Nearly six years after its establishment, the International Criminal Court (ICC) is set to begin its first trial next month in The Hague, Netherlands.
The independent court established by dozens of United Nations (UN) members will try former Democratic Republic of Congo rebel leader Thomas Lubanga for war crimes stemming from a bloody ethnic conflict that left as many as 60,000 people dead over four years.
The court has formally charged Lubanga, 46, with abducting children under the age of 16 and forcing them to fight for his Union of Congolese Patriots in a war waged over control of the gold-rich Ituri region of northeast Congo. War observers say Lubanga also masterminded the massacre of 400 people, and that the 1999-2003 fighting left hundreds of thousands homeless.
The trial brings intense scrutiny. The proceedings represent the first case tried by a court formally supported by more than 100 nations, but famously criticized by the United States. On the eve of Lubanga's trial, U.S. officials are expressing growing openness to the court, but cautioning that fundamental objections remain the same.
The United States is one of a handful of UN members not signed on to the Rome Statute, a treaty first adopted 10 years ago to establish the ICC to pursue and prosecute war criminals from countries unwilling or unable to try their worst offenders.
The court's designers say the ICC is the final step in the evolution of war tribunals like the Nuremberg trials that prosecuted Nazi war criminals after World War II, and the tribunal for former Yugoslavian leaders accused of ethnic cleansing. Unlike those ad hoc tribunals, the ICC is intended as a permanent, ongoing effort to prosecute war crimes at its headquarters in The Hague.
At the treaty's signing in 1998, President Bill Clinton and U.S. officials supported the goals of the ICC but expressed concerns with the court's structure: As an independent body, the ICC operates separately from the UN, with an independent prosecutor possessing expansive powers. Clinton and the U.S. delegation argued that the ICC needs external checks and balances to guard against abuses of power and politically motivated trials.
Clinton eventually signed the treaty in 2000 but did not send it to the U.S. Senate for ratification. The president said he hoped the ICC would move toward needed changes that would prompt the United States to consider formally ratifying the document. But the court's structure remained the same, and the Bush administration withdrew from the treaty in 2002 as the ICC was being established, citing the same concerns.
Since then, the ICC has opened investigations in four cases and has issued 10 public indictments, including the charges against Lubanga.
While the United States has remained opposed to joining the ICC in its current form, the Bush administration has remained open to supporting the court from the outside. In 2005, the United States accepted the UN Security Council's decision to refer rampant war crimes in Darfur to the ICC.
Late last month, John Bellinger, the State Department's chief lawyer, told a gathering in Chicago that the United States wants to find common ground for working with the court on a case-by-case basis: "In some cases such as Darfur, the ICC's success in investigating and prosecuting serious crimes may advance goals we share."
Bellinger said in such cases the United States could consider providing financial, legal, and logistical support to the court. The Wall Street Journal called Bellinger's speech "a rhetorical turnabout" for the administration, and Richard Dicker of Human Rights Watch told the newspaper he was surprised by the attorney's openness to the court: "It's impossible to imagine such a statement four years ago."
But Michael Newton disagrees. Newton, a professor of law at Vanderbilt University, worked on a U.S. delegation involved in the Rome Statute negotiations. Newton also helped write the Elements of Crimes, a major document defining crimes for the international court. Other nations, including Iraq, have used the reference for domestic courts as well.
Newton told WORLD he thought Bellinger's comments didn't represent a huge shift in U.S. policy: "The policy of the United States has always been to support the goals of the court without supporting the actual structure of the institution." He noted the United States' substantial support of war tribunals in Yugoslavia, Rwanda, and Sierra Leone.
Newton believes Bellinger was setting out "realistic expectations" for how the United States could work with the court without necessarily joining it: "It's not an all or nothing game."
Bellinger emphasized that theme in his speech, reiterating that without significant changes to the treaty, the United States likely wouldn't join the court anytime soon. (All three presidential candidates have also expressed concern about the ICC's structure.)
Bellinger urged members of the court to accept the United States' right to opt out of the treaty but to find common ground: "The sooner both sides respectfully agree to disagree about the ICC as an institution, the sooner we will be able to focus on finding practical and constructive ways to cooperate in advancing our common goals."
One of those common goals is in Sudan, where the ICC has issued an arrest warrant for Ahmad Harun, the country's former interior minister. Harun is accused of crimes against humanity for financing, arming, and inciting the Janjaweed militia to mass killings, rapes, and displacement of civilians.
Sudanese government officials in Khartoum have not responded to the ICC warrant for Harun issued over a year ago. Instead, they've named Harun state minister for humanitarian affairs.
At the headquarters of the Lord's Resistance Army, its spiritual and military leader, Joseph Kony, is rumored to have more than 40 wives. Kony built a 22-year insurgency against Uganda's military and its president, Yoweri Museveni, by drafting child soldiers and practicing sexual enslavement, mutilations, and killings. His campaign of cruelty, carried out largely in the border areas between northern Uganda and southern Sudan, led terrorized Ugandans to inaugurate the famous "night commutes" so that they could sleep in large compounds where they felt safe from kidnapping and death at the rebel cult's hands.
For his crimes against humanity (which the U.S. government estimates have killed over 12,000 and led to the kidnapping of 25,000 or more), Kony and four other LRA leaders-Vincent Otti, Okot Odiambo, Dominic Ongwen, and Raska Lukwiya-were indicted in 2006 by the International Criminal Court (ICC). Lukwiya and Odiambo have reportedly been killed since. Suddenly, Kony announced his intent to participate in peace negotiations. When international mediators arrived later that year, they found the war criminals dressed in business suits and ready to deliberate.
In a twist of historic irony, former Sudanese rebels became chief mediators for the ensuing peace talks. In September 2007 an LRA spokesman said "life was returning to normal" in northern Uganda and his army was ready for an end to the brutal conflict. Negotiators shuttled between Juba, the capital of South Sudan, and Kony's hiding place in the Democratic Republic of Congo. In February of this year, both sides agreed that LRA war crimes should be handled by Ugandan courts. Uganda agreed to ask the ICC to drop its warrants once a final deal was in place. Kony demanded that the warrants be dropped as a condition for sealing the deal-setting up a diplomatic gridlock in which a scheduled April 10 peace-signing never happened. And monitors now report renewed abductions and violence in northern Uganda.
The ICC shows no sign of dropping the LRA charges. Chief prosecutor Luis Moreno-Ocampo told a conference marking the ICC's 10th anniversary in Chicago "we are not doing enough" to arrest Kony, adding that if the LRA leader is arrested, "we will have peace tomorrow." Moreno-Ocampo blames member states for not taking responsibility to capture Kony. But therein lies the dilemma of ICC jurisdiction: Even among his enemies, Kony remains a party to peace talks.