THE THINKER Volume 73 / 2017 INTERNATIONAL
The world’s first permanent international criminal court (the ICC) that came into being on 1 July 2002 was dealt a silent but solid slap on 1 February 2017 when the African Union (AU) approved a plan for a mass withdrawal. The decision (albeit non-legally binding) was held behind closed doors as the AU summit in Ethiopia's capital Addis Ababa was nearing an end. Out of the 34 African countries that are signatories to the ICC Treaty, the majority were in favour of withdrawing.
Since its inception, the ICC has been the target of fervent support, as well as harsh criticism, increasingly so. While South Africa’s recent withdrawal late last year was a hard blow and an unprecedented challenge to the Court’s very legitimacy, the summit decision underlined the need for scrutinizing the mechanics, if not the existence, of this court.
This year marks the ICC’s 15th anniversary, whose inherent mission is to bring to justice those most responsible within an event or more events — usually a situation that stems from a country at war — of the worst international crimes: war crimes, crimes against humanity and genocide.
At the review conference held in Kampala in June 2010, member states that ratified the Rome Statute, the 1998 treaty establishing the ICC, decided by consensus to its amendment, allowing it to exercise jurisdiction over the crime of aggression. Namely the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State.
Yet it is not clear when the aggression amendments will become operational and the Court may only exercise jurisdiction over aggression committed one year after 30 States Parties have accepted the amendments. The aggression amendments also carry a confusing opt-out clause. “Why would a State ratify the amendment only to opt out of jurisdiction?”, argues Public International Law Oxford University lecturer Dapo Akande[i], a co-director of the Oxford Institute for Ethics.
In November 2016, Russia, a permanent United Nations Security Council (UNSC) member, made a decision to withdraw its signature from the ICC's founding document, which it had signed, but never ratified. Now within the UNSC Permanent Five structure, only France and England are part of the ICC, while China, the United States and now Russia are not signatories.
This is a strange set up considering that these same five permanent members of the UNSC can, according to the ICC founding treaty, decide to refer a case to the ICC, as well as block it, even concerning countries which are not state parties to the Rome Treaty. This institutional structural and operational link of the ICC to the UNSC has been a major point of contention since its inception and the reason why countries, such as India, decided to opt-out.
The perceived bias of the International Criminal Court, which has made Africa the front and centre of its work, is a point to be examined. To date, out of the official 10 ICC investigations, all except one are focused on the African continent. Thirty-two African nationals from nine African countries have been indicted.
But are these points enough to understand what is at stake? Strangely with all the talk on international criminal justice, little focus has been placed on who exactly is being judged and most importantly for which war.
One way to evaluate international criminal justice is to look at the case law it develops and the juridical codification it establishes.
The Characterization of War
The first three trials held at the ICC concerned crimes committed in Ituri, in the eastern Democratic Republic of Congo in 2002-2003. Three individuals were indicted: Thomas Lubanga, Germain Katanga and Mathieu Ngudjolo.
A forth person, Rwandan-born Bosco Ntaganda, indicted in 2006 and again in 2012, was transferred to the ICC in 2013 after he voluntarily surrendered himself at the American embassy in Kigali, Rwanda, in March of that same year. Unlike the first three indicted, Ntaganda is a full-fledged, long-time rebel. More on Ntaganda later.
Germain Katanga and Mathieu Ngudjolo’s trials were combined since both indictments covered a single event that occurred on 24 February 2003 in Bogoro, Ituri and both allegedly headed a local defence groups largely made up of combatants from the Lendu ethnic group, the Patriotic Resistance Force in Ituri (FRPI) and the Nationalist and Integrationist Front (FNI) respectively. The event allegedly targeted the Union of Congolese Patriots (UPC), a militia largely consisting of ethnic Hema combatants that was led by Thomas Lubanga, as well as the predominantly Hema civilian population living in the village.
In December 2012, the ICC Trial Chamber II acquitted Ngudjolo of all charges. Ngudjolo unequivocally proved at Court that he was assisting the birth of a child at the time in the Kambutso health clinic where he worked as a nurse, and thus could not have been present where the criminal incident for which he was charged took place.
Things went differently for Germain Katanga. Who is Germain Katanga and which war was he fighting?
“Katanga’s story is of a Congolese orphan, an occasional okapi hunter who in 2004, when he was just 25-years old, was suddenly called to Kinshasa to be appointed General of the Army of the Democratic Republic of the Congo”, writes Juan Branco. Branco worked under the ICC prosecutor Luis Moreno-Ocampo and is the author of a legal university thesis, From the Katanga case to the Global Social Contract: a look at the International Criminal Court.[i] Katanga never served as an actual general in battle.
How can we place the Ituri event in context?
Geographically the Congo is the largest state in Southern and Central Africa covering an area of 2,345,095 km² — two-thirds of the European Union. With 80 million hectares of arable land and over 1,100 minerals and precious metals identified (extensive deposits of copper, cobalt, and coltan, as well as diamonds, gold, silver, tin, iron ore, zinc and oil), the DRC has the potential to become one of the richest countries in the world. Its population is approximately 81 million.
Today, Eastern Congo is the home to what is probably the most deadly war in the world, on-going since 1996. Journalists and academics have placed the death toll at an average of 45,000 deaths per month. Today, well over 12 million people have died due to the war since 1996.
In 2003 the region was emerging from what is known in Congolese history as the African world wars: the first (1996-1997) and second (1998-2003) Congo wars.
The First Congo War was a foreign invasion of then-Zaire, (today Congo) involving some eight countries led by the United States, Ugandan and Rwandan-forged rebel group, the Alliance of Democratic Forces for the Liberation of Congo-Zaire (AFDL). The AFDL was backed by the Angolan, Ethiopian, Eritrean, Tanzanian and Zimbabwean governments. These forces attacked the Zairean army and Congolese local self-defence groups.
The AFDL invasion overthrew Congolese President Mobutu Sésé Seko and replaced him with the rebel leader Laurent-Désiré Kabila. When President Kabila took office he asked his former backers to retreat from Congolese territory with their armies. In response, Uganda and Rwanda launched the Congolese Rally for Democracy (Rassemblement Congolais pour la Démocratie, RCD,) against Kabila by once again invading eastern Congo in August 1998.
This triggered the Second Congolese War, the deadliest war in modern African history. It involved eight nations, a dozen armed groups and caused the deaths of millions of people, from violence, but also the results of such turmoil — disease and starvation.
The Ituri district takes its name from the Ituri River, which runs from Lake Albert in the north moving southwest through the region’s heart at the Okapi Wildlife Reserve where it joins the Aruwimi River that empties into the great Congo River. Ituri is richly endowed with natural resources, including fertile land, pristine forests, and large gold deposits. Thousands of fishermen work on Lake Albert, where there are also oil reserves. Ituri, whose capital is the town of Bunia, administratively a sub-division of Orientale Province, is itself further sub-divided into five territories –– Aru, Djugu, Irumu, Mahagi, and Mambasa –– each of which has several collectivités (villages).
From the beginning of the Second Congo War in 1998, Ituri was held by soldiers of the Ugandan national army, the Uganda People's Defence Force (UPDF) and the Ugandan-backed rebel movement Movement for Liberation faction of the Rally for Congolese Democracy (RCD-ML).
In June 1999, the commander of the UPDF forces in the DRC, General James Kazini, ignoring the protests of RCD-ML leaders, literally carved the Ituri area out of the eastern section of the DRC’s Northeastern Orientale Province. This act reflected that of the Congo’s colonial government, which in 1928 changed the district’s boundaries to bring the Kilo and Moto goldmines together, thus creating Kibali-Ituri.
Katanga was born in April 1978 in Mambasa, in the forestlands southwest of the area’s capital Bunia. Katanga’s maternal uncle, a soldier under Mobutu in the Zairian Armed Forces (FAZ), and his wife cared for him from birth. His uncle was killed in the first Congo war fighting the invading AFDL forces in 1996.
After his uncle’s death Katanga set out to look for his biological father and after an 18-month search, eventually found him in October 1998 in the village of Aveba in Irumu, southern Ituri. Irumu is made up of 12 villages. Among these, only one is Ngiti, the community of Walendu-Bindi, which means "community of Southern Lendu". Four other communities in this territory are Hema, while various groups among the 18 ethnicities of Ituri populate the other communities.
His father was a protestant nurse, from the Ngiti ethnic group, who had 15 children. Germain, then 20-years old, was embraced by his father's extended family and village.
Who was fighting whom in Ituri eastern Congo at the time? A UN experts’-panel report from October 2002 on the illegal exploitation of natural resources takes a closer look into it. The report, dated just four month before the event for which Katanga is indicted, reads: “The Uganda People's Defence Force (UPDF) military operations have contributed to the arming of large numbers. The UPDF have trained the militia of their Ituri commercial allies, the Hema, and provoked the need for the victims of Hema attacks to defend themselves. Lendu villages have mounted their own local forces, and they in turn have frequently attacked Hema villages. The creation of local self-defence groups is a familiar pattern: local ethnic groups frequently assemble armed groups to defend their villages or collectivities.”
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