Tag: Congo

Defying Gravity: Seeking Political Balance in ICC Prosecutions

Reuters

Reuters

The International Criminal Court is often accused of being “political” or “politicized” in its selection of situations and cases. What has become most problematic for the Court’s credibility and impartiality in this regard are the situations and cases that have not been selected, and the criteria and discourse used to justify such omissions and imbalanced prosecutions. Specifically, the “gravity threshold,” which the OTP uses to justify who is prosecuted and who isn’t, is politically problematic for the ICC. Prosecutorial strategies that target only one side of a conflict are frequently justified in terms of gravity – that the crimes of some individuals are graver than their opposing parties,.

I suggest there are two political problems with the gravity threshold in case selection.

1)     Assessing the gravity of one party’s or individual’s crimes relative to their opponents is ethically and politically problematic. This approach ultimately results in the ICC’s de facto support of one side of the conflict over another and perpetuates impunity gaps at the international and domestic level.

2)     While atrocity crimes can be ranked, scaled, and compared across parties and perpetrators, no victim can be considered less victimized or less deserving of justice than another.  To date, the manner in which the gravity threshold has been operationalized is an affront to victims and is likely to erode the ICC’s legitimacy among this important constituency.
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Men with Guns (Goma)

First off, this is my first post.  Thanks to Dan and the rest of the crowd for inviting me, though I fear they – and Duck readers – may soon tire of hearing about how building effective control over a given territory is just really damn hard.  But, then again, why else would one invite an Africanist comparativist to hang out on an IR blog?

So Goma fell to rebels yesterday.  In the midst of war in Gaza, the loss of the largest city in eastern Democratic Republic of Congo didn’t make it onto All Things Considered, merited a few sentences on Newshour, and, so far as I’ve heard from others, didn’t get mentioned on CNN or the networks.  It’s very hard to figure out if that’s just general neglect of DRC, or if we’ve reached the point where the media has just thrown up its hands and declared the place done.

We know little about the motley band going under the name of the March 23rd movement (for what we do know, see here).  It’s been around for only 18months, it’s grown from a starting size of 200-300 to a few thousand men, and it’s currently headed by Bosco Ntaganda, who’s under ICC indictment for war crimes and is generally seen as a Rwanda proxy.  All are betting that Rwanda and Uganda are behind this most recent offensive.  If so, their support likely comes in the form of a big bag of money, as it’s hard to imagine any other way Ntaganda could have knit together a force out of the shattered landscape of rebel bands in eastern DRC.  Laura Seay and Jason Stearns are the people to trust for Congo analysis, but I’ll make two predictions:

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Impunity Slayer! ICC Convicts Lubanga of War Crimes

Thomas Lubanga Dyilo listens to the verdict in his trial on March 14, 2012.
(c) Photo courtesy of the ICC-CPI / Evert-Jan Daniel /ANP.

The verdict is in for the ICC’s first trial. Thomas Lubanga Dyilo has been judged guilty of the war crimes of conscripting, enlisting and using child soldiers in the Democratic Republic of Congo (DRC). An order of reparations and sentencing will be decided at a later date. Lubanga could possibly face life imprisonment.

The judgement was unanimous and there were several interesting elements in the summary statement, delivered by Judge Adrian Fulford.
1) The prosecution team was slammed for its “lack of proper oversight” in using intermediaries, which the judges determined influenced and manipulated vulnerable witnesses. The testimony of several prosecution witnesses was therefore discarded or not taken into consideration.
2) The judges re-characterized the conflict in Ituri as a non-international armed conflict, which invokes different provisions of the Rome Statute but the criminal conduct remains the same.
3) There was evidence of sexual violence and rape against girls conscripted into the UPC but the judges could not rule on this because Lubanga was not charged for such crimes.
4) Lubanga, as a co-perpetrator, had both intent and knowledge of the UPC’s common plan to conscript, enlist, and use child soldiers under the age of 15 in the Ituri conflict between 2002-2003.

Background: The ICC and the DRC Situation
It’s been seven years since Lubanga was arrested and more than three years since the start of his trial. As a State Party to the Rome Statute, the DRC government self-referred its conflict situation to the ICC in 2004. The prosecutorial team’s subsequent investigation focused in on the Ituri region of eastern Congo where civilians suffered from massacres and sexual violence perpetrated by rival militias and warlords competing for power, ethnic loyalties, and pillaging and enriching themselves.  In line with the prosecutorial strategy of selecting cases that meet the criteria of “sufficient gravity” and identifying those “most responsible” for such crimes, Lubanga’s leadership position in the UPC (Union of Congolese Patriots) militia drew the attention of the Court. He was unexpectedly detained by the DRC in March 2005, transferred to The Hague a year later, and his trial started in January 2009. The ICC has charged three other warlords in the DRC situation. Germain Katanga and Mathieu Ngudjolo Chui are presently and jointly on trial for charges of war crimes and crimes against humanity. Bosco Ntaganda, accused of war crimes for child soldiers, remains at large.

Targeting Lubanga
The Lubanga case, given it was the first trial, exposed the ICC to a new barrage of skepticism and frustration among international observers and Congolese. There was some legal bungling that caused delays and threatened a trial dismissal and release of Lubanga. Legal scholars have expressed concern that this did not result in a more divided decision among the judges. But the more significant criticism focused on the justifications for the prosecutorial strategy and charges. Many, including the Chief Prosecutor, readily acknowledge that Lubanga is likely responsible for a broader array of crimes that go well beyond using child soldiers, specifically crimes against humanity including massacres, killing of peacekeepers, and sexual violence in Ituri. Ocampo contends, however, that at the time of Lubanga’s arrest the OTP only had enough evidence to proceed with these limited war crimes charges. A related concern is whether he is most responsible for the crimes he was charged with. One of the key arguments for the defense was that Lubanga was not in a position of command responsibility for the military affairs of the UPC, and thus cannot be held accountable for the use of child soldiers.

And what of other perpetrators in the DRC? There are bigger fish. Jason Stearns, author of Dancing in the Glory of Monsters, argues that Lubanga was a “convenient first case” because, while a key actor in the Ituri region, he was expendable to the Congolese and Ugandan militaries engaged in the region. The ICC has been criticized for strategically avoiding any serious investigation or charges for crimes committed under the authority of the DRC, Ugandan, or Rwandan governments for fear of the political fallout or losing their cooperation in ongoing cases. The OTP has made statements that it will not prosecute crimes on all sides simply for the sake of appearing balanced and the uses the gravity criteria to justify its selections – a justification that doesn’t hold up in the broader scope of crimes in the central African region.

Two other cases underscore that the political interests of the DRC government have been unintentionally safeguarded by the ICC. First, as Stearns also mentions, Jean Pierre Bemba was a significant source of opposition in the DRC and with broad public support – that is – until his arrest and transfer to the ICC for his crimes in the Central African Republic. While a justifiable target, Bemba’s arrest has affirmed perceptions among some Congolese that the Court is biased. Second, Ntaganda is still “at large” because he’s protected by the government and therefore “untouchable.” Indicted while still a bad guy warlord (aka “The Terminator”), his potential arrest has become a political problem now that he’s been co-opted by President Kabila into the military (as a commander) under the pre-text of ensuring stability. This article by Mac McClelland for Mother Jones details Ntaganda’s crimes, that go well beyond the use of child soldiers, and why he can enjoy impunity and dinner parties in Goma instead of a prison cell in The Hague. Lubanga’s trial evidence will play a role in any future trial of Ntaganda as he is a co-perpetrator of the same crimes, and was identified as such in the summary statement of the verdict.

Marc Bleasdale/VII (c) 2009

Deterrence Effects?
One possible positive outcome of Lubanga’s trial is the education and deterrence effects on using child soldiers, especially by warlords and non-state armed groups. Human Rights Watch reported, in Selling Justice Short, that the notoriety of Lubanga’s trial has made such individuals aware that using child soldiers is a war crime punishable the ICC. But beyond this, the case has also brought more attention to the instrumental victimization of child soldiers and potentially affected a shift from the use of child soldiers as common place to taboo among non-state armed groups, especially in the DRC. A programme advisor for REDRESS said in January 2011 that there’s “no doubt in eastern DRC about the fact that child soldiering is a crime. Previously people thought that children were doing military service that was somehow legitimized by the state of conflict.”

But broader deterrence effects in the DRC or to prevent atrocities more generally will not result from this case alone nor does it address, in any way, the underlying causes of violence in Ituri. A few lessons can be highlighted from the Lubanga trial if the ICC is to have such an impact. First, the Court needs to counter perceptions that it is unjustly selective in its prosecutions by ensuring that crimes on all sides of a conflict are duly investigated and persons “most responsible” indicted if warranted. Arguably, it has done a better job of this in the Kenya situation. It can also counter these perceptions by increasing its outreach activities – explaining not only the limits on the Court’s capacity and jurisdiction but also its selection of cases. Second, the ICC is not empowered with the capacity to really affect more “positive complementarity,” specifically local capacity building of the rule of law. But international justice advocacy, media attention and donor support can be more focused on ensuring that a broader range of perpetrators are addressed by fair mechanisms of accountability at the national and local level.

Despite the deterrence skepticism, this is a major milestone for the International Criminal Court and a significance contribution to fight against impunity for atrocities.

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Congo Rape Study: Systematic or Simplistic?

I have not yet read the new report on rape in the Congo, but judging from the news coverage of its reported findings, I have three thoughts:

1) I am not as concerned as some critics about the methods used (a population sample of household interviews) or the staggering results: 400,000 women assaulted in a single year. I am concerned about the comparisons to the US (or other countries) since unless the same methods are replicated in the US (or other countries) there is no way to compare rape rates or to accurately call Congo the “rape capital of the world.”

2) Though the emphasis is on the number of rapes committed by soldiers, the report also shows that nearly a quarter of the rapes recorded were perpetrated by the women’s husbands or domestic partners. This is consistent with earlier Oxfam data that demonstrated the majority of rapes in the Congo between 2004 and 2008 were perpetrated by civilians, not soldiers.

3) Since patterns of sexual violence against men in the Congo are better documented than in many other conflicts, it is particularly surprising that this study focuses only on women, and only on women “of reproductive age.” This promotes a troubling stereotype about rape and rape victimization.

Jason Stearns, who has been writing and blogging up a storm about Congo this past week, is the first to point out that the social construction of the rape angle has been as much about selling the Congo story to Western grassroots constituencies as about reporting the conflict accurately.

It’s hard to know from his various op-eds and articles where Stearns actually stands on this. At Foreign Policy, he argues that it was only when John Prendergast‘s Enough Project stopped trying to explain the conflict and started focusing on “rape and conflict minerals” that they were able to get Western publics interested in putting pressure on their elected officials. But at CSM, he points out “Congo is More Than Rape and Minerals” proposes a point by point list of pitfalls journalists should avoid in writing about the Congo, not least is simplistic protrayals of rape:

Some Congolese are unscrupulous and vicious, but they usually have reasons for what they do. If we can understand why officials rape (and it’s not always just as a “weapon of war”) and why they steal money (it’s not just because they are greedy) we might get a bit better at calibrating solutions. Of course, it’s much harder to interview a rapist or a gun-runner than their victims. But don’t just shock us; make us understand. Otherwise we only have ourselves to blame when we react to a rape epidemic by just building hospitals and not trying to get at the root causes.

So it sounds like the most important report on rape in the Congo is one that hasn’t been written yet: in which perpetrators themselves are systematically interviewed. Actually, political scientists have already blazed a trail here: in this study, authors Maria Erikkson Baaz and Maria Stern find among other things that Congolese soldiers see ethical distinctions between different types of rapes.

That kind of insight might not be so useful for advocacy purposes in the West, but it might help aid workers, peace-keepers and protection specialists in the Congo in their prevention efforts – at least vis a vis military perpetrators. (As Laura Seay details, advocacy attention to a problem doesn’t by itself ensure the policy outcome you want – for that, you need to understand the situational context.)

But ultimately Stearns would like to see a wider repertoire of stories about the Congo in the Western press

Who are the Chinese companies working in the Congo and what have their experiences been? Did you know that Congo was one of the first countries to experiment with mobile cash-transfers to pay for demobilized soldiers? Have you checked out the famous artist studios in Kinshasa of Cheri Samba or Roger Botembe? The country’s tax revenues have doubled over the past several years – how does that square with its corrupt reputation? What are Dan Gertler’s financial relations with the Israeli right-wing? The Kivus apparently produce 40 percent of the world supply of quinine – might be a story there.

[cross-posted at Lawyers, Guns and Money]

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Congratulations to “Kinshasa Symphony”

Congratulations to Claus Wischmann, Martin Baer, and the performers of the Kinshasa Symphony Orchestra for their work on the documentary of the “Kinshasa Symphony.” The film has been selected to premier at the 60th Berlin International Film Festival “Berlinale Special” on February 17th 2010, 21:45h (rerun February 18th, 18:00h, Cubix 8)

This is a beautiful project about the only symphony orchestra in central Africa – the “Orchestre Symphonique Kimbanguiste.” The film will be shown in cinemas all over Germany later this spring. I hope it migrates over here to the US soon. Here’s a short clip of it:


Type rest of the post here

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Congo

As many of us remain riveted to the final hours of the 2008 US Presidential campaign, the people of the Congo face a more dangerous and destructive contest: Gen. Laurent Nkunda’s offensive against the Congolese government. The offensive has produced a major refugee crisis: “Last week’s fighting in the east of the country displaced up to 100,000 civilians, of whom 60 per cent were children, the United Nations Children’s Fund said yesterday.” Both France and the UK are considering military options; the UN has arranged for talks between Rwanda–which backs Nkunda’s Tutsi force–and the Congo in hopes of, at the very least, creating breathing space for international aid to reach the refugees.

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