The ICC finishes the Lubanga trial: one down – many, many more to go

Lubanga as the verdict is read out

by Joseph Markus

It has been a particularly long journey for the cause of international criminal justice. The idea of an international criminal tribunal to try the very worst crimes, those crimes which would go unpunished at a domestic level, is one that has been floating around for quite some time.

There was the Nuremberg Tribunal in 1945 (though not, technically, an international court) and the International Military Tribunal for the Far East (1946), the International Criminal Tribunals for the former Yugoslavia (since 1993) and for Rwanda (since 1994). In 1996 the International Law Commission released its Draft Code of Crimes Against the Peace and Security of Mankind which was to form the basis for the negotiations in Rome on the future International Criminal Court. In 1998 the ICC—the first (and only) permanent international court of its kind—was brought into existence through the Rome Statute.

The success of this institutionalisation of international criminal justice is reflected in the proliferation, after this date, of criminal tribunals throughout the war-torn and troubled parts of the world. There is the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, the Special Panels of the Dili District Court (the East Timor Tribunal), and even a court set up solely to prosecute those responsible for the assassination of Rafic Hariri in Lebanon in 2005, the Special Tribunal for Lebanon.

However, since that crucial point in 1998 it has taken another 14 years for the first ICC conviction to filter through. Yesterday Thomas Lubanga Dyilo, the founder and leader of the Union of Congolese Patriots, a key player in the Ituri conflict, was found guilty of the (war) crime of “conscripting and enlisting children under the age of fifteen years and using them to participate actively in hostilities”. He was the first to be arrested under warrant by the Court and he is the first to be convicted. His sentencing hearing has been adjourned for a later date and he faces a maximum term of life imprisonment.

Understandably it was a proud day for the ICC and also for its Argentinian Prosecutor Luis Moreno-Ocampo who is to step down on 15 June 2012 and who on the live stream of the judgment was seen peacefully reclining in his chair in the court chamber (perhaps safe in the knowledge—having read ahead—that he had secured the conviction).

This might be an opportunity to silence some critics of the Court and to show that it is capable of at least some tangible success, however you might define the goals of criminal justice.

Perhaps on a deeper level, though, it shouldn’t matter whether or not this first trial resulted in conviction.

It’s important to note, first, that the ICC highlights a key conceptual conflict between the ‘individualist’ and, perhaps, the ‘communitarian’ views of international criminal justice. As an example, the Statute provides for the participation of victims in proceedings to a much greater degree than the other international courts. This tends to suggest that part of the rationale for this Court lies in the wider goals of reconciliation and of settling for the historical record what actually happened. The other view does not consider that these sorts of aims are necessarily compatible with what is, ultimately, a criminal court concerned with the liberty of the individual.

Nevertheless, it seems fair to say this: the point of a court—and this is as true at the international as at the domestic level—is to inject an element of formality into the process of factual retrospection. The ICC represents a commitment to that ideal of process; anything else and we risk falling into the trap of show trials, a tension that was very much present at Nuremberg.

It is good that a war criminal will be appropriately punished (that is, if the Court is right that he is one). But the real success is that the ICC managed to finish the trial at all, not that it ended in conviction. International criminal justice—particularly at the ICC and ICTY—has been notoriously slow and expensive. In part this falls down to the nature of the crimes, which by definition are some of the worst a court will ever see, involving hundreds of different people, thousands of victims, and terabytes of data (the Karadzic trial ongoing at the ICTY is a good example of the sea of paper that can follow a charge of genocide). Partly, as well, the issue is the care with which the new judges have approached their task. To maintain both the fact and appearance of due process defendants to date in front of the ICC have been allowed numerous interlocutory appeals leading to a fragmented trial process.

Yet the kind of justice we saw yesterday should be a daily occurrence, and a working court system must manage to get through the cases. Looking ahead, the ICC must finish more of them.

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