A child soldier rides back to his base in Ituri Province (Marcus Bleasdale/VII)

The International Criminal Court has delivered its first verdict, finding the Congolese warlord Thomas Lubanga guilty on charges of conscripting and enlisting children, and using them to participate in hostilities during the Ituri conflict between 2002 and 2003.

Today’s ruling marks the end of the ICC’s first trial, a trial that has been going on since 2006 and which has been marred with fair trial issues raised by the defence. In fact, the trial chamber ordered Lubanga to be set free twice because the Office of the Prosecutor (OTP) failed to disclose information to the defence and because of general fair trial issues. Only appeals by the OTP that were granted by the Appeals Chamber ensured that the trial went on. At the time of writing the sentence is not yet clear, but we may well see Thomas Lubanga walk free as a result of these delays as he has already served nearly ten years of his sentence if his time in Congolese prisons is taken into consideration. Additionally, the defence still has a right to appeal the sentence.

Regardless, bringing its first trial to an end is a milestone for the ICC and for Chief Prosecutor Luis Moreno-Ocampo who has thus managed to ensure at least one verdict in his 9 year tenure. Nevertheless, the first trial completed at the ICC leaves a bad taste in one’s mouth.

Some of the issues that arose during the first trial are perfectly understandable for a newly established court, especially if one takes into consideration that it operates under quite a unique mixture of Civil Law and Common Law. Lubanga’s trial was nearly stopped twice due to issues of sharing evidence and allegations that Lubanga was not receiving a fair trial connected to these issues. The OTP used so-called intermediaries in the field to collect information and evidence from eyewitnesses in the conflict region. The defence accused one of the intermediaries of having bribed witnesses into delivering false accusations against Lubanga and thus demanded a disclosure of the name of said intermediary. The court ordered the name to be disclosed, but the Chief Prosecutor refused to do so, claiming that he could not guarantee the security of the intermediary if he was not given more time to put protective measures in place.

Lubanga during an ICC hearing (Photo: Ed Oudenaarden/AFP/Getty)

The use of intermediaries is an understandable choice for an office that conducts investigations in conflict areas in which movement is limited and international prosecutors from The Hague are bound to provoke a lot of attention. One of the legacies of the Lubanga trial is the decision of the chamber on the use of intermediaries. Even though the question of intermediaries led to a very long trial and may have violated Lubanga’s right to an expeditious trial, clarifying these issues were necessary steps in the ICC’s development. The chamber’s ruling has been clear in stating that the Prosecutor should not have delegated his responsibility for investigating and that he is to be faulted for some evidence becoming unreliable as a result. This is a welcome development as it will ensure that OTP staff will stay in touch with the region in which they are investigating crimes. The ICC is already accused of being too removed from the realities on the ground and this tendency would be worsened if investigators never saw the field.

But other issues during the Lubanga trial are actually more worrying.

When Moreno Ocampo took charge of the OTP, he said that he wanted his work to be measured by the number of cases that do not reach the ICC, rather than by the number of verdicts. His reasoning was that the ICC is a court of last resort, based on the principle of complementarity. In an ideal world, the OTP thus would have no work at all as states would be able and willing to try criminals themselves.

This strategic approach has earned numerous arguments in its favour. It ensures that states are not being disempowered but rather encouraged to try their own suspects. The societies and the victims in these states would profit from a trial that is closer to them and gives them a possibility to follow the proceedings. Yet, Moreno-Ocampo did the exact opposite in practice.

When the ICC intervened, Lubanga was already in detention in the Democratic Republic of Congo, facing charges including murder and torture. Instead of encouraging a national trial, the OTP claimed that there was a danger that Lubanga would be set free and came forward with charges of conscripting child soldiers. The Pre-Trial Chamber confirmed the admissibility of the case since Lubanga had been held on different charges in the DRC. It argued that the DRC was unable or unwilling to prosecute Lubanga on the specific charge of conscripting child soldiers. Indeed, there was no legal basis to charge Lubanga for the conscription of child soldiers in the DRC at that point.

Refugees at an IDP Camp in Ituri

This leads directly to the next problem. Many victims groups, especially those representing women who had been raped by Lubanga’s soldiers, felt betrayed by the ICC’s move. It reduced the vast array of crimes allegedly committed by Lubanga to the recruitment of child soldiers.

For many victims the message was clear: their suffering did not matter in this trial. The OTP thus brought limited charges for the sake of quickly getting a first trial going while many victims lost out. But this had even further implications for the Ituri conflict in which Lubanga committed his crimes.

In a nutshell, the Ituri conflict is a spin-off of the conflict between Hutu and Tutsi in Rwanda. The conflict was ethnically charged and pitted the agriculturalist Lendu against the pastoralist Hema. Lubanga fought on the Hema side of the conflict. The way the ICC handled its investigations heightened the ethnic tensions in the region.

The ICC only indicted a member of the Hema side, namely Lubanga, which caused concern among the Hema of one-sided investigations. Then the ICC brought charges against two members of the Lendu side. When the ICC indicted two commanders fighting on the Lendu side and brought forward charges including murder and sexual slavery, the Lendu asserted that their people were charged more severely than the Hema commanders. Fortunately, this apparently served the ICC as a lesson. In the Kenya case the court decided to indict an equal number of suspects on both sides with comparable charges and at the same time.

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For those interested in the impact of the trial on the ground in Congo, I recommend an excellent report published by the International Refugee Rights Initiative.