EU:The International Criminal Court aims to prevent crimes against humanity, but it can also confuse peace efforts, writes Jamie Smyth
Dressed in a bright blue tunic, Thomas Lubanga Dyilo stands out in the sterile court filled with judges and lawyers wearing black gowns. Flanked by two burly guards, the 46-year-old former militia leader from the Democratic Republic of Congo (DRC) sits thoughtfully through one of his appeal hearings at the International Criminal Court (ICC), occasionally scribbling notes and dabbing his face with a cloth.
Lubanga holds the dubious distinction of being the first person to face trial at the ICC in The Hague. Founder and leader of the Union of Congolese Patriots militia, he stands accused of recruiting child soldiers in Ituri, a mineral-rich region in northeast DRC which has witnessed bloody inter-ethnic fighting since the late 1980s. "This is a fairly significant trial and marks a milestone for the victims in Ituri. People are obviously looking at it because it will be the ICC's first," says Tom Porteous, a director at Human Rights Watch.
Last month the ICC dismissed Lubanga's appeal and sanctioned his trial. Its prosecutorial arm has also begun flexing its muscles. This week it laid out its charges against two Sudanese individuals for alleged war crimes in Darfur. Both headline-grabbing decisions have focused attention on a court that seeks to prevent war crimes, and raised questions about its prospects of achieving its ambitious goals. Set up in 2002 the court has jurisdiction over crimes such as genocide, crimes against humanity and war crimes. It is the world's first treaty-based, permanent international criminal court, and so far 104 states have ratified the Rome Statute, although the US, China and Russia have so far refused.
The ICC has two main arms: the prosecutor's office and a panel of 18 judges. Both work independently, the former to investigate serious crimes and the latter to hear any cases brought before it.
So in the case of Darfur, ICC chief prosecutor Luis Moreno-Ocampo compiled the evidence against the two suspects named this week. But it will be up to the judges to assess whether it is sufficient to order them to stand trial.
"Our work sends a signal: those who commit atrocities cannot do so without impunity," says Moreno-Ocampo, who this week named former Sudanese interior minister Ahmed Harun and Janjaweed militia commander Ali Kosheib as persons responsible for 51 crimes including murder, rape, torture and attacks against civilians.
Yet even if the ICC judges order the arrest of both men in Sudan it is unlikely that Khartoum will hand them over to The Hague. On Thursday, Sudanese interior minister Zubair Bashir Taha said that anyone apprehending Sudanese officials in order to bring them to the ICC would be beheaded. The ICC also has no enforcement arm or police force, and so must rely on national governments to arrest and transfer suspects.
According to Andrew Stroehlein, from the International Crisis Group, the strong reaction by the Sudanese authorities illustrates that ICC action does have a profound effect on regimes and militas engaged in war crimes.
"One of the basic objectives of the creation of the ICC was to prevent crimes," says ICC president Judge Philippe Kirsch. "At the beginning, prevention was seen as something that would happen after a long time when there had been a number of trials and procedures. Our experience so far is that existence of the ICC is taken note of." He points to Uganda, where the notorious Lords Resistance Army (LRA) have recently been involved in peace talks, as an example of where ICC arrest warrants may have had a role in prompting peace.
Yet the peace talks are stalled and critics complain the warrants may have become a deterrent to a final deal. LRA leader Joseph Kony recently said the LRA would not lay down its arms permanently unless the warrants were withdrawn. Many Ugandan MPs support his position and have unsuccessively asked the ICC to rescind the warrants.
Concerns have also been expressed about the ICC summonses in Sudan because it could complicate talks with Khartoum on allowing a joint UN-African Union peacekeeping force into Darfur. If no more peacekeepers are allowed into Sudan then the crisis in Darfur could get worse.
Judge Kirsch says the ICC does not evaluate political situations. He rejects the notion the ICC is not flexible enough to cope with the complexities of modern conflicts. "One of the main rationales for setting up the ICC was that justice and peace were not contradictory, and that for peace to last you need a sense of justice," he says. This belief will be tested as the ICC moves towards its first trial later this year, and the situations in Darfur and Uganda become clearer.