Lubanga Judgment (ICC) on Intermediaries

The Lubanga case concerned the use of child soldiers in the DRC.  What has emerged from the first 200 or so pages of the judgment is a serious - in fact, overwhelming - amount of misconduct by intermediaries employed by the OTP to help run its investigation in the field.  As a result, 6 victims and the father of a victim have had their right to participate in the proceedings revoked.  However surprising that decision was, it paled in comparison to the decision to instruct the OTP to open an investigation into offences against the administration of justice based on the case they had presented.  The Trial Chamber writes:

A series of witnesses have been called during this trial whose evidence, as a result of the essentially unsupervised actions of three of the principal intermediaries, cannot safely be relied on. The Chamber spent a considerable period of time investigating the circumstances of a substantial number of individuals whose evidence was, at least in part, inaccurate or dishonest. The prosecution’s negligence in failing to verify and scrutinise this material sufficiently before it was introduced led to significant expenditure on the part of the Court. An additional consequence of the lack of proper oversight of the intermediaries is that they were potentially able to take advantage of the witnesses they contacted. Irrespective of the Chamber’s conclusions regarding the credibility and reliability of these alleged former child soldiers, given their youth and likely exposure to conflict, they were vulnerable to manipulation....The Chamber hereby communicates the information set out above to the OTP [in order that it may prepare charges for offences against the administration of justice] and the Prosecutor should ensure that the risk of conflict is avoided for the purposes of the investigation.

This is surprising, not because it is undeserved but, because quite a lot of Chambers seem not to mind being taken for a ride. International judges have been known to sit through some of the most farcically perjured testimony without batting so much as an eyelid.  Indeed, this Trial Chamber appeared not to mind too much. After all, it sat through evidence that led it to make the following finding:

It was a highly unusual feature of this witness’s evidence that in advance of his meeting with representatives of the OTP in July 2005, he had written the names of some of the main localities he was to mention in his statement on his jeans.  When asked about this, the witness gave a distinctly confused explanation, including that he had done it for the “pleasure of it” before he had met the investigator.

And this one:

Each morning, in meetings at the hotel with the  intermediary prior to the interview, he was given an outline of the  account he was to provide to the investigators. The witness said:

"The intermediary gave me a briefing to use all possible means to hide the exact identity of my parents and my own identity and where I'd gone to school and where I had had military training."

P-0015 indicated that [the OTP's intermediary] told him to hide his Hema ethnicity and his identity (he suggested that the name he was told to use was not a Hema or Iturian name), so that any investigation into his past would be very difficult for the prosecution.

And, the Trial Chamber sat through this evidence, from the intermediary who was perhaps the worst offender: 

"From 2004 to date, there is one thing I would like to emphasise and it is this: I have always remained loyal to my government [which is responsible for referring Thomas Lubanga's case to the ICC] in my service. However, there were sometimes perhaps circumstances in which I might have worked outside of this capacity, but I always remained loyal to my government."

Incidentally, this is an intermediary who also lied about his assistant's death,  hand wrote a fake threatening letter for a witness to help him leave Bunia, and he met with witnesses prior to their OTP interviews in order to rehearse their evidence with them, to name but a few of his alleged trespasses against the court. 

The Trial Chamber blames the prosecution's negligence, in failing to verify and scrutinise these parts of its case before presenting it, for the "significant expenditure on the part of the Court." The Prosecution's role is the misconduct is evident from the judgment (though it will be extremely interesting to see what the investigation turns up). However, it is the Trial Chamber's job to ensure the efficient use of time by the parties. It knew before the judgment what the state of affairs was, so why did it wait until then to call a spade a spade, and why did it let the Prosecution take them for this very long and expensive ride in the first place?  

Rasic Case (ICTY): Contemptible Contempt

Contempt of court is a unique crime at the ICTY; it is the only one not contained in the statute.  Penalties range from the monetary (EUR 7,000 in the case of Florence Hartmann, before it was converted into a sentence of 7 days imprisonment for failure to pay) to seven years imprisonment.  The latter is a heftier sentence than has been meted out in some of the Tribunal's sentences for war crimes.  That contempt of court can be regarded as more serious than war crimes must surely come as a surprise to some people.  

In practice, sentences have hovered around the three month mark.  Jelena Rasic was an outlier at 12 months imprisonment.  However, she has served only about 78 days, the remainder of her sentence having been suspended on the condition that she is not convicted of any other crimes in the next two years.  In arriving at this decision, the Trial Chamber took into account the impact of quasi-solitary confinement (as a result of being the only female in the detention unit) on her unstated health condition, the fact that this was her first prison sentence, and her relatively young age. 

Jelena Rasic was born on 19 April 1983.  She was twenty-five years old when the relevant events occurred.  Her indictment for contempt centered on the procurement of false statements for use in the Lukic defence case while employed as the team's case manager.  She had no legal or investigative training.  Without ever having met Ms. Rasic and having no first-hand knowledge of the case, I could not possibly begin to fathom whether she "knowingly and willfully" interfered with the administration of justice."  But I can say this, from experience: when working on a multi-million dollar war crimes case, with multiple accused, at an international tribunal, being broadcast to the world on a daily basis, nobody leaves a twenty-five year old woman in charge.  

The Chamber partly recognised this, commenting that:

"it is obvious that another or others connected to the Lukic and Lukic case in some way were responsible for recruiting her to commit these offences. In this respect, the Chamber has considered the personal circumstances of  Jelena Rasic, including that she was relatively young at the time of the crimes and that she was inexperienced in the role of investigator in which she was put by the Milan Lukic Defence, even though she was  employed  as case manager."

Unfortunately, the reality is that there are some case managers  - male and female - who know very little about the law or legal ethics.  It is not for stupidity or laziness, but for a complete lack of legal education or support structures that this situation arises.  If case managers are lucky enough to get trained in at all, it is too often by someone who isn't up to the task.  In most circumstances case managers have zero job security.  A typical workday entails horrifying amounts of time spent updating excel spreadsheets, as well as photocopying, tabbing, proofing and pdf-ing.  Some of those people might pick up a few bits and pieces of law along the way, but after a thirteen hour day, seven day week of typical case management, most non-lawyer case managers won't have a lot of time left over for the study of law. 

The witness whose testimony Rasic is said to have bought was not a stranger to the ICTY.  The OTP apparently had several statements from him in which he indicated that he would cooperate in exchange for money.  In this case, it appears that the OTP refused to play ball.  But sometimes Prosecution witnesses do receive a benefit that is somehow connected to their evidence in a case, such as relocation, visas, permits, support for asylum applications; things that make life for people from a post-conflict region a bit easier.  And in spite of frequent and vigorous protestations from the Defence to the contrary, there is nothing improper about the assistance provided to witnesses in the majority of cases.  There are, however, the exceptional cases where the witness's pre-relocation statements contradict each other or aren't corroborated by any other evidence in the case, but assistance is granted anyway, paving the way for the witness's testimony.    No such cases have ever lead to contempt charges nor would they in all likelihood.

There can be no question that the conduct to which Ms. Rasic pleaded guilty must be addressed.  It is contemptuous not just of the Court, but of the parties, the victims, and the other accused who play by the rules day in and day out. Whether Defence or Prosecution, no one should be allowed to interference with the administration of justice. But it must at the same time be observed that the practice of the Tribunal is much greyer than we might like to think.  And I would respectfully suggest that the power to deprive individuals of their liberty, conferred on the Tribunal by the Security Council under Chapter VII of the Charter of the United Nations, was not intended to reach individuals such as Ms. Rasic.  This cannot have been the best way to deal with an extremely unfortunate situation.