Lubanga: a step on the road to ending impunity

by Sam Bright

In the aftermath of conflict, be it world war, civil war, or armed banditry, an important question arises. What are we to do with those responsible for acts committed beyond the accepted limits of the laws of war?

The defeat of the axis powers in the Second World War saw the prosecution of a number of high-ranking military and non-military officials in the International Military Tribunals in Nuremberg and Tokyo. The purpose of the Tribunals was, on the face of it, to bring to justice those guilty of war crimes. They are however open to the serious charge of embodying victor’s justice.

This is because Allied soldiers and politicians were not prosecuted for similar acts. Whereas we now think of the Holocaust and similar massacres as the real horrors of the War, the prosecutions at Nuremberg focused on unlawful German aggression and war crimes/crimes against humanity committed in the course of the War. This is problematic, because it is doubtless the case that numerous, gross crimes were committed by the Allies too: most infamously perhaps in the carpet-bombing of Dresden.

Despite this important precedent, decades passed before international criminal tribunals again became a reality. The most imposing recent manifestation of international justice is in the form of the International Criminal Court. As a court, the dispensation of justice must be key to the realization of its goals. The recent Lubanga decision is undeniably an important step in that direction. Yet arguably, its purposes go much deeper than that.

As an international institution with discretion to investigate situations relating to any of its members, the court’s actions unavoidably have political effects. In Uganda, for example, it has been strongly argued that the arrest warrants issued for the leadership of the Lord’s Resistance Army (such as Joseph Kony) are hindering peace agreements: the LRA are making revocation of those warrants a condition for peace. This, despite the fact that it was the Ugandan Government that initially requested ICC intervention. Others have argued that the arrest warrant for Sudan’s President Al-Bashir has been counter-productive in the pursuit for peace within that troubled nation. The blind pursuit of ‘justice’ therefore is not an option. These are not ordinary criminals that the court deals with: they tend to lead official or unofficial armies, and in a fit of rage against the international machine can rape, kill or maim any number of innocents in their own or other States. The court, therefore, must tread carefully.

The court has also been criticized for its failure to prosecute (amongst others) Tony Blair for his role in the invasion of Iraq. Certainly that war now looks somewhat foolhardy, and many thousands of Iraqis have died as a result (what would have happened with Saddam still in power will forever remain uncertain). But is it the kind of situation that the ICC should be investigating?

In light of the furore over Iraq, the ICC Prosecutor set out his reasons for not moving to prosecute members of the invading forces. He concluded that there was in fact evidence of the willful killing or inhuman and degrading treatment of up to 20 civilians by the invading forces over the course of the war. However, he went on to suggest that these crimes were not of sufficient gravity to merit his further attention: the situations he was actively investigating at the time, in Darfur, Northern Uganda and the Congo, involved thousands of willful killings as well as intentional and large-scale sexual violence and abductions, and collectively had caused the displacement of 5 million people.

Of greater import was his reference to the fact that there had been domestic investigations of these crimes. This relates to the (obtusely named) requirement of ‘complementarity’ under the ICC Statute. The essence of this requirement is that where a State with a properly functioning legal system decides to investigate an alleged crime, regardless of whether that investigation results in prosecution or conviction, the ICC will not prosecute that same offence – unless, that is, the State’s decision stems from its inability or unwillingness to carry out a ‘genuine’ investigation.

The court’s primary purpose is not to prosecute all those accused of war crimes and crimes against humanity. Not only, as with the situations in Uganda and Sudan, can it be seen that it must exercise its discretion sensitively, to avoid aggravating already atrocious situations. Additionally, the primary purpose of the ICC is to disseminate a culture in which it is unthinkable that those accused of such serious crimes evade prosecution – and that ultimately they should be dealt justice in the most appropriate venue. That is not the ICC, but rather their national courts.

The threat of intervention by the ICC is a clear incentive to States with troubled pasts and presents to get their act together and ensure that they have modern, independent, well-resourced judicial systems that can cope with the complexities of a prosecution for war crimes or crimes against humanity. If this can be achieved, it would help ensure that the ICC is not accused of something akin to the ‘victor’s justice’ from which the IMTs suffered: in this case, perhaps seen (possibly unfairly) as ‘Western justice’.

The Lubanga judgment is an essential building block in that regard. As its first completed prosecution, it demonstrates that the ICC does indeed have teeth – and that the threat of taking over domestic proceedings to secure justice at an international level is a real one. With a bit of luck, and a great deal more hard work, the result could be that many more ‘international criminals’ are brought to justice in their nation’s own courts.

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