Prosecutor Seeks New Charges in DRC As eastern region sees renewed violence, commentators question whether justice p rocess

actually deters atrocities. By Mlanie Gouby, Simon Jennings - International Justice - ICC ACR Issue 320, 18 May 12 The prosecutor of the International Criminal Court, ICC, has asked judges to iss ue new charges against two alleged warlords in the eastern Democratic Republic o f Congo. While experts welcome the idea that rebel militia commanders should be held to account, they are still debating how much of a contribution justice mech anisms can make to protracted peace efforts in the region. On May 14, the ICC prosecutor, Luis Moreno Ocampo, requested additional charges against Bosco Ntaganda relating to war crimes and crimes against humanity, inclu ding acts of murder, persecution and sexual slavery carried out between Septembe r 2002 and September 2003 in the Ituri region of eastern DRC. Ntaganda, the military commander of the National Congress for Defence of the Peo ple or CNDP, was first charged by the ICC in 2006 for using child soldiers under the age of 15 to fight, but he has remained at large since the charges were mad e public in April 2008. The CNDP is an ethnic Tutsi-dominated armed group with close ties to Rwanda, whi ch was integrated into the Congolese national army in 2009, with Ntaganda made a general. Members are thought to have secured high-ranking army posts in exchang e for supporting President Joseph Kabilas successful bid for re-election in 2011, while Ntaganda is thought to have used his position to gain control of large pa rts of North Kivu. Ocampo has also requested an arrest warrant for Sylvestre Mudacumura, the allege d supreme commander of the rebel Democratic Forces for the Liberation of Rwanda, FDLR. The prosecutor is seeking charges against Mudacumura on nine counts of wa r crimes and five counts of crimes against humanity, including murder, rape and persecution of civilians. The alleged crimes were committed between January 2009 and August 2010, in the provinces of North and South Kivu, Ocampos office said. The FDLR is an ethnic Hutu militia operating in the Kivu provinces which is beli eved to rely heavily on controlling the regions natural mineral sources for its f unding. It is hostile to neighbouring Rwanda. Mudacumura is alleged to have worked alongside Callixte Mbarushimana, who was ar rested in Paris in October 2010 and transferred to the ICC in January 2011. Mbar ushimana was alleged to have held the position of executive secretary of the FDL R since 2007 and was accused of murdering and torturing of civilians in North an d South Kivu. He was released from prison in The Hague on December 23 last year, after judges ruled there was insufficient evidence to link him to the crimes. Of the innumerable atrocities that have taken place in eastern DRC over the last ten years, only one militia commander, Thomas Lubanga Dyilo, has so far been br ought to justice at the ICC. Lubanga, who led the Union of Congolese Patriots, U PC, was convicted on March 14 this year of conscripting, enlisting and using chi ld soldiers during the conflict that ravaged the Ituri region in 2002 and 2003. The ICC trial of Germain Katanga and Mathieu Ngudjolo Chui, commanders from yet another rebel group, the Patriotic Resistance Force in Ituri, is now nearing its

end. In 2002-03, the Patriotic Forces for the Liberation of Congo, FPLC, the armed wi ng of the mainly Hema UPC, fought the ethnic Lendu Patriotic Resistance Force an d the Nationalist and Integrationist Front, in a struggle over land and natural resources. Various militia groups sought to establish political and military con trol over the Ituri region. Two more alleged FDLR leaders, Ignace Murwanashyaka and Straton Musoni, are curr ently being prosecuted in Germany for crimes committed in eastern DRC. While human rights groups in the region are in no doubt that the ICC is playing an important role in deterring atrocities, regional experts are urging the inter national community to look beyond justice and tackle a range of broader issues i n order to bring peace to the eastern DRC. Many in the region are worried that Mbarushimanas release and the perception of i mpunity it creates have given fresh impetus to FDLR forces on the ground, which in turn has led to new attacks on the civilian population. We can see that the liberation of Callixte [Mbarushimana] has negative consequenc es on the security situation in the east of the DRC, Eloi Urwodi Wabiyik, coordin ator of the League for Peace and Human Rights, LIPADHO, said. The morale of the t roops is perked up, prompting them to react by using violence towards the innoce nt population. Other analysts, however, have played down the impact of Mbarushimanas release and the role of justice processes more broadly when it comes to improving the secur ity situation in the eastern DRC. They say that even when Mbarushimana was arres ted, the FDLR continued to commit atrocities, and his subsequent release has lit tle bearing on the security situation. Did the arrest of Mbarushimna have an impact on the security in the Kivus? No, And r Kito, head of the Congolese Foundation for the Promotion of Human Rights and Pe ace, said. LOCAL ACCOUNTABILITY Kito argues that the key to deterring future acts of violence is for justice for atrocities committed by rebel groups like the FDLR to be served at a local leve l. Those who are directly involved in crimes committed continue living among the loc al population. We should have prosecutions there. As long as this is not done, t he FDLR will keep committing murders [and] rapes, Kito said. Bringing those accused of crimes before national courts in the DRC could have a dual impact, according to Phil Clark, lecturer in comparative and international politics at the University of London s School of Oriental and African Studies. H e argues that local trials would show support for the victims of atrocities and boost peoples resilience in the face of more attacks. It would also bolster effor ts to advance accountability mechanisms in eastern DRC, he said. People who have been affected by conflict are saying, We want to see the suspect a nd look them in the face and want to see justice being done with our own eyes, Cla rk said. Justice becomes something tangible. It also affects the way justice is d elivered, as it puts pressure on the lawyers and the judges involved to deliver a justice that makes sense. ICC investigators say they are continuing to look for further evidence against M

barushimana as well as to investigate other alleged perpetrators in the Kivus. H owever, the investigations themselves are hampered by the poor security situatio n, creating a vicious circle of impunity. Investigations will take time considering the security situation in the Kivus [an d] since rebel groups who committed crimes are still active there, Pascal Turlan from the ICCs Office of the Prosecutor, said. In this situation, it is not easy to reach out to victims willing to testify and also to guarantee their security. The security situation in eastern DRC has worsened in recent months. The FDLR is thought to be responsible for several attacks since December 2011 across North and South Kivu in which people were killed and villages razed to the ground. The violence has displaced communities to neighbouring villages, where they are living without regular access to food and water. Meanwhile, in recent weeks the DRC government has said it will arrest and prosec ute Ntaganda following clashes between the Congolese national army and forces lo yal to Ntaganda. Hundreds of former CNDP combatants who had been absorbed into t he Congolese army are now thought to have defected with Ntaganda. BEYOND FORMAL JUSTICE PROCESSES It is unclear what has prompted the DRC authorities change of heart given their p rolonged failure to arrest Ntaganda, despite him living openly in the eastern ci ty of Goma. Nor is it clear what kind of justice Ntaganda or other alleged perpe trators of crimes would get in the DRC, in view of the weakness of judicial stru ctures. But experts are warning that accountability alone is not enough to solve the pro blems that still need to be addressed if the ongoing atrocities in eastern DRC a re to be brought to an end. [A resolution to the conflict] needs to be pursued on a much broader approach whe re these issues of indictments are just one part of a much larger tool box, said Morten Boas, an expert on the DRC at the department of political science at the University of Oslo. And I fail to see that that approach [from the international community] is very much present right now. You can take out one Bosco [Ntaganda] and another will emerge. Observers point out that violence in eastern DRC stems from a wide range of issu es, including a disregard for ethnic minority rights, disputes over land rights, economic deprivation and a constant grappling for political power. For Boas, the insecurity felt by ethnic Tutsis in the region enables a leader li ke Ntaganda to call upon them to take up arms, to protect themselves as a minori ty group. It is tied into in this essentialist feeling of survival of the Tutsi community i n North Kivu, said Boas. You have to combine your approach [of seeking justice] to target individuals by, on the other hand, making certain you are seen as someon e willing to offer societal security for the groups these people belong to. They are driven into a warlike dynamic that they cannot prevent from happening. [For them] to do nothing is way too scary, because they feel they will lose everythi ng. Beyond formal justice mechanisms, many experts on the DRC would like to see rang e of measures not only to establish rule of law in North and South Kivu, but als o to address the root causes of violence.

They argue that local animosities continue to be a threat to the overall securit y situation, so any long-term solution requires that the causes of tensions, not just their outcomes, be addressed. Re-establishing the justice system and the rule of law is one of the issues, Sever ine Autesserre, an expert on the region and author of the book The Trouble with t he Congo, said. But there are many other issues that are beyond a pure justice que stion. There are conflicts around [individual] status, there are conflicts aroun d family [status], that would be better resolved through either political or eco nomic [means]. The nature and long duration of conflict in eastern DRC has resulted in a weak p resence of central state institutions and ineffective security measures, this al lows conflicts over issues such as patronage and land ownership to escalate into violence along ethnic lines. This is not an area without governance. The problem is that the government struct ures are tangled up in the various militia structures, and vice versa, said Boas. Developing state services in eastern DRC, particularly outside the major towns, is an enormous task, and it has been further inhibited by scant resources and po or security. Meanwhile, the plentiful availability of weapons within communities means some experts believe that people are easily drawn into violence, regardle ss of the possible consequences in a court of law. You need to protect your family... you need to protect your land, Autesserre said. [The conflict] is more [about] these kinds of elements, again linked to economic , political and social issues that are used to recruit soldiers and mobilise peo ple to fight. In the absence of a strong state that builds institutions, engages its citizens and ensures their protection, the ICC and local courts in DRC can offer little m ore than ad hoc measures that carry limited deterrent value. People do not have the experience of trusting their state to protect them under t he rule of law, Laura Seay, a DRC expert and assistant professor at Morehouse Col lege in Atlanta, said. I dont think the ICC will bring peace to anywhere I am doub tful. I still think what [the ICC] is doing is important, to serve as a justice mechani sm...but we havent seen any Congolese warlords shivering in their boots. Mlanie Gouby is an IWPR contributor in eastern DRC. Simon Jennings is IWPRs Africa Editor.