Congolese warlord Thomas Lubanga listens as the International Criminal Court returns a verdict on his case. Photograph: Evert-Jan Daniels/AP

But despite its historic nature, the trial has nonetheless revived concerns over ICC’s frailties and limitations in administering comprehensive justice and subsequently changing dynamics of conflicts.

Among the issues that have attracted criticism is the court’s apparent inability to effectively prosecute all forms of crimes that meet its threshold, as well as its powerlessness in arresting the indictees.

One conspicuous aspect of the Lubanga trial is that he was solely charged with forcibly conscripting and using child soldiers in war. This is despite the fact that rebels under his command have been accused of massive human rights violations, including ethnic massacres, murder, torture, rape, and mutilation.

The terrorism committed against civilians by forces loyal to the warlord’s Union of Congolese Patriots (UPC) in Ituri Province of the Democratic Republic of Congo between 2002 and 2003 is well documented.

As the commander-in-chief of UPC’s military wing, Lubanga was notorious for forcefully recruiting children into his army. His forces attacked Congolese towns and villages, razed homes with families inside, carried out ethnic massacre, mass rapes and other atrocious acts such as beheadings. It is estimated that over 60,000 people died during the five-year conflict between the Hema and Lendu ethnic groups.

But oddly, ICC Prosecutor Luis Moreno-Ocampo mostly restricted his investigation on the DRC conflict to the use of child soldiers in the war, the crime on which the arrest warrant against the warlord in 2006 was based.

While his trial began in January 2009, it was not until May 2009 that legal representatives of victims participating in the trial officially questioned the triviality of the charges against the rebel leader. They appealed to the court to reclassify the facts and add sexual slavery and inhuman and/or cruel treatment to the charges.

The Trial Chamber agreed in July 2009 that a re-characterisation could occur, although presiding judge Adrian Fulford dissented from the majority opinion. The warlord got a major reprieve when the Appeals Chamber subsequently overturned this ruling in December 2009.

While the US-based Human Rights Watch (HRW) terms Lubanga’s conviction as victory for the thousands of children used in Congo’s brutal wars, it says the narrow scope of charges brought by the prosecutor against the warlord does not reflect the extent of the suffering endured by victims of his forces.

“Victims of other atrocities at the hands of Lubanga’s UPC troops are yet to see justice,” notes Geraldine Mattioli-Zeltner, the international justice advocacy director at Human Rights Watch.

“This verdict should not be an excuse to ignore other grave crimes committed by the UPC and other armed groups in Congo, and it underscores the importance of prosecuting others for a fuller range of serious crimes,” he affirms.

The director laments that the trial took too long and equally emphasises on the need for direct field investigations to avert the hitch ignited by the prosecution’s use of “intermediaries” to contact victims and witnesses.

Tom Ocholla, an International Studies expert, opines that Moreno-Ocampo may have opted to only prosecute the lesser crime because he probably did not have tangible evidence on other atrocities.

Another glaring weakness of the ICC is manifested in the fact that Lubanga’s co-accused, Mr Bosco Ntaganda, who is wanted by the ICC for charges similar to Lubanga’s, remains a free man six years after he was indicted.

Nicknamed the Terminator, Ntaganda, a former UPC chief of military operations, is now a general in the Congolese army and is said to live openly in Goma, eastern Congo. According to HRW, he is regularly seen playing tennis and visiting high-class restaurants.

“With Lubanga found guilty, Ntaganda’s continued freedom from arrest is an all the more shameful betrayal of the victims,” charges Mattioli-Zeltner.

And Ntaganda is not alone, with several other individuals wanted by the ICC still on the loose and some believed to be still actively engaged in armed conflict.

Sudan President Omar Al-Bashir is now in his third year of freedom since an arrest warrant was issued against him. Other fugitives include Lord’s Resistance Army supremo Joseph Kony and his lieutenants Okot Odhiambo and Dominic Ongwen.

The ICC has nonetheless managed to arrest and open legal proceedings against Congolese Lendu militia leaders, Germain Katanga and Mathieu Ngudjolo Chui.

The ICC attributes its failure to make arrests to the fact that it does not have its own police force and heavily relies on the goodwill of state governments to arrest suspects. Yet most states remain highly reluctant to arrest the culprits for political or other reasons.

Remarkably, the DRC and French governments played a starring role in Lubanga’s arrest and trial, most notably handing him over to The Hague on the same day his arrest warrant was made public.

But DRC authorities have been hesitant to hand over Ntaganda, who is believed to enjoy the close support of influential leaders in both the Congolese and Rwandese governments.

William Townsend, the Editorial Assistant at African Arguments Online, notes that despite the strong message conveyed through the verdict on Lubanga, the ICC will continue to face challenges over its effectiveness. While Ocholla admits that it is a tall order for the ICC to detain a suspect without the full support of the involved states, Mattioli-Zeltner on his part calls for the speeding up of African and international efforts to arrest leaders wanted by the ICC.

Lubanga’s conviction has also raised concerns as to whether the ICC can effectively change conflict dynamics and directly touch the lives of affected civilians on the ground.

Despite the warlord’s six-year detention, the UPC movement he used to perpetrate the crimes remains active in the form of a political party believed to be engaged in some form of armed conflict.

And while some concur that the little-known Lubanga deserved his guilty verdict, they are quick to note that he was a minor player in the Ituri strife and point to the fact that his powerful trainers and financers remain unaccused as a confirmation of the political limitations put on the court.

“Without a major foreign backer and a supply line for re-stocking, Lubanga could not have been able to carry out the crimes for which he was convicted,” one publication, the Black Star News, stated in its editorial.

By JOE KIARIE, The Standard


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