Foreign Affairs December 2009

The Trial of Thomas Lubanga

For years, the Congolese warlord Thomas Lubanga allegedly sanctioned massacres, pressed children into military service, and institutionalized mass rape. Now he is the first defendant being tried by the recently created International Criminal Court, seated in Holland. His trial is seen as a major landmark by Western human-rights activists, and it is being publicized extensively in Congo, where the fog of war still lingers. What do the Congolese make of Lubanga’s trial? Will it deter other would-be war criminals? Is justice even possible for the most heinous of crimes?
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In the annals of justice, a high point of recent years came on October 16, 1998, when Scotland Yard detectives arrested General Augusto Pinochet of Chile near midnight at an exclusive private hospital in London. A judge in Spain had ordered the arrest of the former dictator, responsible for the torture and murder of thousands, and his seizure offered a tantalizing glimpse ahead to a world where a despot might be unsafe anywhere: crimes against humanity at home could get him indicted in another country and taken into custody in a third. The British held Pinochet under house arrest for months, until finally, on spurious grounds of ill health, they let him go. But the arrest disgraced him, inspired a string of lawsuits and indictments in Chile, and surely made many a dictator reconsider his travel plans. One law professor even wrote a book called The Pinochet Effect.

That same year, another landmark event promised to amplify the Pinochet Effect. One hundred twenty countries signed an agreement establishing the International Criminal Court, a body, it was hoped, that could try the Pinochets of the future—tyrants, torturers, and war criminals—when the country where they were accused of committing crimes was unwilling or unable to do so. The ICC officially came into being four years later, in 2002, when 60 nations had ratified their signatures. By now, 110 countries have ratified the treaty, including every member of the European Union but conspicuously not including Russia, China, or the United States. (The Bush administration fought hard to undermine the court, strong-arming a long list of countries into agreeing never to extradite an American citizen to the court’s custody.)

Like all too many international bodies, the ICC moves at a molasses pace: only this year, in a courtroom at The Hague, did it begin its first trial, that of Thomas Lubanga, a tall, somber-looking onetime psychology student and former warlord in the Democratic Republic of Congo’s brutal and complicated civil war. That conflict, the cause of several million deaths so far, is not yet over, and court prosecutors hope to make the leaders of groups still fighting fear that someday they, too, could face justice. Toward that end, and toward the broader goal of promoting the idea that the rule of law should know no national boundaries, the ICC produces a blizzard of pamphlets, press releases, audio recordings, YouTube videos, and more, in an attempt to publicize its proceedings. But of course peaceful, clockwork, wealthy Holland, with its canals and bicycle paths, is a long way from Congo, where the national government barely functions, people speak several hundred languages, and a majority of the population is functionally illiterate and has no electricity, much less a radio or TV. The choice of Lubanga as the court’s first defendant juxtaposes two worlds that, on the surface at least, could not be more different from each other.

What do Congolese people think about the Lubanga trial? Will it deter other warlords? Can it bring a sense of justice to a place where there has been none? These were questions I was curious to explore when, in June, I visited the part of northeastern Congo where Thomas Lubanga’s militia had recently operated.

The Ituri district, roughly the size of West Virginia, is where the equatorial rain forest that covers the center of the African continent meets the grassland savanna of East Africa. An exhausted Henry Morton Stanley and his long, half-starved train of porters marched out of the forest here in the late 1880s, during the last of his great militarized expeditions. Partly because this corner of the country is unusually rich in natural resources, especially gold, Ituri has seen some of the worst fighting of the Congo war, and it is strewn with the blackened shells of burned-out buildings.

Long-standing tension between the Lendu and Hema peoples has fueled the conflict. The Lendu are traditionally farmers; the better-off Hema are more likely to be cattle herders, landowners, and traders, and are resented by many for their wealth. The ICC picked warlords in Ituri for some of its first indictments in part to demonstrate that justice for war crimes can be impartial: Thomas Lubanga was the principal leader of the Hema, but two Lendu warlords were scheduled to go on trial before the court in late November.

The Ituri fighting raged from 1999 to 2003, and it still flickers. At least 60,000 people in the district were killed outright, many more died when the war limited their access to food and medical care, and half a million fled their homes, some permanently. Conscription of child soldiers was routine; Lubanga’s militia at one point reportedly invaded a school and took the entire fifth grade off for training. (Across eastern Congo, an estimated 30,000 children have been conscripted.) Hema and Lendu alike routinely burned each other’s villages to the ground; militiamen from each side further sowed terror by mutilating and cannibalizing corpses and by gang-raping thousands of women.

In Bunia, the region’s battered capital, before climbing out from under my mosquito net in the morning, I hear the bells of a Catholic church summoning the faithful to early Mass, the dawn call to prayer from a nearby mosque, roosters crowing, and a bugler at the barracks of the United Nations peacekeeping force now stationed here. Bunia was the epicenter of much of the fighting, and hundreds of the city’s civilians were slaughtered in their homes. A small, wrecked green tank still points its gun barrel skyward on a main street. Rebuilding efforts have been meager: on the outskirts of town sits a half-finished housing development, empty new cinder-block homes with no doors or glass in the windows. Congo President Joseph Kabila promised to build them during his 2006 election campaign, but the funds drained away into various officials’ pockets. On the city’s rutted streets, women with babies on their backs balance laundry bundles or buckets on their heads; men wheel bicycles piled with precarious loads of cabbages, charcoal, grass for thatching roofs, or yellow jerricans of kerosene. Because local dealers buy old clothing by the bale, some of the people wear American football jerseys, or T-shirts promoting an ice rink or a ski resort. Many are refugees from the fighting who’ve learned to make do with little: one man carries cargo in a wheelbarrow that, except for its iron wheel, is made entirely of interwoven tree branches. Decades ago, Bunia’s major streets were paved, but they have long since reverted to red dirt. White UN trucks kick up huge clouds of dust as they pass.

Next door to UN headquarters, 40 teenagers are sitting on rickety wooden chairs in a Catholic-mission library, where paint is peeling from the walls. According to the nonprofit group that has been working with the teens and has gathered them here today so they can learn about the ICC, all are former child soldiers. Next to their names on this morning’s roster appears an alphabet soup of different armed groups. Some have listed themselves as ex-combatants in Lubanga’s private army, others in the militias it fought.

Nicolas Kuyaku, the cheerful, energetic Congolese who runs the ICC’s “outreach” office in Bunia, begins today’s session by showing 20 minutes of videos sent from The Hague. We see a brightly lit courtroom full of some two dozen people: solemn judges and lawyers in black robes and white jabots, an impassive Lubanga in a suit and tie in the dock, witnesses who testify about his use of child soldiers, plus a prosecutor, a defense attorney, and—an ICC feature loosely modeled after some European justice systems—a lawyer making statements on behalf of a group of victims. Something that must mystify the audience is the court’s logo, almost always in the upper right-hand corner of the TV screen: the scales of justice. To anyone in Ituri, they look like the small, handheld scales found in thousands of shops here that weigh little flecks of gold laboriously gathered from riverbanks by miners—a job some of those here today say they’ve done.

The videos are in French, the language of Congo’s government, although few of the teenagers in the room speak it well. Furthermore, Kuyaku, who comes from another part of the country, does not speak Swahili, eastern Congo’s lingua franca. After showing the videos, he talks animatedly in a mixture of French and another Congolese language, Lingala, which a sprinkling of those in the audience know, while an assistant intermittently translates a few sentences into Swahili.

Kuyaku explains that the court presumes everyone innocent until proven guilty and that it can try people from any country. Mindful that complex war-crimes cases can drag on (Slobodan Milošević had been on trial four years when he died), the ICC, he says, has charged Lubanga only with conscripting or enlisting child soldiers, in order to simplify matters—and to help highlight this practice as a violation of international law. Surely, I think, that goal will resonate with this particular audience.

When the Q&A period begins, however, most of the teenagers who speak up are anything but enthusiastic. Why is Lubanga on trial, one asks, when “others who did the same thing are working within the government?” And indeed this is true, for in a series of half-effective peace accords, many former warlords have been absorbed into the corrupt and inept Congolese national army.

“Lubanga did not conscript forcibly,” another boy says. “We went voluntarily. I myself went voluntarily. It was to defend my community. Why is he being judged for this?” A comrade adds: “I also was not forced to enter [Lubanga’s army]. All our houses were burned. We had nowhere to go—and Lubanga accepted me.”

“What about those who killed Saddam Hussein?” another boy asks. “Why are they not at The Hague?”

I encounter more frustration with the Lubanga trial from others I talk to during a week in Ituri. “The ICC has taken the small fish,” says one critic, Abbé Alfred Buju, who is in charge of peace and social-justice issues for the Catholic Diocese of Bunia, “leaving the big fish because they’re in positions of power.” The big fish would include generals and cabinet ministers from Uganda and Rwanda whose support of the militias here did much to prolong and intensify the fighting, while their countries helped themselves to Ituri gold. (Rwanda supplied Lubanga with mortars, machine guns, ammunition, and trainers; Uganda, at different times, supported him and his opponents.) But both regimes are big favorites of the United States, and in choosing whom to indict, in Congo and elsewhere, the ICC has trod carefully to avoid antagonizing the U.S.

At another session where Nicolas Kuyaku shows his videos, this time to Bunia municipal officials, I find myself wondering about the sheer visuals on the screen. We see the court’s headquarters in Holland, in two high-rise towers with an all-glass sky bridge between them. We see, in the spacious, wood-paneled courtroom itself, every official or attorney sitting in a comfortable rolling chair in front of a computer screen. But computers are a luxury here in Bunia, and the few that can be found are hostage to erratic electricity. And when Kuyaku explains some of the features that to Western eyes seem hallmarks of a humane and enlightened judiciary—such as the court’s provision of funds for Lubanga’s lawyers and for visits by his wife and family—these things surely appear even more extravagant. Africans are so desperate to migrate to Europe that thousands have drowned at sea trying, yet an accused war criminal’s wife and kids get a free trip? What’s more, all three judges who are deciding Lubanga’s fate, from Britain, Bolivia, and Costa Rica, are white. The trial is “justice à l’occidentale,” one of the local officials says, shaking his head at the screen.

Toward the end of the meeting of the former child soldiers, things take two unexpected turns. First, one teenage boy says that not everyone here is in fact an ex-combatant; some are just Bunia street kids who’ve heard that free food and clothing will be distributed. And indeed, the eagerness with which young hands grab for the bottles of soda being handed out underscores his point. Then one of several adults sitting at the side of the room stands up and tells an appalling story. He addresses himself not to Nicolas Kuyaku, but to my traveling companion on this trip, Anneke van Woudenberg, a senior researcher for Human Rights Watch, whose authoritative reports on Congo have made her a well-known figure here.

The man is a former schoolteacher and civil servant. I will call him Jacques Ngabu; because of threats he has received since telling his story, he does not want his real name used. Ngabu is a Lendu but was married to a Hema woman. In 2006 he, his wife, and their three children were traveling to Bunia when they were stopped at a roadblock by militiamen under a notorious Lendu warlord, Peter Karim. “They asked me why I had married a dirty Hema woman. They said they would exterminate us.” Karim then ordered his soldiers to rape Ngabu’s wife and two daughters, ages 10 and 13. Ngabu heard his daughters’ screams, then saw them with blood running down their legs. He himself was whipped—165 times, with a soldier stamping on his head each time, counting the strokes. In front of him, his wife and children were all killed, by machete blows to the back of the neck. Ngabu was then held, along with some Nepalese UN peacekeeping troops Karim’s men had captured, in an underground dugout for 18 days. One of his guards had been a student of his when he was a teacher. Finally, a merchant he knew was able to bargain for his release in return for a truckload of wood. Ngabu has been too traumatized to work since. Of his wife, Maria, he says to van Woudenberg later, “She loved me so much. She loved me so much.”

Soon after this experience, the government struck a peace deal with Karim’s militia, and Karim was made a colonel in the Congolese army. Today, “whenever I see him on television, I tremble again. Why is he a colonel?,” Ngabu asks the roomful of people, in anguish. “Why the impunity? Why is he not at The Hague?”

No one has a good answer for him, and his question hangs in the air, not only indicting the government’s attempt to gain peace here by incorporating warlords, but clouding the very idea of justice itself. For even if those who raped and killed his family could be brought to trial, as Ngabu so desperately wants, no such grief could be assuaged or horror undone. And his experience must be multiplied by hundreds of thousands: a survey two years ago of more than 2,600 people in eastern Congo found that since 1993, more than 40 percent of them had lost at least one household member to violence.

Still, the question remains: Can a few well-publicized cases against higher-ranking figures like Lubanga deter those who might commit future rapes and murders? In Ituri, you get different answers depending on whom you ask. But on one significant point, most people agree: since the Lubanga trial began, few child soldiers have been seen. If the various rebel groups still fighting have them, they are at least being kept well out of sight when journalists, ICC investigators, or UN observers are about.

Richard Pituwa, who has many criticisms of the court, nonetheless delivered the most positive assessment that I heard. Pituwa is the founder of a Bunia community radio station, Radio Canal Révélation, which has won respect, here and abroad, for its scrupulously neutral stance in the region’s ethnic and resource wars. “The ICC has contributed to the diminution of violence,” he says in his cramped office, surrounded by dismantled broadcasting equipment. “I know people in the armed groups. I grew up with some of them. Now they begin to fear: if I become a big chief, they might come for me. During the worst of the atrocities, in 2002, no one ever dreamed anyone would come after them. Now they think twice. The weakness will be if the court doesn’t arrest everyone people think should be arrested.”

That, of course, it cannot do. Thousands of courtrooms would be needed to try everyone suspected of a war crime in Congo’s decade or more of fighting. International tribunals are not like criminal courts in a well-functioning society, where most people caught committing a serious crime face a judge. They can only be selective and symbolic. Such was the case, for instance, with the ancestor of all these courts, the International Military Tribunal at Nuremberg, which brought charges against only 24 top Nazis. And unlike the Allies occupying Germany, the ICC has no army; it must depend on the cooperation of individual governments. Congo President Joseph Kabila has been happy to turn over for trial a few politically dispensable people, such as Lubanga, but he is unlikely to ever turn over those of his cabinet ministers who have equally bloody hands. Another brutal ex-warlord indicted by the court, Bosco Ntaganda, who at one point fought alongside Lubanga, was recently appointed as a high-level commander in Kabila’s army.

No international court can ever substitute for a working national justice system. Or for a society at peace. And I suspect it will be a long time indeed before three Africans in black robes sit in judgment of the likes of Dick Cheney and Donald Rumsfeld for their endorsement of torture, or Vladimir Putin for his war in Chechnya, or Chinese officials for their actions in Tibet. But if we are serious about the idea that basic human rights belong to all people on Earth, no matter where they live—a principle enshrined in the UN’s Universal Declaration of Human Rights—then a justice system that can cross national boundaries is essential. And it is not a pipe dream: the European Court of Human Rights, to which citizens of member countries can appeal over the heads of their own governments, marks its 50th anniversary this year. The International Criminal Court is still in its infancy, and it is an awkward one. Only institutions like it, however, will allow the Pinochet Effect to grow and, perhaps someday, lead to a world with fewer Pinochets.

For years, the Congolese warlord Thomas Lubanga allegedly sanctioned massacres, pressed children into military service, and institutionalized mass rape. Now he is the first defendant being tried by the recently created International Criminal Court, seated in Holland. His trial is seen as a major landmark by Western human-rights activists, and it is being publicized extensively in Congo, where the fog of war still lingers. What do the Congolese make of Lubanga’s trial? Will it deter other would-be war criminals? Is justice even possible for the most heinous of crimes?

Adam Hochschild is the author, most recently, of Bury the Chains: Prophets and Rebels in the Fight to Free an Empire’s Slaves.
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