Lubanga Decision Roundtable: Lubanga in Context

[James G. Stewart is Assistant Professor of Law at the University of British Columbia]

The first judgment of the International Criminal Court is cause for real celebration, but we must not let our justifiable elation overshadow all that work the judgment leaves undone.

Let me begin by rejoicing, before I express concerns. This is the first determination of guilt by a permanent international institution dedicated to accountability for atrocity. Who could have dreamed, when Allies drew up charges against only their vanquished enemies after WWII, when atrocity after atrocity when unpunished during Cold War rivalries, or when prosecutors used broken doors as desks in the initial years of ad hoc tribunals, that their efforts would culminate in a permanent international institution with (almost) global reach. The Lubanga judgment is the first fruit of a spectacularly unlikely diplomatic project, a much-needed symbol of the possibilities for historical change in the face of entrenched political resistance, and a glimmer of hope that some imperfect justice may just prevail.

This specific judgment is also a reminder that African rebel leaders cannot feel complacent about the impunity they have traditionally enjoyed, and to a lesser extent, a warning to others elsewhere too. So, when Joseph Kony demands that a set of criminal lawyers march for miles into the bush to advise him on his potential exposure to liability for international crimes, there is some nominal gain in the world. This benefit is also apparent when the head of the British army demands a single written sentence from the British Attorney General and Prime Minister describing the Iraq War as legal before he sends in British troops, even if his fear of prosecution for aggression before the ICC is legally misguided. The Lubanga judgment undermines the complacency we all got used to.

And then there is the issue of child soldiers. Holding Lubanga answerable for his recruitment and use of child soldiers is very welcome, since it stigmatizes, punishes and deters all-too-common practices that are unspeakably destructive. One has to know only a very little about the past century of psychoanalytical thought to recognize that involving children in warfare is a devastating and probably irreparable blow to the human psyche, whose legacy will undoubtedly be felt across war torn societies for generations to come. The Lubanga judgment’s condemnation of the use of child soldiers is another milestone in the long uphill struggle for human dignity, and in that regard, it is again cause for celebration. All of these things are undeniably positive.

But what significance for the Congolese? In 2008, I attended a peace conference in the town of Goma in the Democratic Republic of Congo, which brought together various warring factions in a bid to broker a then unlikely peace. There were various striking interchanges during these sometimes terrifying negotiations, like a Tutsi representative publicly claiming an independent Tutsiland to be created in eastern Congo, or a local chief who took me aside to promise a genocide against the Tutsi the likes of which the world had not seen. I left, however, with the sense that the most pressing issue was the almost total absence of independent fact finding—allegations of atrocities were leveled against each opposing party, issues of history were hotly debated, but there was little impartial means of ascertaining the veracity of any claim whatsoever.

Perhaps the Lubanga judgment marks the beginning of that process. But most Congolese I know are less optimistic. One earnest, highly-intelligent Congolese judge explained in a very quiet tone, “Congolese really don’t know what the ICC Prosecutor is doing. How could this case take so long?” After pausing, she added regretfully, “you know, many people in Congo say Le procureur est fatigué.”  (The prosecutor is tired.) It seems that in the mind of Congolese, only fatigue could explain the delay in bringing meaningful justice for atrocities in the Congo, beyond just one or two minor players after a drawn out process that alienated affected communities. Could it be that international justice translated badly when applied to Congolese realities?

This concern plays out at several levels. Back in The Hague, advocates for the Congolese victims (some of whom slept on my floor for lack of funding), confided that they had broader misgivings about the Lubanga process as a whole. One senior Congolese advocate explained thoughtfully, “We understand the importance of passing the message that the pervasive use of child soldiers in Africa is morally objectionable, but that message would be so much easier to digest if the Prosecutor also condemned Lubanga for the rapes, murders and torture too.” While my interlocutor felt that the Lubanga trial was better than no trial at all, I could not shake the impression that he viewed the unique focus on child soldiers as somehow condescending. One of his less measured compatriots later described the trial as being “like indicting Hitler for tax evasion.”

How did this all come about? In response to the wildly over-ambitious prosecutorial strategy in the Milosevic trial, which had sought to use international criminal justice to write a semi-comprehensive historical account of the dissolution of the former-Yugoslavia, the ICC prosecutors in Lubanga employed a highly pragmatic approach bent on conviction à tout prix. For whatever merits this approach had in placating impatient international audiences, the profoundly ahistorical strategy did little for perceptions of international criminal justice in the DRC. Was there not a middle ground somewhere between a full depiction of an accused’s responsibility for atrocities and plucking a single relatively new crime out of a long history of offending? Instead, this highly selective strategy created an initial impression that international criminal justice would be insensitive to context.

Once one considers this context in greater detail, the Lubanga trial seems inadequate. Of all the atrocities perpetrated in the Democratic Republic of Congo (or its predecessor Zaire), how does this particular case stand as an emblematic embodiment of a new move to accountability? The short answer is, quite poorly. Since 1998 alone, at least 4.3 million people have died in what Madeline Albright once dubbed Africa’s First World War (a label later appropriated in Prunier’s memorable book). The mortality rate in the DRC is 56 times higher than anywhere else in Sub-Saharan Africa. Given these types of astonishing statistics, and the obvious threat that the western disinterest towards the Rwandan genocide has merely been transposed onto its larger neighbor, shouldn’t the first trial before the ICC have grappled with at least some of this history?

And on the subject of context, what too of the colonial past? Bill Schabas tells a wonderful story of his dealings with Sam Hinga Norman before the Special Court for Sierra Leone, where the West African rebel leader confided that he too had been a child soldier many years prior—only the army he served in was not of African origins. At the age of 13, Norman was conscripted into the British Army. The analogy with Lubanga is loose, but it does ask some searching questions of the ICC: how will this institution get away from the specter of colonialism, the pervasive fear of double-standards to the detriment of Africans and what Mutua Makau famously calls the metaphor of “savages, victims and saviors”? After all, we should not forget that many will view the Lubanga judgment as confirmation that, to cite Rwandan President Paul Kagame, the ICC is “a new form of imperialism created by the West to control the world’s poorest countries.”

This, in my view, is clearly over-stated, but it is hard to turn a blind eye to some facets of the ICC’s work that might support the criticism. In 2003, the ICC Prosecutor warned that “various reports have pointed to links between the activities of some African, European, and Middle Eastern companies and the atrocities taking place in the Democratic Republic of Congo… Their activities allegedly include gold mining, the illegal exploitation of oil, and the arms trade.” This followed UN Panel of Experts reports that documented a triangular relationship between massive atrocities, illegal exploitation of natural resources exploited to finance violence, and illicit weapons flows purchased from the proceeds. This relationship, which produced  ongoing insecurity and massive violence to local populations, created “win-win situations for all belligerents.”

Since the ICC Prosecutor’s warning to businesses, silence. In contrast, the same issues provoke ongoing disquiet within the DRC. Popular Congolese rap music refers to western “pillage” of Congolese resources within the refrain (google “Baloji Congo”), the Congolese government has established a commission of inquiry entitled “Commission des experts nationaux sur le pillage et l’exploitation illégale des ressources naturelles“, and the same term “pillage” was a seemingly constant point of reference in the heated peace negotiations that I attended in Goma. As is I hope now well established, pillage is a war crime including within the Statute of the ICC, and a range of businessmen from Hans Pleiger to Walter Funk were convicted for pillaging natural resources like coal, gold and iron after WWII, precisely because their commerce bankrolled atrocity. So why no cases in the DRC?

Likewise, what of the foreign weapons vendors? To return to the Lubanga case itself, holding Lubanga accountable for using child soldiers is commendable, but who supplied him and his child soldiers with weapons? In other jurisdictions, arms vendors have been held responsible as accomplices for international crimes their clients perpetrate, but the foreign arms vendors who have flooded the Great Lakes Region with weaponry no matter its use have escaped all scrutiny, even though they contributed to precisely the same crimes for which we rightly condemn Lubanga. Without addressing this wider context, the Lubanga judgment risks unwittingly supporting a set of regrettable misperceptions, namely, that African atrocities are hermetically sealed from foreign influence, and more poignantly for the purposes of prosecutorial strategy now, that commercial practices by foreign companies are not bound by the same rules.

Thus, it may be too early to decide whether the Lubanga judgment is the humble beginning of an historical turn towards justice, or a mere continuation of old practices in new guise. What is clear is that, if the ICC is to assuage my Congolese friend’s lingering feeling that there is (again) an element of condescension in the civilizing overtones of the Lubanga trial, the Prosecutor must make good on his threats to pursue foreign businesses. In a celebrated passage, the English novelist Joseph Konrad described the colonial conquest of now DRC as “the vilest scramble for loot to ever disfigure the human conscience.” With the advent of the ICC and the rendering of the Lubanga judgment, we can say without doubt that new mechanisms of international justice have arrived. The question is, will they be applied to contemporary equivalents of these old practices, such that we can celebrate more wholeheartedly?