A forgotten war

Village life in the eastern Democratic Republic of Congo

Village life in the eastern Democratic Republic of Congo

Whilst I have been away, a monumental and historic court ruling has been handed down in the town that I now call home. Unfortunately, only a handful of legal nerds – and even then only those that deal with international justice issues – probably took notice.

The case concerned Thomas Lubanga, a name almost certainly unfamiliar to the overwhelming majority of the world’s population, be them black/white, African/European, American/Asian, educated/uneducated. Few people really know who Mr Lubanga is or was or exactly what he had done to wind up in the docks of the International Criminal Court (ICC).

Now, had a guilty verdict been passed down on Muammar Gadaffi or his son Saif al-Islam – both indicted by the ICC, the former having been killed before he could be handed over and the later now in the custody of the Libyans, who refuse to hand him over – then the story would have been very different. Most people, certainly those that follow world events, know who these guys are (or were) – and probably would think it only fitting if their asses had been dutifully hauled before the world’s first permanent criminal court.

Lubanga is in a different league altogether. In 2002, Lubanga was a military commander of a rebel group known as the Union of Congolese Patriots (going by the French acronym of UPC), based in the east of the country. The UPC, which drew its members mostly from the Hema ethnic group, was locked in fierce conflict with the Lendu-dominated Nationalist and Integrationist Front (FNI). Both of the groups recruited child soldiers – and this was the reason that Lubanga found himself hauled before the ICC. What he did was clearly contrary to international law, but a lot of what he was alleged to have done was never investigated. Sex crimes, for example, were never included in the original charges and the prosecution team, despite their best efforts, were unable to add them at a later date (much to the annoyance of women rights groups).

It’s easy to wonder whether any of this really matters now. Not many people knew who Lubanga was when he was somebody. Even fewer people remember him now. The times have moved on. Lubanga was a small-time criminal that, in the great scheme of things, didn’t really matter. It is right that he is to be punished for what he did, but there were lots of mistakes made in his prosecution.

The prosecution almost lost the case on two separate occasions, for failing to fully disclose all evidence that it was party to, which immediately threw into doubt how Lubanga could ever get a fair trial. As noted above, the prosecution failed to include sex crimes in the charges, which was a whopping oversight and a sign that the ICC’s prosecutor was more eager to get the case accepted by the judges than showing what Lubanga had actually done. Lubanga was nothing more than a small cog in a vast machine, and it is highly questionable that the ICC should have expended so many resources going after him than someone with more clout. The ICC has since landed bigger fishes – Jean-Pierre Bemba, former vice-president of the DRC who is now intention for alleged crimes in the Central African Republic (CAR), but here we have the final criticism of how the court operates. Lubanga may be have been found guilty of war crimes, and a handful of other suspected Congolese warlords (such as Germain Katanga and Matthieu Ngudjolo, from the FNI) remain in detention. But international justice sometimes seems hugely stacked against those that have committed atrocities and lost. Those that have blood on their hands, but have managed to cultivate close ties to circles of power, seem not too bothered with the ICC. Bosco Ntaganda, who committed many of the same crimes that Lubanga has been found guilty of, remains at large in the eastern DRC. Now a general in the Congolese army, he is under the protection of the national government – what message does that send out to prospective war criminals?

Perhaps the war doesn’t matter anymore. Things have moved on. But the verdict handed down against Lubanga really does matter, if international justice is to mean anything. Had the ICC lost this landmark case, it could have dealt a real blow to the future of the court and the international justice that it has been created to mete out. As things stand, the verdict has helped to solidify the court’s judicial authority. Outgoing prosecutor Luis Moreno-Ocampo must be clapping himself on the back. With less than three months until he has to step down, he has managed to secuure his first and only conviction over his nine year tenure. Just.

What matters most, though – and has always mattered throughout the history of international justice – is the individual victim. Elizabeth Rehn, chair of the board of directors of the Trust Fund for Victims, has given a speech that highlights the need for reparations to be made to victims, now that Lubanga has been convicted. This is to be welcomed, but one can’t help wondering: with life expectancy in the eastern DRC so low, how many of the victims of the crimes committed in 2002 are still around?

Yesterday I spoke with Richard Goldstone, a former South African judge and the first prosecutor at the International Criminal Tribunal for the former Yugoslavia.

“The most important aspect of any justice system, be it international or domestic, are the victims. The victims want acknowledgement. They want public acknowledgement. And that is what a justice system should endeavour to bring them. This is a very difficult endeavour due to the complexity of the situations, so you’re never going to get a perfect situation and it’s going to leave some people unhappy. But i think we’re in a far better world from having drawn total impunity from war criminals.”


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