Indictment, Trial and Verdict: The ICC’s First-Ever Conviction

An interview with conveners of the American Coalition for the ICC (AMICC), John Washburn and Matthew Heaphy

As the final salvos of the KONY 2012 debate began to retreat from Facebook and Twitter newsfeeds, the International Criminal Court (ICC) has finally announced its first-ever conviction. On March 14th 2012, judges in The Hague found Thomas Lubanga Dylio, 51, guilty “beyond reasonable doubt” of committing crimes of conscription, enlistment and use of children to participate in hostilities under the Rome Statute Article 8.2 (b).

Thomas Lubanga on trial at the International Criminal Court. © Ed Oudenaarden/AFP/Getty Images

Lubanga was a major figure in the Second Congo War (1998-2003) and the Ituri conflict (1999-2003) that saw Lubanga’s Union of Congolese Patriots (UPC) participate in murder, torture and rape on a massive scale. Ituri is a fertile region in North-East DRC rich in gold, diamonds, and oil and was often referred to as the bloodiest corner of the DRC—as the longstanding local dispute between the Hema pastoralists (Lubanga’s tribe) and rival Lendu agriculturalists was exploited by regional actors.

The Lubanga case is a watershed moment for the ICC. The chamber disagreed with defense claims that Lubanga, as UPC president, had no direct involvement in child conscription and instead reaffirmed his superior responsibility; citing forensic evidence, such as a video footage of Lubanga exhorting a group of child soldiers, and relying on witness testimony that Lubanga had a personal guard of child soldiers.  Lubanga has 30 days  from the release of the French version of the judgment to appeal the verdict.

The debate surrounding the ICC, and the Lubanga conviction specifically, is manifold. ICC advocates emphasize the narrowing impunity gap and the potential deterrence affects on future mass atrocities. Géraldine Mattioli-Zeltner of Human Rights Watch observes, “military commanders in Congo and elsewhere should take notice of the ICC’s powerful message: using children as a weapon of war is a serious crime that can lead to the dock.”

Antony Njuguna, Reuters, Files

However other human rights groups have sharply criticized the ICC Prosecutor Louis-Moreno Ocampo for his case-selection strategy and allegedly myopic prosecutorial approach—reducing the vast array of crimes committed by Lubanga to charges of child recruitment. Ocampo has also been criticized for, at least initially, breaching Lubanga’s fair trial rights by refusing to release potentially exculpatory evidence. More generally, critics also charge that the ICC is expensive, with an overall expenditure of $900 million, but only this one result since its inception in 2002.

Below I chat with John Washburn and Matthew Heaphy, Convener and Deputy Convener of AMICC, about the Lubanga conviction. AMICC is a coalition of non-governmental organizations that works to raise US domestic support for the ICC, and is a program of the ISHR.

1) A major criticism of the Lubanga trial is the narrow scope of charges the accused was charged with. What are the major benefits of this prosecutorial strategy? Drawbacks?

MH: One of the major benefits of this strategy is, on one level, special attention given to this crime—which has not been a consistent focus of international attention. Particularly, the plight of children in armed conflict. In this case, the Prosecutor embraced the opportunity to bring attention to this serious crime and to have a simple case to establish substantive jurisprudence and case law.

This case also helps clarify and define what it means to be someone who is accused of committing this crime. It also defines what it means to be a victim of child conscription—that enlistment first begins when the child is brought into the ranks of the militia and doesn’t end until they turn fifteen, when the conflict ends, they are released or when the child soldier is demobilized. This jurisprudence will certainly be elaborated on and cited in future child soldier cases that are expected to come before the Court.

As far as the narrow list of charges, in an ideal world individuals are made to answer for the crimes that they allegedly commit. The reality the Prosecutor faces is that he or she needs to go to trial with the evidence available. The evidence at hand and available at the time of Lubanga’s arrest presented an overwhelmingly strong case against Lubanga for the conscription and use of child soldiers. However, the Prosecutor has also shown a willingness in an upcoming case against Lubanga’s co-accused—who is still at large, Bosco Ntaganda—to substantially expand the list of charges.

 JW: It is also noteworthy that the child soldier charges are broader than they first appear: they involve abuse of the child soldiers, boys and girls, including sex slaves, torture, and inhumane treatment.

2) Approximately 123 victims participated in the Lubanga trial on their own behalf. How did this work in practice during Lubanga’s hearing?

JW: Victim participation gives judges a larger sense of the context—it’s very helpful for judges that are not part of the culture or specific situation to understand the larger picture surrounding the conflict. The Court also noted that people did crowd in areas where they were televising the video and that the audience identified with the victims.

 MH: One of the novel challenges facing the Court was the participation of victims—something that has never happened at this level in an international tribunal. Here, we have victims filing applications directly with the Court or legal representatives—not being called as witnesses by either the Prosecutor or the defense, but to represent only themselves and to have the opportunity to participate on their own.

We don’t know how many victims the Court can handle, but there are going to be efforts to ensure that victims’ participation remains meaningful and does not slow down a process that is complicated and perceived by many as being already too slow.

 

3) Are there potentially negative implications on the legacy of the Lubanga conviction given “right to fair trial” concerns?

MH: The Rome Statute requires that the Prosecutor hand over potentially exculpatory evidence to the defense. However, the Prosecutor was concerned about protecting the confidentiality of individuals and victims whose identities would be released. Upon an order from the Trial Chamber, the Prosecutor negotiated with sources to permit the judges to review the evidence to determine if it was indeed exculpatory—and thus had to be shown to Lubanga’s defense. The result was favorable to everyone; some sensitive evidence remained confidential and fair trial rights were upheld.

 JW: This procedural jurisprudence was an enormous boost to the credibility and standing of the Court. The judges were prepared to place extreme pressure on the Prosecutor to comply. The Trial Chamber should, and did, instruct the Prosecutor to do what due process rights demand and what the rights of the accused require.

4) How do you see the Lubanga verdict influencing/complementing the efforts of AMICC to increase support for the ICC in the United States?

JW: Even if we have changes due to the appeal process, this was a successful case. The verdict was solid and extensive; well-reasoned and well-written. For starters, the document is a consensus document—remarkable in a situation as complicated as the Lubanga case. Therefore, the ruling will help convince people that the Court is fair, professional, and meets our very own standards of due process.

MH: The support of the Court in the U.S. is broad but shallow. When people learn about what the ICC does, they tend to express support but don’t necessarily know the details of how the Court works or what cases are before it. Now that we have a conviction—this will help to change that. Lastly, it is positive that the Court is ready and able to proceed with the next batch of trials—this shows that there are continuing efforts to try individuals for the most serious crimes and that the ICC has a life following the Lubanga conviction.

5) Moving forward, what are the other lessons learned from the ICC’s first-ever conviction?

 JW: It was also very clear that the reason that the trial was as good as it was, and as compelling as it was, was Lubanga’s committed and resourceful defense. This was a defense that was aware, even vigilant, with regards to protecting the rights of the accused. These are outcomes you get only in an effective adversarial proceeding.

MH: The ICC is a young, maturing institution. A lot of the headlines discuss the millions of dollars spent and the fact the there is only one verdict. However, it’s important to recall that in addition to conducting these trials, the world is building an international organization from scratch and building an institution that will be more and more effective at investigating and prosecuting atrocity crimes in the future. And so I like to think that while there was some slowness, the institution will continue to learn and improve if ICC States Parties continue to invest political and financial capital in it.

For further information about the AMICC’s work on the Lubanga verdict, see their recent papers:

And for readers on Columbia campus next week, be sure to see this ISHR/ AMICC event with US Ambassador-at-Large for Global Criminal Justice, Stephen J. Rapp. http://www.amicc.org/docs/Rapp_April_19.pdf

Derek M. Welski is a M.A. candidate in the Human Rights Studies program at ISHR. Derek’s focus is on international criminology and jurisprudence arising from International Criminal Tribunals.

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