Will ICC Indictments Extend Beyond DRC Borders?

Activists are urging International Criminal Court, ICC, prosecutors to consider the Democratic Republic of Congo’s closest neighbours when deciding who next to bring to The Hague.



The court said recently it was considering investigating a case against officials who financed and organised the militias in this central African nation, devastated by years of fighting between rival warlords. Prosecutors said those officials could be from DRC or elsewhere, with analysts suggesting Rwanda and Uganda as possible targets.



“Virtually all Congolese warlords have relationships with officials of these two countries,” said Amigo Gonde, an activist at the Congo-based African Association for the Defence of Human Rights.



Both Uganda and Rwanda sent troops into then-Zaire in the late Nineties to remove Congolese President Mobutu Sese Seko, installing Laurent Kabila in his place.



Kabila and his former allies subsequently fell out and he gained new backers in the form of Angola, Zimbabwe and others. Uganda and Rwanda in turn supported opposing rebel movements and devastating wars broke out. Both countries were accused of exploiting Congo’s vast mineral wealth during the conflicts.



“A strong interest in the resources in the Congo and interest on the part of neighbours to create mayhem to open access to these resources [was] at the heart of this war,” said Geraldine Mattioli of Human Rights Watch.



Although they eventually withdrew their troops under international pressure, Rwanda in particular remains a player in the east - with critics accusing Kigali of supporting Congolese Tutsi general Laurent Nkunda.



After initially focusing on Congolese militia leaders in the northeastern Ituri region, the ICC has hinted it may begin looking further afield for its next arrests. Warrants for two indictees now in Hague custody - Germain Katanga and Mathieu Ngudjolo - both named the Ugandan army as a participant in the Ituri conflict.



Marcel Akpovo , a former researcher on armed conflicts for Amnesty International and an expert on the Ugandan involvement in DRC, agrees the Kampala government has been “extremely supportive” of militia groups there. “I strongly believe that not only the Ugandan government has provided political support but also financial support to some of these armed groups - including that of Germain Katanga,” he said.



The International Court of Justice, ICJ, which arbitrates disputes between states, confirmed in 2005 that Uganda occupied territory in Ituri between 1998 and 2003 and provided military, financial and logistical support to rebels.



The evidence of links between Katanga and the Ugandan army - the Ugandan People’s Defence Force, UPDF - also surfaced last year in public letters by Floribert Njabu, president of Katanga’s militia group, the Patriotic Force of Resistance in Ituri, FRPI.



The letters identify specific high-ranking officials who Njabu claims provided financial and military support to his militia group.



Katanga confirmed Njabu’s charges implicating senior government officials in Kinshasa and Uganda in face-to-face interviews, said HRW’s Anneke Van Woudenberg. Katanga told Van Woudenberg he was personally involved in meetings where financial and military support was discussed.



“He alludes to having received significant support… and he names names. And those allegations ought to be investigated and seriously looked at,” she said.



Analysts - and many Congolese - wonder why the ICC has so far been slow to react to such accusations.



François Grignon, Africa programme director at the International Crisis Group, believes the court has tied its hands in Uganda by accepting the government’s invitation to investigate war crimes in the country.



“For the ICC to have any success against the Lord’s Resistance Army, the ICC needs the Ugandan government cooperation,” he said. “That means prosecution against crimes committed by Ugandan troops in the Congo would probably have to be abandoned. They might be worried that the Ugandans will say, ‘If you go after us in the Congo we will suspend our cooperation in Uganda’.”



Lawyer Martien Schotsmans agrees arresting Ugandan officials could be problematic. “In Uganda they can’t arrest those the government has agreed to arrest,” said Schotsmans, a lawyer with Avocats Sans Frontières. “How can they arrest someone who might be close to Ugandan government?”



Akpovo suggests the court has so far delayed investigating Ugandan involvement in Congo in part to maintain the fragile peace process.



“Ugandans are adamant that the peace process should go ahead,” he said. “I’m for peace, but in this particular case, international justice should prevail… regardless of the peace process.”



And there are other obstacles to foreign prosecutions for crimes committed in Congo. Legal experts say such cases can be extremely difficult to prove.



“There’s a difference between gathering evidence on somebody’s physical participation and someone’s command responsibility. It is always much harder,” explained Schotmans. “Someone who was in command but not on the spot - that is always harder to prove.”



That’s an argument echoed by the ICC itself. Beatrice Le Frapper du Hellen, who heads the ICC’s Jurisdiction, Complementarity and Cooperation division, says the court is keen to target those who organised and financed war crimes but says it can be tough to find the evidence establishing the links.



“We have to have very strong cases when we go to the judges,” she told IWPR.



Also complicating such prosecutions is that many of the war crimes and crimes against humanity allegedly committed by Rwanda and Uganda on neighbouring soil happened years before July 2002 when the ICC’s mandate begins.



That includes bloody battles for control of the northeastern city of Kisangani and its diamonds and gold. Uganda and Rwanda occupied Kisangani and in a series of clashes destroyed large parts of the city, killing hundreds of civilians.



However, Grignon points out there are plenty of crimes for the ICC to consider. He suggests that Rwanda’s alleged involvement in attacks by Nkunda on Bukavu in 2004 is one possibility. He says evidence exists that Nkunda’s march on the South Kivu town was supported by Rwanda - a charge it denies.



Though Rwanda has supported Nkunda in the past, Grignon says it would be a mistake to assume that Kigali is behind the recent violence in North Kivu.



“You cannot compare Nkunda’s offensive on Bukavu and the current crisis,” he said. “It would be wrong to say Rwanda is again behind Nkunda. This is not true. In 2004 there was a state policy to support Nkunda but there is none now. There is no active state support for Nkunda. I don’t think Rwanda would be worried about prosecution for any of the crimes recently committed [in North Kivu].”



Rwanda is not a member of the court, leading to talk in Congo that the ICC can’t take action against Kigali.



“We believe that for the moment, the ICC cannot pursue foreigners involved in eastern parts of the country, in Ituri and the Kivus, because Rwanda is not a signatory of the [Rome Statute], which makes it difficult to take legal action against it,” said Gonde.



Schotsmans, however, says that isn’t the case. Congo has signed up to the court which means if a war crime is committed on its soil then the ICC is free to investigate any cross-border connections.



Though the ICC could prosecute, analysts speculate that Rwandans are afforded some protection by their country’s recent history. The 1994 genocide claimed 800,000 victims over a three-month period. The international community did almost nothing to stop the killings and a sense of guilt has lingered.



“They got away with an awful lot of political violence either being committed in the Congo or inside their own country [as a result of the genocide],” said Grignon.



But there are those who defend the ICC’s lack of action so far on Rwanda and Uganda.



Former chief prosecutor at the Yugoslav war crimes tribunal Richard Goldstone dismisses criticisms of the ICC for not moving fast enough when it comes to investigating higher-level government officials and militia supporters in the DRC.



“It obviously takes longer to get people higher up the ladder of control because there are less witnesses available. There will always be people higher up. But just because there are other people higher up doesn’t mean they shouldn’t get people who are at [a lower] level,” he said.



Others, however, say it would be a mistake for ICC prosecutors to proceed too slowly with their investigations.



“I think it would set a very important precedent - to look at individuals who have… aided and abetted,” said HRW’s Van Woudenberg. “This is an important part of what the office of the prosecutor should be doing and what the [ICC] is there for. It requires in depth investigations and a lot of tough work, but in the end… everyone in the background needs to be held [accountable].”



Lisa Clifford is an IWPR internatinal justice reporter in The Hague. Sonia Nezamzadeh and Eddy Isango are IWPR contributors.