The Hague – The script was set for the first trial of the world's first permanent war crimes court this week:
Chief prosecutor Luis Moreno-Ocampo went after warlord Thomas Lubanga, charged with recruiting 30,000 child soldiers in the Democratic Republic of Congo, saying Mr. Lubanga's acts would "haunt a generation."
But 48 hours later, the prosecution's first witness, a child soldier, caused the entire court to gasp.
At first, the young soldier said he was snatched by Lubanga's militia on his way home from fifth-grade classes. The witness, now a teen, then threw the landmark case briefly into limbo when he recanted his testimony, denying that he'd ever been a child soldier taken to a military training camp, and that his testimony was prompted by an unnamed nongovernmental organization.
In the court, Lubanga, sitting behind the defense team in dark suit and tie, and in clear view of his alleged former child recruit, smiled.
Prosecutors suggested to Chief Judge Adrian Fulford, of Britain, that the star witness, who was to give two days of testimony, felt unprotected and feared for his safety. A probe is now under way.
The washout of the International Criminal Court's (ICC) first witness is another blow for a court whose own judges nearly threw out the Lubanga case last June over a dispute about evidence sharing.
Justice experts, including Jon Silverman of the University of Bedfordshire, in Britain, note that "you have to take a long view," describing years of delay and a rocky start in the trial of Sierra Leone strongman Charles Taylor. That trial, convened under the auspices of the Special Court for Sierra Leone and also held here at The Hague, is now moving quickly.
The Lubanga case is the first for the ICC since it was formed in 2002. The idea for the court emerged after the relative success of war crimes tribunals in Rwanda and the former Yugoslavia, with experts hoping that stronger concepts of justice would serve as a soft-power deterrent against heinous acts and genocide.
The court has since moved in fits and starts. Prosecutor Moreno-Ocampo made a splash last summer by indicting Sudanese President Omar al-Bashir, but most of the ICC's focus so far is on Congo, where little-noticed wars have claimed some 5.5 million lives. Four Congolese alleged warlords are now at The Hague; a joint trial of Germain Katanga and Mathieu Ngudjolo is expected in several months.
Legal experts say the ICC's strategy is to deter young Congolese warlords, whose fearsome private militias promote their own careers as they fight over gold, land, and other natural resources.
"Young rebels – warlords – find they get rewards in the Congo by taking up arms, killing civilians, and then making deals to find a place in the sun, either in the military or in Kinshasa," says Geraldine Mattioli, of Human Rights Watch in Brussels, who has closely followed Congo and the ICC. "This impunity feeds cycles of violence that need to be deterred."
Yet the legal body's performance in the court of world opinion remains an issue. The ICC has a staff of 745 people that has worked six years – only to find its first case nearly thrown out in June.
Lubanga's defense team claims his arrest was arbitrary and political and that other suspects have committed worse crimes. Human rights groups say the child-soldier charges, while important, ignored clear evidence of rape and thousands of killings.
Legal experts say the difficulty of creating a new world court can't be underestimated, and that protocols for conducting a safe and fair trial at a time when violent warlords and their deputies remain in the Congo is daunting.
Part of the shuffling of the opening trial was on display Wednesday, as prosecutor Fatou Bensouda, of Gambia, prepared to commence two days of the child-soldier testimony.
Chief Judge Fulford started with an admonition on "Rule 74," which requires that the witness be fully informed that his evidence could possibly incriminate him in Congo. The court retired to allow a fuller explanation to the unnamed witness.
Malfunctioning microphones meant that the young witness, flown in from Congo to the small, brightly lit courtroom, was required to take his oath three times. In the visitors' area, Congolese diplomats were surprised to find that everyone in the court, including Lubanga, could see the witness, who identified himself.
The defense, credited by legal experts for developing an intelligent strategy, pointed out that testimony in Swahili had been improperly translated. Moreover, when the child soldier then recanted, Ms. Bensouda, who replaced another prosecutor only six weeks ago, could not seek counsel from Moreno-Ocampo, who had decamped to the celebrity economic forum at Davos, Switzerland, according to a court spokeswoman.
ICC-watchers say the child-soldier witness clearly did not feel safe in the same room as Lubanga – and may also have been frightened by the warnings that he could be held accountable for killings or rapes done at the behest of a warlord.
Lorraine Smith, of the International Bar Association office at The Hague, points out that ICC judges a year ago adopted a rule disallowing the defense from "proofing" its witnesses – advocating instead a "witness familiarization" approach that is carried out by another court agency.
She questions whether former child soldiers warned on the day of the trial about possible culpability will testify accurately.
Paul Williams, an international legal expert at American University in Washington, expressed surprise that the child soldier and Lubanga could see and identify each other.
"In the Yugoslav and Rwanda tribunals, combatants could testify as 'Witness X' from a separate room, using a voice modulator. The right for the defendant to confront his or her accuser does not require that they be face to face, but means that they can hear clearly what the witness says.
"A rule that allows a child soldier, who is already in a tenuous situation, to be further traumatized," says Mr. Williams, "seems an unrealistic conception of the notion of justice."