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International Criminal Court's African bias

  • 13 July 2012

On 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.