The International Criminal Court's First Case

The International Criminal Court (ICC) began the first prosecution of its short history yesterday, in the case of a Democratic Republic of the Congo militia leader, Thomas Lubanga.  Lubanga, who once led the powerful and ruthless militia Union Congolese Patriots (UPC) , has been charged with "conscripting and enlisting children under the age of fifteen years and using them to participate actively in hostilities", essentially turning them into killers in the Congo's eastern Ituri region.  Judges at the ICC are to decide whether Lubanga should stand trial for allegedly recruiting child soldiers. 

Prosecutors said that at the height of the conflict, many of the child soldiers were themselves killed during the fighting.  As many as 30,000 children, both boys and girls, were part of Mr. Lubanga's militia.  The children served as fighters, cooks, carriers and sex slaves, some as young as ten years old.  A estimate of four million people were killed during the four year war in DRC.

Lubanga was transferred to ICC custody on March 17, 2006 by Congolese authorities.  The purpose of the hearing is to determine whether there is enough evidence to establish substantial grounds to believe that Lubanga committed the crimes with which he is charged.  If the judges confirm the charges, the case will proceed to trial - marking the first time an individual is brought before an international court soley on the basis of these crimes.  "The case is a landmark in the fight against impunity for these crimes affecting children in the DRC and worldwide," said Chief Prosecutor Luis Moren-Ocampo, an Argentinian who started his career in international human rights prosecuting top military commanders for mass killings and large-scale human rights abuses in his home country.  Deputy prosecutor Fatou Bensouda of Gambia explained, "regardless of the outcome of the proceedings, this case exposes the destructiveness of forcing children to fight adult wars, a practice that puts their lives at risk and jeaopardizes entire communities."  The hearings are expected to last until the end of the month. 

The ICC was created as a permanent institution to end the need to continuously creat ad hoc war crimes tribunals, like those for the former Yugoslavia and Rwanda, both of which have been prosecuting war crimes, crimes against humanity, and genocide for the past ten years. 

NYT reported, that some question whether the focus on child soliders is the "right" first case for the ICC.  Rights groups, which strongly support the court, have criticized the charges against Lubanga, saying the focus on child soldiers overlooked the many grave crimes of his militia like ethnic massacres, murder, torture, rape and mutilation.  "Recruiting children has been practiced in many places in Africa since the 1960s and many Congolese don't consider this as serious as massacres and other atrocities," said Geraldine Mattioli, a lawyer at Human Rights Watch who followed the Congolese war. 

Others clearly disagree, including Mr. Moreno-Ocampo.  In an interview in Paris, he stated that his office had focused on child soldiers because it wanted to highlight the drama of children's lives and had strong evidence to back its case.  In an insightful editorial in NYT, the author seems to agree with Ocampo. 

The recruitment of child soldiers is one of the most heinous war crimes, and among the most forgotten.  Perhaps a quarter-million children - most in their teens but some as young as 7 - are forced to service in government or insurgent armies in 20 countries around the world.  Not only are they ordered to kill and torture, they often become victims of physical and sexual abuse [and death at a young age].  When they do return to civilian life, they are walking ghosts - damaged, uneducated pariahs. 

Much good can come from the court's focus on child soldiers.  The decision by the international tribunals for Rwanda and Yugoslavia to treat rape as one of the most serious international crimes has changed legal attitudes and practice worldwide.  The ICC is now drawing attention to another widespread, yet widely ignored, horror.  Guerilla leaders in Columbia, Sri Lanka, West Africa, and elsewhere, and government officials in Myanmar, should pay close attention. 

In this case, I must agree with the NYT editorial as well as Mr. Ocampo. While there are surely bigger fish to fry, we have to start somewhere. The prosecution of Lubanga could eventually lead to extensive future prosecution of other DRC war criminals and send a worldwide warning. If the case, in fact, goes to trial it will be the first occasion for the new global court to show the world (I mean, the US) that it can deliver justice at a reasonable speed, and at reasonable expense, keeping with founder's aims, giving it meritorious legitimacy. Although the prosecutor in this case has confirmed that if the case against Lubanga goes to trial, it will only relate to the current charges, he still leaves open the possibility of prosecuting Lubanga for other crimes under the Rome statute in seperate proceedings after this trial has been completed. 

In an effort to address other criticism that the court is too far removed from the victims of Africa's wars, the ICC has made it possible to monitor briefings and proceedings on its Websites and through video conferences.  These new technological innovations are the one of the few efficient ways to foster the success of a truly global court. Four victims, through their legal representatives, will present their views and concerns about the current charges to the court as independent parties.  They cannot, however, participate in a manner that is prejudicial to or inconsistent with Lubanga's fair trial rights.  "This is the first time victims will be heard in an international criminal proceeding presenting their own concerns and not just as witnesses," said Mattiolo.  Additionally, the court is paying the expense of five Congolese reporters to attend this month's pretrial hearing.

The Bush administration campaigned against the ICC, however, 102 countries have now ratified that 1998 Rome treaty that created the institution, which can try crimes committed after 2002.  US objections rest mainly on the notion of interference with their national sovereignty and a fear of politically motivated prosecutions.  Moreover, the US claims that the Rome Statute circumvents the UN Charter for the establishment of criminal courts and tribunals, and in doing so robs the UN of influence over matters it was intended to oversee.  The US Congress passed the American Servicemembers' Protection Act (ASPA), which contain a number of provisions, including prohibitions on the US providing military aid to countries which have ratified the treaty, and permitting the President to authorize military force to free any US military personnel held by the court, leading opponents to properly dub the law "The Hague Invasion Act."  But of course the US has tried to use the court for some gain, later modifiying the ASPA to permit US cooperation with the ICC when dealing with US enemies.  What is good for the gander is apparently not good for the goose.  As a result of the ASPA several countries who refuse to cooperate and sign what are called "Article 98" bilateral agreements have lost aid including Brazil, Costa Rica, Peru, Venezuela, Ecuador, South Africa, and several other Latin American and Afrian countries. 

The US has also attempted to use its UN veto power to block several UN peacekeeping missions unless US military personnel on UN missions were exempt.  This resulted in UN Resolution 1422, whereby the US would be granted its request, but only for a period of one year and a new Security Council resolution vote would be required each year for exclusion of peacekeepers from ICC jurisdictions to be continued.  After Abu Ghraib, it became clear that renewal was not going to happen.  Israel is another staunch objector to the ICC. Others who have not signed the treaty, for obvious reasons, include India, Pakistan, Turkey, China and Indonesia.  Those who have signed but not ratified include Russia, Egypt, Iran and Israel.   

Many argue that the ICC will not succeed if the US is not a participant.  However, if the current prosecution of Lubanga and others is successful, the Court may very well be able to sustain a vibrant life, for the time being, without the US.  Perhaps the only complication is that they will not be able to prosecute some of gross violations of human rights in Iraq, Afghanistan, and elsewhere that have been committed by US troops.  The Court is unlikely to invoke an investigation against US citizens so to avoid the Hague invasion.  This perceived immunity of US citizens could potentially, in time, lead to the demise of of the Court.  But for now, I say, let as many criminals be prosecuted as possible. 

The ICC is designed to complement national judicial systems, not substitute them.  The Court can only exercise jurisdiction when national courts are unwilling or unable to investigate or prosecute such crimes, thus being a "court of last resort."  Currently, Chief Prosecutor Moreno-Ocampo has decided to open an investigation into three matters, after rigorous analysis of the Rome Statute and the Rules of Procedure and Evidence.  They include the following: 

• Uganda and the Lord's Resistance Army (LRA) was referred to the court on January 29, 2004 by the Republic of Uganda.  In October of 2005 the court issued its first public arrest warrants for the LRA's leader, Joseph Kony, his deputy Vincent Otti, and other LRA commanders. 

• The Ituri situation in DRC was referred to the court by the DRC on April 19, 2004.  Lubanga is the first person to be arrested under a warrant issued by the court. 

• The situation in Darfur, Sudan was referred by the UN Security Council on in March 2005.  It will be interesting to see how this investigation plays out given that the Security Council has itself been hindered in this situation given members interests in Sudan.

• The Central Africa Republic (CAR) referred itself to the court on January 6, 2005 but the prosecutor has not yet decided whether to open an investigation. 

• In a special, high-profile case of former Liberian President Charles Taylor was transferred to the buildings of the ICC in June 2006 for a trial under the mandate and auspices of the Special Court for Sierra Leone.  This was mainly due to political and security concerns in Freetown. 

• In 2006, the Chief Prosecutor published a letter answering several complaints about the invasion of Iraq.  He concluded that he did not have authority to consider the complaint about the legality of the invasion, and that the available information did not provide sufficient evidence for proceeding with an investigation of war crimes and that the evidence for willful killing and inhumane treatment did not appear to meet the "gravity" threshold for an investigation. Unfortunately this evidences the fear that the ICC has about the possibility of US retaliation in many forms whether it be military invasion of the Hague (unlikely), stunting the UN, or withholding much needed aid from the poorest parts of the world.
   

Comments

[Paul]

I really agree with what you suggest about the US fears of the ICC being unjustified. The court's jurisdiction is such that all the US would have to do is say they are making a good faith effort to investigate the charges. Justice Richard Goldstone (former chief prosecutor for ITCY and ITCR) spoke to my school last week and discussed the political nature of international criminal justice. He said that Clint Williamson, the relatively new U.S. Ambassador-at-Large for War Crimes Issues, has no animosity towards the ICC and that cited the decision in June by the US to abstain to the UN vote referring Darfur to the ICC. Hopefully the US will continue on this course and eventually come full circle. I believe the US has realized it cannot ignore the ICC anymore, as it is continuing to build credibility and appears to be on the road to success.

[John Dermody]

Just wanted to comment on a couple of things in the post and perhaps get into a larger discussion, although not a new one, on the capacity of the ICC.

A couple of quick notes. The Taylor case has little to do with the ICC. The Special Court for Sierra Leone is renting the ICC facilities (at a very steep price), but that is the extent of their collaboration. The ICC has no jurisdiction over Taylor and the trial will be conducted by Special Court personell under Special Court Authority.

Also interesting to note that the Special Court jurisprudence significantly clarified the norms toward child soldiers. The ICC case agaisnt Lubanga clearly shows the evolution of international norms towards individual criminal responsibility for recruiting child soldiers.

The Lubanga case can cut both ways as to the effectiveness of the ICC. Like Tadic case at the ICTY, Lubanga is not the biggest fish, but represents a situation where the ICC has a suspect in custody and can be effective. He was referred by the DRC and there is a high likelihood of success.

However, the Lubanga case was not the first case referred by a state party. The Uganda situation was the first instance of a state referral and the lack of progress with that case may indicate a more tenuous future for the ICC.

There has also been some frustration in DRC with the pace of the case against Lubanga. Ironically, this has lead to DRC adopting a more active approach towards trying war crimes cases domestically. So the complimentarity goal of the ICC has been furthered not by the ICC's effectiveness but, rather, by the inefficieny of its first case.

[John Turner]

It doesn't matter if any American is convicted by the court. It will be a constant anti-american propoganda machine. People will file constant charges with no fear of punishment for abuse of process.