African Warlord's Conviction Raises Questions About the International Court

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Evert-Jan Daniels / AFP / Getty Images

Congolese militia boss Thomas Lubanga sits in the International Criminal Court at the Hague as he waits for a verdict to be given on his trial for war crimes on March 14, 2012.

Officials of the International Criminal Court in The Hague hailed the guilty verdict handed down on Wednesday against Congolese warlord Thomas Lubanga as a breakthrough for global justice. And no wonder: It has taken the court nearly a decade to complete its first successful prosecution, nearly seven years after Lubanga was first indicted on charges of recruiting child soldiers in the Democratic Republic of Congo — a case that some legal experts argue should have been completed within a year.

Few dispute the chilling nature of Lubanga's crimes: From the testimony of about 60 witnesses, he was found to have dragooned children as young as nine into becoming fighters, training them to rape and kill locals, and to loot their villages during the struggle for control of the DRC's gold-rich Ituri region. Evidence included video footage of him giving a pep talk to his forces, some of whom were clearly young boys.

But while Wednesday's guilty verdict by a three-judge panel was seen as an achievement for the court in The Hague, it also highlighted some of the ICC's failings. The court has been notoriously slow and inconclusive in delivering justice since it was established by the United Nations in 2002, at a cost of about $100 million per year. "Frankly, things seem to take an interminable period of time," says Paul Seils, a Scottish criminal defense attorney, who had been the ICC's head of analysis between 2004 and 2008, when the case against Lubanga was being built. Now the vice president of the International Center for Transitional Justice, a research organization in New York, Seils told TIME, "You're deploying people from The Hague into countries they aren't from, to deal with situations which are impenetrably difficult."

Doubts about the ICC's effectiveness have intensified over the past year, even as calls grow from U.N. human rights officials for an ICC indictment of Syrian leaders responsible for the killing of civilians in the course of the year-long uprising. Legal experts and some human-rights advocates have questioned the court's ability to effectively prosecute immensely complex charges such as genocide and crimes against humanity. While Seils has plenty of criticisms — he estimates the trial could have taken between eight and 16 months under normal circumstances — he says the court is still a "startup," ironing out problems. "This is not a straight-forward business," he says. One big hurdle is the court's inability to arrest people. The Lord's Resistance Army leader Joseph Kony — back in the news last week as a result of an extraordinary viral video campaign — has been a fugitive from an ICC arrest warrant since 2005. So has Sudan's President Bashir Omar, who remains his country's head of state despite an international warrant for his arrest being issued three years ago. Without a police force of its own, the ICC relies on the political will of governments to transfer those wanted for trial, as Ivory Coast officials did last November, when it flew former President Laurent Gbagbo to the Hague. But political calculations, such as the desire to bring a speedy end to wars, often persuade governments to soft-pedal on prosecution of perpetrators who might be convinced to leave power if granted a de facto immunity.

The challenge of ICC prosecution became evident when the court began investigating Lubanga in 2005. The mid-level warlord was operating deep in a country the size of Western Europe, whose ethnic schisms have embroiled it in decades of violence. Venturing into rural DRC, investigators faced hostility from locals, who themselves risked deadly retaliation for being seen to cooperate with those pursuing a warlord. "It was considered that all the witnesses, not just from the prosecution, were at risk," says the court's 624-page judgment against Lubanga.

As a result of the difficulties, ICC investigators hired local human-rights groups to find witnesses to testify, ensuring a legal process that was vulnerable to accusations of bias. Some of these groups actually forced witnesses to testify, according to the ICC judgment on Wednesday, leading judges to discard much of their testimony. "There was a very significant lack of scrutiny of these intermediaries," Seils says. "It probably added at least a year to the proceedings."

But working at a snail's pace and in foreign countries are not the only problems facing the ICC. The most serious is the uneven quality of judges, says Christian Wenaweser, a diplomat from the European country of Liechtenstein, who was a senior ICC official until December. "This is the biggest challenge we face," he told TIME. "If you have on a consistent basis the best qualified people you'll end up with a high-quality bench."

The reality is far different, however. The court's 18 judges are chosen from nominees put forward by governments, which handpick people to serve nine-year terms in The Hague; there are 114 countries member states, although the United States has so far stayed out. But the candidates are not always chosen for their top-flight legal skills. Politically powerful countries, or those who finance the ICC heavily, "have a better chance of getting their people in," says Wenaweser. And being on good terms with one's government is a prerequisite, by nature of the nominating procedure. "The temptation for countries to choose people as a way of rewarding them for certain services they've done at their end of their careers is big," he says.

Yet, even the world's best judges might struggle to tackle the ICC's most high-profile indictments yet: Those issued last June against Libyan leader Muammar Gaddafi, his son Saif al-Islam, and his intelligence chief Abdullah al-Senoussi. The older Gaddafi was captured and killed by rebel fighters last October, while al-Senoussi fled, and may have also died. Saif al-Islam, however, is in custody in Libya, having been detained last November by commanders of the Zintan militia. So far, Libyan officials have rebuffed ICC requests to transfer the accused to the Hague. Imperfect as their own court system may be, Libyan officials have said they prefer to try Saif al-Islam in it, rather than transfer him into the labyrinth of the ICC.