The ICC finally gets a conviction

For the first time, the International Criminal Court has issued a verdict. Earlier today, three judges found former Congolese militia commander,Thomas Lubanga Dyilo, guilty of recruiting and using child soldiers as part of the long-running violence in the eastern provinces of the Democratic Republic of Congo. The verdict was a long time coming–and a huge relief for the young court.

The Lubanga case was messy almost from the beginning. Proceedings began in January 2007, but the judges assigned to the case threatened on several occasions to dismiss the case and spring Lubanga from his cell. The central issue was a dispute between the judges and the prosecutor’s office about whether certain evidence had to to be turned over to the defense team. That dispute worked its way slowly through the court’s appeals process, and the trial itself did not begin until early 2009. The next year, the process was suspended for several months as another dispute emerged between the judges and the prosecution.

For all the controversy that surrounded the trial, the case against Thomas Lubanga had begun as one of convenience for the court. The militia leader was in the custody of the Congolese authorities in early 2005, but it appeared likely that he would be released. At that point, the ICC had only issued ineffectual indictments against the leaders of the Lord’s Resistance Army (who remain at liberty), and observers worried that the court was in danger of appearing toothless.  Eager to get its hands on an actual defendant, the prosecution rushed to complete its investigation and issued an arrest warrant for Lubanga in January 2006. Two months later, the unlucky militia commander was whisked from  Kinshasa to the Hague aboard a French military plane.

The selection of Lubanga as an ICC target raised a few eyebrows. The ICC is charged with prosecuting the world’s most grievous crimes, and Lubanga appeared to many as a fairly typical (and typically brutal) warlord. The specific charges filed against him raised even more questions. The militia commander was charged with recruiting and deploying child soldiers rather than with murder, rape, or forced displacement. Some observers argued that the charges were strangely narrow.  A group of leading human rights organizations warned the ICC prosecutor that "the failure to include additional charges in the case against Mr. Lubanga could undercut the credibility of the ICC in the DRC." The ICC’s prosecution team maintained the charges, endured the criticism, and persevered.

It’s not altogether surprising that the ICC’s first case was a controversial and drawn out affair. For the fledgling court, every question was a new one, and the many ambiguities and novelties of the court’s architecture required interpretation. Perhaps most important, the ICC melds an Anglo-American, prosecution-driven system with an inquisitorial system in which judges play a much more active role in managing cases. An important element in the Lubanga saga was a struggle for control between the judges and the prosecutor. As the court develops precedent and custom, those clashes should ease.

The recent past also offers some evidence that early missteps in international justice can give way to later effectiveness. The international tribunal for the former Yugoslavia’s first trial was against a low-level Bosnian Serb prison guard. The struggling court couldn’t get ahold of any more important suspects, and its first case was seen as evidence of the institution’s impotence.  Fifteen years later, that tribunal has a sparkling track record. Former Serbian president Slobodan Milosevic died in a Hague jail cell rather than at liberty. Ratko Mladic and Radovan Karadzic, the architects of the Bosnian Serb ethnic cleansing campaign, are now in the dock.

The ICC and its advocates hope that it will experience a similar evolution, and that powerful states will begin to put their diplomatic, political and even military muscle behind the institution. For the ICC, the Lubanga verdict marks the end of the beginning. With ten years of experience and a conviction under its belt, the court is no longer a rookie. How serious a player it will be remains to be seen.