At last, the International Criminal Court (ICC), whose focus on Africa has received wide criticism, has finally got its first conviction – an African, of course! The Congolese rebel leader, Thomas Lubanga Dyilo, was found guilty on 14 March on three counts of recruiting child soldiers and using them in combat. So what should Africa make of his conviction? Tom Mbakwe looks back on the case that took six years to complete.
Thomas Lubanga Dyilo, 51, the founder and leader of the rebel group, Union des Patriotes Congolais (UPC) and its military wing Forces Patriotiques pour la Liberation du Congo (FPLC), made history when he became the first person to be transferred to the International Criminal Court (ICC) on 17 March 2006, following the issuance of an arrest warrant on 10 February 2006.
He had been in the Congolese government’s custody for some time before the ICC pressured Kinshasa to “invite” it to begin investigations in the country. Interestingly, the ICC chose the Ituri region in the far northeast of the country to begin its work, even though other regions such as North and South Kivu, and even Katanga, had seen far more human rights violations during Congo’s long-running conflict, which started in 1998. And was it a mere coincidence that Ituri happened to be the base of Thomas Lubanga’s FPLC?
As it happened, President Joseph Kabila’s government, which had already investigated Lubanga’s alleged crimes for months and had put him in detention as a result, surrendered him to the ICC as the Court’s first indictee in March 2006.
Yet, it took the ICC six years to convict him (on 14 March 2012) on three counts of enlisting and conscripting children under the age of 15 years and using them in hostilities in Ituri between September 2002 and August 2003.
His trial was the first, internationally, in which victims were allowed to participate in court proceedings beyond the role of witnesses. His victims will receive reparation for the suffering they allegedly received at the hands of the FPLC.
Lubanga’s conviction was met with glee by human rights groups and activists around the world. The Court reserved sentencing for another date to allow for any additional evidence or information that might impact on the length of the sentence to be considered by the judges. The time that Lubanga has already served in detention will also be taken into account. He will then have 30 days to appeal against the decision.
“Depending on whether an appeal is made and on its outcome, [the judgement] should be remembered as a critical turning point in the fight against impunity for the most serious crimes known to humankind,” said William R. Pace, the convenor of the Coalition for the International Criminal Court (CICC), a global network of more than 2,500 NGOs in 150 countries that supports the work of the ICC.
From London, Amnesty International issued a statement saying Lubanga’s verdict “demonstrates that the ICC can bring the world’s worst offenders to justice for genocide, crimes against humanity, and war crimes.”
According to Amnesty, the verdict “will give pause to those around the world who commit the horrific crime of using and abusing children both on and off the battlefield. It will [also] help to strip away the impunity they have enjoyed for crimes under international law because national authorities have consistently failed to investigate these crimes.”
Amnesty, however, conceded that “the recruitment and use of children in armed conflict by foreign and Congolese armed groups continues to this day in the northeast and east of DRC. The Congolese national army has also used child soldiers.”
This fact was supported by the US-based Human Rights Watch (HRW): “All parties to DRC’s war in Ituri,” the HRW said in its reaction to the Lubanga verdict, “used children as soldiers. Children are still in the ranks of armed groups and the Congolese army, and in some areas of Congo children are [still] being actively recruited, including by force.”
So why was Lubanga singled out? To be fair, the ICC issued four arrest warrants in its first Congo investigation. Three suspects – Thomas Lubanga, Germain Katanga, and Mathieu Ngudjolo Chui – were detained by the ICC, while a fourth, Jean Bosco Ntaganda, remains at large.
Amnesty said it “remains disappointed that the ICC’s prosecutor did not pursue allegations of other crimes committed by [Lubanga’s group] – including crimes of sexual violence against abducted girls and other civilians – potentially denying justice and reparation to many more victims.”
Amnesty continued: “The prosecutor’s office must review its limited investigation strategy adopted in the Lubanga case, especially in light of decisions precluding victims from participating in trials and obtaining reparation. Lessons need to be learned for future cases…”
According to Amnesty: “The length of proceedings should [also] be reviewed. Two years passed between the ICC’s decision to confirm the charges against Lubanga on 29 January 2007 and his trial’s opening on 26 January 2009, and the case was twice delayed due to stays imposed by the judges in response to the Office of the Prosecutor’s failure to disclose information to the defence.”
The trial lasted twice as long as the first cases at the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda.
This forced the CICC to say: “While delays in the Lubanga proceedings have greatly frustrated all participants – not least the victims involved – we should use this opportunity to reflect on the lessons learned so that the difficulties encountered during the course of this trial will serve to improve the expediency of those to follow and will someday bring about an end to the era of impunity.”
The “frustrations” and “difficulties” notwithstanding, the CICC hailed the trial as a “milestone for the Rome Statute – the ICC’s founding treaty – which entered into force 10 years ago… The trial has done much to highlight the gravity of the crime of using child soldiers and has helped to bring the issue into international focus. During the proceedings, 10 former child soldiers testified, as did a number of expert witnesses.”
Some 5.4 million people have died in Congo since August 1998, making the conflict one of the world’s bloodiest since World War II. Yet the ICC chose the issue of child soldiers as deserving immediate attention over the more serious cases of war crimes, including wholesale massacres of thousands of people at a time.
Even then, the ICC, in its infinite wisdom, allowed some indictees in Congo to go free when it had the power to influence their arrests – a situation highly displeasing to Human Rights Watch (HRW).Describing Lubanga’s conviction as a “landmark verdict, a warning to rights abusers”, HRW yet called on the ICC to arrest Lubanga’s “co-accused”, Jean Bosco Ntaganda, a serving Congolese general with regular contact with MONUC – the UN peacekeeping mission in Congo – who is being protected by President Kabila’s government.
In February 2009, the government officially refused to hand over Ntaganda on the grounds that domestic peace was best served by his remaining free. Emmanuel-Janvier Luzolo, Congo’s justice minister, stated that “in the judicial practice of any state, there are moments when the demands of peace override the traditional needs of justice”.
The ICC appeared to agree as it has done nothing to arrest Ntaganda. It is such double standards that irk the ICC’s critics. For example, before the ICC intervened in Congo, the International Court of Justice (ICJ) had conducted detailed investigations over several years into human rights abuses perpetrated in Congo by both local and foreign actors, and had apportioned blame.
It could not have been any easier for the ICC, had the Court been genuinely interested in applying the law, to pick up the ICJ docket and pursue all those local and foreign actors. But no!
The ICJ held that both international humanitarian law and human rights obligations were binding on Uganda, which was then occupying the Congo, and, in consequence, the Ugandan government, as the occupying power, was liable under the doctrine of responsibility for the human rights violations committed by its troops.
“The issue was crystal clear,” says David Hoile, author of The International Criminal Court – Europe’s Guantanamo Bay? “This massive violation of law by the Ugandan government occurred in Ituri district, the same area in which Lubanga was accused of human rights violations.
“It is inconceivable that the ICC chief prosecutor [Luis Moreno Ocampo] and his researchers would not have known of the ICJ’s detailed case against Uganda, a case which also outlined Uganda’s involvement with child soldiers and the systematic violation of the human rights of children – the mainstay of the ICC’s subsequent case against Lubanga. [Yet] the ICC scrupulously ignored the ICJ’s comprehensive case.”
It was exactly the sort of case that the ICC had been created for: bringing to justice an otherwise unaccountable head of state engaging in the most serious of crimes. But what did the ICC do? Hoile says, “It did nothing. In fact, less than nothing: Rather, the chief prosecutor sought to play around with the classifications of war crimes and their jurisdictions in order to avoid having to deal with the Ugandan war crimes [committed in Congo].”
Hoile continues: “It would be difficult to imagine clearer examples of the Ugandan government being accorded ‘exemption or freedom from punishment’ by the ICC.”
Prof Rhona Smith of Northumbria University Law School adds that because the ICC was “initially focused on pursuing those highest up the command structure, Lubanga was an unusual first choice, selected by default rather than design, from an all-too-crowded global ‘rogue’s gallery’.”
In fact, IC Chief Prosecutor Ocampo was actually lucky that the ICC’s first trial ever started. He messed it up even before it began. And he was not spared by his own judges! Passing judgement on 14 March 2012, the judges criticised Ocampo and his office for the way they conducted Lubanga’s case. They noted the prosecution’s failure to verify its evidence carefully, which led to the discrediting of several witnesses.
In an extraordinary development in June 2008, the ICC Trial Chamber stayed Lubanga’s trial because of the prosecutor’s failure to disclose to the defence exculpatory evidence (which could show that Lubanga was innocent).
Ocampo admitted to the Court that he had held back 204 exculpatory items from both the defence and the judges. Incensed, the Trial Chamber categorically rejected Ocampo’s attempt to justify his actions, by stating that his behaviour constituted “a wholesale and serious abuse” of the Court’s procedures.
As a result, the ICC – which at the time had a staff of 745 people and had worked for six years – found its first case nearly thrown out by its own judges.
This aside, there were also questions about whether or not the ICC was able to offer a fair trial as the Court was accused of unfair treatment. Resources allocated to the defence were inadequate. Lubanga’s defence team pointed to the huge discrepancy between the financial resources the ICC had made available to the prosecution compared to the defence.
In the run-up to the trial, the prosecutor’s office had 20 researchers working in Congo seeking to discover evidence, whereas the defence could only afford one researcher.
Interestingly, when Lubanga’s trial kicked off on 26 January 2009, after several years of preparation and at much expense, much of Ocampo’s opening statement was not about child soldiers, but focused more on claims of rape and other sex crimes – overlooking the fact that Lubanga had not been charged with those allegations. The charges he faced were recruiting and deploying child soldiers. Amazingly, Ocampo then left the courtroom, and indeed The Hague, without listening to the defence’s opening statement, to attend the World Economic Forum in Davos, Switzerland.
Maître Catherine Mabille, Lubanga’s lawyer, quite rightly complained at Ocampo’s disrespect by not attending court that day and protested that the defence still had no access to the exculpatory evidence Ocampo had sought to withhold.
Mabille also complained that the defence and the public had been excluded from about half of the pre-trial hearings, which prevented her client from defending himself adequately.
“How can we have a fair trial under these conditions?” she asked, laying the blame squarely with Ocampo. “There has been a wholesale abuse of the rules by the Office of the Prosecutor,” Mabille added.
She was supported by the International Bar Association (IBA). “A major challenge of the trial to date has been that so much of the proceedings is held in closed session,” the IBA complained. “The number of closed session hearings arguably impinges on Lubanga’s right to open, transparent public proceedings…”
Most critics of the ICC question why, as a court of last resort, it chose to become involved in Ituri, especially as Ituri has the best-functioning local judiciary, which had already shown adeptness at investigating serious crimes, including those allegedly committed by Lubanga.
“This has led observers to question the validity of the ICC’s strategy in Ituri, asking why a global court has focused its energies where the judicial task is more straightforward due to substantial local capacity, while mass atrocities continue in provinces where judicial resources are severely lacking,” says Phil Clark, who has written extensively on the work of the ICC.
Clark points to the blatant selectivity on several levels at the heart of the ICC involvement in Congo. This, he says, has sought to ignore well-documented and large-scale human rights abuses committed in Congo by the Congolese, Ugandan and Rwandan governments.
Even where the ICC acted, Hoile says: “The Office of the Prosecutor resisted investigating the wider dimensions of Lubanga’s crimes, notably the alleged training and financing of his UPC by the Ugandan and Rwandan governments. Such investigations could implicate key figures in Kampala and Kigali.”
According to Hoile: “This policy [letting Uganda and Rwanda off the hook] caused controversy within the ICC itself. In the wake of Lubanga’s confirmation hearing, the Pre-Trial Chamber ruled on 29 January 2007 that the prosecutor’s charges against Lubanga were insufficient as they failed to recognise the ‘international’ nature of the Ituri conflict, implying the role of Uganda and Rwanda.
“The prosecutor appealed to the Pre-Trial Chamber, requesting that references to crimes in the ‘international’ conflict dimension be removed from the charges against Lubanga, as the prosecution’s evidence related only to crimes committed in the ‘internal’ conflict.”
Thus, in the end, while the ICC seeks to address grave crimes, Lubanga’s case did not address the gravest of his crimes for fear these would greatly complicate the judicial process.
Hoile again points out that: “In prosecuting Lubanga on three counts of war crimes involving children, and ignoring his alleged involvement in a host of other serious crimes, the ICC has gone for the easiest, softest option… This is hardly the victim-orientated justice that the ICC and its many Western liberal supporters have promised victims of war crimes in particular and the international community at large.”
This ICC shortcoming amazes Marlies Glasius, Professor in Citizen’s Involvement in War Zones and Post-Conflict Zones at the University of Amsterdam, leading him to point out poignantly: “The Congolese people must marvel at the apparent priorities of international justice, putting the use of child soldiers above mass murder, torture and rape as the only one deserving of immediate prosecution.”
But don’t mention it to Ocampo and his ICC colleagues! They – apparently – have their own agenda!