Intermediaries in Peril

By Katy Glassborow in The Hague (AR No. 180, 28-Jul-08)

Lawyers at the International Criminal Court, ICC, are seriously concerned over the absence of protection for so-called intermediaries who communicate between victims in Africa and lawyers in The Hague.

For the first time in international law, victims of war crimes can take part in investigations and trials at the ICC, but lawyers representing those from Darfur and the Democratic Republic of Congo, DRC, say the intermediaries they use to contact victims on the ground are in danger because of their work.

Carine Bapita, a lawyer from Kinshasa who represents victims in the case against Thomas Lubanga, told IWPR that she flew one of her intermediaries out of DRC when the threats became too much.

“They are the focal points but most of them are in danger today. I brought the issue before the court but was told there is no provision in any of the rules, so I had to manage by myself and find the money from elsewhere to relocate them. The court does nothing about it,” she said.

Whereas the court offers protection to prosecution or defence witnesses, it does not recognise the need to protect intermediaries, or that they even play a role as a channel for information.

Bapita says that if there were no intermediaries, there would be no victims appearing before the court, and no lawyers would be able to represent victims, which would mean that a fundamental part of the duties of the court could not be performed.

Raymond Brown and Wanda Akin, who represent victims from Darfur, say intermediaries are essential to gain information from the victims to present to the court, and that the system of intermediaries working to put lawyers in touch with victims has grown up spontaneously in response to a need that is not being addressed.

Akin and Brown are based in the United States but some of their clients are in internally displaced persons, IDPs, from camps and towns in Darfur. Since the lawyers are unable to travel into the heart of Darfur, the only way to reach them is through intermediaries.

“Even if we could reach them ourselves, we would put victims at risk by talking to them directly. We need an intermediary who is not only an interpreter, but a countryperson who understands the geography of Darfur and how the conflict unfolded,” said Akin.

While they serve an important role, intermediaries are extremely vulnerable.

Brigid Inder from the Women’s Initiative for Gender Justice helped relocate a number of activists when militia in the DRC began actively looking for people engaged with the ICC or providing the court with information.

“Individuals associated with militia groups have turned up at the houses of some of the intermediaries we work with demanding to see them and for them to provide the whereabouts of other individuals they believe are working with the ICC,” she said.

“Family members of activists are stopped on the road by men and threatened, and some of their partners have received threatening emails and text messages.”

The intimidation is not solely directed at intermediaries. Lawyers engaged in ICC cases and their relatives have also been targeted.

Bapita – based in The Hague for the Lubanga trial – has had threats made against her and her family in Kinshasa as a direct result of her involvement with the court.

“Already I have received threats, and my family is threatened. We have brought these issues before the ICC and have been told that the court’s statute has foreseen nothing about it, so there is nothing the ICC can do,” said Bapita.

Recently, a friend told Bapita about an alarming conversation he had overheard between a group of Swahili-speaking people in Kinshasa.

“They said bad things about the legal representatives of [Lubanga] victims, and said they know my house. The night I received that information, there was shooting around my house,” she said.

The trial of Lubanga – charged with recruiting children to fight in his militia – was due to start last month but judges suspended the case because prosecutors relied too heavily on confidential evidence from other sources.

Judges said Lubanga’s case had been “ruptured to such a degree that it is now impossible to piece together the constituent elements of a fair trial” and concluded that he be released as a consequence.

Subsequent appeals have meant Lubanga is still in custody, but his supporters – who can watch court proceedings on Congolese television – think the judge’s decision means he must have been found innocent and freed, and cannot understand why he has not been sent home yet.

The television broadcasts also mean that images of lawyers like Bapita in action in the courtroom are seen across DRC. But like intermediaries, lawyers are not covered by protection provisions in the court’s statute.

“If [lawyers] are being threatened, they should be protected. Witnesses are entitled to protection along with their family. The same thing should apply to lawyers,” said Mariana Pena from La Fédération Internationale des Droits de l’Homme, FIDH.

Mark Ellis, from the International Bar Association, said “it is absolutely fundamental that lawyers are provided support. If the ICC does not provide it, one could argue that the trial does not meet international standards of fairness”.

Sonia Robla, head of public information at the ICC, told IWPR that the court had no obligation to protect either intermediaries or lawyers.

“It is the responsibility of the states in question to protect the lives of their citizens. There is no provision in the Rome Statute, or any of our legal texts, to ensure their security in another way,” said Robla.

But critics say that only countries that have signed the ICC’s founding Rome Statute would be prepared to cooperate in this way, which immediately excludes Sudan.

“The Sudanese government has vowed to exterminate people who are cooperating with the court,” said Brown.

Meanwhile, Bapita is calling on ICC prosecutors to explain to Congolese what is happening in the Lubanga case so that the difficult, and sometimes dangerous, job is not left solely to intermediaries.

“They are risking their lives and as if that is not enough, now they are supposed to go to the victims and explain what is happening. The prosecutor needs to acknowledge his responsibility to explain what is happening – he cannot escape it,” she said.

A spokeswoman for the prosecutor told IWPR, “In order to address possible confusion and misunderstandings, we have taken every opportunity to communicate with the population. To this effect, we sent a mission to Kinshasa in early July. Together with the registry, we are planning further outreach activities in Ituri next September.”

The spokeswoman said prosecutors are also looking to ensure that witnesses and intermediaries are afforded adequate protection, an issue which appears to have been a source of significant tension within the court.

In May, prosecutors dropped all sexual violence charges from the indictments of Ituri militia leaders Germain Katanga and Mathieu Ngudjolo following disagreements with the registry over how to protect two witnesses whose testimonies could have backed up the charges.

Prosecutors feared for the witnesses’ safety so relocated them without the consent of the registry, in order to guarantee that they would be able to testify about their experiences in court.

The registry criticised prosecutors for stepping in to protect witnesses, saying this could undermine the credibility of their testimony, as prosecutors might be accused of offering witnesses inducements to testify.

Judges then pulled all evidence relating to the two witnesses, causing prosecutors to scrap the sexual violence charges.

The spat has now been resolved and the charges reinstated, but the episode shows disagreements over protection even extend to those who are entitled to it under the court’s current system.