Global civil society declared July 17 “International Justice Day” to celebrate the adoption of the Rome Statute of the International Criminal Court (ICC), late on a simmering hot day in 1998. While the governments of the US, China, Russia, Sudan, Yemen and Israel were among the seven unrecorded “no” votes, 120 governments voted “yes” to this unprecedented treaty and established the court, which represents one of the greatest advances of international law in history.
The purpose of the ICC treaty was to end impunity for the worst crimes in international law: war crimes, crimes against humanity and genocide. The treaty applies to individuals instead of states, and among the historic achievements of the treaty is that it does not recognise immunity for any person or position – thus it applies to presidents, kings, ministers, generals, warlords, anyone who commits these most heinous crimes. The ICC’s jurisdiction, however, is largely limited to crimes committed by the nationals of, or on the territory of, states that have ratified the Rome Statute – yet this makes it independent of the control of the most powerful governments and world leaders.
Thus, the journey “from Nuremburg to Never-Again” is incomplete and it may still take years or decades to reach our full goal. Indeed, while 121 governments have now ratified the Rome Statute, there remain more than 70 which have not, including some of the most powerful governments in the world, as well as many monarchies, military controlled states and dictatorships.
The first trial
Still, the progress of the past 14 years has been phenomenal. On July 10, Thomas Lubanga – the leader of a Congolese rebel group known as the Forces Patriotiques pour la Libération du Congo – was sentenced to 14 years imprisonment after being found guilty of the war crimes of enlisting and conscripting children under the age of 15 and using them to participate actively in an armed conflict in Ituri, a district in the troubled eastern Democratic Republic of Congo (DRC) in 2002-2003. As the ICC’s first sentence, the conclusion of the Lubanga trial is a milestone, underlining the court’s leading role at the centre of the new and innovative system of international justice created by the Rome Statute. The trial, begun in 2007, has shown the court, the prosecutor and judges to be independent, thorough and fair.
“As the ICC’s first sentence, the conclusion of the Lubanga trial is a milestone, underlining the court’s leading role at the centre of the new and innovative system of international justice.“
For many years, victims and civil society in the DRC have demanded accountability for the litany of grave crimes committed in the world’s deadliest conflict since World War II, which has claimed the lives of millions of civilians since 1998 and continues to rage. The Lubanga trial certainly represents a major step forward for justice in the DRC and his sentencing has sent a strong warning to those engaged in the recruitment of child soldiers that impunity will no longer be tolerated.
But there is still a long way to go until peace is achieved in the country and justice is delivered to the conflict’s countless victims. Lubanga’s co-accused, Bosco Ntaganda – a former general in the Congolese army – is said to be leading a renewed surge of violence in the eastern region of the DRC. Just last Friday, the court issued a second warrant for his arrest, along with one for another rebel leader, Sylvestre Muducamara. States and the UN Security Council must do more to ensure that these fugitives are arrested and brought before the ICC.
Justice is only effective when it is seen to be done. For the deterrent effect of Lubanga’s sentence to have maximum impact in contributing to ending the terrible cycles of violence in the DRC, it must be carried to victims and affected communities in remote areas beset by poor communications infrastructure. However, the ability of the court to do this through its outreach unit will be severely undermined if proposed cuts to its budget are followed through upon. Last month saw the extension, at great cost, of the mandate of the UN peacekeeping mission in the DRC. The costs – both human and financial – could be even greater should the court’s message go unheard.
The Lubanga case is one of the few international criminal cases in history to charge an individual with acts of enlistment, conscription and use of child soldiers. With 10 former child soldiers having courageously testified in court, the trial has done much to highlight the gravity of this particularly heinous crime and to bring the issue to the attention of the international community. ICC judges are expected to soon order that victims be awarded reparations for the harm they have suffered as a consequence of Lubanga’s criminal actions.
Another unique feature of the ICC treaty, it will be the first time that the court will act on its groundbreaking reparative mandate, a first in international criminal jurisdictions. Here also there is a great need for the delivery of specific information to manage wide-ranging expectations among affected communities.
The 14-year sentence for Lubanga has been welcomed by many, yet criticised in some quarters for not reflecting the seriousness of the harm caused to victims. The judges of the ICC have demonstrated their rigorous impartiality by clearly explaining that their decision was due to a combination of mitigating factors – including the cooperation of the defendant – and a lack of aggravating factors. A dissenting opinion [PDF] (page 41) by Judge Odio Benito held that the sentence should have been higher to include the aggravating factors of cruel treatment and sexual violence. The majority, however found that no evidence had been provided to support this claim. Civil society organisations and victims have expressed regret that crimes such as sexual violence, summary executions and pillage were not included in the original charges brought against Lubanga.
The ICC has naturally come up against a number of procedural and institutional challenges during the course of the Lubanga trial. Some of these have plagued all international tribunals; others are unique to the ICC as a permanent court operating in a multitude of situations simultaneously. The six years it has taken to prosecute Lubanga is of course something that must be been improved upon. Two successive suspensions of the proceedings contributed to delays in the trial, which lasted twice as long as the first cases at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda.
“While the completion of the first trial represents a milestone for the ICC, the fact that these crimes have been and are currently being committed in regions and states outside of the ICC’s jurisdiction reflects one of the most serious challenges facing the court.“
However, proceedings in the second and third ICC trials are advancing at a faster pace. The prosecution’s use of intermediaries – individuals who assist with investigations – was criticised by the trial chamber. The court is now close to adopting a set of guidelines for the use of intermediaries, thanks in no small part to the advocacy efforts of civil society organisations. Encouragement can also be taken from the fact that, as the Lubanga case nears completion, a court-wide “lessons learned” exercise has already begun. Civil society stands ready to ensure that this process contributes to the continued fairness, effectiveness and independence of this remarkable project to end impunity for the gravest crimes.
While the completion of the first trial represents a milestone for the ICC, the fact that these crimes have been and are currently being committed in regions and states outside of the ICC’s jurisdiction reflects one of the most serious challenges facing the court. There are two important ways that the court’s jurisdiction can be extended. One is through a resolution of the United Nations Security Council. Of the numerous other places where ICC crimes have occurred since July 1, 2002, the UN Security Council – which is the only body that can refer crimes committed on territories of states that have not ratified the ICC treaty – has only referred the crimes committed in Darfur, Sudan and in Libya to the court.
Others who have committed ICC crimes – like those allegedly committed in Syria, for instance – have been protected most often by the veto of the United States, Russia or China.
The other way in which the court’s jurisdiction grows is through the future ratification of the court’s founding treaty. Each time a state ratifies, the court gains jurisdiction over that state’s territory and nationals. That is why civil society continues to push governments, who have not yet done so, to ratify the treaty, with each step being an important advance toward the goal of universal ratification. Little by little, we will end impunity for the crimes over which the ICC has jurisdiction and extend justice to every citizen in the world. Aiming towards this goal, we celebrate International Justice Day.
Brigitte Suhr is director of regional programmes for the Coalition for the International Criminal Court.