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Court Urged to Probe Officials

As it begins investigating the CAR conflict, the ICC is facing calls to adopt a more even-handed approach.
By Katy Glassborow
Human rights groups are urging Luis Moreno-Ocampo, Chief Prosecutor of the International Criminal Court, ICC, to do a better job of probing government officials as he embarks on his fourth investigation, in the Central African Republic, CAR.

After criticism for not seeming to look into the actions of government ministers who referred situations in their countries to the ICC - namely, Uganda and the Democratic Republic of Congo, DRC - the prosecutor should probe senior officials as well as rebels in CAR to combat a perception that the court only investigates crimes committed by the latter, activists say.

If Moreno-Ocampo does not look at the role of governments which refer their situations to the court, “his arguments need to be convincing”, Geraldine Mattioli from Human Rights Watch, HRW, told IWPR. “Investigations are not complete or satisfactory if they do not look into those who bear the greatest responsibility,” she said.

This is tricky for the ICC because it’s being asked to probe conflicts in which ministers and troops have played a substantial role. Indeed, on July 3, the UN Security Council expressed concern at reports that government forces in CAR have used disproportionate force to fight rebels.

Prosecutors looking into crimes committed in Uganda and the DRC seem to have focused on those by rebel groups in both countries, with arrest warrants issued for one member of the Union des Patriotes Congolais, UPC, in DRC and five leaders of the Lord’s Resistance Army, LRA, in Uganda.

Prosecutors have been criticised by human rights groups for seeming to ignore the part government officials played in crimes against civilians.

CAR’s president François Bozize, a former army chief, referred the situation in his country to the ICC in December 2004, but he is inextricably linked with the violence the ICC is investigating, having led a failed coup against then-president Ange-Felix Patassé in 2002.

Bozize finally won power in 2003 after a protracted and bloody struggle, which involved civilians in and around the capital Bangui being killed and raped, with a pattern of widespread sexual violence, perpetrated by armed men, a central feature of the conflict.

This makes ICC staff awkward houseguests of the CAR government, reliant on its political will and logistical support for access to documents, unrestricted travel and a degree of security, while at the same time mandated to sort through all its dirty laundry, and hang it out to dry.

Although Moreno-Ocampo has said that the focus of the initial investigation - which began in May - is on violence immediately following the 2002 failed coup, human rights violations persist with many civilians still subject to atrocities.

The UN High Commissioner for Refugees, Antonio Guterres, cited the deteriorating situation in CAR’s north as the world’s most neglected crisis, with an estimated 200,000 people internally displaced and thousands of others forced to flee to Chad or Cameroon.

Tensions are compounded by government instability and a spillover of violence on its northern border from the Darfur region of Sudan and Chad.

Human rights groups say that ICC prosecutors must have an eye on those responsible for violence taking place today as well as that in the aftermath of the abortive coup.

“Prosecutors must investigate individuals in the current government who continue to commit atrocities with impunity,” said Godfrey Byaruhanga from Amnesty International, AI.

Human rights groups say that for the ICC to re-establish credibility as an impartial world court, prosecutors must look into the actions of the governments which refer their situations, regardless of the fact that their cooperation is needed to facilitate investigations.

Moreno-Ocampo says the CAR investigation will not target any particular suspect at this stage and will be guided solely by the evidence that emerges, with prosecutors pledging to investigate up the chain of command on all sides of the conflict.

Prosecutors investigating conflicts in Uganda, Darfur and the DRC have been criticised for indicting relatively middle-ranking rebel leaders and government “policy implementers”, instead of those who ultimately orchestrated violence.

Florent Geel from the International Federation for Human Rights, FIDH, said in DRC, the ICC gives the impression that maintaining a stable political climate was more important than rocking the boat by accusing key political figures of grave war crimes and crimes against humanity.

Ensuring political stability seems to have been such an important consideration that targeting the politicians and militias which human rights groups believe the most responsible, including ex-vice president Jean-Pierra Bemba and President Joseph Kabila, appears not to have been countenanced.

In February 2006, the relatively middle-ranking rebel leader Thomas Lubanga became the only Congolese to be charged by the ICC, for conscripting children to fight in the military wing of the UPC in Ituri, the far northeast region of the DRC.

The UPC is a Hema ethnic militia and Lubanga faces charges of kidnapping children and using them in frontline actions against the Lendu, the Hema's ethnic rivals, UN peacekeepers and the Congolese national army.

Human rights groups have urged the ICC to look into the suspected crimes of other rebel groups in the country, as well as those orchestrated by government officials. The court recently announced that a second arrest warrant will be released in the coming weeks, but which of the aforementioned will feature in it is unclear.

According to Geel, some victims groups in DRC feel the ICC has so far been manipulated by the government and do not see the court as credible, so will be interested to see if prosecutors go after another mid-ranking rebel or a weighty minister in the new indictment.

As in DRC, the insurgency in northern Uganda, sparked by the LRA, was referred by the government.

Five indictments were issued for the leaders of the LRA in July 2005, and now international and local human rights groups, including AI, are pushing for the ICC to look into alleged abuses by Uganda’s own military - the Uganda People’s Defence Force, UPDF - during the conflict.

“If the UPDF is under ICC investigation, this has not been made clear to the Ugandan government,” said Byaruhanga.

At the same time, Kampala’s enthusiasm for the court has waned, seemingly due to its failure to bring those it indicted to justice.

Some observers suggest that government disillusionment with the ICC may have prompted President Yoweri Museveni to enter peace talks with the LRA - hosted by the government of south Sudan in Juba - in which there have been discussions about alternative justice mechanisms and even offers of amnesties.

Other commentators are of the view that Museveni’s apparent change of heart towards the ICC stems from concerns that the court might soon begin to investigate Ugandan government and military officials. Striking a peace deal with the LRA would keep ministers and commanders away from the beady eyes of the ICC, and also placate some communities in the north who argue for peace to have precedence over justice.

Byaruha suggested that Bozize would not have referred his country to the ICC if he felt he could be investigated and held responsible for his actions during the coup attempt. “[The government] was unlikely to submit a referral including crimes committed by all parties to the conflict,” he said.

Beatrice le Frapper Du Hellen, who heads the ICC’s Jurisdiction, Complementarity and Cooperation Division, JCCD, which secures government cooperation, told IWPR that from the outset, authorities are made aware of the ICC’s independence and impartiality.

When talking to governments that refer their countries to the ICC, Du Hellen says she makes sure they understand that prosecutors will determine the focus of the investigation, and will not be swayed by the referral of the state.

“Authorities know we have no intention to lead a one-sided investigation,” said Du Hellen.

However, she admitted that that the most difficult part of any investigation is determining who bears most responsibility.

Despite the fact that prosecutors have already identified witnesses in CAR to prove crimes like organised and systematic mass rape took place after the failed coup, it is difficult to identify those who gave the orders for these crimes, say analysts.

And more of a challenge still if those individuals now hold positions of power in the CAR government.

During the ICC investigation into crimes in Darfur, prosecutors were forced to find witnesses in 17 countries outside Sudan because Khartoum does not recognise the ICC’s jurisdiction, and refuses to cooperate or provide any logistical support to prosecutors. The situation in Darfur was referred to the ICC not by Khartoum but the Security Council.

This investigation has led to two arrest warrants being issued - one for Janjaweed militia leader Ali Kushayb an another for Ahmad Harun, a former interior minister, who is now minister of state for humanitarian affairs in Darfur.

Du Hellen said that while prosecutors will lead the CAR investigation with government assistance, they “can do it without if necessary”, and that alleged crimes by government forces will also be probed.

Just how cooperative the CAR government will be remains to be seen. The omens are not good. Since Bozize’s government is struggling to run the country - with basic services in a state of collapse - it’s unclear how it will realistically provide logistical support for the ICC or access to documents and records, says Joel Charney from human rights group Refugees International.

Toby Lanzer, the UN humanitarian and development coordinator in CAR, told IWPR that “some stumbling blocks may arise” as the ICC investigation expands.

As head of state, Bozize has responsibility for crimes committed by CAR armed forces and presidential security units, known as the Presidential Guard, but Lanzer says this has only recently been made clear to the president.

“People [in CAR] are used to impunity as there is no tradition of the rule of law,” said Charney.

UN agencies have spent time with Bozize and senior ministers explaining that they are responsible for the actions of the Presidential Guard who are alleged to have torture and killed innocent civilians.

“Lines of accountability get smudged,” admitted Lanzer, who maintained, however, that the authorities are interested in clearing up crimes of the past and establishing the rule of law, to get away from an “all encompassing climate of impunity that has reigned in this country for far too long”.

But whether Bozize understood that referring CAR to the ICC could mean he is investigated for crimes committed before he became president, and ones that continue to be perpetrated under his presidency, remains a fairly critical unanswered question.

"It does not matter that the Bozize government referred the situation to the ICC. If anything, the ICC must demand and expect a greater level of cooperation from the government. The government must demonstrate that it was motivated by justice and not using the ICC to 'persecute' its opponents," said Byaruhanga

"The ICC has so far failed to demonstrate that being in power is not a basis for enjoying impunity. This has been the case in DRC and Uganda, with regard to suspects in positions of power."

Katy Glassborow is an IWPR reporter in The Hague.

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