The Court’s first trial has begun at long last and to the delight of Congolese victims everywhere, the trial is a strong indicator that the era of impunity for criminals is ending.
The Prosecutor’s opening statement speaks of the incredible advances made by this Court to pursue crimes against children, particularly for the recruitment, training and use of hundreds of young children who actively participate in hostitilies that rob them of their innocence and leave others dead at the hands of warmonging rebel leaders.
This trial forces us to revisit the horrific ordeal that the Ituri population lived through. The Prosecutor’s reassuring statement today did much to help put aside the fear of so many victims who worried that Lubanga could be released as recently as a few months ago when the trial came to a halt due to procedural issues. What is important now is how the international community manages what could be a long trial ahead, one filled with much surprise and emotion.
Unfortunately, many Congolese without internet access and other means of communication will be unable to follow the proceedings-underscoring what a major obstacle outreach and public information is for this trial.
Congolese civil society engaged in the fight against impunity will certainly develop strategies with its partners to mitigate this problem because there is too much riding on this trial. Some have a vested interest in preventing the population from following the proceedings, especially since those in power in Kinshasa seem to back Bosco Ntaganda, who was an ally of Laurent Nkunda who was recently arrested by the Rwandan government. Indeed, we recently learned that Ntaganda’s deputy was released from prison.
Thomas Lubanga Case or the twists and turns of international criminal justice?
Africa, particularly Central Africa and the Great Lakes region, has long faced a difficult history of grave human rights violations and abuses. Ink, saliva and even blood have been poured and will continue to pour until we have justice.
In an effort to secure justice, the International Criminal Court was established on 17 July 1998 by the Rome Statute. The Statute required 60 signatures for its entry into force. The 60 signatures came in 2002 and the Democratic Republic of Congo (DRC) was the sixtieth country to deposit its instrument of ratification on 11 April 2002, thereby enabling the Rome Statute to enter into force on 1 July 2002. From this point onward, genocide, crimes against humanity and war crimes fell under the Court’s jurisdiction.
The Statute introduced an important principle—that of accountability for military and senior leaders. This principle departs from the general penal principle of individual accountability by holding accountable a military or government leader for sanctioning or having preventative or after-the-fact knowledge of the commission of a crime under the ICC’s jurisdiction by anyone under his or her command.
This principle is currently at play in the rather passionate debate worldwide following the arrest of Senator Jean Pierre Bemba and in the Thomas Lubanga case.
The principle of accountability for a leader has issues relating to its application. The great challenge is how a leader wields his or her responsibility, particularly because it is not easy to prove that a leader was responsible for an act committed by someone under his or her command. It is true that culpability for criminal acts by the perpetrator of the act is easy to address, but when the facts are presented differently it is not so easy to assign responsibility to this or that criminal. Although in some instances the command structure is clear, it is not always easy to follow the chain of command at first sight. Hence, cases such as Thomas Lubanga and Jean-Pierre Bemba present great interest as they provide us with the opportunity to reflect on the twists and turns of criminal accountability.
Thomas Lubanga case: Justice or Molotov Coktail?
Since the beginning of the Lubanga trial, international justice has made to the front pages. This is all the more true because of the state of national judicial efforts in most of the African countries where the Court is currently investigating (DRC, CAR, Sudan and Uganda), It makes sense that international justice be at the forefront of the fight against impunity, but one must remember that its larger purpose is to strengthen national justice. Hence, we must rely on both scales of the “national and international” justice divide, as they are both facets of the same coin. International justice complements national justice so that criminals cannot remain free and act with impunity. All forms of justice contribute to restoring truth and justice, though it is shameful and unacceptable that despite the dimension and horror of the crimes committed in the world and in Africa, only a handful of those responsible – usually the least powerful “small fishes ” - are summoned to justice.
Regrettably, international justice does not please all. It is important to note that with this case - Thomas Lubanga-as well as the hearing of confirmation of charges in the Jean-Pierre Bemba case, certain observers consider that the DRC became a field experiment for the ICC and the Congolese its guinea pigs. We would easily retort that Congolese and crimes committed in DRC are not the only ones that the ICC is concerned with. There is the Ugandan case with Joseph Kony and his generals, the Sudanese case, etc. A problem of execution, in regards to these international arrest warrants, remains, or rather a problem of cooperation between states to execute these warrants. But in the end, is there a certain political element to the selection and treatment of cases?
The answer to this question is itself a questioning that is worth its weight in gold so that there is no double or quadruple standard of justice, a justice for “whites” and one for “blacks”. The procrastinations in the Sudan and Uganda cases are not a good sign! The guilt-in-silence that pertains to international crimes committed in Iraq, in Afghanistan, in Gaza Strip, etc… shows that in spite of the ICC, there are still untouchable people who hide behind the fact that they are not parties to the Rome Statute and can escape international justice. It raises a question: how could the situation in Sudan, which is not a state party to the Rome Statute, fall to the Court? In that case, the UN Security Council used its power to send the Darfur case to the ICC given the referral powers granted to the Council by the Rome Statute. Is this evidence that not everything is equal? Indeed, the Bemba case risks throwing some oil onto the fire if politics does indeed influence justice.
Let us note that we must harvest only what we shall have sowed. If we scatter the hatred, divide the crimes from the good, we shall only collect hatred and crimes. The government and the citizens of the world and particularly Africa - current and to come- need to keep in mind that we henceforth live in a global village, where any inhabitant of these antipodes could become our closest neighbor. Criminal justice has not been put to rest and, over the years, we have witnessed the establishment of a supranational architecture, presumed to take over or, at least, to stoke the fire of a national justice that is neither exempted from weaknesses, nor above all error. They therefore must know that the impunity enjoyed by the authors of the worst atrocities imposed on humanity, will benefit when the crimes of genocide, crimes against humanity, war crimes, crimes of torture no longer exist. Justice will prove them responsible for these crimes.
However, in all the ICC pending cases, it is essential for us all to keep in mind that by virtue of the principle of “the assumption of innocence ” which imparts that every person is presumed innocent until a decision of final justice condemns them, the potential liberation of any individual should not surprise anyone. Jean-Pierre Bemba is presumed innocent as no definitive decision condemned him. If the Court can consider that the evidence alone should lead to his conviction, it would only be customary that the accused is relaxed. But the fear that exists in this case is that it would expand on the purely political realm. This threatens to weaken the confidence the people place in justice, in particular international justice. It is therefore crucial for the ICC to proceed thoroughly in its evaluation of the situation.
Therefore, are we in a position to pass judgment on Thomas Lubanga in the absence of Bosco Ntaganda and consorts? Can we judge Jean-Pierre Bemba, in the absence of Mr. Patassé and Bozizé? It reminds me the fable of de la Fontaine: “all were struck, but all would not die from it! ” The credibility of the Court will be seen by the way in which it practices the law, in the Thomas Lubanga case as well as in the Bemba case pertaining to the confirmation of charges hearing. International justice must therefore meet the expectations of all.
The long-awaited beginning of the first trial of the International Criminal Court is underway! This is cause for celebration for those of us who have fought so hard to see this institution created.
Now the great challenge is not only for the court to do its job well, but also to be seen globally to be doing its job well. That is, to serve justice, defend both the rights of the accused and the victims, and advance the rule of law. A tall order for a fairly modestly budgeted and staffed institution that has very little precedence ahead of it.
I will be watching with anticipation and hope that this is just the beginning of a new phase in the advancement of the rule of law and global human rights standards.
All the best to the prosecutor, the defense and the judges for a fair and expedient trial.
The ICC’s Public Outreach in DRC
We congratulate the Public Information and Documentation Section (PIDS) of the ICC for collaborating with the Radio Télévision Nationale Congolaise (RTNC) so that the population in large Congolese cities were able to follow the opening hearing of the long awaited trial of Thomas Lubanga. The ICC field office sent text messages/sms to members of the DRC Coalition to ask them to follow the hearing live on RTNC. It’s already a good thing even if the rural population has not been able to follow the hearing on TV.
In addition, we congratulate Radio France Internationale, Radio Okapi, and community radios “Maendeleo” and “Mutanga” based in Shabunda (Eastern DRC), which broadcasted information before, during and after the first hearing.
We believe that PIDS should intensify its efforts so that the Congolese rural population who suffered and continue to suffer atrocities are able to regularly follow this trial which demonstrates the willingness of the international community to seek redress for victims of serious crimes in the Democratique Republic of Congo.
We also believe that PIDS should record hearings on DVDs so that the DRC Coalition can use them to organize screenings in rural areas. The objective would be to allow DRC judicial actors to access archives of ICC hearings in order to share their experiences.
Descartes Mponge Malasi, South Kivu Focal Point for the DRC National Coalition for the ICC