With his 14-year prison sentence for the recruitment and use of child soldiers in the Democratic Republic of Congo, announced today, Thomas Lubanga became the first person in history to be sentenced by the International Criminal Court (ICC) at The Hague.
Mr. Lubanga’s case has been closely watched because the ICC is quickly becoming the court of last resort for developing countries that do not have the capacity to try cases of gross human rights violations, war crimes, and genocide. In addition to the Lubanga case, the ICC is investigating seven cases – one of them involving a sitting head of state, Sudanese President Omar Al-Bashir – all of them from Africa.
Lubanga had been convicted in March 2012. He reportedly showed no emotion today when the sentence was read by Judge Adrian Fulford on Tuesday morning. It is unclear at this time where Lubanga will serve the remaining eight years of his sentence (he has spent six years in custody already, since his arrest in 2006.) Six countries have agreed to host ICC convicts in their prisons: Austria, Belgium, Britain, Finland, Mali, and Serbia.
The ICC’s former prosecutor, Luis Moreno-Ocampo called for a 30-year sentence for Lubanga, who led a rebel group called the Union of Congolese Patriots from 2002 to 2003. Human Rights Watch estimates that 60,000 people were killed in that brief conflict in the eastern Congo region of Ituri. Mr. Moreno-Ocampo said that it was commanders such as Lubanga, as well as Lubanga’s enemies, Germain Katanga and Mathieu Ngudjolo Chui, and Lubanga’s ally, Gen. Bosco Ntaganda, who bore the most responsibility for those deaths, and for the ruined lives of the recruited child soldiers.
"These children were told to kill and rape,” Ocampo told the court last month. “That was the education he [Lubanga] gave these children."
Created by the Rome Statute in 1998, and brought into existence in 2002 as a “permanent institution that shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern,” the ICC is an experiment in international justice. There have been international tribunals before, for the war crimes of Nazi commanders, for the 1994 genocide in Rwanda, for the war crimes in the former Yugoslavia.
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.
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.