Institute for War and Peace Reporting | Giving Voice, Driving Change

Selective Prosecutions Could Undermine Justice for Congo

The International Criminal Court’s prosecution of Thomas Lubanga is too simplistic a solution to the vast array of war crimes committed in the Democratic Republic of Congo.
By Stephanie Wolters
Anyone who has been following recent events in the remote region of Ituri, and indeed in the wider Democratic Republic of Congo as a whole, could be forgiven for feeling as though they had accidentally called up an old press release from 2005, 2004, or even 2003. That is how long the United Nations and the Congolese army have been trying to stabilise the northeast of the country.

In late February, the United Nations mission in the Democratic Republic of Congo DRC, announced triumphantly – not for the first time - that the last remaining militia group in the Ituri district was finally coming to the party, its combatants disarming by the dozen every day.

The latest push to put a definitive end to the violence and looting in Ituri began last November, when the UN mission, known by the acronym MONUC, and the government managed to get the last three straggling militia leaders to agree to a plan which would see their fighters disarm and either demobilised or retrained to join the DRC army.

The men in question are Mathew Ngudjolo of the Revolutionary Movement of Congo, MRC, Cobra Matata of the Ituri Patriotic Resistance Front, FRPI, and Peter Karim of the Nationalist and Integrationist Front, FNI. They are second-and third-generation leaders of spin-offs from once-powerful militia movements that sprang up in 1999 and have been mutating ever since. Karim and Ngudjolo are opportunistic hangers-on who have ignored previous ceasefires and demobilisation campaigns because they simply had no interest and no motivation for taking part.

Their defiance has not cost them much. Although they have kept alive an ethnic conflict between Lendu agriculturalists and Hema pastoralists that has killed more than 50,000 people, devastated the economy of the mineral-rich region, and defied the best efforts of both the UN and the DRC’s transitional government, they were nominated in November to senior positions in the Congolese military as an incentive to finally lay down their weapons.

The only leader not yet to have surrendered is Karim, who is now demanding amnesty in exchange for his surrender, and it looks like he might just get it.

Cut from Ituri in the far northeast to the crowded prison cells of “Pavillion 1”, the increasingly dense VIP area in the central jail in the capital Kiprison nearly 2,000 kilometres to the west in Kinshasa, capital of the vast Congo, which is greater in size than western Europe. Some of the DRC’s most high-profile civilian and military leaders now reside here.

The jail’s population includes the leaders of the five main Ituri militia groups, who were thrown in prison in 2005 after the assassination of nine UN peacekeepers.

Prior to their incarceration, these leaders had lived in Kinshasa for almost two years at the behest of the transitional government, which led them to believe that they would be rewarded with senior state positions in return for cooperating with a peace process in Ituri.

When the UN peacekeepers were killed in Ituri, MONUC cracked down, issuing an ultimatum to the militia groups to disarm within months, or face pursuit and arrest by the UN. In an attempt to show it was taking the matter seriously, the transitional government arrested the leaders of all the groups, with little regard for whether or not they might have been involved in the incident. They remain in prison in Kinshasa to this day.

Only one Ituri militia leader– Chief Kahwa Mandro of the Hema-dominated Party for Unity and Safeguarding of the Integrity of Congo, or PUSIC, has been tried by a court in DRC. Apprehended in Ituri, he was tried on simple murder charges and given a lengthy prison sentence in Bunia, the regional capital. He is now appealing against his conviction.

Much more publicity surrounded the transfer of Thomas Lubanga, leader of the Hema-led Union of Congolese Patriots, UPC, to the International Criminal Court, ICC, at The Hague.

In February, the ICC ruled that the trial of Lubanga on the charge of recruiting child soldiers would go ahead, making him the first person ever to be tried by the fledgling war crimes court.

Lubanga and the UPC are widely held responsible for some of the worst massacres of the seven-year conflict in Ituri, and the fact that he is being tried has been greeted with much enthusiasm at home and abroad. However, the limited scope of the charge came as a disappointment for many who had hoped that the ICC would charge Lubanga with a wider range of crimes.

The ICC was set up to act where national legal systems cannot cope. But in Ituri the problem is not primarily that local legal systems are too rickety to be effective; it is that they are politicised and thus unwilling to move against people with powerful connections, whatever human rights abuses they may be accused of.

In the DRC, the transitional government led by President Joseph Kabila chose to feed Lubanga – who really counts as small fry in Congo's complex ladder of power – to the highly visible ICC, not because it believes in justice but precisely because it does not want to see it done across the board.

Lubanga is expendable: his initial arrest and incarceration in Kinshasa and now his trial have not cost Kabila or any of those sharing power with him in the transitional government a cent of their political currency, and never will.

It will certainly be a positive development if more Ituri militia leaders are eventually transferred to The Hague for trial. But for the Kabila government, the high-profile Lubanga trial far away in Europe will be a welcome sideshow that will distract public attention from the many cases in which justice has demonstrably not been served in the DRC’s most recent conflict.

If the ICC chooses to accept this state of affairs by accepting the recommendations made by national governments and not widening its scope, then it will become a political vehicle for the leaders of those countries in which it is supposed to be helping to find justice.

The fact that the transitional government reacted so swiftly back by arresting Ituri militia leaders back in 2005 was not an indication of a real commitment either to help the UN or to accelerate the return of peace and stability to Ituri. Rather, it demonstrated the gulf between the situation in Ituri and the national peace process – and the expendability of its people, militia leaders or not.

One has to go back some way to trace the process by which Ituri has been sidelined.

None of the Ituri militia leaders participated in any of the national peace talks that ended the catastrophic and bewildering nationwide conflict – widely described as Africa's own First World War - that took some four million lives, and they did not sign the all-inclusive peace accords in Pretoria in December 2002.

This is in part because while the conflict in Ituri is linked to the broader war, the link is tangential and the local dynamics very different.

National rebel groups such as Mbusa Nyamwisi’s RCD-K/ML (short for Rally for Congolese Democracy – Kisangani Movement for Liberation), and the Movement for the Liberation of the Congo, MLC, led by Jean-Pierre Bemba, did at various times control parts of the Ituri district. However, real power here lay with overlords from Ituri's immediate neighbour, Uganda, who deliberately stoked the smouldering conflict between the local Hema and Lendu ethnic communities, creating and backing one group after another.

The Ugandan army virtually annexed the region in 1999 and is alleged to have plundered its rich gold seams. As well as gold, the province has diamonds, timber and recently-discovered oil.

According to Human Rights Watch, official Ugandan export figures indicate that gold exports from that country are significant, accounting for 84 per cent of total mineral exports in 2001 even though domestic gold extraction is negligible. According to the same report, Uganda’s gold exports reached 60 million US dollars in 2003 and 46 million dollars in 2004. Human Rights Watch said most of this gold originated in Ituri.

"Uganda is the number one gold-exporting country in this area without having a single gold mine. Tell me how that happens?" said a military intelligence official from the United Nations.

The Human Rights Watch report contained a damning assessment of Uganda’s role in Ituri. "During its four years occupying the north-eastern DRC, the Ugandan army claimed to be a peacemaker in a region torn by ethnic strife. In reality, the Ugandan army provoked political confusion and created insecurity in areas under its control. From its initial involvement in a land dispute between the Hema and Lendu, the Ugandan army more often aggravated than calmed ethnic and political hostilities," it said.

The New York-based organisation further accused Uganda of playing the role of “both arsonist and fireman” and of meddling in political feuding among local Ituri leaders.

In 2002, when peace talks between Kabila’s government, the main national rebel groups, the political opposition, and civil society groups kicked off in Sun City, South Africa, the exact nature and extent of the conflict in Ituri had not yet really caught the eye of the international community. Ituri's inter-ethnic conflict, stoked by Ugandan and also Rwandan interference, went almost totally ignored by the world and by Africa-based foreign correspondents. It was assumed that the MLC, RCD-K/ML and the RCD-N (Rally for Congolese Democracy-National) of Roger Lumbala amply reflected the situation there, even though they exercised minimal control over what was actually happening in the district.

Ultimately, the situation in Ituri was addressed by a MONUC-led peace effort that focused on the many local groups, and their exclusion from the national talks was not seen as necessarily detrimental. Adding the very specific Ituri conflict to the agenda of overall peace negotiations would likely have muddled both issues.

This exclusion nonetheless set the tone for recent developments in which Ituri has taken centre stage as the scene of the war’s most horrific crimes, when, sadly, it is only one of many places in the DRC that have seen terrible atrocities and widespread war crimes.

The reality is that to date, Thomas Lubanga is the only Congolese rebel leader who has been formally charged with war crimes. Yet as the ICC continues to investigate other Ituri warlords, there are many other figures who are accused of committing or aiding and abetting abuses elsewhere across the vast expanses of the DRC, but are still free to go about their business.

There is, for example, Laurent Nkunda, a dissident commander in the Rwandan-backed RCD whose forces have been active in Kivu province, south of Ituri, since he rejected the offer of the post of general in the Congolese army in 2003. Nkunda has been accused of responsibility for grave human rights violations by the likes of Human Rights Watch and others, but has been seeking a blanket amnesty from the new government in exchange for laying down his arms.

Then there is Jean-Pierre Bemba, who was Kabila’s main opponent in last year's presidential election, and whose MLC militia fighters were accused of horrific crimes against civilians in northwestern DRC in late 2002. Although the leaders of this action were put on trial and found guilty by the MLC itself, questions remain as to Bemba’s command responsibility. The neighbouring Central African Republic has also referred a case to the ICC relating to crimes allegedly committed by Bemba’s troops during an intervention in that country.

The list of those accused of human rights abuses in the DRC is very long, and includes members of all the rebel groups; the anarchic Mai Mai militias which publicly tortured victims before killing them; the government of Joseph Kabila and its predecessor led by his father, the late Laurent Kabila; the DRC military; and the Ugandan and Rwandan armies.

Local organisations such as the Voice of the Voiceless (Voix des sans Voix) and the African Human Rights Association, as well as international groups like Human Rights Watch and Amnesty International, have documented these violations over the years in immense and horrific detail, and continue to advocate for justice.

The ICC says it too is investigating a number of other actors outside Ituri. But as the Lubanga trial demonstrates, building a case takes time and resources, neither of which the ICC has in abundance. There is also, as the case of Karim shows, the issue of whether amnesties as a carrot to end conflict should take precedence over justice.

These are not easy questions to resolve, but if justice is to be served at all in the DRC, the investigations must come to something – and sooner rather than later. It would be far too easy and convenient for the DRC authorities and the international community to be allowed to argue that the only atrocities worthy of investigation took place in Ituri.

Stephanie Wolters was the Congo correspondent of the BBC and Reuters from 1998 to 2001 and the chief news editor of the Congo's Radio Okapi in 2002-2003. She is currently Africa editor and deputy news editor of South Africa's award-winning Mail and Guardian newspaper.

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