On Thursday, Thomas Lubanga Dyilo, a Congolese citizen accused of conscripting under-15s to fight in a particularly nasty episode of his country’s civil war, will be led into a Hague trial chamber and into the world’s history books.
If a panel of three judges agrees with Luis Moreno-Ocampo, the prosecutor, that there is a case to be tried, Mr Lubanga will become the first man to face justice in the International Criminal Court, a dramatic experiment in global
The hearing takes place 61 years after the world’s first international criminal trial, at Nuremberg. Since then, ad-hoc tribunals have tried to prosecute crimes committed during the conflicts in the Balkans, perpetrators of genocide in Rwanda and atrocities stemming from Sierra Leone’s brutal civil war.
Finally, in 1998, a United Nations conference in Rome began to thrash out the groundwork for constituting a permanent tribunal on war crimes. The International Criminal Court formally came into effect in 2002.
But even as the ICC’s prosecutor prepares to embark on his first, ground-breaking case, Mr Moreno-Ocampo finds himself at the centre of a growing barrage of criticism. It comes not only from long-standing opponents but also from some of his previously most ardent supporters, who are concerned at the prospect of seeing their dream undermined by politics and a lack of courage.
His task has hardly been easy. For a start, the US – together with some other powers like China and Russia with shakier human rights credentials – continues to make clear its discomfort with a court which, it argues, could be abused to make political points and goes too far in undermining the principles of national sovereignty.
African nations, too, despite broad support for the court, are concerned that their continent is being used as a laboratory for the ICC. However, this is hardly the prosecutor’s fault; the first four referrals have been in the Democratic Republic of the Congo, Uganda, the Central African Republic and Sudan’s Darfur region. Three of those came from the countries themselves and one from the UN Security Council.
However, pleas to investigate in Iraq and Venezuela were rejected after initial inquiries, on the grounds that these failed to meet the ICC’s gravity threshold or admissibility rules.
The new organisation’s mandate is to try war crimes, crimes against humanity and genocide. (Terrorism was thought too difficult to define, so left, at least temporarily, to one side). To address countries’ concerns about intervention in their domestic affairs, it was agreed that the ICC would have jurisdiction only if an alleged crime was committed in a state that had signed up in support of the court, or where the accused was a national of such a state.
The ICC would also be barred from trying cases that occurred before its own inception. (So, for example, any prosecutions stemming from the terror attacks of September 11 2001 and their aftermath were a non-starter.)
Both supporting states and the Security Council would be able to ask the ICC’s prosecutor to investigate apparent atrocities, while he or she could also pursue independent inquiries based on “reliable information”, subject to oversight from a pre-trial panel of judges. Lengthy rules were to govern the court’s procedures and it started on day one with 73 countries on board. Today the number exceeds 100.
But as the court inches closer to real results, it is confronting some profound dilemmas and the non-governmental organisations that did so much to promote the court are worried about the potential consequences.
Foremost of these is: how to investigate and try officials from sitting governments? The ICC has no army and even UN peacekeepers are shy of enforcing its warrants, meaning it is often left dependent on the governments it is seeking to punish.
It also faces the thorny question of whether pursuing justice helps efforts to create peace, or whether – by scaring potential co-operators away – it undermines the reconciliation process.
Indeed, the court has a loophole to avoid prosecuting in certain circumstances, called “the interests of justice”, and there are powerful voices cautioning against, for instance, precipitate action against government leaders in Khartoum, for fear of undermining hopes of a peace deal in Darfur.
At a recent meeting with Mr Moreno-Ocampo in New York, Richard Dicker, the head of Human Rights Watch’s international justice programme, and a number of other NGO leaders laid out their concerns.
“The prosecutor has to draw on the moral authority of his office to make clear his impartiality and independence in complex, highly divisive political situations,” Mr Dicker told the FT. “At the moment, he is failing to address concerns that he is being used by one side or another. In eastern Congo, he needs to look at all parties, with responsibility for horrific crimes and injury, including political leaders in Kinshasa, Kigali and Kampala.
“In Uganda, he needs to make clear he is empowered to look at allegations of killings by the Ugandan armed forces as well as the Lord’s Resistance Army [LRA].”
Similar concerns are raised in countries themselves where the prosecutor’s team has been working. It is arguably in Uganda, where the question of “peace or justice” has been raised most passionately as the government engages in peace talks with the LRA, a shadowy rebel group with a record of brutality.
The rebels have been fighting a 19-year insurgency in northern Uganda and are estimated to have kidnapped some 20,000 children and caused the deaths of thousands of people. More than a million have been forced from their homes. Some have suggested the latest talks, mediated by the southern Sudanese government, are the best chance yet of ending this conflict. But efforts are complicated by ICC arrest warrants hanging over Joseph Kony, the LRA’s leader, and four of his commanders.
Some western diplomats view the warrants as a means of keeping pressure on the LRA; British officials have said they were considering drafting a Security Council resolution that would give UN troops in eastern Congo and southern Sudan – where the LRA has bases – a mandate to arrest the rebels indicted.
But members of northern Uganda’s Acholi community, which has suffered most at the hands of the LRA, say the warrants are hampering peace efforts. They argue the indictments reduce the LRA leaders’ desire to agree a deal, adding that the Acholis would be willing to accept their tormentors’ return if it meant a genuine peace.
“If his [Mr Moreno-Ocampo’s] mother was in an IDP [internally displaced person] camp I do not think he would have issued arrest warrants, but he can pontificate about international justice from an air-conditioned office at the Hague,” says Norbert Mao, chairman of Gulu district, which was at the epicentre of the conflict. Like others, he says peace is the “greatest justice we can have”.
Yoweri Museveni, Uganda’s president, who referred the case of northern Uganda to the ICC in 2003, has offered the rebels amnesty if they sign a peace deal. But rebel leaders have insisted they would sign only if the warrants were lifted.
“The fundamental issue is whether international law is international and capable of accommodating other rules and values systems or maintains its biased western model and cultural roots. Can we only punish crime with one specific model, an adversarial model, or can we use other models that allow communities and countries to get to the root causes of the crime?” asks Zachary Lomo, former director of the Refugee Law Project at Makerere University in Kampala, who favours withdrawing the indictments.
“The ICC is a European project and they want it to succeed at every cost and the LRA provides a soft political test case. It was a better bet than the issues of Afghanistan, Iraq or other Middle East places where war crimes and crimes against humanity are committed every day.”
In Sudan, too, where the ICC is investigating alleged war crimes in the Darfur region, analysts say the threat of ICC indictments and arrests is part of the reason that Khartoum has so resolutely refused to accept a UN peacekeeping force – the fear being that UN troops would then be used to arrest suspects.
The irony of all these comments is that one of the primary motives for establishing the ICC as a court of universal jurisdiction was to end criticisms of skewed or victors’ justice that have regularly been aimed at the ad hoc tribunals.
Mr Dicker acknowledges: “The prosecutor is in a tough spot; he is dependent on the co-operation of states to assist him in his investigation. It is in some ways mission impossible.”
Other human rights activists say it is important for the court to be more transparent in how it decides what cases to pursue.
The fact that the first trial will focus on the conscription of children by a militia leader has added to the concerns. Some international justice advocates would have preferred the initial case to address the worst crimes by the most prominent leaders.
“They are going to begin with child soldiers, but I would have hoped that genocide, mass rape, would have been put on the docket first,” says Ben Ferencz, a former prosecutor at Nuremberg.
Even the International Bar Association, which has a permanent monitor at the court, has gently prodded the ICC, noting in two reports that there were “some issues with regard to equality of arms” between prosecution and defence counsel. It cited problems faced by Mr Lubanga’s lawyers, who were trying to tackle voluminous material in a limited time.
In a report on his first three years, Mr Moreno-Ocampo defended the selection of Congo and Uganda selections because “they were the gravest admissible situations” within his jurisdiction. He also stressed the difficulties of conducting investigations into areas of ongoing violence and executing arrest warrants. To operate in Uganda, Darfur and Congo each required three to four languages, for example, and in some cases 90 per cent of the ICC’s investigators returned with illnesses.
He intended “focused investigations” and “maximised impact”, with the goal of completing two trials – Mr Lubanga’s and one other – by 2009. Privately, Mr Moreno-Ocampo has made no secret of his desire to learn the lessons of the trial of Slobodan Milosevic, which has been criticised for being overly ambitious and too all-encompassing.
His office would “endeavour to do a selection of cases that represent the entire criminality and modes of victimisation”, his strategy report said. But, responding to the NGOs in New York, he stressed that he was in a difficult position not just with specific situations on the ground but also with the big powers at the UN, and asked the NGOs to let him define his own prosecutorial style.
“We are prosecutors enforcing a law that has no consensus,” the prosecutor said. “Whatever opinion you have of territorial states, they are in charge of protection.”
FROM ARGENTINA’S DIRTY WAR TO PIONEERING PROSECUTOR
Luis Moreno-Ocampo made his name two decades ago as a young assistant prosecutor in Argentina’s trials of army commanders accused of masterminding the “dirty war” of the late 1970s. They were charged with human rights violations and also of malpractice in the Malvinas/Falklands war. The initial trial represented the first prosecution of top commanders for mass killings since Nuremberg.
By 1988, Mr Moreno-Ocampo (right) had become the main prosecutor in other military-related proceedings. But in 1992, he resigned as chief prosecutor for the federal criminal court of Buenos Aires and established a law firm there, specialising in criminal and human rights law and corruption control. For the next decade he combined his private practice with a mixture of “pro bono” activity, academic positions and work for non-governmental organisations. He represented victims in the extradition to Italy of Erich Priebke, a former Nazi officer. He was a World Bank consultant and visiting professor at Stanford and Harvard universities.
In 2002, as the International Criminal Court sought a consensus candidate for its chief prosecutor’s position, the Argentinian seemed tailor-made. Personable and media-savvy, Mr Moreno-Ocampo had ample criminal prosecution experience, his human rights credentials were impeccable and he was neither too European nor too “third world”.