Lubanga and the Trouble with ICC Deterrence

This is piece was originally posted at Opinio Juris, which has organized a fascinating and thought-provoking virtual round-table on the Lubanga verdict and its legacy. Check out, inter alia, contributions from Mark Drumbl, Dov Jacobs, Jens Ohlin and Kevin Jon Heller. Drumbl’s masterful work on the subject of child soldiers should be of particular interest to readers of this blog. Big thanks to Jessica Dorsey, who organized the roundtable and offered me the honour to throw in share my two cents! 

(Photo: Pascal Guyot/AFP/Getty Images)

International lawyers will undoubtedly pour over the landmark verdict handed down this week by the International Criminal Court, in which Thomas Lubanga Dyilo was found guilty of conscripting, enlisting and using child soldiers in the long-standing and brutal conflict in the Democratic Republic of Congo. The trial, riddled with well-documented problems from the get-go, is likely to shape the practice of the ICC itself – at least so those disturbed by the conduct of the prosecution hope. But what of the political effects of the Lubanga decision beyond the Court room? Will the trial have a deterrent effect on the use of children in warfare in the DRC?

The widely held argument that international criminal justice can deter the commission of international crimes remains highly problematic. Scholarship on the subject typically, and rather dubiously, ignores the mixed evidence of deterrence in the case of domestic crimes. Studies generally assess international criminal justice’s effects in a vacuum where, for example, the use of military and economic sanctions aren’t taken into account when seeking to establish whether or not there is a deterrent effect. Most problematically, evidence of deterrence is forever slanted against those who claim its existence. As William Schabas has rightly observed, “while we can readily point to those who are not deterred, it is nearly impossible to identify those who are.”

Despite these key issues, deterrence continues to be among the most common arguments proffered in favour of holding perpetrators of international crimes to account. The increased prominence of the deterrence argument reflects a shift, elucidated recently by Leslie Vinjamuri, in the argumentation for international criminal tribunals, away from moral duties and obligations to the positive consequences that these tribunals can bring about. But will the verdict against Lubanga have a deterrent effect on the use of child soldiers?

Firstly, it is my opinion that, despite the issues outlined above, it remains possible to believe that the deterrence achieved through international criminal justice remains a worthy goal without having to prove that it happens or find conclusively that it necessarily does. It may be sufficient to say it is a feasible outcome of international prosecutions – and therefore worthy of support.

In this context, it remains a possibility that the verdict may help to deter the use of child soldiers by signalling that the Court is more than a paper-tiger. The ICC has demonstrated that it can function to punish those who seek to use children as combatants in violent political conflicts. NGOs, such asWar Child, have done a remarkable job in exposing the use of child soldiers in armed forces and groups. Certainly, it is difficult to imagine the Lubanga verdict undermining the progressive decline in the number of conflicts where child soldiers partake, which, according to some has halved since the mid-1990s (although note that there are also less conflicts in general).

Yet, while a general, long-term international deterrence effect seems entirely possible, to claim a specific deterrence effect on the ground in the DRC seems far-fetched – at best.

Thomas Lubanga Dyilo at the beginning of his trial at the ICC (Photo: Keystone)

The extent to which local deterrence can be achieved is likely to depend primarily on the sentence, rather than the verdict, handed down to Lubanga. In eastern provinces of the DRC and the epicentres of the conflict, a mixture of fear and anticipation awaited not simply the verdict – which was rather obvious – but the sentence to be handed down. Olivia Bueno has covered the conflict and paints a tense, divisive and complex picture of the situation in the lead-up to the verdict and sentencing:

“On the ground, opinions are divided. Not surprisingly, supporters of Lubanga hope that he will be acquitted or given a short sentence and released….Some are reportedly already planning a homecoming celebration…[But t]hose who do not support Lubanga are deeply concerned about the prospect of his release…For victims of the attacks of the UPC, a decision to acquit or give a light sentence to Thomas Lubanga is likely to result in indignation…Faith in international justice, and in the international community by extension, is likely to be deflated. Victims will feel betrayed by the Court and frustrated with the outcome. Some fear that this frustration could well up into violence…Others fear that the liberation of Thomas Lubanga and his potential return to Ituri might negatively impact the security situation on the ground because he may be a destabilizing figure.”

Lubanga has already served seven years of whatever sentence will be brought down upon him. If, as many commentators believe, Lubanga receives a ‘light’ sentence and is released in the next few years, any possible deterrent effect will be profoundly weakened. This is not to argue that the higher the punishment, the greater the potential deterrence. We know this to be false. Rather, in the Lubanga case, any possible deterrent effect is undermined by the fact that the verdict demonstrates that an individual who is responsible for a litany of crimes may only be sentenced for a small proportion of them. A priest working for Caritas in the Ituri region of the DRC alluded to this point in the wake of the verdict:

“In effect, this verdict does not mean much for us in Ituri; it doesn’t help to heal the wounds…Those who lost everything won’t gain anything from hearing he is guilty of enrolling children in his militia. We know that – we sent our children. We needed to hear he is guilty of bringing this conflict upon us for his personal gain.”

Once again, this brings to the fore the controversial decision by the prosecution to focus myopically on charges of conscription, enlisting and using child soldiers. The Office of the Prosecutor refused to add other charges of war crimes, including rape and murder, despite widespread calls to do so from both local and international human rights and victims groups. The argument that the charges were restricted in order to ensure a smooth and efficient trial now seems precarious given the delays the trial suffered as a result of the prosecution’s behaviour during the proceedings.

(Photo: Lionel Healng /AFP/Getty Images)

As it stands, the record for the Court’s deterrence effect on the ground in the DRC is questionable. Numerous rebel groups, including the Lord’s Resistance Army of ‘KONY2012′ fame, continue to abduct and conscript children into their ranks. Bosco Ntaganda lives openly and freely as a high-ranking military officer despite facing his own set of charges for using child soldiers. Of course, the Court’s lack of effect on preventing the use of child soldiers in the DRC and bringing other wanted perpetrators to justice is, in large part, the result of a lack of interest and cooperation – both from the DRC and the international community. After all, Ntaganda isn’t running amok in the DRC because of the Court. But the ICC isn’t entirely blameless either.

The ICC apparently did nothing to ensure that there was a screening of the Lubanga verdict in key urban centers. This was especially frustrating to those who had followed the trial and were eagerly awaiting the verdict. As one local human rights activist declared:

“People wanted to more clearly see what Lubanga was really being blamed for. Especially since the international opinion as expressed through the charges against him did not fully reflect the reality that the people lived through here.”

An ICC communications team in Ituri maintained that the Court did not provide funds for a broadcast of the verdict. This is particularly flabbergasting given that the ICC has improved its outreach tremendously in recent years and that other key moments in the trial were available for viewing. While the Court has experienced legitimate difficulties in guaranteeing sufficient funding for its work, outreach at crucial moments such as the Lubanga verdict should not be sacrificed. If deterrence of international crimes is ever to have a chance, every effort must be made to guarantee that the proceedings of the Court are visible to the victims, survivors and even perpetrators on the ground.


For more on the politics of the Lubanga verdict, check out these insightful and thoughtful posts by Alana Tiemessen (here) and Paul Seils (here).

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Child Soldiers, Democratic Republic of Congo, Deterrence, International Criminal Court (ICC), Justice, Outreach and tagged . Bookmark the permalink.

3 Responses to Lubanga and the Trouble with ICC Deterrence

    • Norman says:

      that he appreciates its poiositn, but he is a prosecutor and not a judge of political consequences, so he wants an arrest warrant against al-Bashir but is not the right person to decide on whether this is in the interests of peace and security, and then kept out of the debate. Africa was ready to work with the ICC, but just demanded a bit more consideration, and would have accepted that. Instead, the ICC prosecutor has been campaigning against the Article 16 deferral demanded by the Africans and in doing so has made himself seem the pawn of a Franco-British agenda for imposing the ICC on Africa.By turning the question from one of consultation and due participation in decision making into a highly ideological issue of impunity, for-or-against, the ICC and its supporters have unnecessarily antagonized African leaders, polarized African stakeholders, and have led the debate into a sterile direction.

  1. Hi Folks –
    I just visited DRC, and one of the questions that I posed to a number of people related to deterrence; more concretely, it was about how people perceive the ICC. That’s a bit broader, but I learned a few things that I would like to share.

    First, as you mentioned, Ntaganda is still not arrested. Many people seem to conclude from this that the ICC is a tool of Kabila: if you have his backing you have impunity, and if not you end up in the Hague like Lubanga. Not saying that arresting Ntaganda is an easy prospect. Just wanted to say that his perceived impunity undermines much of the deterrent effect that would otherwise happen.

    Second, I had a chance to speak with some commanders from the MONUSCO DDRRR camp. At one point I asked whether the issuance of arrest warrants by the ICC tended to lead to more fighters voluntarily disarming at the camps. His answer was affirmative, although I have not had a chance to follow up with a more detailed look at the data. If that is the case, then there might be some deterrence at the lower ranks (which is something!). Most of those coming to the camp are FDLR fighters, so who knows how that plays in.

    Anyways. Great piece.

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