Guantanamo moves to The Hague?

More bungling by the International Criminal Court, reports the New York Times. In 2005 the ICC indicted and captured Congolese warlord Thomas Lubanga on the charge of forcibly recruiting child soldiers. Lubanga has been held without trial for nearly three years, and was due to see his first day in court June 23.

On Friday, after a tense hearing, the judges ordered all proceedings stopped. In their ruling, which was released on Monday, the judges said that the prosecution had withheld “significant” exculpatory evidence from the defense. As a result, they wrote, “the trial process has been ruptured to such a degree that it is now impossible to piece together the constituent elements of a fair trial.”

This is a funny case whatever way you look at it. The Court’s mission is to try the “most serious crimes of concern to the international community as a whole.” Lubanga, however, is a small-timer as Congolese warlords go. Yes, I’d like to see the brutal kidnappers of children brought to justice. But is Lubanga among the most serious perpetrators of the most serious crimes in the world?

Obviously not. So why go after li’l ol’ Lubanga? Well, the ICC has yet to try or convict anyone. It may be that they want an easy case to get the party started. Well, if so, and they’ve managed to get the case kicked out, bravo bozos.

Another story is that Lubanga is to set an example for for the bigger warlords in the region: disarm peaceably, or you’re going to be brought to justice just like your pal here. Indeed, one of the underlying logics of the ICC is that the prosecution of war criminals will help deter future warlordism and increase our leverage over current ones.

Again, nicely done, ICC.

I wish it got better. But from where I stand, the ICC’s approach to their other major case–northern Uganda–is similarly bumbling and naive. The ICC released indictments for the leadership of the rebel Lord’s Resistance Army in 2006, working closely with the Government of Uganda. But by pointedly refusing to investigate the Government’s own great crimes against the citizenry in northern Uganda, the ICC immediately became a partisan in the long-running conflict.

Now, the LRA indictments had an unexpectedly good effect: encouraging the rebel leadership to come to the negotiating table rather than running away for good. There are two possible interpretations of these events: one, the ICC has superb information and political acumen, and knew exactly what they were doing; two, they got plain lucky.

Given that the prosecutor’s office displayed (and continues to display) almost complete ignorance of the war and the facts on the ground, and given that the prosecutor was genuinely amazed that nearly all of Ugandan civil society opposed his secretive indictments, I lean towards ‘blind lucky’. But I could be persuaded otherwise.

Try getting an ICC supporter to see this side. I’ve tried. The members and supporters of the ICC I’ve encountered display an ideological fervor for ICC the institution that I wish was matched by a fervor for an actual international system of justice–presumption of innocence, fair trails, and so forth. If a Congolese war criminal or a Ugandan peace process must be crushed by the wheels of international justice to establish an ICC, so be it, I have heard it said. Nothing in my mind could more quickly undermine the ICC’s credibility and effectiveness.

I’d like to see an international system of justice with powers reaching beyond what the ICC presently has. But not if it’s run with the same apparent arrogance and ignorance. The closest parallel to the ICC I see is Bush and the neocons and the remaking of the Middle East. The second closest parallel is Boss Hog and Sheriff Rosco P. Coltrane. That should give us all pause.

Readers: If I’m too critical, I would happily be proven wrong in the comments section.

For a more optimistic and better informed view of the ICC, my friend Tim Allen has a short book. For a view even more critical than mine, see this provocative paper from Adam Branch.