Wednesday 15 August 2012

International Criminal Law – A Good Time to Reflect

Daniel Wand

Congolese warlord Thomas Lubanga during his trial for conscripting and enlisting children to be used in armed conflict. Evert-Jan Daniels/AP.
Criticising international criminal law has long been a favourite pastime for international legal academics and has provided a wealth of literature on the subject. This has however been arguably justifiable considering the patchy track record of international criminal law in delivering justice on an unrestricted international scale, the very reason for which it was conceived. 
Despite the continued developments and strengthening of international criminal system over the past sixty years, both institutionally and jurisprudentially, it is has remained plagued by various problems and deficiencies. Many of these are an unavoidable result of the deference to sovereignty that international criminal law must pay whilst others are ongoing teething problems associated with infancy of the hybrid legal system. This has resulted in a highly inconsistent success rate of capturing and prosecuting those individuals accused of some of most heinous crimes known to man.
There are two main criticisms of international criminal law which are regularly recited within the literature. The first is that international criminal law has failed to bring to justice the most senior state officials who fund, plan and orchestrate the commission of the most grievous international crimes. The second focuses on the fact that the long awaited and much trumpeted International Criminal Court had failed to bring a single conviction after almost ten years in existence.
These criticisms have however to some extent been mitigated by two recent developments – the conviction of Thomas Lubanga, a former Congolese warlord and Charles Taylor, ex-President of Liberia, in judgments delivered by the International Criminal Court (ICC) and Special Court for Sierra Leone (SCSL) on the 14 March 2012 and 26 April 2012 respectively. These are significant milestones in the ongoing development of international criminal law and prove to the international community that international criminal law and more especially the ICC regime is capable of bringing all individuals to justice and ending global impunity.
The Lubanga Judgment 
The conviction of Thomas Lubanga, the first for the ICC and delivered shortly before its 10th anniversary, is a momentous achievement and a major step forward for the Institution. The judgment proves to the international community and the ICC’s many critics, that it is an institution capable of delivering international justice despite the constraints imposed upon it and has gone a long way to alleviating the lingering fears about the ineffectiveness of the ICC.  
The judgment is also significant as it is the first to confirm the existence of criminal liability for using child soldiers in armed conflict. This practice is prominent throughout Africa and has been for centuries, but it is hoped that Lubanga’s conviction will mark the beginning of the end of this heinous practice, drawing the world’s attention to the issue and acting as a serious deterrent to those who seek to use children in war - as Radhika Coomaraswamy, the UN’s Special Representative for Children and Armed Conflict, stated ‘In this age of global media, today’s verdict will reach warlords and commanders across the world and serve as a strong deterrent’.

It must however be noted that despite its significance some strong criticism has been levied against the judgement. Firstly, it is considered to be very inaccessible. The judgment is almost 600 pages long and highly technocratic and it has therefore been criticised for failing to reach those directly affected by the crimes committed. The judgment is also criticised for being too safe and conservative. It was hoped that the first judgement would seize the opportunity to explore and clarify the nature of the offence of using child soldiers but it fails to do so, offering very little in the way of substance or legal creativity. 
The Charles Taylor Judgment 
The conviction of Charles Taylor was a truly significant moment in modern international criminal law as it was the first time since the Nuremberg Trials that a former head of state was tried and convicted for international crimes in an international criminal tribunal. This judgment proves that no one is above the law and therefore goes a considerable way to reducing the potency of the traditional criticism, that international criminal law is only capable of prosecuting more junior individuals and continues to allow the most senior government officials to live with perpetual impunity – as lead prosecutor Brenda Hollis stated This judgment reinforces the new reality, that heads of state will be held accountable for war person, not matter how powerful, will be above the law”. This judgment is also significant for Africa in particular, the continent having struggled to deal with very powerful leaders who have abused their power with horrendous and bloody consequences. 
The basis on which Taylor was convicted is also very significant and reflects a positive shift in international criminal law. The former Liberian president was convicted of aiding and abetting war crimes for his role in perpetuating the conflict in Sierra Leone. Taylor’s link to the crimes committed was significant but a physically detached one and this evidences the fact that international criminal law is beginning to move beyond merely focussing on prosecuting those individuals who directly and physically perpetrate crimes, as has traditionally been the case, and is now being more bold and dynamic in attributing criminal liability to more senior individuals who do not have blood on their hands but without whose leadership and influence the crimes would not occur.  These individuals are arguably the most culpable and it is right and just that they are now being brought to justice.  
Once again however the judgment has not been without criticism. It has been suggested that conducting the trial at The Hague, thousands of miles away from where the atrocities occurred, and not on West Africa soil ‘took away an aspect of the peoples’ ownership of the trial and detracted from the positive ongoing move toward African solutions to African problems, of which the SCSL was emblematic.
What does this mean for the future of International Criminal Law?
The judgments in the Lubanga and Charles Taylor cases are both very important moments in the development of international criminal law and ones whose significance should not be underestimated. Despite both judgments having notable drawbacks their impact on the ongoing development of international criminal law, in terms of its jurisprudential substance and its reputation on the international stage are unquestionable and will undoubtedly contribute to the ongoing development of a greater and more effective international criminal system. 
These judgments however mark only the start of what appears to be a much brighter and more fruitful future for international criminal law. The International Criminal Court is close to delivering its second judgment in the case of Katanga and Chui and has now got its second prosecutor. Radovan Karadzic, a former Bosnian Serb leader, is currently on trial for war crimes and crimes against humanity at the International Criminal Tribunal for the Former Yugoslavia and Bernard Munyagishari, a former Rwandan militia leader, is currently on trial at the International Criminal Tribunal for Rwanda charged with genocide.
It is hoped that these cases will set a new standard in international criminal law, ensuring that no man is above the law and that those individuals who plan, organise and orchestrate the most heinous of international crimes, wherever they are committed, are no longer allowed to live in absolute impunity and are brought to justice in front of the world.

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