Lubanga Decision Roundtable: Lubanga and the Trouble with ICC Deterrence

by Mark Kersten

[Mark Kersten is a PhD student in International Relations at the London School of Economics]

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 arguments 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 as War 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.

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.

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.

http://opiniojuris.org/2012/03/19/lubanga-decision-roundtable-lubanga-and-the-trouble-with-icc-deterrence/

3 Responses

  1. Response…
    I agree that there must be some deterrence value, however indirect.  There is also an evident negative effect on future criminality when states refuse to either initiate prosecution or to extradite those who are reasonably accused and one wonders what the legacy of the Obama Administration’s failure to live up to such an obligation with respect to those reasonably accused from the prior U.S. Administration will be.
    Recall Adolf Hitler’s point to his Generals, Aug. 22, 1939: “Who after all is today speaking about the destruction of the Armenians?”
     

  2. Valid points as always Mark!
    Jordan, 1) there is actually some doubt as to whether Hitler said this or not. Evidence to that effect was rejected in Nuremberg as being too weak and god knows the rules of evidence in Nuremberg where not the strictest around (Kevin can correct me if I’m wrong). 2) I’m not sure this overquoted reference is actually relevant. The world has never stopped speaking of the Holocaust, and it didn’t prevent Rwanda, Darfur, Bosnia…

  3. Thanks for an interesting post. Just a remark on the more general part of the discussion as to the possibility of justifying international criminal justice on grounds of deterrence:
    What is often overlooked, I believe, in these discussions of the (alleged) lack of evidence for deterrence is that the same kind of epistemological objection can be launched against critics of the ICC (and comparable institutions): We do not know with full certainty, either, what are the consequences of not pursuing international criminal justice.
    But choosing is imperative. We cannot not either punish perpetrators of mass atrocities or refrain from so doing. In so far that we are in the business of trying to justify our actions by reference to their likely consequences we cannot, when faced with a dilemma, await full scientific certainty beyond some absolute threshold of doubt. If we did we would already have chosen one horn in the dilemma (in this case, impunity) a horn the consequences of which are equally uncertain and potentially damaging.
    In the absence of knowledge beyond some absolute threshold of doubt, therefore, the central issue becomes one of relative or comparative certainty between mutually exclusive beliefs.
    And in the case of punishment theory this means asking whether, on balance, we are more justified in believing that punishing mass atrocities will have better consequences than we are in believing the opposite. Which of the two makes up the more reasonable default assumption? In other words, we have to determine which view holds the burden of proof.
    In a recent work (http://www.springerlink.com/content/g187445847183812/) I have argued that this burden of proof rightfully lies with the critics of the ICC, not with the proponents.
     

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