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Thomas Lubanga: Congolese warlord first person ever sentenced by ICC (+video)

A tough ICC sentence for rebel commander Thomas Lubanga, convicted of recruiting and using child soldiers from 2002 to 2003, sets precedent for seven other pending war crimes cases.

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But the ICC is different from those ad hoc bodies, which must be created at the behest of the United Nations on a case-by-case basis. By having a single standing court, the international legal community can begin to create legal precedents, and accumulate experience in complex human rights and war crimes cases.

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The Lubanga case was by no means perfect, and its panel of 18 judges clashed openly and often with the mercurial Argentine prosecutor Ocampo.

Judges twice released Lubanga from custody because of prosecution errors in gathering evidence, and legal experts complained that the ICC chose to ignore the lessons of other international war crimes tribunals for Rwanda, Yugoslavia, and Sierra Leone.

“[T]his court has tried to reinvent the wheel,” Lorraine Smith, a lawyer monitoring the trial for the International Bar Association, told The New York Times in 2010, when the Lubanga case looked close to collapse.

But while the court, under newly appointed prosecutor Fatou Bensouda of Gambia, now has a conviction under its belt with the Lubanga verdict, it will still face a tougher challenge of gaining acceptance in the very countries of the developing world where it is likely to have its greatest effect.

With its focus on African leaders and warlords, the ICC has been portrayed by some African opinionmakers as a rich man’s court for trying poor people. If torture is a crime, critics ask, then why hasn’t US President George W. Bush been indicted for his approval of waterboarding and sleep-deprivation at Abu Ghraib and Guantánamo Bay? If indiscriminate killing of civilians is a crime, then why hasn’t Barack Obama been charged with war crimes for his use of armed drones in Pakistan, Afghanistan, and Yemen?

The answer, ICC supporters say, is that the United States and other developed countries have laws and court systems that are capable of handling such complex cases, and it is up to those countries to pursue such cases themselves. For countries whose judicial systems are so overloaded with more rudimentary cases – Kenya, for instance, had 92,802 criminal cases pending in 2010, or 300 cases per prosecutor – there is often no capacity to handle expensive and lengthy trials for war crimes or crimes against humanity, even if there was the political will to do so.

Kenya, which saw organized ethnic violence led by top Kenyan politicians after the failed 2007 presidential elections, initially refused to set up a special tribunal to try four senior Kenyan leaders accused of masterminding the attacks. The trials of those four Kenyans – Deputy Prime Minister Uhuru Kenyatta, former higher education minister William Ruto, civil service commissioner Francis Muthaura, and radio presenter Joshua Arap Sang – is scheduled to begin in April 2013.


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