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Morris Davis

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Lessons From Lubanga

Posted: 03/16/2012 5:48 pm

It is hard to look at the International Criminal Court's conviction of former Congolese warlord Thomas Lubanga for enlisting child soldiers into his militia more than a decade ago and not consider it a positive step on the road towards justice. Perhaps, too, it marks a point where it is time for a conversation about some fundamental international justice questions: What is justice and justice at what cost?

The Lubanga verdict, a first for the decade-old International Criminal Court, comes on the heels of the viral YouTube video Kony2012 that introduced nearly 80 million viewers (so far) to Ugandan thug and fellow exploiter of children Joseph Kony. It also comes amidst a backdrop of other potential international crimes cases making headlines: Former U.S. Vice President Dick Cheney cancelled a scheduled appearance in Canada out of fear it was too dangerous for him to face a likely mob of protestors calling for his indictment for war crimes; the announcement of a verdict next month by the Special Court for Sierra Leone in the trial of former Liberian president and blood diamonds purveyor Charles Taylor; and a guilty plea in the case of Guantanamo detainee and former CIA captive Majid Khan that secures his cooperation in the upcoming U.S. military commission trial of 9/11 mastermind Khalid Sheikh Mohammed, among others.

Justice, as the term is used by those who advocate the rule of law, implies a system that fairly assesses responsibility for alleged violations of moral and ethics based laws that are well-known and uniformly applied. The precept that you must do right to uphold right is reflected in the saying "justice is blind" and its depiction as a blindfolded woman holding a scale. A process considered illegitimate -- a kangaroo court -- undermines the principle that justice has to be fair in both fact and perception.

While the three-judge panel convicted Lubanga, it also harshly criticized the prosecution for using intermediaries to deal with witnesses, which in some instances led to witnesses being encouraged to give false testimony. The International Crimes Tribunal in Bangladesh, while commended for efforts to end 40 years of impunity for atrocities committed during the liberation war with Pakistan, is criticized for only having charged leaders of the opposition Jamaat-e-Islami party and creating the perception that the trials are politically motivated. President Barack Obama has pressed ahead with the prosecution of suspected al Qaeda terrorists and low-level U.S. military personnel accused of violating the laws of war and the military code of justice, but he said he will "look forward, not back" at allegations that former senior U.S. government officials authorized and facilitated torture and other potential major war crimes.

A system that purports to do justice that allows anyone to put a finger on the scales to tip them unfairly or that deliberately includes or excludes certain classes of individuals because of their status erodes the foundation of the universal concept of justice under the rule of law.

Different people may describe slightly different goals for justice and for punishment. In the context of serious offenses like war crimes and crimes against humanity, generally the aim is to promote fundamental rights and human decency, to punish wrongdoers and to deter those who may follow in their footsteps. Also, many argue it is an important step in the process of reconciliation among people in conflict zones.

Punishment of the wrongdoer -- retribution -- is plainly evident when a sentence is executed. Many doubt the legitimacy of the U.S. led invasion of Iraq, but few question whether Saddam Hussein got what he deserved. The ability of justice to deter is less evident. The prospect of facing justice apparently had no deterrent effect on Libya's Muammar Gaddafi, Syria's Bashar al-Assad, or Yemen's Ali Abdullah Saleh in their brutal crackdowns on their own citizens (and the prospect of indictment may actually be a disincentive to stop the violence and step down), nor has it deterred the CIA, the Israeli Mossad, or the Iranian VEVAK from extrajudicial assassinations. The ability of justice to facilitate reconciliation is also questionable. In the Balkans, where the International Criminal Tribunal for the former Yugoslavia is regarded as perhaps the most successful international crimes tribunal, ethnic tensions are still strong nearly two decades after the fighting stopped and the tribunal formed.

Professor Stuart Ford from the John Marshall Law School in Chicago calculated that spending on the five major international criminal courts through 2015 would total about $6.3 billion. The International Criminal Court, where Lubanga became the first person ever convicted, for example, has more than 750 people on staff, an annual budget of $140 million, and has cost nearly a billion dollars since it was created in 2002. The U.S. is reported to spend about $140 million a year on its facility at Guantanamo Bay, Cuba, where it holds 171 terrorism detainees.

Whether in theory you can put a price on justice is an interesting philosophical argument, but in reality where the costs are known and the results, or lack thereof, are available for analysis, it is possible to have a meaningful discussion about whether international crimes tribunals do justice, whether they achieve their underlying goals, and whether the results are worth the costs.

Congratulations to the International Criminal Court on its first conviction. When the dust of the Lubanga case settles maybe we can talk about whether we are doing justice right or whether we can do justice better.

Morris Davis is a retired U.S. Air Force colonel and the former chief prosecutor for the military commissions at Guantanamo Bay, Cuba. He is a faculty member at the Howard University School of Law in Washington, D.C.

 

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