International Criminal Court's African bias

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Child soldier in CongoOn Tuesday, the International Criminal Court formally sentenced Congolese warlord Thomas Lubanga Dyilo for his use of children in the Union of Congolese Patriots (UPC) militia. He had deployed them in lethal operations in the eastern Ituri region in 2002–03. He was given sentences pertaining to conscripting, enlisting and using child soldiers (children here being under 15 within the meaning of the statute).

It is the first sentence ever handed down by the ICC.

The sentencing finalises a phase begun on 14 March, when Trial Chamber I, as it is termed, issued its judgment in the ICC's first case — The Prosecutor vs Thomas Lubanga Dyilo, finding the defendant guilty for violating Articles 8(2)(e)(vii) (conscripting children) and 25(3)(a) (enlisting children) of the court's governing statute. The judgment was 624 pages and dealt with instances where 129 victims (34 female and 95 male) were involved.

The record of the International Criminal Court is astonishingly short for a body that has existed for ten years. The logistical difficulties of its operation are many — for one, where to place those it convicts, seeing as it has no prison cells. Agreements exist with seven countries as to where convicts might be jailed — Denmark, Serbia, Mali, Australia, Finland, Britain and Belgium.

The movement in international law and the domestic legislation of many countries has been towards the 'best interests of the child'. War is in the best interests of no one, and children are seen to be a special case in that regard. 'The vulnerability of children means they need to be afforded particular protection,' claimed presiding judge Adrian Fulford, who issued a separate opinion from the majority in the case.

Nor was the judge thrilled by the performance of former chief prosecutor Luis Moreno Acampo, who failed to bring charges of sexual violence into the proceedings. An entire and brutal dimension of soldier violence involving children was thereby avoided.

The evidence adduced at the trial was also problematic. The Chamber felt there were strong reasons to believe that those working for the prosecution had exerted improper influence on the testimonies of alleged former child soldier witnesses. Such testimony, it was argued, might be unreliable.

This was made more acute by the reliance placed by the Chamber on video and documentary evidence, given the paucity of reliable witness testimony. One video proved, at least in the minds of the judges, particularly damning — showing Lubanga's visit on 12 February 2003 to a training camp at Rwampara. Among the troops Lubanga was visiting were children under the age of 15.

The Lubanga case, while a landmark decision — in fact, the only decision — handed down by the ICC shows the enormous difficulties in bringing such cases before international criminal courts.

When the verdict was announced, the predictable reaction among many in the Congo was that the ICC was a 'political institution'. That is the view of such individuals as Pele Kaswara, a UPC representative who makes the relevant point that, 'You'll never see an American pass before the ICC. All of the accused there are Africans.'

This is easy to understand, given the ICC's move to characterise the conflict as purely internal, and consisting of ethic rivalries. In truth, the conflict in eastern Congo between 2000 and 2003 involved such toxic factors as gold and the presence of the Ugandan army. Viciousness and victimhood enlisted all sides.

While it would be too much to say the judges had to fudge the issue of linking Lubanga to the enlistment and conscription of children, it is fair to say that liberties were taken in accepting the evidence of that link.

This is made clear by the standard put forth by the majority of the judges: 'The Chamber needs to be satisfied the accused knew that the children were under the age of 15 years and, additionally, that he was aware that he was providing an essential contribution to the implementation of the common plan [of conscripting children].'

In the end, the various objective and subjective elements linking the accused with both the conflict at hand and the use of child soldiers were satisfied. But satisfied judges don't make a satisfied populace subject to an international institution regarded by many states as a political front.

The United States is a classic illustration of that problem, its juridically minded officials happy to front and develop international law, while its political figures trump it with refusals of participation. International law, for that reason, never grows at speed, but limps along to an uncertain destination.


Binoy KampmarkBinoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne.


Topic tags: Binoy Kampmark, International Criminal Court, Thomas Lubanga Dyilo, Congo

 

 

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Existing comments

I can understand the frustration of African people with the ICC as only African people have been brought before the court. In my opinion there are three westerners who should be investigated for their roll in recent major conflicts, they being George Bush USA, John Howard Australia, Tony Blair Britain for their roll in the unjustified invasion and occupation of Iraq in 2003. If I knew how to launch such a case against these three I would certainly do so.
Kevin Vaughan | 13 July 2012


And so would I. Spot on, and great article, too, Mr Kampmark.
Phillip | 14 July 2012


@Kevin Vaughan. Would you also support bringing bring before the ICC the leaders of the Sunni and the Shia Muslims, who are blowing up each other by the score in Iraq? BTW, I did not support the invasion of Iraq or of Afghanistan.
John Ryan | 14 July 2012


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