Global Policy Forum

By Pascal Kambale & Anna Rotman *

On July 16, 2003, Luis Moreno Ocampo, Prosecutor of the International Criminal Court, announced his office had selected the conflict in Ituri, Democratic Republic of Congo, as "the most urgent situation to be followed."1 Just days after Ocampo's statement, efforts to bring an end to the war in Congo that has ebbed and flowed throughout the vast country since 1998 reached a critical moment with the installation of the transitional government called for by the Global and All-Inclusive Peace Agreement.2 On June 23 of this year the Prosecutor effectively announced the DRC as the focus of his office's first investigation. Just days earlier, a rebellious faction of the former rebel group RCD/Goma had taken control of the eastern city of Bukavu in what was the beginning of a violent campaign to oppose integration into the new DRC army and to challenge the authority of the transitional government. In the course of two weeks following the capture of Bukavu on May 26, Human Rights Watch documented widespread human rights abuses in the city and surrounding region, including war crimes carried out both by pro-government soldiers and by rebel forces under a renegade officer.3

That such important events in the histories of the DRC and ICC are occurring virtually simultaneously indicates the complexity of the situation that now confronts them both. As the ICC was choosing the conflict in the Congo as its inaugural case, Congo was taking its first major step towards putting the conflict behind it. As the ICC Prosecutor was planning his first investigation in the DRC, newly formed armed groups were threatening the very peace process upon which his investigators are relying to ensure collaboration from the government. The relationship between the DRC's peace process and the potential role of the ICC is complicated by the fact that, in focusing on Ituri 4, the ICC is addressing a part of the DRC's war that is still very much alive and in which at least two of the transitional government's vice-presidents likely have been involved in some capacity.

An objection that was voiced in some parts of Congolese society was that the selection of Ituri, besides being politically dangerous, would have negative judicial consequences because it left entire conflicts outside of the realm of the Court's investigations. To respond in part to this objection, in March 2004, President Joseph Kabila decided to refer to the ICC the crimes committed throughout all the territory of Congo, not just those in Ituri. This decision came in response to the invitation that Prosecutor Ocampo had made to the Congolese authorities in September 2003 during a speech to the Assembly of State Parties to the Rome Statute. In listing the practical difficulties that would confront his team were he to initiate investigations proprio motu (on his own authority) under Article 15 of the Rome Statute, Ocampo stated: "Our role could be facilitated by a referral or active support from the DRC."5 While this official referral has the advantage of showing the willingness of Congolese authorities to cooperate with the Court, it does not resolve all the potential complexities posed by the ICC's role in the DRC's peace process. Is it possible that this fledgling international judicial institution will actually deliver justice to the Congolese?

Ituri and the Wider War in Congo

Perhaps the best place to begin to think about the possible role of the International Criminal Court in the Democratic Republic of Congo is to offer a brief overview of the conflict in Ituri as it relates to the ongoing war in Congo as a whole. Nestled in far-Eastern Congo, Ituri is far closer to Uganda and Rwanda than to Kinshasa. These two neighboring countries allegedly have created and controlled rebel militias that, though aspiring to exercise power at the national level, have exploited long-standing ethnic tensions between Ituri's local Hema and Lendu ethnic populations. The international actors are motivated in part by their desire to control the region's rich mineral resources, including diamonds, gold, timber and cobalt; the national rebel militias hope to materially benefit from their relationships with the international actors and to gain political power at the national level; the local ethnic disputes are rooted in land ownership disagreements, among other things. Over time, this three-tiered conflict has produced a veritable alphabet soup of actors, each of whom has focused at some point or another on gaining administrative control of Bunia, Ituri's principal city. Of interest to the International Criminal Court is the sheer brutality of the conflict in Ituri, particularly in its effects on the civilian population. There have been frequent reports of murder, rape, torture, persecution and other crimes against humanity as well as of looting and pillage, forced servitude in the armed forces, intentionally attacking a civilian population and civilian objects and other war crimes. Reports of genocide have also emerged.

But telling the story of the conflict in Ituri is only telling one chapter in the history of the Democratic Republic of Congo's war, which began in 1998 when Rwandan- and Ugandan-backed rebels ousted the government in Kinshasa. The war is really a series of armed conflicts that range from instances of civil war to international conflict between nation-states. Indeed, no fewer than a half-dozen neighboring countries have participated in the hostilities at some point. Throughout, the war has been characterized by gross violations of human rights. It seems clear that questions of justice and accountability for all of these atrocities must be addressed if the current shaky peace agreement is to prove durable.

Thus, when considering options for transitional justice in the Congo and the International Criminal Court's potential role, one must remember that the conflict stretches far beyond Ituri in both time and space. While the Congolese conflict began in 1998, the Court's temporal jurisdiction only extends as far back as July 2002, the date the Rome Statute came into effect. The space issue is partially resolved by the fact that the DRC's referral of crimes to the ICC covers those committed in all Congolese territory. This is of great importance given that atrocities of the same type and breadth as those committed in Ituri allegedly have been committed in other theatres of the Congolese conflict, including in the provinces of North-Katanga 6and the Kivus 7. However, it remains to be seen how and in what way the ICC will be able to investigate all of Congo's vast territory.

Taken together, the time and space issues mean that no matter what the ICC does in the DRC, its jurisdictional boundaries will prevent it from providing a full-service transitional justice "solution." Given this constraint, the question that must be asked is what are the positive aspects of the Court pursuing prosecutions in the Democratic Republic of Congo and what the potential drawbacks. In weighing these, it is important to be mindful of who would enjoy the benefits or endure the costs: the ICC, the donor countries, the DRC or the victims of the crimes. In the end, all advocates for international justice must recognize that the interests of the court, the donors, the state, and the victims are seldom perfectly aligned, and thus consider how their decisions impact different constituencies.

Advantages of the International Criminal Court

Although competition is tragically stiff, the war in the Democratic Republic of Congo is arguably the most violent and brutal conflict in recent history. According to a report by the International Rescue Committee, approximately 3.3 million "excess deaths" 8 occurred between August 1998 and December 2002 in the five eastern provinces of the DRC where most of the fighting has occurred.9 It is believed that the death toll from the war in the DRC is the highest ever attributed to war in Africa, or indeed anywhere in the world since World War II.10 Without a doubt, the civilian population has borne the brunt of the violence. Particularly abominable are reports of rampant occurrences of rape and other criminal forms of sexual violence. Given these horrors, it seems appropriate that the International Criminal Court focus its initial efforts on the conflict that simultaneously seems most deserving of justice and least likely to obtain it without international intervention. Not only will these first international prosecutions show the victims and the perpetrators that justice is available for all, but they will also show the donor community that the ICC means business in choosing how to allocate its limited resources.

In light of this, the ICC should reject the idea proposed by some that a "Western" court of justice has no place in resolving African conflicts, even if these conflicts have engendered the planet's worst massacres in decades. Numerous opinion polls have shown that the Congolese, on the whole, support the principles of justice administered by a court of law, be it national or international.11 This fact refutes the tendency - currently in vogue in some Western settings – to reject the possibility of marrying justice and African culture, a tendency that pushes some to speak vaguely of a "traditional" African notion of justice that would be different than universally accepted notions.

Another potential positive of ICC prosecutions is the political support the Court appears to be garnering within Congo, which is particularly crucial given the fragility of the DRC's own institutions. Within Congo, positive commentaries have greeted the referral of the crimes to the ICC, demonstrating that at a minimum the Prosecutor will have the support of the most important actors on the Congolese political scene. Indeed, Jean-Pierre Bemba, one of the vice presidents whose name has been associated with the events in Ituri, declared on April 9, 2004 that he supports the role of the ICC in the Congo.12 The consensus that appears to be building within Congolese public opinion on the need for the ICC to play a role is a positive for the Court and the Congo. Thanks to this consensus, the Prosecutor's investigation can contribute to starting a national debate on the crimes and the issue of impunity, a debate that would have been expected from an institution such as a Truth and Reconciliation Commission.

ICC prosecutions also could be a net positive for the individuals who would be beneficiaries of the Victims Trust Fund, whose purpose is to channel money to the victims of the crimes adjudicated by the Court. The funds can be allocated either to individuals or to a collectivity. Although it is unclear at this time exactly how this will work in practice, the possibility of some form of reparations would surely be welcomed by victims of these crimes.

A final potential positive presented by ICC prosecutions in the DRC is the possibility of developing the jurisprudence of international criminal law. The nature of the conflict will present several complex legal issues, including whether the conflict is international or non-international in character, whether genocide has occurred, and how far command responsibility should be traced. Novel legal issues, some of which are provided for in the Rome Statute but have not yet been adjudicated in an international forum, may also be presented, including prosecuting for the use of child soldiers, legally categorizing and prosecuting cannibalism, and whether individuals should be prosecuted within the multinationals that have benefited economically from looting the DRC's resources.

A War With No Good Guys

From the Court's perspective, one of the worries that must come with the conflict in the Democratic Republic of Congo is the confusing set of actors and their ever-changing allegiances. Whether the prosecutors themselves will be able to keep straight the FAC, RCD-ML, RCD-N, UPC, APC, RCD-Goma, MLC, FNI, May-May and FRPI militias, and the various ways in which Kinshasa, Rwanda and Uganda and their respective armies supported or undermined them all is challenge enough. Indeed, the Congolese will know that justice is on the way simply by observing the Prosecutor's efforts to try to reconstitute the tortuous maze of these interactions. However, to expect even the best-intentioned African, European, Latin American or Asian citizen, who theoretically supports the ICC, to follow such complex prosecutions may prove to be too much, let alone Joe and Jane American, who are likely already to believe that the ICC is bad, even if they cannot quite articulate why.

The fact of the matter is that in the Congolese conflict, there are no "good guys" and "bad guys". With the important exception of the civilian victims themselves, every actor was at some point the aggressor and at another point the target. In an ideal world, the ICC's prosecutorial strategies should be driven by the possibilities of attaining justice for the victims, not the potential interest of the trials to audiences back in the Court's member states. But the reality is that the ICC is still in its institutional infancy and thus needs to tread carefully in determining what to pursue and at what cost. It is ironic that the complexity of the conflict could both explain its brutality and be used to justify not pursuing international prosecutions, lest international constituencies lose interest in the cause. The ICC must be wary of simplifications that the international media may make and must concentrate exclusively on that which is in the interest of justice for the victims.

The Congolese conflict also promises to pose tremendous logistical difficulties for the ICC. The topography of the country is so difficult to navigate that prosecutors may struggle to properly carry out their investigations. Moreover, transporting witnesses to and from The Hague will be an enormous expense. Once witnesses arrive in the Netherlands, the Court will need a thoughtful strategy to prepare them to testify in such unfamiliar circumstances. To be fair, The Hague is probably a long journey - both in space and cultural context - from many of the conflict-zones that the ICC may target. The DRC in particular, though, is notoriously difficult to navigate, and thus logistical difficulties may add an additional layer of complexity to this first prosecution. To address these logistical difficulties, one option would be for the Court to sit in the DRC during trial proceedings, a possibility which is provided for under article 3(3) of the Rome Statute. Indeed, on-the-ground trials could be tremendously beneficial to Congolese civil society by clearly illustrating that the era of impunity has ended. However, the ongoing violence in the eastern part of the country and the fragile transitional process could prevent the Court from considering that option.

Are Peace and Justice in Conflict?

As alluded to previously, another problem with pursuing ICC prosecutions in the near term is the possibility that the prosecutions themselves could destabilize the precarious peace process currently being implemented in the DRC. Because the transitional government was cobbled together with an eye to ending the war, its component parts include the belligerents. As such, it would seem that the peace process that set the parameters of the current transitional government was explicitly not done with an eye to bringing the perpetrators of international crimes to justice. Advocates for justice should not be too quick to disparage this arrangement. Undoubtedly the peace negotiators were focused on bringing an end to the violence and chaos that had been devastating parts of the country with no end in sight. Perhaps at that point, in the eyes of the many delegates from civil society, peace – however fragile – was the most "just" thing that could be offered to the Congolese.

However, while this willingness to postpone justice in the name of stability may be comprehensible, there are a number of reasons to believe it may be myopic. First, the light at the end of the tunnel may not be bright enough to justify letting the unpunished crimes linger. The preference for a guarded approach towards justice is predicated at least in part on the hope that elections will further reinforce the current sense of stability and that the state will then be ready to prosecute those responsible for the worst abuses. Unfortunately, there are a number of reasons to believe that post-election DRC will be less stable than it is now.

Under the Global and All-Inclusive Agreement and the Transitional Constitution, all of the institutions currently being set up (ranging from the parliament to the Truth and Reconciliation Commission to the National Human Rights Observatory to the Independent Electoral Commission) only have authority to operate during the transitional period. As things now stand, the newly elected government will not be operating under any particular constitution nor is there any pre-determined legitimate institutional structure. This would not be quite so worrying if it seemed likely that the elected officials would take the necessary steps either to extend the transitional constitution and its institutions or quickly put in place a process to establish new ones. However, a new generation of politicians does not appear to be emerging during the transitional period to lead the country after elections. If some iteration of the current leadership is elected to power at the end of the transition, there is no reason to believe that justice will be better timed at that point.

Another reason to question the wait-and-see approach to justice is the risk that the election process itself may be destabilizing. Over 400 political parties are said to exist throughout the DRC, although few are institutionalized in any way and there is confusion as to the laws regulating political parties. The general population needs to be educated about the electoral process and a census needs to be taken in order to correctly register voters, which promises to be a monumental task. In short, holding elections will bring its own set of challenges. To put justice on the backburner in the hope that these elections will result in increased stability may be too great a sacrifice relative to the likelihood of the payoff.

This dilemma between peace and justice, although of course not specific to the Congolese conflict, is one last illustration of the gap that so often exists between the opinions of the Congolese population in evaluating the country's realities and those of foreign observers. During the peace negotiations, it was the international circles, and above all Western circles, that cried the loudest about the danger of pursuing judicial action in the DRC because of its potential consequences for the peace process. At this time within Congo, one could marvel at the somber predictions articulated by observers who either saw no reason to want to save a "peace process" that only existed on paper, or who exhibited their natural skepticism towards everything that comes from the West. But recall that in September 2003, President Kabila eloquently expressed his faith in the establishment of a special criminal tribunal for the Congo in a speech to the United Nations General Assembly -- a speech that was prepared with the participation of all the political factions that make up the government. A few weeks later, Belgian Vice-Prime Minister and Minister of Foreign Affairs Louis Michel responded with irritation to a question posed on the subject by the magazine Jeune Afrique – L'Intelligent: "Yes, it's a nice idea", said Louis Michel in reference to the tribunal proposed by President Kabila as if in response, "But what is most urgent? To build a State, to give a future to the population or to hunt down criminals? One cannot always do both. If this runs the risk of causing the [peace] process underway to implode, I say ‘no'."13

As Minister Michel's answer indicates, resource limitations must be (and inevitably will be) taken into account in deciding when and how to address transitional justice issues. Still, it is important for the international community to take its cue from the Congolese in making these decisions. That the Congolese press and civil society has devoted a tremendous amount of attention to questions of transitional justice indicates that they are considered a vital component to lasting peace. Observers should not conclude that the Congolese simply fail to appreciate the consequences on the peace process of seeking justice in the near term. On the contrary, Congolese opinion is likely rooted in a clearer understanding of the consequences that not seeking justice ultimately may have on Congo's prospects for peace.

Overcoming the Court's Limited Reach

The biggest negative to ICC prosecutions has already been discussed: the Court's temporal jurisdiction means it cannot address all of the crimes that have been committed in this war. A number of possible ways of addressing this problem have been suggested. At one extreme are those who argue that the ICC has such a valuable role to play in demonstrating the importance of justice as a means to peace and reconciliation that it should prosecute crimes committed since July 2002, even if this means that a random date (from the Congolese perspective) determines who is prosecuted and who remains at large. At the other extreme are those who contend that there is no justice in splitting up the conflict in this way and thus it is better for the ICC to refrain from prosecuting, lest it send a message to the population that crimes committed before July 2002 are not worthy of international attention. In between these extremes are a number of views on how the ICC could combine its prosecutions with other judicial mechanisms. Possible iterations of these other forms will be examined in turn.

First, consider an ad hoc tribunal for the Democratic Republic of Congo, in the image of the tribunals for Rwanda and the former-Yugoslavia. If an ad hoc tribunal were established, it is unclear whether the ICC would have any independent role, since presumably the ad hoc tribunal would have temporal jurisdiction over the entire war, including the conflict in Ituri. As already discussed, President Kabila publicly indicated his government's desire to establish such a mechanism, but neither the U.N. Security Council nor potential donor countries have responded favorably, citing the high costs and slow output of the existing ad hoc tribunals.

Second, consider a mixed international and national tribunal, in the image of the Special Court for Sierra Leone, which features a bench of both international and local judges and which, one hopes, eventually will be folded into the Sierra Leonean national justice system. This option has positive features. First, unlike the ICC, its jurisdiction could be drafted to cover the entire period of the war. Second, and perhaps more importantly, by adhering to international standards of justice and incorporating the expertise of international justice, such a tribunal could greatly improve the Congolese national justice system, which is currently plagued by corruption and an utter lack of resources and training. On the other hand, funding for such an institution would still need to come from the international community, and if the experience of the Special Court is any indication, there is little enthusiasm for paying for this type of international justice. In fact, the biggest obstacle to such a mixed mechanism likely will be the international community's repugnance to confronting the problem of impunity in Congo head on. The tendency to promote the ICC and the Truth and Reconciliation Commission as a way to justify their dismissal of supplementary mechanisms effectively sweeps away any discussion on their objective limits.

In that vein, consider ICC prosecutions in tandem with a Truth and Reconciliation Commission, in the image of South Africa's celebrated judicial experiment. In fact, a truth commission is one of the five so-called "institutions to support democracy" called for in the peace accords. Although the DRC's national parliament is still considering implementing legislation, how this Truth and Reconciliation Commission could fit into the Congolese justice equation is far from clear. The Commission would not be equipped to mete out punishments, which would seem an insufficient response to such heinous atrocities, especially if ICC prosecutions mean crimes committed after June 2002 will be punished. In addition, under the terms of the Global and All-Inclusive Agreement, the Truth and Reconciliation Commission's temporal jurisdiction stretches back to 1960, indicating that those negotiating the Agreement struggled to agree on how to broker peace and achieve justice simultaneously and managed to avoid a clear answer by throwing the broadest possible formulation of the question at the Commission. Finally, it appears under the Agreement the Commission would be composed of commissioners from all of the belligerents. It stretches reason to expect victims to testify in front of representatives of their perpetrators. In short, it is difficult to see how the Truth and Reconciliation Commission as currently conceived could achieve any semblance of reconciliation, whether operating alone or in tandem with the ICC.

Finally, consider rejecting all international judicial mechanisms in favor of rebuilding the Democratic Republic of Congo's national justice system. In some sense, this is the obvious route because it addresses a problem that will persist regardless of international prosecutions and thus constitutes a long term investment in the DRC. As already stated, the Congolese system is in dire need of reform. Wide-ranging changes could restore the population's trust in the judiciary, which is currently viewed as the weakest branch of government. Unlike proceedings in The Hague, local trials would be connected to and accessible to the general population and to the victims. Moreover, a functioning justice system is also a prerequisite to a functioning economy, and thus restoring the national justice system could do much to improve the country's economic health. Given the spiraling cost of the ad hoc tribunals, the international community might well conclude that the best use of its limited resources is to make a significant, long-term investment in the DRC's national justice system.

However, a strategy of only national justice reforms presents many downsides. Given the composition of the transitional government, the notion that the Congolese justice system could ever bring charges against any major rebels-cum-politicians is currently inconceivable. From all accounts, the culture of corruption within the current judiciary is so strong that it would be almost inconceivable for trials to be broadly accepted by the population as fair, open and neutral. In addition, today there is no university in the DRC that teaches a class on human rights, or international criminal law. Given these obstacles, it would likely take a generation before the Congolese national system is equipped to address international crimes. Whether the victims, their families and the thousands of Congolese who have been touched by the war will patiently and peacefully wait that long is not an easy question.

Moreover, programs to aid the reconstruction of the Congolese judicial system will probably consist of nothing more than ad hoc projects such as restoring the prisons, furnishing the magistrates' offices, training the judges and supplying books and codes to judicial personnel. All of these programs will fulfill a very important need in the Congolese judicial system, which currently is deprived of virtually everything. But the reconstruction of the judicial system will not be accomplished by sacrificing the fight against impunity for past crimes. If the donor countries decide to limit their assistance to giving out funds for a new coat of paint on the courts without confronting the underlying problem of impunity, this new justice risks missing the most important factor in its revival and success: the confidence of the population.

Conclusion

As this discussion has sought to illustrate, the sheer horror of the conflict in Congo may not be enough to trigger international prosecutions by the ICC. This is a crucial lesson for us all. There is a decidedly idealistic tone that both underpins and animates the movement for international justice. Unfortunately, the reality is pocked with competing interests and constituencies. In determining its potential role in the conflict in the Democratic Republic of Congo, the Office of the Prosecutor of the ICC must consider the stability of the country's government, the future of its national justice system, the ramifications of unequal justice for victims of the entire war, the feasibility of successful prosecutions, whether or not Ituri is the appropriate conflict with which the Court should begin its institutional life, and so on. It is impossible for the ICC to avoid these difficult questions. But there are various prisms through which the Court could consider the questions: it could think of itself first; it could think of the donor countries first; it could think of the Congolese government first, or it could think of the victims first. We hope that the victims will carry the day.

1. LINK: http://www.icc-cpi.int/library/newspoint/mediaalert/pids009_2003-en.pdf
   "Communications Received by the Office of the Prosecutor of the ICC," Press Release, 16 July 2003.
   
2. Under the Agreement, the DRC is now led by President Joseph Kabila and four vice-presidents, one from each of the main participants in the peace process, and democratic elections are to be held at the end of a two-year period.
   
3. LINK: http://hrw.org/english/docs/2004/06/11/congo8803.htm
   Human Rights Watch, D.R. Congo: War Crimes in Bukavu (Briefing Paper), June 2004
   
4. The Prosecutor announced his investigation of grave crimes committed in the whole territory. However, his office has been following the situation in DRC with a special focus on crimes committed in the Ituri region. Due to the difficulty of covering this vast country, the investigation will most probably focus on Ituri.
   
5. LINK: http://www.icc-cpi.int/newspoint/articles/25.html
   Statement of the President and statement of the Prosecutor at the Second Session of the Assembly of States Parties, The Hague, 9 September 2003
   
6. For documentation of the crimes committed in North-Katanga, see "Nord-Katanga : Attaques délibérées contre la population civile,'' a collaborative report published by three Congolese organizations, the African Association for the Defense of Human Rights (ASADHO), the Human Rights and Humanitarian Rights Center (CDH) and the Commission for the Vulgarisation of Human Rights (CVDHO). The report is on file with the authors.
   
7. According to a recent report by Doctors Without Borders entitled "I Have No Joy, No Peace of Mind ", crimes of sexual violence falling within the subject matter jurisdiction of the ICC have been committed in a systematic fashion in the province of South-Kivu.
   
8. "Excess deaths" are defined as deaths that occurred above and beyond those that would have occurred under stable conditions.
   
9. International Rescue Committee, link: http://www.reliefweb.int/library/documents/2003/irc-drc-8apr.pdf "Mortality in the Democratic Republic of Congo: Results from a Nationwide Survey Conducted September – November 2002, Reported April 2003" 13, April 2003.
   
10. International Rescue Committee, LINK: http://www.reliefweb.int/library/documents/2003/irc-drc-8apr.pdf
    "Mortality in the Democratic Republic of Congo: Results from a Nationwide Survey Conducted September – November 2002, Reported April 2003.
    
11. .See e.g., International Human Rights Law Group, Ending Congo's Nightmare, What the US Can Do to Promote Peace in Central Africa, October 2002. Princeton University Woodrow Wilson School of Public and International Affairs, Balancing Peace, Justice and Stability: A Great Lakes Regional Justice Commission and a Special Tribunal in the Democratic Republic of the Congo, March 2004.
    
12. See La Tempíªte des Tropiques (daily, Kinshasa) n° 2450 April 11, 2004.
    
13. « L'Afrique est une tache sur la conscience occidentale », Jeune Afrique L'intelligent, 29 octobre 2003. Mr. Michel's quote in French is as follows: «Oui, c'est une belle idée,» disait alors Louis Michel du tribunal proposé par le président Kabila comme s'il répondait í  ce dernier, «mais qu'est ce qui est plus urgent? Construire un í‰tat pour donner un avenir aux populations ou faire la chasse aux criminels? On ne peut pas toujours faire les deux. Si cela risque de faire imploser le processus en cours, je dis non.»