderer, murderer, recruiter of child soldiers, etc. To what extent his assertions and factual conclusions are accurate I leave it for others to judge, though I am inclined to accept Freedman’s narrative – broad-brush as it is. Having been courageous enough to drop into a hot zone under hellish conditions and with little to no reliable protection in order to get an up-close and personal look at the events as they were unfolding, having had access to witnesses and documents, and having studied the events over the years, Freedman deserves deference.
That said, when venturing outside the events in the DRC, at least in one instance, I found a real whopper that betrays victim-centric subjectivity. His claim that “Slobodan Milosevic butchered innocent people in Srebrenica and laughed at the international community for disapproving” (p. 52) is utter nonsense. Having represented Vidoje Blagojević, Commander of the Bratunac Brigade of the Bosnian Serb Army which operated in the Bratunac and Zvornik municipalities in eastern Bosnia and Herzegovina, I am particularly familiar with the facts and evidence concerning Srebrenica. There is no proof that Slobodan Milošević, the then-President of the Socialist Republic of Serbia had anything to do with ordering any of the crimes committed in Srebrenica. Nor is there any evidence that he laughed about Srebrenica or at the international community for “disapproving” the crimes. Nor does Freedman provide any authority to back up his claim.
This may seem inconsequential or as an innocuous taking of poetic license on a matter not central to the focus of the text, i.e., the ICC’s handling of the first trial. However, by making sloppy and fictitious claims, an unsophisticated reader may accept this claim about Milošević as the truth. Also, if sloppy and unsubstantiated claims are made on peripheral matters, who is to tell what other inaccuracies may be served as indisputable facts concerning matters that are relevant to the Lubanga case.
Preconceptions & misconceptions
“Lubanga’s atrocities spoke for themselves, or so it appeared.” (p. xvii) This sentence, seen in context in the opening quote to this post, encapsulates Freedman’s point of view even before he heard any evidence. Lubanga is guilty. It is obvious. Indeed, so obvious that assuredly the Defense, in deference to this truth and to the victims, should have been working hand-in-glove with the Prosecution to ensure a just outcome, since, as he sees it, the Rome Statute (he does not say which article) provides that “the prosecution and Defence are to share a common interest, the cause of justice in the wake of war.” (p. 188) And, if not for the “fractious interactions among the main actors pull[ing] the trial down into a morass of tactical ploys and objections” (p. 94) and the anti-prosecution / anti-victim sentiments and decisions of the Trial Chamber – orchestrated by Judge Adrian Fulford (p. 148) – Lubanga’s victims would have had their full day in court with Lubanga getting his just deserts.
Starting with Chapter 5, Freedman’s analysis fluctuates between his preconceptions of the evidence and his misconceptions of the law, procedure, and the role of the Defense. Freedman is unrestrained in his criticism of the Defense Counsel for their aggressive lawyering, while also attacking Judge Fulford for his rulings, which he sees as pro-Defense / anti-Prosecution. In contrast, Moreno-Ocampo gets high praises – even when it is beyond cavil that he is virtually single-handedly responsible for all short-comings in the Lubanga case when it comes to short-changing the victims. If not for his inability to see beyond his subjectivity and lack of legal expertise, it would be reasonable to surmise that Freedman is carrying water for Moreno-Ocampo; misdirecting the blame for the debacles he claims resulted in denying justice to the victims.
Freedman blames Judge Fulford for disallowing evidence of sexual violence to be heard during the trial. He blames Judge Fulford (and the Appeals Chamber for overturning the Trial Chamber’s decision in which Judge Fulford was in the minority) for opposing the recharacterization of the charges in the middle of the trial to broaden the scope of the charges and evidence to be heard. He blames the Defense for their dogged determination in seeking all relevant disclosure material, including the appearance of intermediaries used by or relied upon by the OTP in identifying witnesses, taking statements from them, and then preparing them to give evidence at trial. He blames Judge Fulford for succumbing to the Defense’s siren calls of unjustified accusations and innuendo against the prosecution – on just about every contentious issue.
Defense Counsel are not immune from making hyperbolic, bombastic, or casuistic arguments. This is part and parcel of the stock trade of diligent Defense Counsel who knows of only one client whom he or she must zealously represent. Freedman, regrettably, does not get this, perhaps because he is too vested in the outcome he thinks must flow. He does not get the fact that the Defense is not there to lend a helping hand to either the Prosecution or the purported victims – however meritorious their claims may seem to be. He seriously errs in thinking that the Prosecutor is “a neutral actor in the trial akin to a juge d’instruction in the civil law tradition.” (p. 188) This is nonsense. Just because under Article 54 of the Rome Statute the Prosecution is obliged to gather exculpatory evidence with the same zeal as it gathers inculpatory evidence, it does not mean that the Prosecution is neutral or actually investigates in this fashion. The ICC is sufficiently adversarial to make the Prosecution a partisan party, out to win by pressing every advantage, and as was seen in Lubanga, playing fast and loose in meeting its disclosure obligations in providing the Defense all disclosure material – even after being ordered by the Trial Chamber to do so.
What Freedman sees as sharp Defense tactics, I see as normal and ordinary – certainly nothing innovative or out-of-the-box. It is just as customary for Defense Counsel to demand all disclosure material, as it is for them to claim foul play when the Prosecution fails to make reasonable and necessary efforts to comply with its obligations. Accusing the Prosecution of nefarious conduct in the absence of a smoking-gun that supports the claim detracts more than assists is making a persuasive argument. Any good trial advocate knows that judges are not so easily seduced by vacuous claims – however loudly or colorfully put. When such claims are made routinely without justification, even if judges do not react to or caution against making vacuous and denigrating personal claims, experience shows that Defense Counsel who engage in such questionable tactics quickly lose credibility with the Trial Chamber and thereby risk having valid claims ignored.
In Lubanga, the Defense Counsel were aggressive. Heated words were spoken. Accusations were made. And yet from what I glean from that which Freedman relies upon, the Trial Chamber found credence in the claims and arguments made by the Defense Counsel. Conversely, Moreno-Ocampo and his team came across as hubristic, arrogant, and obstinate.
Imagine insisting to a Trial Chamber that the Defense should make do with summaries of witness statements or documents prepared by the Prosecution because they were prepared by the Prosecution? Or what about refusing to comply with a Trial Chamber’s order to identify and produce an intermediary to be questioned on how he or she may have taken a statement or prepared a witness to give his or her evidence, especially when good cause was shown that some of the witnesses prepared by intermediaries were told how to tailor their evidence to fit the Prosecution’s case?
Freedman sees no fault in any of Moreno-Ocampo shenanigans or in any of the numerous strategic and tactical errors committed by the Prosecution in investigating, charging, and trying the Lubanga case.
Take for instance the publicity stunt by Beatrice le Fraper du Hellen, a ranking French diplomat on loan to the ICC, serving as a Deputy Prosecutor. In the middle of the trial and at the height of the controversy on the use / abuse of the intermediaries, Moreno-Ocampo and his team selected le Fraper du Hellen (presumably because she was a diplomat and thus whatever she said would likely carry more weight) to give an interview, wherein she (falsely, as it turned out) claimed that intermediaries had not engaged in or were responsible for any irregularities, and that the outcome of the trial (a guilty verdict) was forthcoming. (pp. 139-149) Obviously, this was an inappropriate ploy to pressure the Trial Chamber to be less of a stickler in applying the ICC’s statutory provisions and Rules of Procedure and Evidence in order to accommodate the careless and irresponsible manner in which the Prosecution outsourced its duties to the intermediaries with little or no oversight. In le Fraper du Hellen’s own words:
We all worked as a team, the Office of the Prosecution. That interview had not been impromptu, it was planned. It was not something out of the blue. We should have done more of this sort of thing from the beginning.
The prosecutor [Moreno-Ocampo] knew his limits within the law. He was simply not interested in the formalities of deference and protocol the judge [Judge Fulford] expected, he spoke out, he tested the waters, he wanted the reach of the trial to go beyond the Chamber, and this made the Chamber uncomfortable. The judge wanted to be in total control, and the prosecutor did not go along. (p. 147)
Incomprehensibly, Freedman swallows hook, line, and sinker the Prosecution’s dim-witted arguments as to why it could not comply with their disclosure obligations, or why it could not or should not comply with the Trial Chamber’s orders, or why it should have been allowed to pursue avenues of questioning and introduce evidence from which to argue for an aggravated sentence – even though it deliberately chose not to plead in the charges the alleged criminal conduct it claims to have occurred.
Freedman makes much of the Trial Chamber’s decision to restrict the taking of sexual violence evidence. He cynically sees an almost sinister (if not conspiratorial) ploy by Judge Fulford to deny the alleged victims their right to be heard, their evidence to be taken, and for Lubanga to be held to account. Here, Freedman is in sync with Kersten, who claims in his post that the Trial Chamber placed an embargo on sexual violence, doing what it could to hear as little as possible about how frequently young women were raped and enslaved.
Freedman (and Kersten) makes a point that sexual violence should have played a more prominent role in the trial, as should have other crimes such as rape and murder. But who is to blame? Moreno-Ocampo, not the Trial Chamber.
Moreno-Ocampo decided to go after the “low hanging fruit,” as Freedman puts it, charging the crime of recruiting child soldiers – presumably, because it was an appealing crime that he and his team of seasoned Prosecutors could easily prove. How derelict and naïve of Moreno-Ocampo.
In alleging only one discreet crime, Moreno-Ocampo put the Prosecution (and Counsel for Victims) in a straight-jacket. The Defense cannot be expected to defend against crimes that are not charged. The Trial Chamber cannot be expected to give leeway to the Prosecution because, in hindsight, it realizes that by drafting a narrow charging document, it unjustifiably disenfranchised legitimate victims. Neither the Prosecution nor the victims can expect the Trial Chamber to turn a blind eye to efforts made by them to sneak in evidence that potentially goes to crimes deliberately omitted from charging by Moreno-Ocampo. Freedman thinks otherwise – erroneously.
Despite its shortcomings, I recommend A Conviction In Question: The First Trial at the International Criminal Court – but not for the reasons Kersten noted (with the exception of his take on the intermediaries – which I share), and certainly not for Freedman’s intended purposes. I do not share his assessment on the Defense tactics, his excuses for the Prosecution antics or his claims concerning Judge Fulford’s partiality. The fact that Judge Fulford did not suffer fools, does not mean he was lacking in judicial integrity or temperament. Judges at the ICC are expected not to stray from the straight and narrow interpretation and application of the Rome Statute, Rules of Procedure and Evidence, and relevant jurisprudence. In general, Judges, at all international(ized) tribunals and courts should hold the Prosecution’s feet to the fire unapologetically – as Judge Fulford did in Lubanga.
I recommend this book because in highlighting the combative nature of the adopted procedure of the ICC, Freedman shows how observers such as himself, even if relatively familiar with the process, cannot fully grasp let alone appreciate the mechanics of a trial, which, at the surface may seem odd, silly, or counter-productive, but which are indispensable to the process.
Freedman highlights to those working in the ICC OTP and at other prosecution offices at the various international(ized) criminal tribunals and courts what to expect from a conscientious Trial Chamber when undercharging or failing to meet disclosure obligations, and the pitfalls of using intermediaries, who, wittingly or unwittingly, may be tampering with sources of evidence – the witnesses’ memories. Freedman also chronicles how Defense Counsel should aggressively be attacking the Prosecution if and when it is not complying with its obligations.
While I think Freedman’s conclusions are, in many respects, unsound or colored by his perspective, there is great value in his detailed and generally reliable reporting and observations, making this book a useful primer for both defense counsel and prosecutors, and a worthy read.