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The ICC Starts Locking Them Up

After 10 years in operation, the International Criminal Court (ICC) delivered its first verdict this week, convicting the Congolese warlord Thomas Lubanga of recruiting child soldiers in the long and brutal conflict that has festered at the center of Africa. One of 15 defendants before the ICC, its ruling in the Lubanga case brings to a close part of the Court’s original push for indictments that began in 2005, when it issued its first arrest warrant for Joseph Kony.

The confluence of the Kony 2012 campaign and Lubanga’s conviction will likely result in a groundswell of support for the ICC’s work. But complex questions about its influence remain as hotly debated as ever. Scholars, pundits, and international bureaucrats continue to debate whether the ICC serves as a deterrent against terrible crimes or as an obstacle to the resolution of ongoing conflicts—or, as Via Meadia thinks, a complex and unsatisfactory mix of both.

There is one mildly refreshing aspect to the Lubanga verdict (beyond the natural joy that comes whenever a vicious, murderous thug gets a little of his own back). The Lubanga decision marks an important first in the jurisprudence of international law: this is the first instance in which international justice has been administered in a way that comports with the American constitution’s ban on ex post facto law.

Up until now, from the Nuremberg trials on up through the present day, international war crime and crime against humanity courts have prosecuted defendants based on laws that did not exist at the time their crimes were committed. This was no small quibble for the late Senator Robert Taft, who sacrificed his presidential ambitions to oppose the Nuremburg Trials on exactly those grounds (read Profiles in Courage for the whole story).

The declared “ad hoc” nature of the tribunals in Rwanda and the former Yugoslavia provided a lingering point of difficulty for prosecutors and jurists. That the genocidaires and fanatical nationalists involved in those episodes were bad people who deserved to be punished was clear; it was much harder to point to an actual statute in effect where they lived that they had broken. A body that uses legal procedures as it punishes someone who has not broken a law cannot properly be called a court, and it is annoyingly difficult to clear such tribunals of the accusation that they simply administer the retribution of victors.

With the Lubanga case we enter a new era: this particular depraved warlord committed his crimes were committed after the passage of the Rome Statute, and his indictment and prosecution occurred in accordance with pre-existing codified principles of international justice. This is an advance; even war criminals should have some kind of law under whose provisions they can be indicted and against whose provisions they can mount a defense.

International criminal courts, in Via Meadia‘s opinion, are still well short of the attributes that make for a good justice system. One key omission: a pardoning power. The reality is that for reasons of state or for reasons of compassion and humanity it is not always appropriate for the full rigor of the law to be applied to a particular case. Today, for example, most of us would be happy to get President Assad out of Syria even at the cost of indemnifying him from prosecution under international law. At the very least, the prospect of such pardons would be helpful in encouraging key members of his regime to defect.

Unfortunately that authority doesn’t currently exist. Without that, international law sometimes has the perverse effect of encouraging despots to seek indefinite power, even at the cost of committing more atrocities as they crush their opponents. Well organized legal systems, one feels, do not provide criminals with incentives for further lawbreaking.

Ex post facto law and legalistic rigidity are far from the only problems with international criminal law, but the interface between civilization and the world of mass murder can never be completely neat and clean. For now, Via Meadia will continue to gloat shamelessly when warlords and genocidaires go to jail (though we wouldn’t mind seeing some of them hang), while containing our enthusiasm for a flawed system of justice and applauding the US Senate for its reluctance to subject Americans to laws and courts that, in our view, remain inferior to our own.

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  • Corlyss

    International Criminal Court

    It’s a freakin’ disgrace, an excellent example of rootless, anti-democratic NGO overreach. If the creators hadn’t wanted desperately to lynch George Bush, the thing would still be moldering in European policy papers.

  • Jacksonian Libertarian

    While I support the Rule of Law as one of the three pillars of Western Culture, the others being Capitalism (Free Enterprise), and Democracy. I’m against International law having jurisdiction over anything except relations between nations, internal matters should be beyond their authority.

  • Tom Gates

    Just a matter of time, driven no doubts by Dr. Mead’s academic friends.

  • Ranger Rick

    I have a hard time believing that a dictatorial thug who used child-soldiers somehow signed on to the Rome Statute treaty. Which he’d have to, for the observation that this is not ex-post facto to have any validity. That is, unless we’re throwing out the idea of “consent of the governed” in order to sustain a largely fictional notion of “international law.”

    If Lubango really did sign a treaty agreeing to forgo the use of child-soldiers, then your observation makes more sense.

    It’s one thing to prosecute a just war to remove an enemy of all mankind (Lubanga clearly qualifies), especially if we explain in advance just why we’re doing it (and better still if we give one last chance to adjust behavior before the outbreak of hostilities). It’s quite another to tell the world “this is how it’s gonna be, see?” and then congratulate ourselves for some commitment to the rule of law when we put someone who acted against our proclamations through a drumhead trial.

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