The ICC’s First Conviction: What Next?
By Intan Wirayadi
Thomas Lubanga, the founder and president of the Union of Congolese Patriots as well as one of the main perpetrators of the Ituri conflict, has the dubious honour of becoming the first person to be convicted by the International Criminal Court (ICC) in its 10-year history. Lubanga has been found guilty for the war crime of “conscripting and enlisting children under the age of fifteen years and using them to participate actively in hostilities” on March 14 and faces a maximum sentence of life imprisonment. He has thirty days from 14 March onwards to appeal the conviction.
Since the English version of the judgment is 624 pages long, many are still making their way through it and digesting the opinions and dissents. Even so, there is no doubt about the impact of this conviction on not just the victims of the Ituri conflict, but also on international law and justice as a whole. This article attempts to summarise the answer to the question: What does this really mean?
Crime and Punishment
The ICC seeks to end impunity for the perpetrators of genocide, crimes against humanity, crimes against peace and war crimes. But after ten years since the ratification of the Rome Statute, many were sceptical as to what exactly the court could offer. The Lubanga conviction is first and foremost an important milestone in not only the history of the ICC, but it is also an important moment in international law.
At its very core, the judgment sends a loud and clear message about the long arm of the law to the rest of the world, especially those who live under the shadows of conflict, and a warning to those, such as Omar al-Bashir and Joseph Kony, who are responsible for creating them.
The conviction also reinforces the protection of children in wars around the world. By finding that the crime of child soldier conscription is committed once the child joins the group with or without compulsion, an accused cannot escape liability even if parents had offered their children to be his soldiers as proof of their support for him (at [616-618] of the judgment). Even if the child has been involved in “indirect” duties—duties which do not require him to enter the battlefield—liability will be imposed as long as the child has been exposed to “real danger as a potential target” (at [621-628]).
Despite evidences of massive sexual violence committed by Lubanga’s troops, the prosecution had not pressed charges of sexual violence and rape—the prosecution submitted that “it would cause unfairness to the accused if he was tried and convicted on this basis” (at ). Judge Odio Benito dissented on the majority’s decision not to consider sexual violence into the definition of “use to participate actively in the hostilities”, arguing that such failure makes “this critical aspect of the crime invisible” (at  of the dissent). Children should be protected from being conscripted not just because they will be at risk of being potential targets to the enemy, but also due to the risk of being subjected to “brutal trainings, torture and ill-treatment, [and] sexual violence” (at ).
Reparation and Retribution
The ICC is the first international court to have the power to order a convicted person to pay reparation to victims, and it may take the form of restitution, indemnification or rehabilitation. For the thousands of victims and former child soldiers whose lives had been irreparably affected by Lubanga’s troops, justice will not just be a moral triumph but also a material, tangible benefit much needed for the many who still languish in poverty. The reparation hearing—the court’s first—is still set in the future, but already there is great pressure for the court to manage and carry out the reparation effectively, especially when the Congolese courts have awarded some reparations to victims, but have failed in going through with them.
The ICC’s retributive justice, however, does not magically soothe the tension between Lubanga’s supporters and the rest of the population in the Democratic Republic of Congo (DRC). Attitude towards the judgment has generally been muted due to fear of angering Lubanga’s ethnic Hema supporters as well as the supporters of his party, the Union of Congolese Patriots (UPC). To them, the court’s judgment is seen as a political one. As shown by the International Crime Tribunal’s experiences in Rwanda and Serbia, much more needs to be done to give effect to restorative justice and reconciliation to truly mend the tear each conflict has made in the fabric of society. Moreoverm there is now pressure to follow up on this conviction, especially with respect to Germain Katanga and Matheiu Ngudjolo Chui. These two men were rebels who fought against Lubanga and are now in the custody of the ICC. Bosco Ntaganda, for whom an ICC warrant has been made out against, is currently living openly in Goma, DRC, as a General in the Congolese army.
Justice, clearly, is not a single-serving dessert. The Lubanga conviction might be a historical one, but there is much more that still needs to be done.
Since its inception, the ICC, with its annual budget of US$140 million, has spent nearly US$900 million. In today’s difficult economic climate, it is inevitable for many critics to ask snidely, “What is the cost of justice?”
There is also the issue of an “unblemished” track record: prior to this conviction, the ICC’s track record was inexistent despite having opened 15 cases in 7 situations, issued 19 warrants, and has five people (including Lubanga) in custody. Furthermore, many countries such as China, the US, Russia and Syria have yet to recognise the court’s jurisdiction. How can the court deter would-be perpetrators if it cannot show that its bite will be worse than its bark?
The Lubanga trial—itself the first for the court—took three years, while Lubanga himself was in detention for seven. This is despite the prosecution opting to go with the most “straightforward” charges of child soldier conscriptions. However, this does not set a precedent for the length of the next trials, especially for those who are already in the ICC’s custody. In its virgin trial, the ICC stumbles upon many procedural difficulties—the trial almost did not happen ten days before it was supposed to start in 2008, and it was suspended once in 2009, and then again in 2010, all due to the prosecution’s dismal handling of evidences.
Given the emphasis on impartiality and fairness, it is inevitable that trials will take considerable time. The court, headed by Sir Adrian Fulford, fiercely reiterated its independence. At one point, he even ordered Lubanga to be released in 2008 ten days before the trial was to begin due to the prosecution’s failure to disclose certain evidences (the decision was reversed on appeal). In fact, the judgment dedicated to more than 200 paragraphs criticising the prosecution’s handling of evidences, especially the decision to delegate investigation to intermediaries, three of which now may face criminal charges for potentially facilitating witnesses in giving false evidence. The difficulty in getting, processing and verifying evidences will continue to affect the length of the trial, and its cost, in the future.
It is important for the ICC to show its independence and build its credibility. While the prosecution’s handling of the evidence leaves much to be desired, the court’s reaction to it should be lauded. Apart from the accusations from Lubanga’s supporters, the court has clearly shown impartiality and independence. The length and the cost of the trials should not detract from the importance of the court in delivering justice and accountability to those who would have otherwise slipped through the national judiciary net. The cost of justice does not seem too extravagant when compared with, for example, the military spending of the world, which was US$1630 billion in 2011.
This is undoubtedly a watershed moment in international criminal law history. Where the ICC will go next remains to be seen. However, with Fatou Bensouda replacing Luis Moreno Ocampo as the new Prosecutor in three months’ time, and the sudden peak-high interest in international justice largely due to the highly controversial Kony2012 campaign coinciding with the Lubanga conviction, one cannot help but attribute to the court a renewed vigour in entering what UN Human Rights chief Navi Pillay dubbed as the ICC’s “coming of age”.
Judgment for Prosecutor v Thomas Lubanga Dyilo:
Data for military spending from SIPRI Yearbook 2011:
The Guardian: Delay in Lubanga judgment demonstrates ICC weaknesses http://www.guardian.co.uk/law/2012/mar/14/delay-lubanga-weaknesses-icc-model?INTCMP=ILCNETTXT3487
BBC: Ten years, $900m, one verdict: Does the ICC cost too much?
BBC: ICC finds Congo warlord Thomas Lubanga guilty
International Center for Transitional Justice: ICC asked tough questions by historic first judgment
allAfrica: Lubanga found guilty—opinion divided in Congo