World Politics Review | 7.1.08
By Alan W. Dowd

Congolese warlord Thomas Lubanga is accused of committing some truly awful crimes. Forcibly conscripting children as young as 10 into the brutal, tribal combat of eastern Congo tops the list, which is why he was turned over to the International Criminal Court at The Hague in 2006. Lubanga’s trial was supposed to be the ICC’s first case and its first test. But with the trial now indefinitely delayed due to prosecutorial misconduct, the ICC has failed the test. No one should be surprised by this.

The problems with the ICC’s ability to try the Lubanga case stem from the prosecution’s refusal to share exculpatory evidence with Lubanga’s defense. According to the Associated Press, the ICC prosecutor withheld “hundreds of documents, including at least 95 that the defense said could help Lubanga prove his innocence or mitigate his guilt.” This is significant because the ICC is supposed to be governed by rules requiring prosecutors to disclose such evidence.

The prosecution claims its motives were honorable, arguing that the information was withheld to shield individuals and organizations from retribution. However, the ICC judges were not persuaded. “The trial process has been ruptured to such a degree that it is now impossible to piece together the constituent elements of a fair trial,” they declared. They are now mulling whether to release Lubanga.

In any event, the purpose here is not to defend Lubanga. That’s his lawyer’s job—one that I wouldn’t relish, given that it’s difficult to defend the indefensible. Nor is the purpose here to make sure Lubanga is treated justly. That was supposed to be the ICC’s duty.

But this case does provide an opportunity to point out why the ICC is so flawed—and why so many observers in the United States are wary of it.

It’s difficult to fault the motives of those who believe the world needs an International Criminal Court to combat genocide, war crimes and other crimes against humanity. For that matter, it’s difficult to argue with the rationale for such a body.

Genocide has deformed the very ethnic composition of mankind. Sadly, it’s almost as old as the concept of nationhood itself. Pharaoh tried to control the Israelites by exterminating their infant sons. In our own time, Saddam Hussein carried out an internal genocide against his people. Slobodan Milosevic and his henchmen eliminated 250,000 of their fellow Slavs. In the span of 100 days in 1994, 800,000 Tutsis were macheted to death by rival Hutu clans in Rwanda. And these latter-day monsters are just pale imitations of those who roamed the earth in the first 75 years of the 20th century: Lenin, Stalin and their heirs killed some 60 million. Hitler murdered 6 million Jews in an orgy of war crimes. Mao murdered 37 million, Pol Pot 2.4 million, Kim Il-Sung 1.66 million. And the list goes on.

Incredibly, most of the men responsible for these horrors escaped justice. As one human-rights advocate observed, “A person stands a better chance of being tried for killing one human being than for killing a hundred thousand.”

Yet if the motives and rationale of ICC supporters are sound, their chosen method for combating man’s inhumanity to man is not.

Between 1998 and 2002, two different US administrations labored to improve the treaty that spawned the ICC, and for good reason: Under the treaty’s hazy definitions, “widespread” attacks against civilian populations are criminalized; “extensive destruction of property” is considered a war crime; an attack in which civilians are likely to be injured or killed is a war crime; and the use of weapons that are intended to cause “unnecessary suffering” is proscribed as a war crime.

These definitions present a problem for the US, since it plays a special role around the world. Whether the UN and its new court like it or not, the United States is the guarantor of global stability. US troops keep the peace in Kosovo and Korea, police some of the world’s nastiest neighborhoods in Central Asia and the Middle East, and come to the rescue after natural or man-made disasters in places like Somalia and Sumatra—all of which means they are thrust into the middle of chaos and would be exposed to immense legal jeopardy under the ICC regime. How difficult would it be for a prosecutor—scrupulous or otherwise—to convince a panel awash in moral relativism that US planners targeted Serbian population centers during Operation Allied Force, that US pilots conducted a campaign to destroy Iraqi property, that US Marines mounted raids into Kandahar or Kirkuk knowing that civilians would be killed, that US jets dropped munitions that caused “unnecessary suffering” in Afghanistan?

To his credit, President Bill Clinton ordered US representatives to the treaty-writing conference to vote against the final document. He wasn’t concerned about Americans committing war crimes, but rather about Americans being accused of committing such crimes. The Clinton administration also worried that the ICC could be flooded with spurious claims that would “embroil the court in controversy, political decision-making and confusion.”[i] To remedy both concerns and address the specific issues described above, the US delegation proposed that permanent members of the UN Security Council be granted the power to veto an ICC prosecution. That commonsense compromise was rejected.[ii]

Although Clinton ended up signing the treaty two years later, at the 11^th hour of his presidency, he refused to send it to the Senate “until our fundamental concerns are satisfied.” Those concerns were still unaddressed when the treaty came into force in mid-2002, which is why President George W. Bush disavowed the treaty. His administration even echoed some of the Clinton administration’s concerns: Ambassador for War Crimes Pierre Prosper noted that “there is a real possibility that someone will use the International Criminal Court for political purposes, exploit the process, in order to use it as a weapon or a tool to attack the United States’ personnel and/or its policies.” Undersecretary of State Marc Grossman called the ICC “an institution of unchecked power,” thanks to its rejection of an oversight role for the UN Security Council.

In 2003, then-Secretary of Defense Donald Rumsfeld pointed out yet another flaw with the ICC: how its “erosion of respect for states’ sovereignty absolves states of their responsibilities to deal with problems within their borders.”

Events have validated Washington’s concerns:

• After the fall of Baghdad, some Iraqis tried to take Gen. Tommy Franks to the ICC for war crimes. The ICC had no jurisdiction since the United States is not party to the treaty, but a Belgian attorney tried to force the case into the Belgian courts, which claim to have “universal jurisdiction” over virtually anything. The Belgian government refused to take up the case.
• Greek lawyers filed suit in the ICC against then-British Prime Minister Tony Blair and other members of his government. Claiming that the Iraq war violated the UN Charter, Geneva Convention and Rome Treaty, the suit blamed Blair for killing civilians, depriving people of potable water, destroying food shipments and targeting residential areas. (One wonders where the outrage was when a bona fide war criminal reigned in Baghdad.)
• There were some 500 complaints brought before the ICC in its first year alone, forty of which accused the US-led coalition of “aggression” against Iraq. The ICC had but one prosecutor to handle the flood of claims.
• The list of states that fail to live up to their obligations by policing what happens within their borders is metastasizing—and so are the problems this neglect causes. Consider the international impact of Pakistan’s refusal to administer its “Federally Administered Tribal Areas,” Lebanon’s inability to rein in Hezbollah and Venezuela’s provision of safe haven to FARC rebels, to name a few.
• And now we learn of prosecutorial misconduct in the Lubanga case.

On yet another level, there is something wrong with the sort of justice handed down at The Hague. Consider, for example, the “justice” Milosevic received during his five years in The Hague detention center, before he died of heart problems in 2006.

According to the BBC, Milosevic had a private room with a fax machine, computer and satellite television. He had daily access to “a gym, a recreation room and an outside courtyard.” The BBC described the cell as “comfortable and informal,” adding that Milosevic and other inmates could “telephone their families for seven minutes a day, cook for themselves, paint or play the piano or guitar.”  

Slate’s Julian Davis Mortenson description of the detention center is even more eye-opening: “The accommodations looked like nothing so much as a string of dorm rooms in a college residence hall,” according to Mortenson. “With radios, coffee machines, and full private bathrooms, the cells looked at least as comfortable as your average Super 8.” Mortenson calls it “startlingly cheery—even homey.”

For their crimes, the likes of Milosevic—and, we can safely assume, Lubanga and others—can play ping-pong or darts or chess or volleyball or soccer. They can read from a library of books, build models, dabble in ceramics, learn about computers. But they cannot be put to death, no matter how heinous their crimes or how obvious their guilt.

Proponents of the ICC believe the court will “achieve justice for all…end impunity…end conflicts…remedy the deficiencies of ad hoc tribunals…deter future war criminals.” In a word, they believe the ICC can change human nature. They are wrong, and history itself mocks them.

It seems that a global effort to transform the regimes that perpetrate these crimes would be more effective than what amounts to a global district attorney—especially one that bends and breaks the rules.

[i] Amb. David Scheffer, 1998.

[ii] Jennifer Elsea, International Criminal Court: Overview and Selected Legal Issues, CRS Report for Congress, June 5, 2002.