Posts Tagged ‘DRC’

Max Fisher August 29, 2010 The Atlantic Wire

A leaked United Nations report on the Rwandan genocide makes the explosive charge that the Rwandan Army, long credited with helping to end the infamous 1994 genocide of ethnic Tutsis, committed hundreds of acts of genocide against ethnic Hutu refugees in 1996-1997. The document, first reported by French newspaper Le Monde, states, “The majority of the victims were children, women, elderly people and the sick, who were often undernourished and posed no threat to the attacking forces.” The report implicates much of Rwanda’s current government, including President Paul Kagame, in joining with Congolese rebels to slaughter Rwandan refugees who had fled to the Congo. Rwanda is challenging the accusations, saying they only attacked members of the Hutu militias responsible for the 1994 genocide. The UN report risks seriously complicating the always-tenuous politics of Central Africa, where Rwanda has become a beacon of stability. Here’s what reporters and Rwanda-watchers have to say about the report.

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UN Dispatch


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July 12, 2010 UPI.com

THE HAGUE, Netherlands, July 12 (UPI) — A Congolese militia leader’s appeal to have the war crimes charges against him dropped was denied Monday by international court judges.

The Appeals Chamber of the International Criminal Court found that the November decision of the Trial Chamber denying Germain Katanga’s request did not infringe on his right to a fair hearing. The panel said he had been given “adequate notice and opportunity to raise the issue of his alleged unlawful pre-surrender arrest and detention.”

Katanga had filed a motion in June 2009 requesting his detention be declared unlawful and the proceedings against him be stopped. The Trial Chamber rejected that motion in November, saying it was submitted seven months too late.

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AFP, 22 May 2009

KIGALI (AFP) — A Rwandan high court has rejected a bid by the wife of Congolese rebel leader Laurent Nkunda to release him, a rights group said Friday.

The High Court of Rwanda said on Thursday that Elisee Nkunda’s appeal “did not respect the law” and ordered her to pay legal costs, the League for Human Rights in the Great Lakes Region (LDGL) reported on its website.

Elisee Nkunda’s lawyer said earlier this month she had filed legal papers demanding for her husband’s release, after he was arrested by Rwandan forces on January 22 and held in a secret location.

The former general’s wife had launched an appeal to the High Court after a Rwandan tribunal had earlier dismissed her case.

One of the lawyers for Nkunda, who had led the Tutsi rebel group the National Congress for the Defence of the People (CNDP), Richard Rwihandagaza vowed Thursday to track down the person responsible for his client’s arrest.

Nkunda’s arrest was a dramatic turnaround, with Rwanda accused only weeks earlier by Democratic Republic of Congo of backing the cashiered Congolese general.

Nkunda had claimed to be protecting local Tutsis from Rwandan rebels from the Democratic Forces for the Liberation of Rwanda (FDLR), some of whom participated in the 1994 genocide in neighbouring Rwanda.

He accused Kinshasa and pro-government Mai Mai militia of backing the Rwandan rebels, while the Congolese authorities in turn accused Kigali of backing Nkunda.

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BBC News, 07 May 2009

MPs in the Democratic Republic of Congo have passed a law granting amnesty to militias in the east of the country.

It is the culmination of various deals to bring peace to the North Kivu and South Kivu provinces, a BBC correspondent in Kinshasa says.

It will include “acts of war” committed since 2003 but does not offer amnesty to those accused of war crimes such as rebel leader Laurent Nkunda.

Gen Nkunda remains in detention in Rwanda since his arrest in January.

DR Congo has applied for his extradition.

A Tutsi like Rwanda’s leaders, Gen Nkunda had guarded Rwanda’s western flank against attacks ethnic Rwandan Hutu rebels – the Democratic Front for the Liberation of Rwanda (FDLR) – some of whose leaders have been linked to the 1994 Rwandan genocide.

Government spokesman Lambert Mende told the BBC the amnesty would only to apply to Congolese militia and would not cover crimes committed by foreign rebel groups.

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ICC Observers Project-Oxford Transitional Justice Research
Exclusive Interview: Colin Thomas-Jensen, Enough Project Policy Advisor


Colin Thomas-Jensen is a Policy Advisor at the Enough Project. Based in Washington, D.C., Colin helps to guide Enough’s analysis and policy recommendations to end crimes against humanity. He also oversees Enough’s field research in Sudan, Chad, Congo, Uganda, and the Horn of Africa. Colin previously worked at the International Crisis Group, where he had a range of responsibilities including direct advocacy with senior policymakers and research trips to Africa. He joined Crisis Group from the U.S. Agency for International Development (USAID), where he was an information officer on the humanitarian response team for Darfur. He also served as a Peace Corps volunteer in Ethiopia and Mozambique, and has traveled extensively in East, Central, and Southern Africa. Colin has an MA in African Studies from the University of London’s School of Oriental and African Studies (SOAS), with a concentration in the history of Islam in Africa, African politics, and Islamic family law. He has written for Foreign Affairs on U.S. policy in the Horn of Africa, publishes regular commentaries and op-eds in U.S. and African newspapers, and speaks frequently with international news outlets.

Full PDF Version of Interview: colin-thomas-jensen_interview_official

Q. You recently authored a strategy paper for ENOUGH outlining different mechanisms for peace building and conflict resolution in Eastern Congo. In the report you argued that Court should investigate and prosecute cases in North and South Kivu. Specifically, what role do you think the Court can play in conflict resolution in the DRC? You say the Court should increase pressure on international actors to develop an apprehension strategy for Ntaganda – how can it do this? More generally, what should be the political role of the Court?

A. One of the big issues that’s fueling conflict and atrocities and human rights violations across Congo is impunity. You essentially have a state with non-functional / dysfunctional court system and a limited capacity to investigate, arrest, try, and hold people accountable for the crimes that they commit, all the way from shoplifting up through war crimes. In the Kivus, certainly over the past ten years, we’ve seen a level of criminality and a level of violence directed towards civilians that’s almost unprecedented. For anyone doing human rights work, the Great Lakes is one of the biggest challenges that we have. Beginning to establish accountability for war crimes and crimes against humanity is critical to changing the behavior of combatants in these conflicts and ultimately ending them.

In the Kivus specifically, and since 2002 because we’re talking about the ICC here, we’ve seen sexual violence perpetrated on a massive scale, we’ve seen war crimes, forced displacement, murder, torture. All of the ingredients are there for what I believe should be a full scale ICC investigation. The state in question is unable to end impunity on its own in the Kivus and certainly because of the situation we’re seeing now with Bosco Ntaganda, unwilling to even live up to its own commitments under international law and as a signatory to the Rome Statute. And on that question in particular, I was really struck when Nkunda was removed from the head of the CNDP and replaced by Bosco Ntaganda that there was almost deafening silence from the human rights community, from nation states–specifically those signatories to the Rome Statute–and from the Court itself, on the fact that Bosco was essentially walking around unmolested in Goma. And that continues. He appears regularly in public, he spends time with government officials, yet this is someone who they’re obligated under international law to arrest. I’d like to see the Court increase pressure on the Congolese government to arrest him, and doing that means pounding the table a bit more. The prosecutor and his deputy do have a bully pulpit and can start to make a lot more noise about the fact that this guy, a guy who’s responsible for some pretty heinous stuff, is not only walking around carefree in Eastern Congo, but also has been given military responsibilities by the Congolese government that most certainly would give him yet another platform to commit atrocities.

Q. In the case of the Sudan, Enough’s strategy has particularly focused on accountability for state actors and state crimes, but in the DRC, your strategy appears to focus more specifically on rebel leaders and non-state actors like Ntaganda and the CNDP. What is the reason for this strategy? Is there a role for the ICC to play in helping to assure accountability for state crimes in the DRC, as well as for those committed by rebel leaders?

A. Justice must be impartial. In the case of DRC, there’s no question that the Congolese army – whether of Kabila I, Kabila II, the transitional government, or the current government – has been responsible for a significant number of human rights abuses and in many ways has been one of the causes of the conflict. In Congo, the army is more of a predator and a protector. The inability of the state not only to protect its own citizens but the decision by members of the military to commit atrocities is something that ought to be punished. The focus thus far has been on rebel leaders because as we’ve seen, the state referred the case and Nkunda and Bosco and others are obvious targets because of their reputations and the investigations that have gone on by a lot of human rights groups that I’m sure presented information to the Court. But the state in this case is often complicit in violence against civilians, particularly sexual violence. And also, I think here, again, there’s a split. Because the Court’s mandate is 2002 on, we’re looking at different periods. Many of the war crimes committed during Congo’s civil war were committed before 2002. Many of the criminals responsible for this violence are sitting in rather plum positions in the military or have retired to nice villas. In addition to the Court going after crimes post-2002, we also need to start looking at broader forms of transitional justice in DRC and particularly a process to vet army officers and remove and punish those who are proven to be responsible for war crimes and crimes against humanity.

Q. What was your reaction to the arrest of Jean-Pierre Bemba and the charges of war crimes and crimes against humanity brought against him? Is it significant, and how so, that these charges are for crimes committed in the Central African Republic and not the Democratic Republic of Congo? How might this affect the perception of the Court and his trial at the local level as opposed to an international level?

A. Bemba is someone who bears significant responsibility for crimes in both CAR and in DRC and the Court very well could have put together a pretty strong case against him for his conduct during the Congo War. That the arrest warrant was issued for crimes committed in CAR and that that case was referred to the Court by President Bozize and that that President Bozize is a close ally of Kabila and that Bemba is Kabila’s main political rival – these factors add to the perception that Kabila, like Museveni in Uganda, many think, have used the Court to isolate and neutralize political or military enemies. And whether that’s true or not, the question is: has the Court done its job in investigating crimes committed by all sides in putting together strong cases against the most egregious offenders and in ultimately, bringing these guys to justice? On the specific case of Bemba, I think it’s quite obvious that he did some pretty awful stuff in CAR and I do think he deserves to be in the dock for that and for that the ICC should be commended. But the other side of that is that there were atrocities committed by all sides in the war in Central African Republic and I would hope that there are ongoing and aggressive investigations to bring those members of the government responsible for atrocities to justice.

Q. We have seen some successful military tribunal trials in Eastern Congo recently, despite larger problems of impunity that you previously discussed. It seems that individuals like Lubanga or Bemba could ostensibly have been tried in military tribunals instead of the ICC. How does this affect the legitimacy of the Court? Are these too small of fish to be tried by the ICC, or did these cases warrant ICC attention?

A. The trials in Katanga ought to be seen as big successes, though from a human rights perspective, it’s unfortunate that the defendants were sentenced to death. Because I focus mostly on the Kivus, my understanding of what’s gone on in Katanga is mostly from Human Rights Watch and friends and colleagues there, and a successful Congolese prosecution is something we ought to applaud. But at the same time it is a small drop in the bucket of the level of criminality and violence that has characterized these wars. The imperative in the Kivus, where we often forget that 1,000 people are still dying a day due to this war, is bringing the conflict to an end. I think that whatever mechanisms are available to both the Congolese government and the international community to end impunity, which is fueling these wars, have to be exploited and the ICC is certainly one of them. I’m not sure if it’s a question of big fish versus little fish – the ICC certainly wants to be going after the high-profile individuals, those with command responsibility and responsibility for significant violations of international law. But in the Kivus, there are so many murderers running around and so many people with blood on their hands that the Court certainly has a role in both conducting its own investigations but also, and Ocampo always stresses this, working with local government or the host country government to improve its capacity to do these types of things on their own. And in some way, and I wish I had the evidence for this, with the trials and convictions in Katanga, there is perhaps a connection between the success that the Court has had in Ituri and in apprehending suspects and having them delivered to the Hague and the Congolese government taking on more responsibilities to try and prosecute its own war criminals.

Q. What do you think of the Pre Trial Chamber’s decision to issue an arrest warrant for Omar al-Bashir? What is the impact of the absence of a genocide charge on the advocacy movement? If there is a consensus among international jurists from the UN Commission of Inquiry Report from 2005 and now the Pre-Trial Chamber of the ICC that the violence of Darfur does not constitute genocide, will this affect the advocacy movement’s, and Enough’s, strategy and advocacy focus with regard to the conflict?

A. First, on the Pre-Trial Chamber’s decision, I understand that the deliberations, specifically over the question of genocide charges, were extremely contentious and that a couple of the judges are no longer on speaking terms because of it. And I think that speaks to the fact that this wasn’t, as some armchair academics have said, a slam-dunk in the face of the Prosecutor that Bashir is not responsible for genocide. It was something the judges debated and discussed and disagreed upon. Whether those charges are warranted or not – ultimately in this case not – there will be other prosecutions and I’m sure there will be other attempts through whatever justice mechanism, whether it’s domestic in Sudan or international, to prove these charges, because I think there’s evidence enough to warrant at least a trial on genocide charges. I say that in part because of the decision reached by the US government to call this genocide, and it was not one taken lightly. It resulted from a legal investigation and determination by State Department lawyers, who are not known to interpret these things liberally. They are quite conservative, so to make that determination was something they felt quite strongly they had legal basis to do. And look at the Commission’s report itself. It was incredible to me that despite the litany of crimes listed as committed by the government and its proxies, the government of Sudan was able to twist the report into quite a propaganda machine for itself simply because the commission didn’t say that genocide had been committed. It said that there were acts committed that were tantamount to genocide but didn’t quite reach that threshold. But there was very little legal discussion of what that meant. To me it sounded like the US State Department talking about Rwanda in 1994, when the spokesperson famously said that acts of genocide had been committed but the U.S. government shamefully refused to say, in the face of continued questioning, that genocide was being committed.

On the question of how this is going to impact advocacy and activism: my own strong belief is that the question of whether or not what’s happening in Darfur, or what has already happened in Darfur, was or is genocide is important from a legal perspective and from the victim’s perspective. It has to be said that the use of the word was certainly important to building an activist movement and certainly catalyzed a number of communities to take action in the United States and around the world. The continued use of that term is a contributing factor to the energy that we’ve seen built up around ending this conflict. But at the same time, the debate over whether or not it is genocide has been unproductive in many ways. It’s also been non-productive and it’s been counterproductive to the movement to end whatever we want to call it: war crimes, crimes against humanity, genocide, mass atrocities, atrocities, atrocities crimes. It has been unproductive in the sense that it’s been a distraction. We’re still seeing reams being written and discussed about whether this is or is not a genocide. At this point, it is important from a legal perspective, but it is more important that six years into this conflict, we have yet to see meaningful steps taken to end it, except by the ICC. It is non-productive because, even though the US reached the determination that the violence constituted genocide, it then made this astonishing leap and said, “And we’re doing all that we can to stop it.” The fact that you had the conservative General Counsel and lawyers at the State Department authorizing the US to make a pretty extraordinary claim on the international stage and then following it up by saying, “And that’s basically it,” raises the question of: what was the point? What then did it mean? And then I think counterproductive for the reason I said before: the fact that any time an institution or a commission makes a finding that it is in fact not genocide, the government of Sudan can rail against the United States and others for their claims without having to face what’s often embedded within the text, which is that the government is responsible for terrible crimes against humanity and atrocities no matter how you cut it or how you define it.

I think the way it’s going to impact the movement in immediate terms of the Chamber’s decision is minimal. I think that many activists and, it must be said, many lawyers and academics believe strongly that genocide has occurred and may be still occurring. And as a way to frame a conflict in which civilians have certainly been targeted on the basis of their race and ethnicity, it’s going to continue to be a descriptor and it’s going to continue to drive a movement that we hope will help to end the conflict.

Q. Looking at Enough’s four “P” strategy – Peace, Prevention, Protection and Punishment – sometimes these various objectives may come into conflict with one another. Could you describe the decision making process of Enough staff when deciding to support a decision like the ICC arrest warrant for Bashir that, while it furthers the interests of justice, may also have negative implications for peace and protection in the short term?

A. Our strong belief is that you need all three at the same time if you are going to make any progress towards ending a conflict. Protecting civilians in and of itself not going to end a conflict. Peace without justice most likely fails to end conflict and accountability in the absence of anything else is not going to end the conflict either. You need to move forward on all fronts. We also have to be realistic and sober when we think about what the impacts of various moves might be for people on the ground and it is disingenuous for any activist to say that the ICC’s decision and the way that the government of Sudan has responded to the ICC’s decision, is not going to have an extremely harmful impact on civilians in Darfur, in both the short and perhaps medium term. That is why the international response to the Sudanese government’s decision is so important is that up until now, the government has really faced very few if any real consequences for what it has done in Darfur. I do agree with some that the regime is acting in part out of paranoia that western NGOs are embroiled in a plot to bring down this government. However, I also think that they have calculated the human cost of this decision and it is something that plays into their war strategy. If there is no response, or if the response is to consider an Article 16 suspension of the warrant so that humanitarian assistance can continue, we will have essentially enabled the regime and others like it to manipulate humanitarian assistance and accountability to their own ends. If the Sudanese government does not reverse its decision to expel humanitarian groups or face harsh consequences for its actions, the immediate lesson for this regime and others like it is that for all of the rhetoric of human rights, international law, and responsibility to protect, the international community remains as toothless in the face of genocide as it was in Rwanda. A return to the status quo right now, despite the overwhelming costs that I fear civilians are going to suffer, is the worst thing that can happen to Sudan just now.

Q. How significant is it that the first (and still all) of the cases currently before the Court are against Africans for crimes committed in Africa? How does this affect the perception of the Court in Africa and in the international community more broadly? Where might the Court issue its next set of indictments? Where should the Court look for future prosecutions? Also, as a parallel question given that Enough also describes itself as an organization dedicated to ending genocide and crimes against humanity, what is the significance that all of the conflicts Enough has thus far focused on are also African? Does Enough plan to focus on other conflict situations in the future?

A. At Enough, when we began our work, it was essentially two Africanists that founded the organization – John Prendergast and Gayle Smith – and I was a sort of wobbly third wheel and also an Africanist. We believed strongly at the time that the three conflicts that warranted the most attention and would benefit the most of a constituency of Americans pushing policymakers to take action to end atrocities were Sudan, Congo, and Northern Uganda, or wherever the LRA happened to be at the time. Over time, however, our strategy certainly is going to be to expand beyond just Africa and to start adding any crisis to our portfolio in which crimes against humanity or genocide are occurring. One of the ways we are going to make those determinations is through a project to establish metrics for those places most at risk—tackling this question with political science research. We are going to examine the question of where atrocities are most prevalent and what countries are most at risk of atrocities. I am pretty certain that once we finish that project, we will have a roadmap to some of the other countries that we are going to be working on. I have no doubt that Sri Lanka and Burma would be high on the list as places where civilians are bearing a high cost in war. It must be said that we receive a constant barrage of feedback on the website from people asking why we are not focusing on Iraq and Gaza. There is a strong case to be made that atrocities are being committed in the Middle East, but many of these crises already get a whole lot of attention from the media and policymakers and from activists. Our mandate is to try to shine a spotlight on those conflicts that are equally bloody, if not bloodier, but that do not generate the same kind of heat. That is how we make our decisions.

As for the Court and the fact that its work has been limited to Africa, I do think the Court now has a big perception problem on its hands. I think they are aware of it, but I do not know what specific steps they are taking to deal with it. For those who critique the Court on these grounds, their argument is that it is a neo-colonialist imperialist enterprise aimed at keeping African countries in their place. The counter-argument of course is that three of the current cases – CAR, Congo, and Uganda – were referred to the Court by elected, sovereign governments and the Sudan case was referred by the Security Council, which is the ultimate arbiter of international peace and security. It may not look fair, the argument goes, that the Court only has cases in Africa, but that it has just turned out that way early on. I think that that is the case, but the issue of perception has to be managed better as well; the perception that this is a Court of white man’s justice needs to be accepted on face value and combated aggressively not only by the Court but by state parties to the Rome Statute as well. My greatest frustration with the ICC is not with the institution itself, but rather with the states that signed the Rome Statute and the fact that in the face of criticism from the global south, criticism from multilateral organizations like the Arab League and the African union, that the Court’s major backers have been somewhat muted in their response—this certainly hurts the ICC.

It is not the prosecutor’s and the Court’s responsibility alone to defend their actions day in, day out. They need support from those countries and those institutions that helped to establish the Court. And not only does the Court need defense against and criticisms and questions about whether they are targeting Africa, but they also need support in executing the warrants. It was incredible to me that the ICC issued arrest warrants for Joseph Kony and his close associates and the Court’s major backers within the international community literally had no plan and no notion of a plan on how to execute them. As a justice mechanism it is the prosecutor’s job is to take on cases, pursue them aggressively, and put people behind bars, but it is the broader international community’s job to support that effort in the face of criticism and to support the prosecutor if he makes a mistake. I’d like to see a more friends of the ICC that were more vocal and assertive in putting forth that alternative narrative, because I’m getting pretty sick of hearing how the Court is targeting Africans, particularly when it has to be acknowledged that some of the worst war criminals in the world are killing with impunity in Central African and Sudan.

Q. What do you see as the future role of the Court in 10 years? Will international criminal law gain increased authority and enforceability? Could you speculate about possible best- and worst-case scenarios for the Court? What can the ICC and other international actors do to ensure its own legitimacy in the future?

A. I think we have to look at the broader trends. Although by no means is the job close to being finished, the world has made leaps and bounds in halting atrocities and in ending impunity for war criminals. I do think you can say that we have made significant progress through the international tribunals of Rwanda and the Former Yugoslavia, and the Special Court for Sierra Leone; we are seeing major war criminals behind bars, on trial, in the dock, answering tough questions about their behavior and ultimately spending time behind bars. That is not something that was happening 20 or 30 years ago. The optimist part of me, and it is not a large part, but the optimist in me says that despite the fits and starts that are inevitable with any institution that the ICC, over time, is going to establish its legitimacy through prosecuting and putting people behind bars and that it is going to earn increased support. A very important issue for the future is the strategy that the Court and its backers put in place to manage its perceptions, particularly in the Global South. I think there does need to be much more considered and concerted action taken to do that. I also think that the work that the Court’s main backers do behind the scenes to support its work is of incredible importance. The ICC does not have an army and it does not have a huge investigative force. When it does investigations, it relies on support from others within the international community. I know people who have provided evidence in a number of cases—they have just volunteered. They have said, “I have these photos of this incident, do you want them?” And the Court says of course. Those of us who support international justice have a responsibility to do what we can on an institutional and a personal level to support the Court. If the ICC does receive that support, we’ll have an institution that in ten years is locked in place within the international system. It will have its ups and downs, but will be well established as a mechanism to bring the worst war criminals to justice.

I don’t want to speculate on the worst-case scenario. Certainly the Sudan case is a major challenge and the fact that the Court’s backers and Rome Statute signatories have allowed the African Union and the Arab League and others to marshal as much opposition to this arrest warrant as they have is problematic. The possibility of African states pulling out in a block from the Court is a very real problem and one that ought to be combated. I do not think that would be a deathblow to the Court, but it would certainly be a significant shot. My general sense though is that, despite the horrible crimes that are still occurring, the trends in international law towards ending impunity and preserving human rights are positive. I think the ICC will ride that wave and in ten years will be in a place that might not be as far ahead as we would like it to be, but will be well-established.

Interview conducted by Zachary Manfredi and Julie Veroff.

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ICC Observers Project – Oxford Transitional Justice Research
Exclusive Interview: Phil Clark, Research Fellow in Courts and Public Policy, University of Oxford, and David Anderson, Professor of African Politics and Director of the African Studies Centre, University of Oxford


David Anderson, MA (BA Sussex; PhD Cantab), is a Professor of African Politics, Director of the African Studies Centre, and a Fellow of St. Cross College at the University of Oxford. He has a long-standing interest in the history and politics of Eastern Africa and state violence and its consequences. He is the author of The Khat Controversy, which examines the global expansion of Eastern Africa’s khat economy, and of Histories of the Hanged: Britain’s Dirty War in Kenya and the End of Empire, which is the first full history of the Mau Mau rebellion and its brutal suppression in 1950s Kenya. Professor Anderson is also the founder and Executive Editor of the Journal of Eastern African Studies.


Phil Clark is a Research Fellow in Courts and Public Policy at the Centre for Socio-Legal Studies, University of Oxford, and convenor of Oxford Transitional Justice Research. He has a DPhil in Politics from Balliol College, University of Oxford, where he studied as a Rhodes Scholar. Dr. Clark is author of Justice without Lawyers: The Gacaca Courts and Post-Genocide Justice and Reconciliation in Rwanda (Cambridge University Press, forthcoming), co-editor of After Genocide: Transitional Justice, Post-Conflict Reconstruction and Reconciliation in Rwanda and Beyond (Columbia University Press and C. Hurst and Co.) and currently completing a monograph entitled, Doing Justice during Conflict: The International Criminal Court in Uganda and the Democratic Republic of Congo.

Full PDF of Interview: clark-and-anderson_interview_official

Q. How will the potential referral of cases from Kenya be viewed on the ground and how will it impact construction of the violence?

David Anderson:
The Kenya case for the ICC is really intriguing because it brings to light some of the real dilemmas that the ICC throws up. The people who want the ICC in Kenya are the civil society groups, Kenya Human Rights Commission, and their allies. The reason that they’re so keen on the ICC is not because they think it’s a wonderful institution necessarily but because they feel that international justice is the only justice they will ever get. They have no faith in their local judiciary. They feel that the collapse of institutions in Kenya is such that if they wait for Kenyan justice then it will never come. So they’re appealing to an international route because that’s the only one that will work.

The Kenyan government on the other hand, which is known as the unity government or coalition government, is made up of two blocks of politicians. Among each of those two blocks, there are people who might find themselves indicted. Those indictments might relate to the violence of last January and February of 2008 or they might relate to the other events that the UN Special Rapporteur for Extrajudicial Killings, Mr. Philip Alston referred to in his report of two weeks ago, which included police killings of alleged criminals and gangsters in the summer of 2007, and also referred to army atrocities, which are extremely well documented, from Mount Elgon in March and April 2008. So for the Kenyans there are a number of things coming together here. The ICC is seen to be a useful device.

But the government of course doesn’t want this. Those politicians, quite unlike the human rights activists, see the ICC as a tremendous threat because it will expose them. Now, in this sense, the indictment of Bashir in the Sudan, combined in the Kenyan case with the visit of the Special Rapporteur from the UN, Mr. Alston, to Kenya two weeks before the indictment, has had an effect of significantly heating up the politics of this in Kenya. And following the indictment of Bashir a few days later, two Kenya human rights activists who worked for the Oscar Foundation were assassinated in Nairobi. Subsequent to that, threats have been issued to a group of other Kenyan human rights activists and several are now in hiding and many are in fear of their lives.

Now, the extent to which the Kenyan government is a coalition of gangsters needs to be recognized. You can’t say this might happen anywhere else. Kenya’s politics are particular and peculiar at the moment, so one wouldn’t want to infer any comparative lessons from this, but there is a direct relationship between the indictment of Bashir and what is now going on in Kenya because people realize the stakes have been raised.

Q. If the Waki Report is turned over and indictments are issued in Kenya by the ICC, what might the impact be for peace and reconciliation and on the political situation?

David Anderson:
That’s the question that everyone is now mulling over. Since the violence of January and February 2008, there has been much thought given in Kenya to the likely impact of trying to prosecute those who were responsible. Now, public opinion is pretty well divided down the middle on this. Some people argue that to take this forward might be morally and ethically correct but because of the condition of Kenya’s politics and institutions, it would be likely to spark further violence of a targeted, specific nature such as the assassinations of the human rights workers. In other words, people are worried that to pursue these people when you don’t have the protections that a state institution that functions would give you is very dangerous and very destabilizing. Others argue that that may be the case but that we shouldn’t let that stop us with moving forward with these prosecutions because what else can we do? If Kenyans don’t have the courage to grasp this nettle, then they’re forever in the throes of these gangsters and thugs. That is the dilemma. You’d have to be a very brave person to say which of those arguments is right. For myself, personally, I worry about it because ethically I want to see these people prosecuted. But I don’t want to see my friends in the human rights community killed or threatened. So this is a genuine moral dilemma, and a very difficult one.

Q. If the ICC is the mechanism of justice pursued instead of local or national mechanisms, will that deter or increase future violence?

David Anderson:
There is now anxiety about the ICC in Kenya. Last month, the Kenyan parliament voted down a bill that would have created indigenous tribunals to try the people accused of violence in January and February of last year. It’s fairly obviously why parliament turned down that bill, because too many parliamentarians feared that they and their staff would find themselves in the dock. It is as simple as that. Whatever careful language one wants to use to describe it, it’s an avoidance strategy. Everyone in Kenya knows this. This is no secret. But it’s the decision not to have the indigenous tribunals that has also promoted this crisis; it’s not justice the ICC’s indictment of Bashir, it’s also an internal political process that has failed. And Kofi Annan, who was the arbiter of the Kenyan dispute last year is the one who is threatening to give the names to the ICC of the people he is aware of who were involved in the violence.

Now, I should say that there is another context to this that needs to be understood. Why do Kenya’s human rights activists have no faith in the judicial process? There are many reasons for that in terms of the lack of functionality of the judiciary but there are also more immediate concerns. Since January, there have been at least six attempts to prosecute individuals who were named as having participated in the violence. None of these cases have been successful. Every time the case is thrown out, usually because of lack of evidence. What this reflects is that witness protection is a serious problem and people are being got at, but it also reflects the ethical dilemma I referred to. Some very honest, good, upright people don’t want to give evidence if that evidence leads to further killing. This conspiracy builds up a momentum that goes beyond the conspirators and affects ordinary people who feel challenged and threatened by the very act of saying what it is they saw.

Q. We’d like to ask you to speak about the ICTR and regional tribunals more generally. How can these actors interact with the ICC and local justice actors? What connections should they be maintaining with national and local actors? What role should complementarity play?

Phil Clark:
There are a couple of things to say on this. The first is that the legacies of an international tribunal located in Africa are very messy. What we’ve seen with the ICTR is in many ways an institution that is, in the future, going to make it very difficult for international agencies to operate in Africa. The reason is that the ICTR has been very ineffectual in terms of understanding the politics of Rwanda and the politics of the region as a whole, which has really hampered its relationships with governments and its ability to do trials effectively. Subsequently, there’s been a real forfeit of legitimacy of that tribunal.

In the bigger framework, what that means is it’s now very difficult for international justice to happen in Africa and for it to be seen as a legitimate process. Populations look at these very expensive tribunals that have been foisted upon them from the outside, the ways in which they’ve blown in, and found it very difficult even to do legal jobs, to get investigations going, and to do it quickly, let alone to have any kind of bigger impact. So the ICTR has made it more difficult for justice to happen on the grander scale.

In terms of the regional dimension, it’s very difficult to see where the regional impetus for justice in Africa is coming from at the moment. The AU is reluctant to go down this path. There’s been some talk of setting up an Africa-wide justice mechanism that could perhaps be more locally situated and with a greater understanding of domestic politics than the ICC might have. But the AU has its hands full in terms of peacekeeping issues and broader security questions, and it’s also an institution that is struggling to maintain internal coherence. It’s a deeply divided organization with many factions. Without that kind of cohesion, including a range of leaders who have very different viewpoints on whether justice is a good thing or not, depending on their own actions domestically, then it’s difficult to think that that kind of regional dream is ever going to become a reality. So you have a difficult situation where international justice in many ways is debased across Africa, and regional questions are even more complicated.

So when asked, “What’s the likelihood for seeing justice done in a range of African countries?” this is where the conversation turns to the possibility of using national jurisdictions, and perhaps even community level processes. The ICC at least at the rhetorical level supports this move because of the principle of complementarity and giving domestic courts the first bite of the justice cherry. The problem of course has been – and Dave alluded to this in the Kenyan case – that it is difficult to see many domestic judiciaries being willing to go after their own, being willing to deliver justice for sitting members of government. Perhaps with one key example that hasn’t been discussed enough internationally: in Congo, the increasing capacity and willingness of the military courts to deal with very serious cases. This is an interesting development. I don’t think many people looked at Congo and thought that military courts were going to be where justice would be done, but that’s what we’ve seen. The military courts, in the last year and a half, have prosecuted some serious perpetrators, including high-ranking officials within the army and senior rebel leaders for serious crimes, including war crimes and crimes against humanity. And in many ways, on the ground in Congo, the perception is that it’s not the regional bodies nor the ICC that is most likely to do justice for the most serious perpetrators; it’s actually the military courts operating in people’s midst. Now it’s difficult because military tribunals across Africa don’t have a good history of doing justice. They’ve been very selective in the candidates that they’ve prosecuted; they’ve usually insulated their own. Military courts have often done very short shrift to the justice processes across Africa, but what we’re seeing in Congo is a change. So that’s a challenge to the human rights community internationally, who would not inherently have a lot of faith in military tribunals. But in terms of domestic processes in Africa geared toward prosecuting major crimes, the military courts in Congo are probably the most active at the moment.

Q. How do you think the doctrine of complementarity can be best implemented to work with local and national jurisdictions to provide the whole picture of justice?

Phil Clark:
I think the key to complementarity working is for the ICC to enact the principle in the way that it was originally defined, which is that the reason the ICC exists is to prosecute the most difficult cases that national jurisdictions are not able or willing to prosecute. The problem that we’ve seen in the ICC’s first five or six years of operation is it has been dealing with the small fish only: middle ranking officials, rebel leaders, who, as the Congolese example indicates, could have been prosecuted domestically. The problem we’re seeing at the moment is the Court is not dealing with the difficult cases it was ultimately designed to prosecute. This engenders a lot of confusion in the wider realm of justice about where this international institution actually fits in. It undermines the confidence of domestic judiciaries; it sends a message that they might be trying to reform themselves and might be trying to deal with very complicated justice questions, but that’s not necessarily going to stop an international body from intervening.

So it comes back to the question: What then is the purpose of having the Court? In an ideal sense, the notion of complementarity is a useful one in that it divides the labor between a number of different actors. It gives states the possibility to reform their judiciaries and to pursue justice for serious perpetrators. But the big question across Africa, and this is what the Court needs to wrestle with the most, is the extent to which the state is one of the key perpetrators in cases of mass conflict. What we’re seeing consistently is state judiciaries being unwilling to prosecute their own.  That’s where the ICC can certainly play a role. If the Court is interested in getting runs on the board in the early years and storing up its legitimacy to help the Court in the future, then that’s where it needs to be targeting its operations. It needs to be going after leaders like Bashir and other heads of state who are responsible for very serious crimes. I think some of the peace and stability questions that Dave refers to are salient and we should always be cautious about the impact that this kind of justice can have. But for the Court to be going after the middle-ranking suspects it has so far does a huge disservice to the principle of complementarity and to the whole enterprise of justice.

David Anderson:
I think there’s a connection between the thrust of international policy in the region, which is increasingly limiting its goals to stabilization. This is a word we’re seeing more and more being used in policy documents. So the ambition is not statebuilding anymore, it is just stabilization. If you think about that, you see that the justice issue becomes even more of a dilemma, because in order to pursue justice against some of these major state players, you are going to threaten stability. So there is a more powerful argument than before for not pursuing justice. This is very interesting because the African Union has embraced this stabilization idea for exactly the reasons I’m suggesting. It takes the sting out of certain interventions and it makes it easier to negotiate and broker deals. The African Union essentially favors power-sharing. In a positive sense, power-sharing is epitomized in the government of Rwanda’s system of proportional representation that gives the losers something out of the process. At the other end of the scale of power-sharing are Kenya and Zimbabwe, where it generates a government of inertia, put together by people who are trying to avoid the consequences of their actions. The problem is that stabilization views all of these things as a general good. The OAU, the AU’s predecessor, was often referred to as a trade union of tyrants. The AU has to prove it is not the same and, at the moment, it’s not doing a very good job. I think much of the international community would share a disappointment in this, given the hopes invested in the AU at its rebirth a few years ago.

I would also put into the mix that the regional organization for Eastern Africa, EGAD, went through a very positive phase in the late 1990s and 2000s, largely under Kenyan leadership, when EGAD really seemed to be addressing some of the region’s problems. With hindsight, we can realize that EGAD’s successes also held the seeds of some of the current problems. It raised the stakes in some of these conflicts, particularly Great Lakes and Sudan, and people have taken perhaps more entrenched positions. The governments in East Africa have begun to realize that these regional and subregional organizations are the places where you can build your consensus. This is reinforced by the sense that the international community doesn’t wish to be seen to be imposing solutions upon any region in the world and that ownership of political decision-making is a crucial and accepted norm and good. So the countries that wish to assist Eastern African countries are keen for them to decide their own solutions to these problems. That means that for the Kenyan and Sudanese governments, counseling their neighbors and canvassing support in EGAD and the AU can build a powerful bulwark against any wider international consensus. And it’s notable that the amount of lobbying done in EGAD and the AU has gone up considerably in the last 18 months. Politicians across the region have come to realize this is where you build your support base against wider international criticism and interference. In the Kenyan case, they have skillfully built a support network in EGAD and the AU, and similarly in the Sudanese case. They have very cleverly made alliances that will protect them from international criticism. What this leads to is a divide that sees African governments as representatives of these organizations taking one position while the ICC takes another. And that is a very dangerous political position to find ourselves in. It is disempowering for many of the western donors in particular, who don’t want to be exposed as standing against African governments. They want to be seen as moving forward in decisions with African governments. African governments have realized this and are playing politics accordingly.

Q. How significant is it that the first (and still all) of the cases currently before the Court are against Africans for crimes committed in Africa? How does this affect the perception of the Court in Africa and in the international community more broadly?

Phil Clark:
There is an unfortunate cliché that the ICC is a court of Western intervention in Africa, targeting only African leaders, and the suggestion is that there is something inherently illegitimate about the Court. In many ways this argument has been hijacked by the regional actors Dave’s talking about. The argument also does not take into account that there is very serious – although certainly not universal – support for the ICC at the popular level in a number of countries. An interesting case to look at is Zimbabwe. In some cases similar to the Kenyan question, Zimbabwe is a country where the ICC is not yet operating, but the possibility of its involvement is a question that hangs in the air and is having an impact on politics on the ground. In the Zimbabwe situation, for a number of different reasons, civil society has aligned itself with the elements within the power-sharing government in opposing the ICC. So the argument—and it’s interesting that it is coming from human rights groups and NGOs, as well as the government—is that it’s about local solutions, we need to sort this situation out ourselves. There is a very different message coming from many victims of the violence, however, saying “we have no faith both in the judiciary of this country and in this power-sharing agreement and the leaders within it. We’re not going to see serious justice done by these people so there may be recourse to a body like the ICC.” Zimbabwe is a particular case where the strongest support for the ICC comes from the grassroots level, but it is very difficult for those voices to be heard because of the government and civil society opposition to the Court.

This is something that opponents of the Court need to contend with. For many African populations there is a great amount of hope for the ICC. We saw this in Congo and Uganda in early days when the ICC first became involved. These cases concerned populations that had seen the debasement of domestic institutions, suffered at the hands of their own governments, and had huge hopes and expectations of international bodies. I think the problem in Uganda and Congo has not been outright popular opposition to the Court – it’s been, in many ways, unfulfilled hopes. Because of the way the Court has gone about its work in Uganda and Congo, it has disappointed the people the most. That’s the sad reality for the ICC at the moment.

David Anderson:
‘Unfulfilled hopes’ is a very good way of summarizing it. It leads on to the question of the perceptions that people have of the ICC, which are not entirely positive, and the actual practicalities of what the ICC can do and should do. On the one hand, you have the arguments that the ICC is ‘white man’s justice’ being applied to international law. I think this is a gross misrepresentation of what the ICC is and what it is trying to do. However, the current configuration of the politics is making it all too easy for politicians in Kenya, Sudan, and Zimbabwe to portray it in that way. The fact that we now have a situation where both the African Union and the Arab League have publicly opposed the indictment of Bashir, while Western governments have generally supported it, has polarized this debate in a way that allowed politicians who wish to popularize the idea that this is white man’s justice to do so. I think that is very unfortunate and I think it misrepresents the reality of the Court. We are now on the back foot having to sort that out, which is taking up a lot of time and effort. The substantive issue that makes it more difficult still is that the ICC has not always had the best record. Its decisions and processes have sometimes been wanting. Now we know, internationally, especially from experience in the Balkans, that if you want to prosecute state actors for atrocities and organized political violence—which is an extremely difficult and laborious task—then it is likely to require a strong investigative process in which the Court and the prosecutors need to be highly professional and robust. In attempting such prosecutions, you are fighting against a set of institutional and controlling parameters and mechanisms that work in the interests of those you are seeking to convict. If one talks to prosecutors in the Balkans, they will tell you about this in detail. Thousands of pages of testimony, months of work—this is a slow process and it is an enormously expensive process. Now relate that to the ICC: understaffed, under-resourced, and with too many things on its plate. The ICC is not equipped, yet, to deal with this kind of justice. So perhaps, if the prosecutor has made decisions to go forward with certain cases rather than others, then that might be a pragmatic decision given the resource and staffing issues. Whatever the reason, the ICC has not always been able to do its job very effectively. There are also management and cultural problems within the organization itself and it needs to be revived and to reconsider some of its procedures, some of its staffing issues. Maybe the quality of the staff in the ICC needs to be improved, bringing in those with local expertise and knowledge, and maybe the sense of which level of detail and proof are required for prosecutions needs to be reconsidered and set at a higher level. All these things are institutional, procedural matters that the ICC needs to deal with. I would argue that unless and until the ICC tackles these issues, it is going to find it difficult to win more supporters for what the Prosecutor rightly and justly want to do.

Q. Is there a role for politics in the prosecutor’s work? Does the Court have an implicitly political role to fulfill in conflict situations?

Phil Clark:
The first thing to say is that, whether the court likes it or not, it is a political institution. These questions of whether the ICC and the prosecutor are political actors in many ways are facile and unhelpful. As soon as the Court begins to operate on the ground in Africa, and particularly when it begins to operate in conflict environments, it will inevitably be embroiled in political situations. For that reason, and I would concur with Dave entirely on his last point, that this is largely a question of ICC staffing. Something that has hamstrung the Court immensely is the absolute absence of country specific experts within the institution itself. The court has undoubtedly some of the most talented legal advisors on the planet, but what it does not have is experts who are well versed in the nuanced politics of Sudan, Central African Republic, Uganda, etc. Without that expertise, the Court is not able to judge well how politics is playing out on the ground.

This is important for two reasons. First is a practical one for the court itself: if you want to intervene in ongoing conflict situations, you had better know who you need to talk to, how to get to them, how to get people to trust you, to give you evidence and to assist you in your investigations. Without that level of cooperation, trials do not get off the ground. The Court has found that difficult to achieve so far. The second reason is a broader political issue: the Court needs that ground level expertise because it needs to know how its operations are going to be represented locally, nationally and internationally. The Court has struggled with the extent to which its job has been manipulated and broadcast by others for their own means. We have seen this in the Bashir situation because of the way the Court has gone about constructing the case against Bashir and the way the Court has gone about releasing information about what it has done in Sudan—this has played into Bashir’s hands. Bashir has found a political savior in the ICC. We are talking about a president who was bedeviled domestically, and facing increasing political opposition in Khartoum let alone the rest of Sudan. In the ICC Bashir has found a rallying cry. He has used alliances with the African Union and the Arab League to bolster the argument he is propagating domestically that the ICC constitutes neocolonialist meddling in Sudan’s affairs. What we have seen now is vociferous support for Bashir from erstwhile opponents and silence from even the government of Southern Sudan and some of the rebel movements in Darfur, who are very concerned about what it would mean domestically to openly support the ICC. Bashir has manipulated this situation extremely well. It remains to be seen how sustainable that support will be. As national elections near and the referendum in Southern Sudan looms, we will see the cracks in Sudanese politics reappear. In the immediate, however, Bashir has gained a huge amount of credence since the indictment. That makes the Court’s job a whole lot harder. It has to deal with questions of white man’s justice, it has to deal with the fact that there is decreasing sympathy towards the Court domestically. This will make it more difficult to get the material and evidence that would be necessary for a trial of Bashir.

The Court has tried to be an apolitical organization and it has not wrestled with these realities on the ground, and it has made its own job harder in the process. What we have learned form international justice in the last ten years is that it is one thing to have the best lawyers in the world, but you have to understand the societies where you are operating. The ICTY under Louise Arbour was particularly good at hiring country experts. And what those experts were able to do was shape the Court’s operations and make sure the ICTY was able to convince governments to hand over their own. That was one of the great successes of that tribunal. In absolute contrast, you have the ICTR, particularly under Carla del Ponte, that did not believe that the nuances of local politics mattered. As a consequence there was continual bad blood between the tribunal and Kigali. This made it impossible for the tribunal to act effectively on the ground and completely eliminated the possibility of looking at crimes committed by the sitting government of the day. I think the sad thing from the ICC’s point of view is that it has not learned these very obvious lessons from the tribunals that preceded it. The prosecutor often talks about the ICC as representing the evolution of international justice, building on a heritage of law developed through the ad hoc tribunals. But in the case of politics and the importance of local politics for international justice, the ICC has not learned these lessons.

Q. Could you speculate on the future of the Court in five of ten years? What are the best and worst case scenarios for its standing in the international system? What can the Court and international actors do to cement the Court’s legitimacy?

Phil Clark:
I’ll make two main points here. The first thing is that we are going to see a shift in prosecutorial strategy as time goes on. The early years of the Court have inevitably been difficult because it is a new judicial institution that needs to get results. I think that has led to the kind of pragmatism from the Court that we have seen so far. Part of the reason that the Court has gone after low and middle ranking officials, rather than the Bashirs of the world, is because it has to get legal results. The hope of course is that with the cases that the ICC has at the moment we are going to see those kinds of judicial results and this will then allow the Court to be more ambitious. We are probably going to see convictions in the Congolese cases; I think the cases against those individuals are quite strong, the evidence has been very systematically gathered—although not always by the ICC but by other sources—nevertheless I think the legal cases are quite firm. What this will do is buy the Court some breathing space, and that breathing space will be a key factor when the current prosecutor moves on. In that way Ocampo has had the most difficult job, which is to get the Court off the ground. The next prosecutor will face a very different set of challenges, namely whether the Court can live up to its highest vision of itself, will it prosecute the toughest cases, will it move outside of Africa and truly become a global court? This will be a big challenge for the incoming prosecutor.

The second issue, and this is where it is uncertain whether the Court will succeed or fail, is can it get the US on side? This will have to be one of the Court’s major goals over the next five to ten years. Without the US’s support the ICC is going to continue to face difficulties within the Security Council, which translates to blocking the Security Council’s referral of the most important cases to the Court. Let’s be honest, with Bashir, we were never going to see a head of state brought to the ICC if we had to rely on a state referral; the ICC needed the UN to do that. This is a trend that is going to continue into the future. We will probably only see sitting members of government indicted by the ICC if they are referred by the Security Council. So if the ICC is going to fulfil this utmost vision of itself, dealing with the toughest cases, then it is going to require strong support and coherence from the Security Council, and the US will be central to this. The other reason that the Court is going to need Security Council support is that it will rely on UN peacekeeping missions and other military support on the ground to do the arresting of the suspects in question. The problem that the Court has faced to date it is that it has rarely had that support. The Court can issue arrest warrants for the LRA in the Northern Uganda situation, but what good is that if there is no military presence to back this action and arrest and transport these individuals? The same situation will undoubtedly come into play with Bashir: yes he’s been indicted and most members of the Security Council have backed that rhetorically, but Ocampo is right to doubt the fortitude of the UN and AU missions on the ground in Sudan to do the dirty work. He knows that for the future of the Court this issue has to be dealt with, and that there has to be this kind of cooperation and the US will be the most important state in terms of getting that cooperation.

David Anderson:
I think the ICC is standing at the crossroads. The decisions of the next eighteen to twenty-four months are probably going to be critical. Everything depends on credibility: can the Court maintain credibility if they cannot get Bashir into the dock? How the international community chooses to react to this is critical. Much of this may be out of the current prosecutor’s hands; Mr. Ocampo may have no control over this whatsoever. What he has done by indicting Bashir is rolled the dice. The crucial actors here are the US and the EU. Will they support the Court and will they lobby and canvass for it to be properly resourced and developed in such a way that will allow it to bring its cases forward? Or will they decide that you can only do that if you have the support of other regional organization? If that is what they decide, and I think that is what they might decide, then the future of the ICC is very troubled. At present I cannot see the US under the Obama administration or the leading EU countries, UK and France, moving forward to support the ICC if they know that it is going to bring confrontation with the AU and the UN. We have not really talked about the UN structures here but they are very important, you have to ask why did the UN Security Council pass the Bashir case on to the ICC and why did the US abstain? To an extent here you have a game being played called ‘pass the parcel.’ The UN is very good at passing problems on to other bodies when it does not think it can fix them without breaking a consensus. The UN now has a Peacebuilding Commission, which is very rapidly becoming more important in the UN. It seems likely that the Peacebuilding Commission will adopt a stabilization and power-sharing approach, and this will incline towards non-prosecution, aiming to build peace in the short-term, and leaving prosecution issues to the long-term. I may be wrong, but my best bet at the moment is that the combination of the lack of resolve on the behalf of the US and the EU, the UN’s desire not to cause any major rifts with member states, plus the Peace Building Commission’s commitment to stabilization does not bode well for the ICC. My view is not optimistic; I think the ICC could be in for a very difficult four or five years.

Interview conducted by Zachary Manfredi and Julie Veroff.

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Human Rights Watch, 10 March 2009

(New York) – The conviction of the Mai Mai commander Gédéon Kyungu Mutanga and 20 other Mai Mai combatants for crimes on major charges, including crimes against humanity, by a military court on March 5, 2009, was a crucial step toward creating accountability in the Democratic Republic of Congo, Human Rights Watch said today.

The trial by the military court of the garrison of Haut-Katanga, in Katanga province, lasted for 19 months and was the country’s largest trial involving charges of crimes against humanity. In its landmark ruling, the military court also found the government liable for failing to disarm the Mai Mai militias and awarded damages to the victims.

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AFP, 6 March 2009

KIPUSHI, DR Congo (AFP) — A former Congolese militia leader was sentenced to death by a military court in southeastern Democratic Republic of Congo for war crimes and other offences, a judicial source said Friday.

Kyungu Mutanga, alias “Commander Gedeon”, headed a so-called Mai-Mai militia group blamed for numerous attacks on civilians in parts of Katanga province between 2003 and 2006, when the country was wracked by civil war.

He surrendered to United Nations peacekeepers in May 2006 at Mitwaba and was transferred to Lubumbashi, the capital of Katanga, pending trial.

The court at Kipushi, 30 kilometres (20 miles) southeast of Lubumbashi, handed down the death penalty for war crimes, crimes against humanity, insurrection and terrorism, the source said.

His wife was sentenced to seven years in prison and another defendant to ten years, but five others were acquitted for lack of proof.

However the court also ordered the Congolese state to pay 17 million dollars (13 million euros) to 75 families of Mutanga’s victims because of its alleged support for his group up to 2003.

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