Congolese warlord Thomas Lubanga is seen behind his lawyers in the courtroom of the International Criminal Court at The Hague March 14, 2012. REUTERS/Evert-Jan Daniels/Pool
By the time the first verdict of the decade-old International Criminal Court was finally handed down on March 14, broader implications of this pioneering case were being recognized by human rights groups and international lawyers. In the courtroom, the judges found the Congolese warlord Thomas Lubanga Dyilo guilty of conscripting children under the age of 15 and sending them into a guerrilla war of extreme brutality. Will this conviction make a difference and what does the case say about the functioning of the court?
Lubanga, leader of the armed Patriotic Forces for the Liberation of Congo, operated in the northeastern Ituri region of the Democratic Republic of Congo, an area torn apart by ethnic conflicts complicated by a Ugandan military intervention and a deadly local free-for-all over the riches of gold mines and other resources. The story is replicated to one degree or another across much of eastern Congo, where thousands of civilians have been raped and butchered in power struggles and deliberate campaigns of intimidation over almost two decades.
The guilty verdict against Lubanga, who was given thirty days to appeal, took years to reach, as the new court and its prosecutor stumbled over missteps and unexpected challenges. Lubanga was turned over to the court by the Congolese government in 2006, the first person to be taken into custody by the ICC. His trial began in 2009 amid squabbles between the prosecutor and judges, internal fights over the gathering and sharing of evidence, stays of proceedings and one early attempt by the bench to free Lubanga on the ground that he could not get a fair trial, a ruling that was subsequently overturned.
Critics faulted the prosecutor, Luis Moreno-Ocampo of Argentina, for limiting the case to the use and abuse of child soldiers (some of them boys and girls younger than 12). Left off the charge sheet were numerous other war crimes allegedly committed by Lubanga and his co-accused, Bosco Ntaganda, another militia leader who is now a general in the Congolese army in the North Kivu area of eastern Congo.
Moreno-Ocampo, who has said that he wanted to see a trial through to conclusion before his term as prosecutor expires at the end of June, apparently focused narrowly in the Lubanga case on what could be proven beyond doubt in court. In that, he succeeded. He is seeking the maximum thirty-year jail sentence for Lubanga. The ICC does not condone the death penalty.
Géraldine Mattioli-Zeltner, the international advocacy director for Human Rights Watch, called the guilty verdict “a victory for the thousands of children forced to fight in Congo’s brutal wars.” In a statement, she added: “Military commanders in Congo and elsewhere should take notice of the ICC’s powerful message: using children as a weapon of war is a serious crime that can lead them to the dock.” Child soldiers are found in more than a dozen countries, most of them in Asia and Africa.
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Coincidentally, the Lubanga ruling came as media interest in child soldiers soared after the release of the now controversial video “Kony 2012,” produced by the group Invisible Children. It tells the story of abuses by Joseph Kony, the leader of the insanely violent Lord’s Resistance Army in northern Uganda, which flared in the 1990s. Driven out of Uganda in 2004-2005 by the army (which is also accused by Ugandans of human rights abuses) the LRA now operates mostly in the Democratic Republic of Congo, the Central African Republic and southern Sudan.
An ICC warrant for the arrest of Kony and two of his co-leaders was issued by the ICC in 2005 but the case received little attention over the years, although the United States currently has military advisers in the region training Ugandan and other forces ostensibly trying to capture the LRA leader and turn him over to the court.
Two immediate outcomes of the Lubanga case are evident. First, the use of child soldiers is now firmly established by precedent as a war crime, just as rulings by the Rwanda war crimes tribunal first confirmed rape as an internationally recognized war crime.
Second, it is clear from the tangled process that finally brought Lubanga to justice that the multinational ICC, drawing on a multitude of cultural factors and legal systems, will have to work harder to streamline investigations and courtroom proceedings as a new prosecutor, Fatou Bensouda, a lawyer from Gambia, takes over in the summer.
Significant questions remain about the use of “contract” investigators who have augmented the overburdened prosecutorial staff. An unruly court bureaucracy needs discipline, outside observers say. Provisions for the protection of witnesses and compensation for victims, unique to this court, are only beginning to be tested. And, as the “Kony 2012” episode demonstrates, the court has failed to make a public impact if millions of people in social networks thought they were hearing the LRA story for the first time this year.
Bensouda, a low-keyed expert in international law who has been the court’s deputy prosecutor under the more showman-like Moreno-Ocampo, faces important cases still to pursue. Four arrest warrants are outstanding for war crimes in the Darfur region of Sudan, among them one naming the Sudanese president, Omar Hassan Ahmad Al Bashir. Six Kenyans turned themselves in to the court voluntarily to be investigated for alleged involvement in political violence following a national election in December 2007.
Last year, Moreno-Ocampo, acting with UN Security Council authority, opened cases charging crimes against humanity against Muammar Qaddafi, his son Saif Al-Islam Qaddafi and Abdullah Al-Senussi, the Qaddafi regime’s intelligence chief accused of instigating widespread repression. Charges against Muammar Al-Qaddafi were dropped following his death.
Saif Al-Islam Qaddafi remains in Libyan custody and is likely to be tried in that country, a risky course of action that is nonetheless allowed by the ICC. In a brief interview with me in January, Bensouda, who had recently returned from Libya, said that she accepted Libyan assurances that Saif Al-Islam is not in danger. She pledged that the ICC would assist the Libyans in insuring that he got a fair trial conducted under internationally recognized standards. On March 17, the Libyans announced that al-Senussi, Muammar Qaddafi’s brother-in-law as well as a top aide, was arrested in Mauritania. The ICC will now have to devote resources to that case also.
Meanwhile preliminary investigations have begun on cases in Afghanistan, Georgia, Guinea, Colombia, Palestine, Honduras, Korea and Nigeria.
Should the ICC be asked at some future point to bring charges against President Bashar al-Assad of Syria or others in his circle, the court will find itself seriously overloaded, while moving into new geographical and political territory. A map designed by the New York–based Coalition for the International Criminal Court showing which countries have ratified the court’s founding treaty and are therefore full participants in the institution’s governance, leaves the Middle East and North Africa largely blank except for Tunisia and Jordan. That would indicate little regional support.
Few Asian nations are members of the court. Japan and South Korea have joined but China and India have not. Countries in almost all of sub-Saharan Africa, Western Europe and much of Eastern Europe are full members, but not Russia. In the Western Hemisphere, the only holdouts are the United States and a few small Caribbean and Central American nations.
With three of the Security Council’s five permanent members opting out of full membership, the burden of reforming or strengthening the court would have to be shared by less powerful players, and at a time when there is universal grumbling about the cost and slow progress of not only the ICC but also of regional war crimes tribunals for the Balkans, Rwanda and Cambodia. The appointment of Fatou Bensouda offers the chance to look anew at the ICC. The Lubanga verdict—and the time it took to reach it—should be the trigger for a thorough review.
