A Tentative Step Toward Justice
On January 26, 2009, the International Criminal Court will take a significant step towards its aim of prosecuting the architects of grave war crimes when the Court’s first trial begins. The case of Thomas Lubanga Dyilo, the former leader of the military group the Union of Congolese Patriots (UCP), has taken a long and tortured path to the trial stage, and in doing so, has exposed various weaknesses and problems in the Court’s structure and operation. Nevertheless, the trial represents an historical moment for international justice and, if conducted in a fair and efficient manner, may go a long way towards addressing the concerns of critics of the Court.
Lubanga was the first individual to be arrested under the mandate of the Court and, in many ways, the story of his case has also necessarily been the story of various “teething problems” of the Court. Some, such as the question of the participation of victims in the proceedings, have been tackled both solidly and seriously by the Court. Others, such as the issue of confidential exculpatory documents obtained by the Prosecution, have been subject to conflicting opinions from the Trial Chamber and the Appeals Chamber, with no clear policy of the Court emerging. Of course, these are problems, which can be found in all judicial systems, national or international, and their appearance at a court still in its infancy is especially of no surprise. However, where the very existence of the court still remains a highly political issue in parts of the world (most notably, in the US in the case of the ICC), each flaw and weakness can take on a pronounced importance in the eyes of critics, and provides valuable fodder for arguments against the work of the court.
There is currently no indication of how long the trial will take or when judgment in Lubanga’s case can be expected. The operation of the international courts for Rwanda, the former Yugoslavia and Sierra Leone have demonstrated that justice can be a slow beast. And with conflicts currently raging from Gaza to the Congo itself, it is easy for the work of the Court to slip into the background, to be seen as a somewhat comforting afterthought to what really counts – namely, what happens in the field. However, to see the Court and Lubanga’s case in this light is to ignore that the Court, in its enforcement of international law, indirectly governs what goes on in the field. It may currently be very weak, but the threat of being prosecuted for war crimes and the need to respect certain legal boundaries must occupy at least some of the thought of commanders and combatants in conflicts around the world. The trick is for the Court to show that it is a relevant and powerful means of deterrence and punishment, and not the impotent, unwieldy and politicized body its critics would have you believe. Lubanga’s trial represents the first opportunity for the Court to do so and therefore, while it may be eclipsed on the front page of the newspaper by more immediate conflicts, we should remember that the architects of and participants in those conflicts may one day face the same processes and penalties that Lubanga may shortly face.
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