Cornerstone Global Associates

The Lubanga judgment of the International Criminal Court: a first step towards justice?

Posted by: leonie on: March 21, 2012

(Photograph by the author)

Leonie Timmers, Cornerstone

The judgment has been praised by inter alia the European Union and several NGO-s for representing “a milestone for international criminal justice”, since it “demonstrates that perpetrators cannot act with impunity”.1 Certainly, the importance of this judgment and the work of the ICC should not be underestimated; however, to argue that this one judgment “demonstrates that perpetrators cannot act with impunity” is not realistic for several reasons.

Firstly, it is important to stress that the ICC lacks an enforcement mechanism. This characteristic is often referred to as the “Achilles Heel” of the institution because it means that the ICC depends on the cooperation of States to enforce arrest warrants. The arrest warrant against the Sudanese President Al-Bashir is the clearest example of how this has proved problematic. Three years have passed since the arrest warrant against Al-Bashir was issued, and he has not been arrested in spite of the fact that he has travelled to several countries, including ICC State parties. So long as arrest warrants are mere ink on paper, it is difficult to see how one conviction demonstrates that impunity no longer exists.

Secondly, in accordance with Article 12 of the Rome Statute, the ICC may only exercise jurisdiction over crimes committed within the territory of a State party or committed by a national of a State party, the only exception being a referral of a situation by the Security Council. Therefore, the fact that countries such as the Russian Federation, the United States, Egypt, Iran and Syria have not ratified the Statute implies that in certain countries perpetrators can act with impunity. This again shows the importance of State cooperation. So long as Russia remains determined to block any Security Council action with respect to Syria, President al-Assad remains shielded from the Court and can commit crimes against humanity without being held accountable for them.

Finally, the ICC is complementary to national persecution and has only a limited capacity to try individuals. This raises two issues. Firstly, the majority of those individuals responsible for crimes in a certain conflict are tried in national courts. The ICC should do more effort to assist in the construction of an effective national judiciary, for as long as local prosecution is not seen as a valuable alternative, the majority of perpetrators still enjoy impunity.

The second issue has to do with the type of individuals who should be prosecuted by the ICC. Because of the principle of complementarity, Prosecutor Moreno-Ocampo has always stressed that he targets individuals “bearing the greatest responsibility” for the “most serious” crimes in a conflict. In order to identify those with the greatest responsibility in a conflict, effective investigation on the ground is needed. Seen the distance in terms of kilometers, culture, and traditions between the Court and the areas in which investigations need to be conducted, investigations have not proved to be as effective as they should be. The Lubanga trial provides an example of the consequences of ineffective investigations. First of all, most Congolese do not consider Thomas Lubanga to be the individual bearing “the greatest responsibility” in the crimes committed in the DRC. He is rather considered to be a “small fish” since he was no more than one of several mid level-members within the armed group “RCD-ML”. Secondly, several stakeholders have presented evidence that Thomas Lubanga has committed far worse crimes than those for which he was charged. Those might – to some – just seem details; however, for the victims of the atrocities committed in the DRC such “details” are highly sensitive.

It can be observed from the above that the Lubanga judgment does not resolve the weaknesses of the ICC. Therefore, it can probably be best described as a “first step towards international criminal justice” since it demonstrates that “not all perpetrators can act with impunity”. Moreover, the Lubanga trial has been a learning process that has demonstrated to ICC officials, victims, and to the international community, that the functioning of an International Criminal Court raises difficulties2 that were not envisioned when the Rome Statute was drafted and that need to be resolved step by step.


1
EU Declaration on International Criminal Court judgment in Lubanga Dyilo case, 14 March 2012, available from: http://www.eu-un.europa.eu/articles/fr/article_11967_fr.htm

2 Such difficulties relate to the collection of evidence in war-torn areas, the participation of victims in the process, the testing of witnesses on reliability, the lack of State cooperation and the reliance on intermediaries.