By Otto Spijkers

Yesterday, the judges of the International Criminal Court’s Trial Chamber ordered the release of Lubanga, who was about to become the first person ever to be put on trial by the ICC (for the background, see my co-blogger’s earlier post on the ‘secret evidence incident‘). Lubanga is not actually a free man at this moment, because the Prosecutor has been offered the opportunity to appeal the Trial Chamber’s decision to release him. On 17 July, the Rome Statute, i.e. the treaty containing the Statute of the International Criminal Court, celebrates its 10th Anniversary. The two facts just mentioned have little to do with each other, but one cannot help notice: Isn’t it ironic that the two facts take place within days of one another? Indeed, it is a bit like rain on your wedding day. Since I am a supporter of the ICC, I prefer not to exploit this coincidence for more cheap shots (even though it is fun to do), and instead focus on a speech delivered by our Minster of Foreign Affairs, Maxime Verhagen, during the celebration of this anniversary, which took place at the Peace Palace in The Hague, Netherlands. The Minster did refer to the Lubanga incident, but he did not sound particularly concerned about it, or about the possible consequences of that incident for the Court:

There is no doubt that the Court has faced challenges. We only need to read this week’s newspapers about the case against Mr. Lubanga to comprehend the magnitude of some of them. Yet I am positive that the Court will manage to meet these challenges, and will only grow stronger as a result.

What did concern him, however, was terrorism. I will quote in full the part of the Minister’s speech related to the role of the ICC in combating terrorism. It is quite original:

Another concern I have is the question of how we bring international terrorists to justice. I know that this is not at the moment directly related to the ICC, but perhaps you will allow me to dwell on it for a minute. It is, after all, a very pertinent issue. In the first place, there is an obligation on states to ensure that their domestic legal system is capable of addressing terrorist acts – in particular the type of terrorism we see today. It is clear in my mind that we do not wish to see a situation in which suspects are held in circumstances that resemble Guantánamo Bay. I have always argued with the US administration in favour of closing down this facility, because of the legal vacuum in which suspects are detained, as well as the misinterpretation of international humanitarian law and the human rights violations committed against them. However, protesting against Guantánamo Bay does not discharge the international community from the responsibility to devise a system that does deal, in an effective way, with those suspected of terrorist acts. It is obvious that not all the issues arising from present-day practice are being addressed satisfactorily. So the question is: how to design a more effective system? I would be glad if the international community would finally agree on a definition of terrorism, so that we could break the deadlock in the negotiations on the UN Comprehensive Convention on Terrorism. These negotiations have been at a standstill for years, yet it is vital for us to make some serious headway, to demonstrate the resolve of the international community to combat terrorism. One possibility could be to bring terrorist suspects before the ICC, in situations in which the crimes qualify as crimes within the jurisdiction of the ICC, such as crimes against humanity. The Rome Statute would allow for such an interpretation. I would like to see the masterminds of international terrorism, people like Osama bin Laden, brought before a court of law. If domestic jurisdiction is not adequate, we may need to make use of the potential of the ICC.

Of course, if we bring it all together at the end of this post, it is tempting to think about the possibility that Osama bin Laden be released, as Lubanga might be, because of ‘fair trial reasons’. If one imagines the responses of the West in such a case, one can also imagine better the feelings that some people, especially the victims, may experience now that the release of Lubanga is becoming a serious option. Even before the Trial Chamber gave its latest decision, the legal representatives of the victims already told the Court that

En l’occurrence, une libération de l’Accusé pourrait troubler l’ordre public, en encourageant l’impunité dans une région pas encore pacifiée, en créant des risques de récidive et mettant en danger les témoins et les victimes.