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DRC: Latest News and Reports; Analysis and Opinion

05 Sept 2008

Dear all,

Please find below information about recent developments related to the
International Criminal Court's investigation in the Democratic
Republic of Congo.

Please take note of the Coalition's policy on situations before the
ICC (below), which explicitly states that the CICC will not take a
position on potential and current situations before the Court or
situations under analysis. The Coalition, however, will continue to
provide the most up-to-date information about the ICC.

With regards,

CICC Communications
[email protected]
**********************************

I. LATEST NEWS

i. "Child soldier recruitment in the East, (Les recrutements forcés
d'enfants soldats se signalent à l'Est )" by Yollande Lumwene (Le
Révélateur) 22 August 2008,
http://www.lerevelateur.net/suite.php?newsid=2493 (in French)

"The head of the United Nations Mission in the Democratic Republic of
Congo (MONUC) et special representative of the UN Secretary-General,
Alan Doss, denounced the recruitment of child soldiers during their
tour of the region…Mr. Doss demanded a stop to the exactions (rape,
recruitment of children into armed groups, looting and illegal
trafficking of resources). He reminded the representatives of the
armed groups [engaged in the Amani Programme, the process of
re-establishment of peace and security in the province]that the
recruitment of children and rape are regarded as war crimes, and that
the perpetrators would be brought before the International Criminal
Court."

Translation is unofficial and provided by the CICC secretariat.

See also "Congo-Kinshasa: Alan Doss Visits North Kivu," by Eoin Young,
All Africa, 20 August 2008, http://allafrica.com/stories/200808200997.html

ii. "Proving Ground for the ICC," Miriam Mannak (IPS Latin America),
22 August 2008, http://www.ipsnews.net/news.asp?idnews=43620

"It seems that the court is using Africa as a test case, to determine
in what way international law can obtain more legitimacy on the ground
in Africa," said Charles Villa-Vicencio."The ICC focuses on
economically weak and politically vulnerable countries, and on nations
that are not able or willing to try perpetrators of crimes against
humanity. Many African countries fulfill these criteria."
Vlila-Vicencio, former executive director of the Institute for Justice
and Reconciliation which aims to promote reconciliation, transitional
justice, and democracy across the continent, said it is necessary to
think critically not just about the purpose of ICC as an institution
of justice, but also about the implications of the way it operates.
"We need to ask ourselves whether retribution is a sufficient
deterrent to those who violate human rights. Is intervention by the
ICC enough to stop crimes against humanity and war crimes in Africa
and elsewhere in the world?"

...Vincent Nmehielle, former Principal Defender of the Special Court
for Sierra Leone, added that the ICC has a political agenda. 'The
court should hold all tyrants accountable, but this is not happening.
So far, most of the indictees are African. The powerful ?- the United
States instance -? will never be put on trial, he says, referring to
the fact that the U.S. government does not recognise the court. Russia
will probably not be tried for what is happening in Georgia. And the
same counts for China.'

Villa-Vicencio asserted that the indictment of tyrants is not
necessarily the best course of action. The international community
must think about the possible consequences of arresting perpetrators
of crimes against humanity, he said.

...Claudia Perdomo -- acting spokesperson of the ICC -- told IPS that
the court is not using Africa as a guinea pig: 'The ICC is not an
experiment. The court is permanent, and is here to stay and does not
treat any part of the world as a test case. The fact is that Africa
played an incredible role in the establishment of the court,' Perdomo
added.

...According to Perdomo it is a misconception that individuals from
countries that do not recognise the ICC, such as the United States,
cannot be indicted. 'If someone from a non-party state commits crimes
against humanity within the territory of a party state, this person
might be tried. It is possible.'

See also http://ccrweb.ccr.uct.ac.za/?id=467

iii. ."Congo-Kinshasa: Peace Remains Elusive in East Despite Deal," by
Zachary Ochieng (The East African-Nairobi), 19 August 2008,
http://allafrica.com/stories/200808190619.html

"Six months after the signing of a peace agreement, violence continues
to rock eastern Democratic Republic of Congo, a coalition of 64 aid
agencies and human rights groups says in a new report. The report, DR
Congo: Peace Process Fragile, Civilians at Risk, says attacks against
civilians and their property occurred at an alarming rate in the six
months following the signing of the various peace agreements.'

Assessments conducted by different organisations in eastern Congo
indicated that the civilian population continues to experience
widespread attacks, sexual violence, looting and forced labour.

...On January 23, the Congolese government signed a ceasefire
agreement with 22 armed groups in Goma, North Kivu, facilitated by the
European Union, the United States, the African Union and the United
Nations.

The agreement followed the November 2007 Nairobi Communiqué between
the governments of Congo and Rwanda meant to address the problem of
the Democratic Forces for the Liberation of Rwanda (FDLR), a Rwandan
armed group whose combatants have also attacked Congolese civilians.
The two agreements, together with recommendations from the Conference
on Peace, Security and Development in North and South Kivu organised
by the government in January, form the basis of the Congolese
government's peace programme for eastern Congo, known as the Amani
Programme, led by the national co-ordinator Abbé Apollinaire Malu Malu.

The signatories agreed to a ceasefire and committed themselves to
protect civilians and respect international humanitarian and human
rights law.

`The Amani Programme hasn't yet made life better for the citizens of
eastern Congo. The international community and the Congolese
government should do what it takes to make the peace programme a
reality, not just a nice idea. They need to ensure it's funded
properly so it reaches those most in need,' says Anneke Van
Woudenberg, senior Africa researcher at Human Rights Watch.

...According to the report, recruitment of combatants, both voluntary
and forced, among armed groups in North and South Kivu, continued
despite the ceasefire and intensified during the past three months..."

II. NEW REPORTS

i."Eye on the ICC 2008," Women's Initiatives for Gender Justice
http://www.iccwomen.org/news/docs/Eye_on_the_ICC_2008_august.pdf

This report provides a detailed summary of the most recent
developments in each of the situations before the Court including the
Democratic Republic of Congo (DRC). The DRC section is divided into
the following segments: Lubanga Dyilo Trial; Status of victim and
witness, types of harm for victims; Documents on child soldiers,
Katanga/Ngudjolo Confirmation of Charges Hearing; Victims participate
in the Situation in DRC.

ii. "Living with Fear: A Population-based Survey on Attitudes about
Peace, Justice and Social Reconstruction," Berkeley-Tulane Initiative
on Vulnerable Populations, a joint project of University of
California, Berkeley's Human Rights Center and Tulane University's
Payson Center for International Development, and the New York–based
International Center for Transitional Justice, August 2008,
www.hrcberkeley.org/pdfs/LivingWithFear-DRC.pdf

This report which concentrates its analysis on population survey
results in eastern DRC conducted from September to December 2007,
offers an assessment of prevailing attitudes with regard to peace,
social reconstruction, and transitional justice mechanisms (among
other issues). A number of the survey's key findings and
recommendations relate to the work of the Court in the DRC.

See also: "Submission to the Committee on the Rights of the Child
For the Periodic Review of the Democratic Republic of Congo," Human
Rights Watch, August 2008,
http://www.hrw.org/pub/2008/africa/hrw.drc.crc.0808.pdf

III. ANALYSIS AND OPINION

i. "Tribunal Orders Release of Lubanga After Suspending Trial for
Prosecutorial Misconduct," by Bruce Zagaris, International Enforcement
Law Reporter, Vol. 24, No. 9, September 2008 (Link Unavailable)

"[Analysis]...The decisions to stay the proceedings and release
Lubanga without conditions are potentially significant. This was to be
the first ICC case to go trial. The ability of the ICC to hold that
the consequences of the prosecutor's refusal to turn over exculpatory
evidence is a denial of the defendant's fair trial and hence he must
be released shows the ICC Tribunal is able to adjudicate matters
fairly notwithstanding the alleged serious crimes with which Lubanga
is charged. The reliance on international jurisprudence indicates the
increasing maturation of jurisprudence of international

ii. "Congo-Kinshasa: Justice or Peace? War Victims Speak," by Suliman
Baldo [ Africa Director for the International Center for Transitional
Justice and one of the co-authors of Living with Fear], All Africa, 26
August 2008, http://allafrica.com/stories/200808260036.html
"In Africa's worst conflicts, victims' voices are rarely heard during
the elite debate that treats peace and justice as though they were an
either-or.

However, thousands of victims in the eastern Democratic Republic of
Congo have told researchers for a newly-published survey that peace
and justice must go hand in hand.

The survey of 3,753 Congolese is summarized in the report Living with
Fear, which reveals the extent of suffering in a nation that over the
past decade has suffered one of the deadliest wars since World War II.
The survey was carried out by the Human Rights Center at the
University of California, Berkeley, the Payson Center at Tulane
University, and the International Center for Transitional Justice [The
full report can be viewed here
http://www.ictj.org/images/content/1/0/1019.pdf]....

In spite of the horrors they have endured, an overwhelming majority
expects the Congolese government to be able to deliver peace and
security, and believes in a multi-faceted approach to these goals....
In a sharp rebuke to those who portray peace and justice as mutually
exclusive, 85 percent of those surveyed said it was important to hold
perpetrators of war crimes accountable for their actions. Eighty-two
percent said that accountability for war crimes was a necessary step
toward securing peace.

In a country with a desperately weak justice system, who should be
holding perpetrators to account? More than half (51 percent) of the
respondents said the Congolese national court system should be at the
center of pursuing justice. At the same time, there was widespread
recognition of the current weakness of the courts, leading 82 percent
to say the international community should help in national prosecutions.

Though all of the suspects currently in the custody of the
International Criminal Court (ICC) are Congolese, awareness of the
institution among those polled was low. Just over a quarter of the
populations of both eastern DRC and Kinshasa had heard about the ICC
or its potential first trial, of Congolese militia leader Thomas Lubanga.

Where the ICC is known, however, support is strong: 67 percent of
those who had heard of the court said they would like to participate
in its work, though only 12 percent said they knew how to access it.
The pursuit of justice through the ICC faces many obstacles, as was
clear when the court stopped proceedings against Lubanga earlier this
year, citing errors on the part of the prosecution. And when the ICC
prosecutor requested an arrest warrant for Sudanese President Omar
al-Bashir in June, the `peace versus justice' debate that followed
showed that many continue to treat these goals as an either-or.
But if lasting progress is to be achieved in war-torn societies such
as DRC and Sudan, victims' voices must be at the center of the debate,
and their calls for both peace and justice must be heeded. Only then,
with security and judicial reforms and the help of the international
community, can the murderous culture of impunity finally be brought to
an end."

See also "Congo-Kinshasa: First Poll of Victims in East Shows High
Demand for Justice," All Africa, 19 August 2008,
http://allafrica.com/stories/200808190974.html

iii. "Ocampo's Darfur Strategy Depends on Congo," Phil Clark (Oxford
Transitional Justice Research Working Paper Series 1), 20 August 2008
http://www.ssrc.org/blogs/darfur/2008/09/04/ocampos-darfur-strategy-depends-on-congo/

"...Many commentators have questioned why the Prosecutor is pursuing Bashir, given the unlikelihood of ever arresting him. To understand what the Prosecutor hopes to gain from this move, we should interpret it in the wider context of ICC's prosecutorial strategy to date. In particular, we should focus on how the Prosecutor's
intentions in the Bashir case hinge on his handling of cases from the Democratic Republic of Congo (DRC)....Even though the Prosecutor can easily side-step such criticisms, the success of his strategy in Sudan will rely heavily on his ability to convict the four Congolese suspects currently in ICC custody (Thomas Lubanga, Germain Katanga, Mathieu Ngudjolo and Jean-Pierre Bemba) and thus produce tangible judicial results in order to give full force to the symbolic value of the Bashir case. Meanwhile, as long as Bashir remains at large, the pressure will increase on the Prosecutor to secure those results in the DRC situation....

The move against Bashir is intended to show that the ICC is willing to
pursue difficult cases of high-ranking officials and to regain some of the legitimacy that the Court has lost in Uganda and the DRC. The Prosecutor's strategy is to secure results by convicting the four Congolese suspects currently in custody....Successes in these
cases will secure the OTP's legitimacy among the ICC states parties that have been demanding for several years that it produce tangible legal results. Convictions of the Congolese suspects, the Prosecutor expects, will allow him to use the Bashir case symbolically to gain
international legitimacy by pursuing a sitting head of state and to
build stronger relations with the Security Council and key states such as the US. As the difficulties with the Lubanga case so far highlight, however, the Congolese cases may not be as straightforward as the Prosecutor expects. Failure to secure convictions in any of these
supposedly `easier' cases will increase international pressure on the
OTP to achieve the highly unlikely result of a trial – and conviction – of Bashir. Without success in the Congo cases, the Prosecutor's calculated risk in pursuing Bashir could backfire badly."