On Monday, the International Criminal Court in The Hague opens its historic first trial. The ICC, which was formally created in 2002, is the world's first permanent independent tribunal to try crimes against humanity and war crimes. It survived the Bush administration's early attempt to destroy it. Now it will have to prove itself.
The man in the dock is Thomas Lubanga Dyilo, leader of a Congolese rebel movement called the Union of Congolese Patriots, who stands accused of recruiting 30,000 children between the ages of 7 and 15 to serve with his armed guerrillas.
The Democratic Republic of the Congo was ruined more than a century ago when Belgium brutally plundered the country's rubber resources. More than half the Congolese population died enslaved to King Leopold's boundless greed as legions of his barbarous underlings severed the limbs of workers who failed to meet the rubber-extraction quotas. Violence became endemic and, after independence in 1960, an internecine power struggle catapulted the country into conflict, from which it has effectively never recovered.
That's the sorry past. The sorry present is that there is no functioning state in Congo, meaning there is no consensus about the rule of law. And that's where the International Criminal Court enters the picture. The underlying message of the Lubanga trial and the ICC itself is that, when countries are unable to protect their citizens by implementing fair trials, and when the global community has failed to stop a conflict, the tribunal will step in, if necessary, to demand accountability for major crimes.
The ICC epitomizes emerging new norms that favour human rights, challenge criminal impunity in the case of large-scale abuses, and assert the growing need to promote the rule of international law and ethics in global relations. We know that indiscriminate attacks against civilians are illegal and indefensible, and that the destruction of one generation of a family radicalizes the next. We know that torture has been condemned since the days of the Spanish Inquisition, that the information it elicits is tainted and therefore unusable in a freely constituted courtroom, and that the practice damages both the tortured and the torturer. We know that offering broad amnesties to leaders who have committed grave crimes is inherently unjust, and impractical, too, since the ink has frequently barely dried on the document before the perpetrator returns to business.
When technology expanded the frontiers of war in the 19th century, the same nations that had fought one another began to build a body of law to delineate the limits of their own aggression. This process has been a diplomatic waltz - two steps forward and one back. Currently, we're in a forward pass.
The ICC is not without critics. Some are über-sovereigntists who fear ceding control to a global institution. Others claim that justice may interfere with peacemaking, or that there is no evidence that it works.
The sovereignty issue is real, but it's becoming outdated since globalization has already weakened these ties in their most extreme form. Furthermore, according to its own statute, the ICC cannot assume a case unless the country in question refuses, or is unable, to take it on itself. It is also true that the peacemaking versus justice complaint needs monitoring by the international community on a case-by-case basis, especially regarding the order of events when a conflict ends. But the new bottom line is that business as usual, where negotiators have felt free to wink and nod at genocidaires in return for an unstable peace, is losing ground.
As for whether international criminal justice works, it's simply too soon to tell, although the desperation of Sudanese President Omar al-Bashir, as he waits to learn whether he'll face an indictment for genocide in Darfur, suggests that the reach of the ICC is making itself felt. So does the fact that, in preparing its attack on Gaza, Israel employed a battery of lawyers to clarify justifiable military targets.
The formal creation of a permanent transnational tribunal to prosecute crimes against humanity and war crimes in a world of sovereign states was thought to be as unlikely as the election of a black president in the racially stained United States. But both of these events happened. And both speak to a new era of law, deterrence and the return of soft power. It would be useful if President Barack Obama signed on to the ICC; although more than half the countries in the world are already members, the court needs the heft of the U.S. behind it.
But no one should underestimate the steep climb ahead. When asked his profession at a pretrial session, Thomas Lubanga replied: "I am a politician." This skewed understanding of politics, governance and law will be just one of the challenges facing the International Criminal Court and the global community.
Erna Paris is author of The Sun Climbs Slow: Justice in the Age of Imperial America.
