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A historic trial

The historic first trial in the International Criminal Court, where individuals are prosecuted — disputes between governments are adjudicated by the International Court of Justice — commenced at The Hague on January 26. This development marks a decisive moment in efforts to end impunity for genocide, war crimes, and crimes against humanity — offences that were hitherto the remit of tribunals with a specific mandate. The absence of immunity for heads of st ate, elected representatives and public officials, besides provision for the participation of victims in judicial proceedings, should infuse confidence that the perpetrators of atrocities who subvert the rule of law in their own countries will be brought to justice in this court of last resort. The trial of armed militia leader Thomas Lubanga Dyilo relates to six charges of conscription of children under 15 years to kill, pillage, and rape. According to the prosecutor’s opening statement, children comprised 30 per cent of Lubanga’s militia during the second Congo war that consumed over four million lives — the largest number since the Second World War. In the Rome Statute that governs the ICC, “conscription” is described as forced deployment of children by means of abductions or when families are decreed to contribute a child to the militia. The latter captures the reality far more accurately than “enlisting,” which presumes voluntary participation, and the somewhat imprecise term “recruitment” used in the Convention on the Rights of the Child and in the Geneva Convention.

The ICC’s jurisdiction extends to crimes committed within the territories of states parties — countries that accept its jurisdiction — and cases where the United Nations Security Council makes a reference that prosecutions within states have not been genuine. Often, such interventions remain the only hope against the mass murders of minorities committed by way of ethnic cleansing. The other investigations before the court involving the rebel forces that have been ravaging northern Uganda and the Darfur region for some years now will gain considerably as the current trial progresses. Opposition to the Rome Statute from India, China, and the United States, among others, remains an important area of deficit in the authority of this nascent institution. Whereas the Obama administration can be expected to renew the efforts of the earlier democratic presidency towards ratification, a similar move by New Delhi would strengthen India’s credentials as the world’s largest democracy that is willing to subject itself to international human rights norms.

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