Tag: DRC

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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“Truth to Power”: Louise Arbour on Human Rights and International Justice

CBC – CP file photo

The Canadian International Council recently organized an interesting public event with Louise Arbour on her role in speaking “truth to power.” The talk is available on line at Open Canada.org. (starts around 22min mark, after the introductions) and is constructed as a dialogue with Stephen Toope, President of the University of British Columbia and notable international law scholar.

Madam Arbour is known for being outspoken on the ICC’s prosecutorial strategy, shortcomings in the human rights regime, and advocacy on the Responsibility to Protect and especially the case of Sri Lanka. Arbour’s authoritative voice on these issues stems from her professional credentials and experience: former Chief Prosecutor for the International Criminal Tribunals for the Former Yugoslavia and Rwanda, former justice of the Supreme Court of Canada, former United Nations High Commissioner for Human Rights, and presently the President of International Crisis Group.

It’s worth a listen. But for those interested in just the human rights and international justice stuff here are my selective highlights on the issues mentioned above.
(Note: these are not exact quotes as i’m a sloppy transcriber).

Human Rights
There is a need for adequate institutions, specifically an international human rights court. As long as the protection of human rights is in the hands of the duty bearers – the states – not surprisingly we’re not going to get very far.

Peace vs. Justice
The timing (of the Milosevic trial) was dictated exclusively by prosecutorial considerations. Some were concerned that a peace deal would put him out of reach…What it did to the peace process was not part of my brief.

The indictment of Gaddafi was very precipitous…it’s not an unfair assumption that it might have contributed to closing some doors to a negotiated settlement….The same actors in the Security Council that referred the Libya case to the ICC have not moved on Syria…The tensions between peace and justice are very present and will remain so until and unless we segregate the justice agenda from the political one.

Joseph Kony…probably accurate that the fact that he was indicted, at the end of the day, made it impossible for him to participate in peace talks…Political negotiators cannot deliver on that. The ICC process is a parallel track. It is not negotiable in peace talks.

What we need to do is what we do in domestic systems – we make it very clear that politicians don’t run indictments.

ICC and Africa
It would have been imminently predictable that the docket of the ICC would be heavily African. Apart from the cases of Security Council referral, all the other cases have come from countries that have ratified the Rome Treaty….That is the fundamental premise…The ICC was not engaged when there was, in my opinion and with lots of evidence, massive slaughter of civilians on the beaches of Sri Lanka. Well, Sri Lanka has not ratified the Rome Treaty.

The ICC might have been better advised, rather than try to downplay (the African bias) to really embrace it and engage with African governments – open offices, be there, be very present. As opposed to staying in The Hague and be very defensive that it’s only engaged in African issues.

Cooperation of authorities in the DRC with the International Criminal Court has been problematic from the beginning. It’s very unfortunate that the ICC only has jurisdiction in the Congo since the Court was created in 2002 when in fact the most catastrophic loss of life in the Congo took place in the decade before, from 1993-2003. When I was High Commissioner (for Human Rights) I launched what we called the “mapping exercise” to try to document that decade where between 3-5 million people were killed in the east of the Congo and there’s no legal regime to deal with it. The ICC has no jurisdiction so the idea was to hand this over to the Congolese authorities to try to encourage them to launch some kind of mechanism.

Accountability there (DRC), even with the ICC in place, it’s not almost ten years since the ICC has been in place and what? There are five, six people charged?….The ICC has a long way to go before it can be reflective of its mission in that environment

War on Terror and Sri Lanka
One of the most tangible and perverse effects of the War on Terror is the treatment of the war in Sri Lanka. The last few months, in 2009, of the thirty year old war whereby the government of Sri Lanka finally eradicated the LTTE was achieved at an unconscionable cost to civilian lives, which generated virtually no adverse response because it was under the agenda of the War on Terror. The LTTE had been depicted, quite accurately I might add, as a terrorist organization which had preyed on its own population. There’s not much to be said very positively about its methodology. And a lot of casualties in the last few months of the war are attributable to the LTTE itself – it’s not just government forces. But the way this was achieved would not have been tolerable if it had not been under the umbrella of one of the few so-called success stories of the War on Terror.


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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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Notorious BIG Fish: Mladic and Munyagishari

The capture of Ratko Mladic and his pending transfer to the International Criminal Tribunal for the Former Yugoslavia (ICTY) has become another boon for international justice in a year where war criminals seem to be dropping like flies. But there’s an interesting debate to be had over whether this arrest signals a stronger commitment to end impunity on principle or its combined success with political and pragmatic imperatives. Of course, it’s both. Kenneth Roth of Human Rights Watch argues that the international community’s “principled pressure for justice” worked with Serbia – and the pressure came from conditioning Serbia’s EU accession on Mladic’s arrest. Similarly, Geert-Jan Knoops argues that Serbia’s action to finally arrest him was based on “political and economic motivations” – irrespective of the international community’s more normative appeals for holding Mladic accountable.

And hidden amongst the media and diplomatic excitement over Mladic was the important news about the arrest of Bernard Munyagishari by Congolese authorities in the DRC. Munyagishari is wanted by the International Criminal Tribunal for Rwanda (ICTR) for genocide and crimes against humanity committed in the 1994 genocide. He is alleged to have been the leader of the Interahamwe (an extremist youth militia) in the Gisenyi region of western Rwanda, responsible for training Interahamwe and ordering mass killings and rapes. There is little controversy over his arrest – it’s a victory for both the ICTR and the Rwandan government. Of course, there’s a pragmatic element at play here too. The presence of many former genocidaires in the Kivus in the DRC (Munyagishari was arrested in North Kivu) has been a significant source of insecurity and been used to justify Rwanda’s military engagement in the region. Impunity and conflict are intricately linked in this region.

That there are pragmatic reasons for and benefits to arresting war criminals, however, does not undermine the apparent trend of a principled commitment to end impunity. They’re often, but not always, mutually reinforcing.

Beyond the Big Fish….
In accordance with their mandates, the ICTR and ICTY have been successful in trying a broad swath of those considered “most responsible” for core crimes (such as Milosevic, Karadzic, etc. for ICTY and Bagosora, recently Bizimungu, etc. for ICTR). The ICTR has completed 46 judgments (including 8 acquittals) and 9 fugitives remain at large. The ICTY has completed 77 judgments (including 13 acquittals) and only one fugitive remains at large (Hadzic).

Apprehending the “big fish” is an important but not sole measure of success for international tribunals. It’s essential to look beyond indictments and arrests to the impact of trials on truth and reconciliation – the murkier and loftier goals of transitional justice that we can’t really measure. The trials of Mladic and Munyagishari will contribute to the already well established historical records of the systematic and systemic nature of atrocities. In both cases, their crimes are already well known and their guilt almost certain (especially for Mladic, as some of those operating under his command have already been tried and convicted). Just as important, their trials may help counter denial and individualize guilt – both necessary to combat Serb ultra-nationalist support for those like Mladic and what remains of political and military Hutu extremism in the DRC.

The impact of trials on reconciliation, however, deserves a healthy dose of skepticism. An EU representative made a statement that the arrest “will bring down barriers to reconciliation in Bosnia-Herzegovina.” This may be possible at a national or regional level – whereby reconciliation between those victimized by the Srebrenica genocide and the Serbian government would be thin without Mladic’s arrest.

In Rwanda, despite the ICTR’s mandate reference to reconciliation, the local population is largely dismissive and indifferent to the ICTR. The elite perpetrators that appear in its courtrooms are less well known to Rwandans and the process is physically and culturally remote to them (as compared to the trials in the local Gacaca courts). While many applaud Munyagishari’s arrest, it’s worth waiting to see whether his victims in Gisenyi consider this a meaningful form of justice.

(cross-posted at Global Transitional Justice)

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Scott Pelley to Wal-Mart: Stop Using Congo Gold in Your Jewelry

60 Minutes ran an excellent expose on conflict minerals in the Congo last night. You can see some of it here:


Watch CBS News Videos Online

Good coverage of an under-reported area of the world. It left me with two thoughts:

First, via Facebook, my colleague Virginia Haufler suggests this story shows that corporations rather than states are running the show in issue areas such as conflict minerals – both as trouble-makers and potential governors. (Haufler makes this argument at greater length in a chapter of a forthcoming book, Who Governs the Globe) And I thought the same thing when I first watched the segment. Certainly as Scott Pelley framed it, corporations should be the targets of influence for consumer campaigns aimed at stemming the flow of conflict minerals. Still, I’m not sure that means states don’t have a role to play in enforcing such codes of conduct. I think it may mean not that corporations rule but that issue areas like conflict minerals are cases where multi-level, multi-stakeholder governance would be required to create solutions. The Kimberley Process for conflict diamonds exemplified this approach (though it is not without its drawbacks, as this new report suggests). Certainly the segment suggested that we need an advocacy movement for “conflict gold” like the one for “conflict diamonds” in order to bring corporations and source countries to heel in the service of a more humane trading system.

But in that regard, I was left with another question. The role of the gold trade in fueling conflicts may have previously been overshadowed by the earlier success story of the conflict diamonds campaign, in a classic case of “permissive norm effects.” By highlighting a small piece of a bigger problem, campaigns risk legitimizing or at least rendering less visible the other pieces of the problem. But DRC is the source of many minerals critical to Northern industries, not just gold. In the same way that diamonds from African mines were regulated to the exclusion of gold, does the narrow focus on gold now risk coming at the expense of attention to other lucrative minerals, such as coltan?

Notably, organizations working in the area of DRC conflict resources, such as Global Witness and the Enough Project, are taking a broad view, so the focus on gold may be the media’s rather than the campaign’s.

UPDATE: I was able to reach John Prendergast, who appeared in the segment, to verify whether 60 Minutes’ characterization of the issue maps onto the Enough Project’s campaign. He told me that though Pelley locked onto gold early on and retained that focus throughout, advocacy groups such as Enough are actually focusing on consumer electronics – not just coltan but:

“the three T’s: tin, tungsten and tantalum… we’re focusing on cell phones, laptops and other electronic products because everyone uses them and if we demand conflict free electronic products the supply and demand logic will help do the job.”

A wise strategy, in my mind. What do readers think?

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Instead of Heading to the Mall Today, What Say We Nudge the EU to Protect Congolese Civilians?

If you’re like me (or Dan) and you live in the U.S., you spent much of yesterday’s holiday feeling lucky to be living in America and not in Goma (or Mumbai. Or Darfur.) Well, in the spirit of Dan’s suggestion in his last post, note this appeal from Avaaz.org.

The brutal war in Congo is escalating, as a terrified Congolese people plead for Europe to send peacekeepers to protect them. European leaders are wavering as their council meeting approaches – we have just one week to persuade them to act.

We know how to do it — last week, Avaaz ran a hard-hitting advertisement in The Times of London, pressing UK leaders to support a European force or risk responsibility for genocide — their Africa minister called us immediately, and their position has shifted — the UK has moved toward supporting a European force!

The Congo has languished for too long, with unspeakable suffering. It now has a brief window of the world’s attention – let’s seize that window to bring peacekeepers who can help achieve lasting peace.

Instead of either shopping today or “buying nothing,” I think you should join me in buying a shot at action on this one (just click here!) The ads will make a difference in agenda-setting, if not in immediate policy, and even if it’s a long shot it’s the right thing to want to do.

Besides, If EU troops can do some good anywhere right now, the DRC is probably as good a place as any. The escalating situation in DRC’s North Kivu province is being compared to Srebrenica 1995 and Rwanda 1994. MONUC, the existing UN operation in DRC, is vastly outmatched and lacks the capacity or rules of engagement to implement its mandate to protect civilians; though the Security Council just authorized 3,000 more troops, it could take months before they materialize. If the EU has the capacity, its members should pony up, and people around the world should take the trouble to encourage them to do so.

But I also think that organizations like Avaaz should stop referring to such an interim force as “peacekeepers.” There’s currently no peace to keep in DRC, and what is needed is soldiers willing and logistically able to prevent atrocities. Let’s be very clear about that, and ask the EU to do the same.

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