When on 1 December 2014 the Appeals Chamber upheld the decision of Trial Chamber I to condemn Thomas Lubanga Dyilo to 14 years of imprisonment for the enlistment and conscription of children under the age of 15, the Congolese warlord, who had already gone down in history as the first person transferred to the International Criminal Court, became also the first war criminal to serve a final sentence given by the international tribunal. At the time, he had already served 8 and a half years in the ICC’s custody since his arrest: a period that the TC decided to deduct from the sentence (see para. 108 of the 10 July 2012 Decision on sentence), with the effect that he would have been released on March 2020. In the next months, Lubanga could set another record, becoming the first person to be granted an early release under the ICC Statute.
In fact, in compliance with para. 3 of Article 110 of the Rome Statute, having Mr Lubanga served two thirds of those 14 years, on 14 July 2015 his Defence team submitted a request to the ICC, seeking a reduction of the sentence (and therefore an early release of the convict).
While addressing the UN Human Rights Council in Geneva on its latest report, on 17 March the Chairperson of the Independent International Commission of Inquiry on Syria, Paulo Pinheiro, affirmed that a path to justice could be found “through a Security Council referral [of the situation in Syria] to the International Criminal Court (ICC)”.
On the other hand, that same day Carla Del Ponte, one of the commissioners (and the former Chief Prosecutor of the UN-backed International Criminal Tribunals), sponsored the establishment of an ad hoc Tribunal, since it “could be more efficient and work faster (…), be based near the region, facilitating access of witnesses, documentation and so on” and – last but not least – could be supported even by Russian Federation.
These statements have stoked up the debate on the effectiveness of international judicial mechanisms in prosecuting ISIS militants, which was almost blowing out in the last months (among others, see Beth Van Schaack on Just Security, Carsten Stahn on EJIL: Talk! and Mark Kersten on Justice in Conflict).
Even if at this stage, considering the escalation of ISIS’ assaults and the effects of the ongoing Syrian NIAC, an overwhelming majority of the international audience would applaud at any (?) international justice scenario, in order to better achieve the purpose of efficiently fighting extremists’ impunity, any such initiative should be placed under careful scrutiny before being endorsed by the international community. That is why in the following, brief analysis I’ll not only look into the ICC referral’s, but also into the other available mechanisms’ main pros and cons, in order to prosecute the international crimes allegedly committed in Syria and Iraq.
This week we kick off our brand new feature called “A Closer Look” where we delve deeper into legal issues and the broader context in which those issues play out. For our first feature we look at the contentious issue of whether Palestine’s bid to join the International Criminal Court (ICC) is a legally valid one. To help us understand the legal issues we are grateful for this article by Luigi Prosperi, post-doctoral fellow at the Political Science Department of Sapienza University of Rome. He is also a member of the LUISS Guido Carli Research Center on International and European Organization and an editor of “Rivista OIDU” (www.rivistaoidu.net), which is the online journal of the Sapienza PhD Programme on “International legal order and human rights” (which he completed in 2013).
He was a Visiting Fellow at European University Institute of Florence from September to December 2014, working on a project on the prosecution of crimes against cultural properties.
He has been studying international criminal law since his PhD years at Sapienza (2009-2013). On 16 July 2013 he defended a thesis (in Italian) on “International criminal law as a combined system of centralized and diffused prosecution of international crimes”. We are delighted and humbled to have Luigi contribute to Progressive Lawyer and I know you will find this informative.