In the wake of the viral Kony 2012 video and the multinational military campaign to arrest the Lord's Resistance Army (LRA) leader Joseph Kony, the International Criminal Court reached its first, and unanimous, guilty verdict on the related charge of "conscripting and enlisting children…and using them" in armed conflict, against Thomas Lubanga Dyilo of the Democtratic Republic of Congo on March 14.
So far, the guilty verdict has been hailed "landmark" and "milestone" by The Guardian and The New York Times newspapers among others. Human rights groups like Invisible Children which is behind the well-intentioned social media campaign to capture Joseph Kony and retire him to prison were inadvertently given reason to invest more hope in a court often seen as toothless shark because of its ten years of zero judgment.
Activists are also encouraged that the Lubanga case sets a high bar that will be a favourable precedent in the prosecution of future suspected offenders of forced enlistment of children like Joseph Kony and his alleged accomplices in the LRA. The coincidence of successful international pressure through social media and the conviction of a heinous warlord give a general impression that the international justice system is finally beginning to work and there are more voices reciting this hymn.
However, such optimism borders wishful thinking for it ignores a litany of concerns. The fact that the ICC has only one verdict to its ten years of existence aside, the details of the Lubanga trial itself, should be very sobering to anyone who believes that arresting and trying Joseph Kony would be as easy as accusing him. Like Kony, Lubanga was a regional warlord alleged to have committed more crimes than turning children into soldiers.
His party, Union of Congolese Patriots (UPC) exercised a reign of terror reminiscent of Sierra Leonean diamond-greedy rebels in Edward Zwick film, Blood Diamond, in the Ituri province of the Democratic Republic of Congo from 2000 to 2003. In 2004, the ICC Prosecutor, Luis Moreno-Ocampo started an investigation into Lubanga's criminal activities.
The government captured Lubanga in March 2005 before the prosecutor secured the warrant. In 2006, the court issued the warrant and the Congolese President Joseph Kabila, being party to the Rome State establishing the ICC, thought it prudent to hand him over in the same year. Then, justice looked likely to be done.
However, just before his trial started, the ICC judges stopped proceedings because Lubanga did not have access to what lawyers call "exculpatory information" – the evidence that might help him to walk free. Since the burden of proof is on the prosecution in criminal courts using the presumption of innocence like the ICC, the judges thought that Lubanga would not have a fair trial if he did not have access to such information. This move was tantamount to setting Lubanga free.
In response, the indefatigable Luis Moreno-Ocampo pleaded with the judges. He attempted, twice, to keep Lubanga in jail but the ICC's Trial Chamber I rejected both on the grounds that Lubanga's rights to fair trial would be infringed. When Moreno-Ocampo ran out of options, he decided to appeal the decision to prevent his release.
The trial only proceeded because the prosecution provided Lubanga with the information that court demanded the accused must have to satisfy the conditions of a criminal trial with proper due process. That drama was just at the pre-trial stage.
The trial stage comes with its own sets of problems from inadmissible evidence to unreliable witnesses. Luckily, these have not impeded punishing Thomas Lubanga although Human Rights Watch among other organisations, have publicly stated that they would have liked to see him convicted of other crimes. The rigor of having to proof beyond reasonable doubt is why he was not convicted of other crimes he allegedly committed.
It is easy, even for the most disciplined adherents of due process, to be enraged by the rigorous method of justice applied to a man who – the court has now established beyond reasonable doubt – dragged children away from their parents and turned them into ruthless killers.
However, criminal justice system is, frankly stated, designed to make it difficult to convict a person of a crime without a substantial body of evidence. As the Kony case sits at the ICC files today, he is an "alleged leader" of the LRA. He is "accused" of war crimes and crimes against humanity. He is "suspected" to have conscripted and enslaved children.
All these, Invisible Children campaign does not tell its Facebook friends and Twitter followers, will have to be proven beyond reasonable doubt. Doing so when the accused is a marauding thug with limited records is no easy task.
Because of these problems, it is best activist always remember that despite their best intentions and efforts to catch an international criminal, be it Kony or some future suspect, the international criminal justice system does not guarantee that such a person may not walk free.