Victory in the ICC, But Without More Signatories, How Much Can the Rome Statute Do?

Louis Michel, via WikiMediaCommo

By Andrew G. Mosher

Ten years after it was established, the International Criminal Court has announced its first verdict.

A three-judge panel unanimously convicted Thomas Lubanga Dyilo, 51, a Congolese militia leader, of conscripting soldiers under the age of 15 and using them in an armed conflict in the Ituri region of the Democratic Republic of Congo (DRC) in 2002 and 2003.

Conscription and deployment of child soldiers are among the list of war crimes outlawed under the Rome Statute, which established the ICC as the world’s first permanent international court with jurisdiction over what international law considered the most serious crimes. In addition to war crimes, the Rome Statute outlaws genocide, crimes against humanity, and aggression.

Lubanga’s verdict —  announced March14 — was the first reached by a trial chamber of the ICC, which began operations in 2002 and is based in the Hague. While some human rights advocates complained that a decade after its establishment and six years after taking Lubanga into custody, the ICC had taken too long to reel in a fairly small fish, announcement of the verdict was more widely hailed as a milestone.

“The Lubanga verdict sends a strong signal against impunity for such grave breaches of international law that will reverberate well beyond the DRC,” Navi Pillay, the U.N. High Commissioner for Human Rights, said in a statement. “The coming of age of the ICC is of immense importance in the struggle to bring justice and deter further crimes.”

Michael Bochenek, Amnesty International’s Law and Policy Programme, said: “Today’s verdict will give pause to those around the world who commit the horrific crime of using and abusing children both on and off the battlefield. It will help to strip away the impunity they have enjoyed for crimes under international law because national authorities have consistently failed to investigate these crimes. This guilty verdict demonstrates that the ICC can step in to bring them to justice.”

However, Reed Brody, counsel for Human Rights Watch, told the Reuters news agency that Lubanga was a “small fish” and that his conviction would not strike fear into the hearts of higher-profile figures accused of violating human rights. Brody asked: “Is it going to give pause to [Syrian President] Bashar al-Assad? I don’t think so.”

Brody pointed out that the absence of more prominent defendants at the ICC, where 14 other cases are currently before the court, was “not the fault of the ICC.” Though 120 states have ratified the Rome Statute, thereby submitting to ICC jurisdiction, some of the world’s most populous and powerful have not – including the United States, China, and India. Because Articles 14 and 15 of the statute state that citizens of non-states parties or situations in those countries can only be referred to the ICC by the U.N. Security Council, many potential defendants are effectively shielded from prosecution by the court.

Lubanga was president of a political party known as the Union of Congolese Patriots (UPC); in addition, he acted as commander in chief of the party’s armed wing, the Patriotic Force for the Liberation of Congo (PFLC). The armed faction was one of several that took part in ethnic fighting in Ituri, in the far northeast of Congo. Human Rights Watch estimates that the fighting in Ituri claimed more than 60,000 lives.

In its ruling, the ICC judges said that “evidence demonstrates that children in the military camps endured harsh training regimes and were subjected to a variety of severe punishments.  The evidence also establishes that children, mainly girls, were used by UPC/FPLC commanders to carry out domestic work. The Trial Chamber heard evidence from witnesses that girl soldiers were subjected to sexual violence and rape. Witnesses specifically referred to girls under the age of 15 who were subjected to sexual violence by UPC/FPLC commanders.”

Lubanga was taken into custody in 2006, and after two lengthy delays, his trial got underway in early 2009. By the time it ended in May 2011, the court had heard 67 witnesses in 204 days of hearings. He will be sentenced at a later hearing, and could receive life imprisonment.