Thursday, Mar. 15, 2012, Globe and Mail
Guilty as charged. There was high drama in The Hague and in the Democratic Republic of the Congo on Wednesday as the judges of the International Criminal Court prepared to release the tribunal’s historic first judgment. The decision was unanimous. Between September, 2002, and August, 2003, Thomas Lubanga Dyilo, a Congolese warlord, had enlisted or kidnapped thousands of children under the age of 15 to fight in his militia. The conflict was over mineral resources in the northern district of Ituri. It is estimated that up to 60,000 civilians were killed in the violence.
Boys and girls, some as young as 7, were trained to use AK-47s and given uniforms that made them feel “proud,” as one escapee put it. They were drugged to suppress fear, then dispatched to the high-danger front lines, where they slaughtered people, mostly civilians, from the opposing ethnic group. They were personal bodyguards. Girls (who made up 40 per cent of the recruits) were gang-raped and then delegated as “wives.” Many were under 10 years of age.
The verdict marks a major milestone for the ICC, which opened its doors just nine years ago. Thomas Lubanga was the first suspect arrested under an ICC warrant, and his case was the first to be brought to trial. His conviction stems directly from the judgments at the postwar Nuremberg Trials, where the top Nazis were convicted of crimes against humanity – a law that was created by that tribunal to address the unprecedented crimes it was prosecuting.
Like Nuremberg, the ICC has now established an important legal precedent. By defining crimes against humanity, Nuremberg opened a new era in international law. With the Lubanga case, the ICC has determined that the use of child soldiers is a major war crime, a verdict that will inform the trials of future perpetrators.
The verdict is also a victory for Mr. Lubanga’s victims, who were included in the trial process, beyond being witnesses for the prosecution, for the first time in the history of international courts. I suspect this was a lesson learned from the outreach failure of the UN court for the former Yugoslavia, where Bosnian victims, watching from afar, felt ignored. Also, for the first time in history, the victims will receive reparations. Part of the court’s operational mandate was to set up a trust fund for just this purpose, although it is reportedly thin enough, given budget cuts, that some people may be disappointed.
The trial took a very long time – too long, according to its critics – and there were problems along the way. For example, in 2008, the proceedings were temporarily halted because the prosecution refused to disclose important evidence. Since this was a first case, unforeseen legal questions had to be dealt with, causing further delays. So yes, timing was an issue; on the other hand, conducting a fair trial according to international standards of due process can’t be rushed. It’s worth noting that expediency may create injustice, as in certain Allied war-crimes trials held in Germany immediately following the war. In one of these, the judges took just four hours to determine the guilt or innocence of individual perpetrators after a rapid group trial. Everyone was convicted.
The sensational Invisible Children video of recent days has highlighted the subject of child soldiers by focusing on the crimes of Ugandan war lord Joseph Kony, who also has been indicted by the ICC and is still at large. Some critics have created a false dichotomy between peacemaking at the end of a conflict versus criminal justice. Peace and justice do not need to be exclusive of one another; they may be sequential. The real problem is the cynical tradition of granting amnesty to people who have committed massive crimes, thus “forgiving” the perpetrators and condoning impunity. In my view, the strength of this video lies in its ability to instruct the young. Of the 70 million viewers, a majority were teenagers who were inspired to identify with the tragic situation of children like themselves. Perhaps the Lubanga case should be partnered with Invisible Children as evidence that justice for child victims is indeed possible.
Since the Congo was brutalized by King Leopold II of Belgium in the 19th century, the country has known no respite from violence. So it is not surprising that when asked about his profession, Mr. Lubanga replied: “I am a politician.” It’s impossible to know how widespread this skewed understanding of politics, governance and law is among individuals who have been indicted by the International Criminal Court. What we can infer is that the mix of politics and war crimes is one of the major challenges facing the international community. And that the ICC, now fully operational, is a major tool for confronting such views.