Since 1994 and the end of the Rwandan Genocide, conflict has beset the Democratic Republic of Congo (DRC). In this background piece, the Hague Justice Portal seeks to provide an overview of the situation in the DRC which has resulted in the deaths of millions of civilians. Following the commencement of the inaugural trial at the International Criminal Court as well as the Court’s second trial, both involving militia leaders from the DRC, the reasons for the conflict, the parties involved and the initial international forays in the search for justice are briefly examined.
Like many African nations that have experienced turmoil in the twentieth and twenty-first centuries, the conflict, disorder and widespread chaos that has plagued the Democratic Republic of Congo (DRC) is firmly rooted in the country’s colonial history and the political crises experienced following independence in 1960. Whether under the flag of the DRC, the Congo Free State, Belgian Congo, Congo-Léopoldville, or Zaire, the country and its inhabitants have a long history of bloodshed and suffering.
Upon achieving independence from Belgian colonial rule, the country became the ‘Republic of the Congo’ led largely by its charismatic anti-colonial Prime Minister, Patrice Lumumba. Almost immediately, the state faced grave problems with a mutiny by its armed forces and a secessionist struggle from its Katanga province. Within weeks of the newly-elected government taking power, Lumumba was dismissed from office by the President. After a period of chaos which saw a series of short-term governments in quick succession, Mobutu Sese Seko, Chief of Staff of the Army, took advantage of the political turmoil, seizing power in 1965. He soon renamed the country, ‘Zaire’. Thirty years of dictatorial rule followed in which Mobutu perfected the practice of kleptocracy. Having declared himself against Communism, his regime was largely backed by the United States and the West during the Cold War, as Zaire also acted as a counter-weight to the Communist influence in Soviet-backed Angola.
When Zaire’s value as a strategic force diminished with the fall of Communism and the end of the Cold War, so too did US support for Mobutu’s regime. The final days of Mobutu’s reign took place in the aftermath of the 1994 Rwandan Genocide in which an estimated 800 000 Tutsis and moderate Hutus were slaughtered by Hutu extremists. Faced with the advancing army of the predominantly Tutsi Rwandan Patriotic Front (RPF), a mass exodus consisting of thousands of civilians as well as Hutu perpetrators of the Genocide fled west from Rwanda into neighbouring Zaire, resulting in a humanitarian catastrophe in the east of the country. Millions of innocent Hutu civilians found themselves mixed together in refugee camps with many of the Interahamwe militias that had perpetrated the Genocide. The ethnic conflict had now spilled over the border into Zaire (with RPF troops also accused of committing massacres of Hutu civilians in the refugee camps). Eastern Zaire also became a base from which the transplanted Hutu Power regime began launching attacks into Rwanda. In 1996, Rwandan and Ugandan forces invaded Zaire under the pretext of fighting Hutu rebels in the country. The Rwandan-backed rebels of the Alliance of Democratic Forces for the Liberation of Congo-Zaire (AFDL) lead by Congolese dissident, Laurent-Désiré Kabila successfully overthrew the Mobutu regime. Kabila was subsequently installed as President of the newly re-named Democratic Republic of Congo.
This period of the DRC’s history, from 1996 until the instalment of Kabila has become known as the ‘First Congo War’. Alongside the forces of Rwanda and Uganda, Burundi and Angola also supported the AFDL’s anti-government forces, while Angolan and Hutu rebels unsuccessfully attempted to support the Mobutu regime.
In a case before the International Court of Justice (ICJ) (see 4.1 below), the DRC claimed that the reason for the ‘Second Congo War’ was the new policy of independence and emancipation put in place by Laurent-Désiré Kabila, according to which the “substantial benefits” once granted to Rwanda and Uganda would be reduced.1 Indeed, following Kabila’s ascension to power, his Ugandan and Rwandan allies were allowed to remain in the DRC and received military and economic benefits. In its counter-claims, Uganda contended it had been invited to protect the eastern provinces of the DRC.
Whatever the reason (the Court found that the DRC’s consent to Uganda’s presence had been withdrawn at the latest by 8 August 19982), relations between Kabila and his former Rwandan and Ugandan allies quickly soured. This sparked a new rebellion in 1998 pitting Rwandan, Ugandan and Burundian forces against those of Angola, Chad, Namibia and Zimbabwe who supported Kabila’s government. Kabila also appealed for assistance from the Rwandan Hutu extremists in the east of DRC. This new conflict marked the beginning of the ‘Second Congo War’.
In a war complicated by the vast natural resources of the DRC – diamonds, copper and coltan – and the purported desires of outside states and internal rebel groups to exploit these resources, the war eventually became one fought by proxy. Rwanda supported its proxy forces, the Rassemblement Congolais pour la Democratie (RCD), and Uganda supported the Movement for the Liberation of Congo (MLC) led by Jean-Pierre Bemba Gombo, as each state sought clandestine methods to maintain their presence and influence in the region. Perpetual in-fighting combined with the desire to plunder the DRC’s resources eventually led to several armed breakaway groups as allegiances frequently switched and the conflict degenerated into total chaos. Officially, the conflict ended in 2003 when a new transitional government took power, though much of the chaos that it produced remains to this day.
Tensions within the various rebel groups produced breakaway factions which prolonged the conflict and violence perpetrated against civilians. Nevertheless, in July 1999, the Lusaka Ceasefire Agreement was signed by the DRC, Angola, Namibia, Zimbabwe, Rwanda and Uganda under which the states agreed to cooperate in disarming the multitude of rebels operating in the region. Further complicating the conflict, tensions between Rwandan and Ugandan forces exploded towards the end of 1999, resulting in armed clashes between their forces which continued into 2000. Attempting to quell the violence, the UN Security Council mandated3 a peacekeeping force of over 5,500 troops (Mission de l’Organisation des Nations Unies en République démocratique du Congo - MONUC) to monitor the 1999 ceasefire and facilitate humanitarian assistance.
A significant breakthrough in the conflict came at the beginning of 2001 when President Kabila was shot by one of his bodyguards, later dying from his injuries. The Congolese Parliament voted Kabila’s son, Joseph Kabila, to take power, who almost immediately sought peace talks with Rwanda and Uganda. Soon after, foreign troops in the DRC began to pull out. A series of peace agreements were then signed. The Sun City Agreements in April 2002 provided a framework for Congo’s transition to democracy, while the Pretoria Accord and the Luanda Agreement, signed in July and September 2002 respectively, formalised the withdrawal of Rwandan and Ugandan troops from the DRC. Finally, following the Inter-Congolese Dialogue process, the government, various rebel groups and others including political groups signed the agreement which led to the Transitional Government established in 2003. Under this new arrangement, Kabila would remain as President with four vice presidents representing, among others, former rebel groups. Jean-Pierre Bemba Gombo of the MLC took office as one of the vice-presidents. In the DRC’s first democratic elections held in 2006 (which the UN reported as free and fair despite some flaws), Joseph Kabila won a run-off against Bemba and retained his position as President. The electoral process was however marred by several violent clashes in the capital, Kinshasa, between forces loyal to Kabila and Bemba prior to the announcement of the winner.
As a direct consequence of the country’s troubled history and the First and Second Congo Wars, two significant ‘micro conflicts’ were fought in the DRC. These conflicts took place in the context of the Second Congo War, but continued after the official end to the war in 2003.
3.1 The ‘Kivu conflict’ (eastern DRC)
The Kivu conflict in the east of the DRC has its origins in the 1994 Rwandan Genocide and the Second Congo War. Together with former Hutu Power government figures, thousands of génocidaires who fled into the DRC re-organised themselves as the Forces démocratiques de libération du Rwanda (FDLR). This newly formed Hutu rebel group had the ultimate objective of opposing the Tutsi-dominated government of Paul Kagame in Rwanda. At various stages during the turbulent history of the DRC following the Genocide, the FDLR has received support from Kinshasa in repelling Rwandan forces. As of November 2009 a joint DRC-Rwanda offensive was in operation to finally rid Kivu of the rebels.
Claiming to be defending Congolese Tutsis from the FDLR in the mineral-rich Kivu provinces, General Laurent Nkunda (see section 5.2) established the Congrès national pour la défense du peuple (CNDP). Nkunda’s forces have also often clashed with forces of the DRC army. In a series of offensives throughout 2004, 2005 and 2006 in which the UN peacekeeping force, MONUC, provided support to the DRC army against, Nkunda’s forces, the CNDP have been accused of war crimes and crimes against humanity. Nkunda has also called for the overthrow of Kabila’s government, citing corruption, and continued to openly engage his army in the region throughout 2007.
Peace talks began in early 2008 after they had stalled towards the end of 2007. On 23 January 2008, the CNDP and DRC government signed a peace deal to end the conflict. The deal granted immunity to Nkunda’s forces and included provisions on the withdrawal of rebel forces from the region and for the resettlement of the thousands of civilians displaced by the fighting. It also provided for the removal of the FDLR from the region.
Nevertheless, dissatisfied with the peace deal and apparent lack of progress in disarming the FDLR, the CNDP once again began hostilities in the region at the end of 2008, before Nkunda’s eventual arrest in 2009. Nkunda’s arrest came as Kabila permitted Rwandan forces to enter the DRC to disarm the FDLR, in return for the arrest of the CNDP General. The DRC had previously supported the FDLR to try to counter attacks by Nkunda’s forces.
3.2 The ‘Ituri conflict’ (north-eastern DRC)
The Ituri conflict is a conflict between the agriculturalist Lendu and pastoralist Hema ethnic groups in the Ituri province of north-eastern Democratic Republic of Congo (DRC). The conflict originally began as an economic conflict, but soon evolved into an ethnic one.
Following Congolese independence from Belgium in 1960, land certificates of questionable legal title were granted to many Hema families under Mobutu’s policy of ‘Zairianisation’ which sought to introduce new land ownership policies as a symbolic and ideological shift from colonial rule.4 However, this policy brought the new land ownership system into conflict with the traditional system based on ancestral lands, as Hema families were granted title to land traditionally regarded as Lendu. Conflict thus ensued.5 Violence committed by traditional Lendu communities in the course of protecting their land eventually evolved beyond simply targeting landowners to targeting anyone of Hema ethnicity. These tensions grew to a climax in 1999 with the Blukwa massacre in which more than 400 ethnic Hemas were massacred by Lendu militias.6 According to historian, Gérard Prunier, giving evidence in the case before the International Criminal Court (ICC) against Thomas Lubanga Dyilo, so marked the beginnings of “armed ethnicisation” in Ituri. According to Prunier, where ethnicity becomes the dominant factor, violence is perpetuated because “the safest [position] is to be an armed militia man”.7
From 2002 onwards, a large number of rebel groups and smaller factions were operating in Ituri. Whilst Rwanda originally backed the RCD, and Uganda the MLC of Bemba in the Second Congo War, constant in-fighting and a lack of coherent ideology meant that the rebel groups frequently changed allegiances. Furthermore, given the usually pragmatic arrangement of rebel groups, the DRC, Rwanda and Uganda have at various points during the conflict supported a number of different groups, even in proxy wars against each other.
The anarchy that ensued as a result of these arrangements, the lack of any political structure in the province (a consequence of colonialism, which according to Prunier has caused people to rally around the “lowest common denominator”8 – ethnicity), and the simple necessity of protection, facilitated the emergence of yet more militia groups. The predominantly Hema Union des patriotes congolais (UPC) led by Thomas Lubanga Dyilo, the Ngiti Force de résistance patriotique en Ituri (FRPI) and the Lendu Front des nationalists et intégrationnistes (FNI) became the main protagonists in the ethnic violence.
Under the terms of the Luanda Agreements signed in 2002 between Uganda and the DRC, Ugandan troops began to withdraw from Ituri. However, the immediate consequence of this was increased instability, marked particularly by increasing attacks on MONUC peacekeepers. As a result, the UN Security Council authorised9 the deployment of ‘Operation Artemis’, an 1800-strong Interim Multinational Emergency Force which was launched on 12 June 2003. Transferred to EU command, the operation stabilised the situation ready to be transferred back to UN command under MONUC in late 2003. By 2007, disarmament and demobilisation of the remaining militia and rebel groups had begun, and today the province is largely peaceful.
Delivering justice for the many violations of international law committed on the territory of the DRC is an immense task. The complexities of the various interwoven conflicts, the international aspects to those conflicts, as well as the lack of any clear demarcation between the ‘good guys’ and ‘bad guys’ means that seeking justice for the millions of victims in the DRC presents a daunting, seemingly impossible challenge. Nevertheless, alongside domestic proceedings including military tribunals, international justice has slowly begun to take up the challenge.
4.1 The International Court of Justice (ICJ)
In 1999, the DRC instituted separate proceedings against Rwanda, Uganda and Burundi before the International Court of Justice (ICJ) in The Hague to challenge the use of force and armed activities on its territory during the Second Congo War. In its applications, the DRC challenged the armed aggression of each country which it claimed had involved, inter alia, violations of its sovereignty and territorial integrity, violations of international humanitarian law and massive human rights violations. Beginning in August 1998 with the occupation by Burundian, Rwandan and Ugandan troops of the eastern cities of Goma and Bukavu, each Application cites various incidents of massacres, rape, systematic looting and human rights violations committed by the foreign troops and their rebel allies within the DRC.
The cases concerning Burundi and Rwanda were removed from the list of ICJ cases in 2001, though a new application was instituted in 2002 against Rwanda. In its Judgment of 3 February 2006, the ICJ found that it had no jurisdiction to hear the case against Rwanda. Nevertheless, in his dissenting opinion, Judge Koroma highlighted the seriousness of the allegations against Rwanda had the Court found jurisdiction, specifically the claims that its proxy forces in the DRC had committed ‘acts of genocide’ against over 3 million Congolese civilians. Judge Koroma stated that Rwanda’s denial of the Court’s jurisdiction in the case went against the object and purpose of the 1948 Genocide Convention to “liberate mankind from [the] ….odious scourge” of genocide.10 Furthermore, Judge Koroma stated that by not allowing scrutiny of its actions and those of its agents, Rwanda was acting disingenuously given its history and the pressure it had exerted on the international community to try the perpetrators of its Genocide.
Although the ICJ found itself unable to adjudicate the applications against Rwanda and Burundi, it found the requisite jurisdiction against Uganda, delivering its Judgment on 15 December 2005.
Before addressing the specifics of the case and the Application, the Court noted the “complex and tragic situation which has long prevailed in the Great Lakes region” and observed that “instability in the DRC in particular has had negative security implications for Uganda and some other neighbouring States.”11 The Court found that Uganda had “violated the principle of non-use of force in international relations and the principle of non-intervention”, and had “violated its obligations under international human rights law and international humanitarian law”.12 According to the ICJ, through the conduct of its armed forces in the DRC, Uganda was responsible for, inter alia, acts of killing, torture, the destruction of villages and inciting ethnic violence. The Court additionally found that Uganda had violated obligations owed to the DRC under the Vienna Convention on Diplomatic Relations of 1961, and had failed to comply with its obligations as an occupying Power in Ituri according to the 1907 Hague Regulations. Uganda was directed to pay reparations to the DRC, which were to be agreed through bilateral negotiations between the states.
4.2 Referral to the International Criminal Court (ICC)
In addition to seeking justice against the states that fuelled the conflicts in the DRC, the wheels of international justice have slowly gathered momentum against individuals allegedly responsible for some of the worst crimes committed. Therefore, alongside the situations in Darfur, the Central African Republic and Uganda, the situation in the DRC is under investigation at the International Criminal Court (ICC) in The Hague. The Prosecutor at the ICC has consistently repeated his desire for the Court to target those bearing the greatest responsibility for the grave crimes committed in the DRC in order to end impunity for mass atrocities.
According to the Rome Statute establishing the ICC, the Court has jurisdiction over crimes committed on the territory of a State Party to the Statute or by a national of a State Party.13 The Court may exercise that jurisdiction only after a referral of a situation by a State Party, a referral by the UN Security Council, or after the initiation of an investigation by the Prosecutor.14 Once a situation has been referred or an investigation authorised, the Court has jurisdiction over genocide, crimes against humanity, war crimes and the crime of aggression.15
The DRC ratified the Rome Statute in April 2002. Under the DRC’s legal system, the Rome Statute was immediately incorporated into DRC law. On 3 March 2004, the DRC government referred the situation of crimes committed anywhere on its territory to the ICC for investigation, by way of Article 14 of the Statute. In 2003, after receiving evidence concerning the situation in the country, ICC Prosecutor, Luis Moreno Ocampo stated that his office had made the situation a priority. In September 2003 he announced that he was preparing to exercise his proprio motu powers under Article 15 to initiate formal investigations in the DRC. However, the referral of the situation by the DRC meant that the Prosecutor no longer needed to exercise such powers, and on 21 June 2004 a formal investigation was initiated.
According to the Court’s Statute, the Prosecutor only has jurisdiction (ratione temporis) to prosecute crimes committed after the entry into force of the Statute in 2002. Consequently, despite evidence that crimes were committed in DRC prior to this date, those accused before the Court may only be tried for acts that took place after 2002.
Currently, Thomas Lubanga Dyilo, Germain Katanga and Mathieu Ngudjolo Chui are in the custody of the Court accused of crimes committed in the Ituri province of north-eastern DRC. An arrest warrant has been issued for a fourth accused, Bosco Ntaganda.
4.3 Thomas Lubanga Dyilo
On 17 March 2006, Thomas Lubanga Dyilo became the first suspect to be arrested and transferred to the custody of the ICC. Lubanga was arrested by authorities of the DRC in March 2005 and had been imprisoned in Kinshasa immediately prior to his transfer to The Hague. Lubanga, an ethnic Hema of Congolese nationality, was the founder and president of the Union des patriotes congolais (UPC) and the founder and Commander-in-Chief of the Forces patriotiques pour la libération du Congo (FPLC). Both the UPC and FPLC were active militia groups in the Ituri conflict that engulfed the east of the DRC from around July 2002 until 2003.
A warrant for the arrest of Lubanga was issued under seal by Pre-Trial Chamber I on 10 February 2006 after the Prosecutor filed an application for the warrant in January of the same year. The warrant was unsealed on the same day as Lubanga’s arrest, with the accused making his initial appearance before the Court on 20 March 2006.
Confirmation of charges hearings were held in the case against Lubanga in November 2006. On 29 January 2007, the Pre-Trial Chamber confirmed the three charges brought by the Prosecutor. Therefore, Lubanga has been formally charged on the basis of his individual criminal responsibility with three counts of war crimes for enlisting and conscripting children under the age of 15 and using them to participate actively in hostilities. The charges against Lubanga fall under articles 8 (2) (b) (xxvi) and 8 (2) (e) (vii) of the Rome Statute, concerning the use of children in Ituri to participate in an international armed conflict fought between September 2002 and June 2003, and a conflict not of an international character from June 2003 until August 2003.
In confirming the charges against Lubanga, the Chamber found sufficient evidence to establish substantial grounds to believe that when the predominantly Hema FPLC was founded in 2002, a common plan existed between Lubanga and other FPLC commanders to further their war effort by forcibly recruiting minors, or having them volunteer, into the ranks of the FPLC. Lubanga is alleged to have assumed an essential coordinating role in the implementation of this plan and was fully aware of the importance of his role.
According to the Prosecution, children conscripted and enlisted into the ranks of the FPLC underwent rigorous military training and were used in active hostilities, including the infamous attack on Bogoro village in 2003. Lubanga and other FPLC commanders are alleged to have used children as personal bodyguards. Over 100 persons including former child soldiers have been granted victim status to participate in the proceedings against Thomas Lubanga.
On 13 June 2008, the Trial Chamber found that Lubanga’s right to a fair trial had been violated by the failure of the Prosecutor to disclose potentially exculpatory evidence. The Chamber therefore ordered that the proceedings against Thomas Lubanga be stayed. The Chamber ruled that the Prosecutor had failed to disclose evidence to the Defence, after it had incorrectly used Article 54 (3) (e) of the Statute, which grants the power not to disclose evidence on the basis of ensuring confidentiality to information-providers for the purpose of gathering new evidence. As a result, over 200 documents were not disclosed, inhibiting the proper preparation of Lubanga’s defence. In its decision, the Chamber stated that the trial had been ruptured “to such a degree that it is now impossible to piece together the constituent elements of a fair trial.”16 Lubanga was granted unconditional release, which was suspended pending a decision on the Prosecution’s appeal.
The Appeals Chamber upheld the decision to stay the proceedings on 21 October 2008, but declined to order Lubanga’s release.17 Instead, the case was referred back to the Trial Chamber for a new determination on the issue after the confidential sources of the evidence was disclosed to the judges. In November 2008, the Trial Chamber found that the reasons for the suspension had “fallen away”18 clearing the way for the commencement of trial. On 26 January 2009, in the first ever case before the ICC, the trial of Thomas Lubanga began in The Hague.
4.3.4 Prosecution case and potential new charges
The Prosecution concluded its case against Lubanga on 14 July 2009 after 74 days of hearings and the testimony of 28 witnesses. The trial represents not only the inaugural case at the ICC, but also the first international criminal proceedings in which victims have been allowed to directly participate in the proceedings with representation by legal counsel.
According to the Prosecution, Lubanga “committed some of the most serious crimes of concern to the international community as a whole: crimes against children.”19 In response to these claims, the Defence for Lubanga insisted that he was being using as a scapegoat for those bearing greater responsibility. The Defence sought to implicate both officers in the DRC army, as well as both Uganda and Rwanda for their support to militia groups in Ituri. During the trial proceedings, several references have also been made to Bosco Ntaganda for his role in the conflict. Ntaganda (see further below) is also wanted by the ICC.
Despite a stuttering start to its case (the first witness, a former child soldier, later recanted his testimony) the Prosecution built its case around the various stages of life as a child soldier in Ituri. The case sought to establish both the systematic policy of recruiting children and the clear military structure in place with Lubanga exercising de jure and de facto control. The Prosecution employed three expert witnesses, including a psychologist to counter the Defence claims that child witnesses were unreliable and inconsistent.
During the Prosecution’s opening statement, Chief Prosecutor Luis Moreno-Ocampo devoted a large amount of time to sexual violence, despite Lubanga not being charged with crimes of a sexual nature. The opening statements from the victims’ representatives in the trial also focused on the rape and sexual abuse of children. Throughout the trial a significant amount of attention has been paid to such allegations, despite Lubanga not being charged with any sexual crimes. At the initiative of the legal Representatives for the victims a motion to amend the charges against Lubanga was filed before the Court seeking a legal re-characterisation of the facts. However, on 8 December 2009, the Appeals Chamber reversed a decision of the Trial Chamber that would have allowed the inclusion of sexual crimes in the case against Lubanga.
4.4 Germain Katanga and Mathieu Ngudjolo Chui
Germain Katanga (alias “Simba”) is a Congolese national of Ngiti ethnicity. During the Ituri conflict, Katanga was the commander of the Force de résistance patriotique en Ituri or FRPI (Patriotic Resistance Force in Ituri). Pursuant to a peace process in the DRC and the establishment of the Transitional Government in 2003, Katanga was appointed Brigadier-General of the Armed Forces of the DRC (Forces Armées de la République Démocratique du Congo - FARDC) along with other former militia leaders in an attempt to resolve the country’s conflicts. Following the killing of nine UN peacekeepers in Ituri in February 2005, Katanga was arrested by the DRC authorities and remained under house arrest in Kinshasa until his transfer to the ICC. The Prosecutor at the ICC filed an Application for the issuance of an arrest warrant for Germain Katanga in June 2007, which Trial Chamber I issued under seal in July 2007. On 17 October 2007, Katanga was surrendered to the custody of the ICC by the Congolese authorities, with his arrest warrant unsealed the following day. Just five days later, Katanga made his initial appearance before the Court on 22 October 2007.
Mathieu Ngudjolo Chui, a Congolese of Lendu ethnicity, is the former leader of the Front des nationalists et intégrationnistes, or FNI (National Integration Front) operating in the Ituri conflict. Under the same initiative which saw Katanga integrated into the FARDC, Ngudjolo Chui was appointed Colonel in 2006. Ngudjolo Chui had previously held positions in the Army in the former Zaire, but deserted prior to the first Congo War. On 6 July 2007, a warrant for the arrest of Ngudjolo Chui was issued under seal, and unsealed on 7 February 2007 following the arrest and transfer of the accused to The Hague by the Congolese authorities. Ngudjolo Chui made his initial appearance before the ICC on 11 February 2008.
In a Decision delivered on 10 March 2008, Pre-Trial Chamber I at the ICC joined the cases of Katanga and Ngudjolo Chui following a request to that effect filed by the Prosecution, and after determining that it would neither prejudice the two accused nor be contrary to the interests of justice. The Decision notes the alleged co-responsibility of Katanga and Ngudjolo Chui for crimes committed in certain attacks in the Ituri province in 2003.
After confirmation of charges hearings, on 26 September 2008, Pre-Trial Chamber I found that there was sufficient evidence to establish substantial grounds to believe that Katanga and Ngudjolo Chui were responsible for ten counts of crimes against humanity and war crimes. The Chamber confirmed the following charges against the accused: three crimes against humanity for murder, rape and sexual slavery,20 as well as seven war crimes for using children under the age of 15 to take active part in hostilities, deliberately directing an attack on the civilian population, wilful killing, destruction of property, pillaging, and sexual slavery and rape.21 Nevertheless, the Chamber found that there was insufficient evidence to establish grounds to believe that the accused committed the further charges, of inhuman treatment, outrages upon personal dignity and other inhumane acts.
The Prosecution alleges that Katanga and Ngudjolo Chui jointly committed the crime of using children under the age of 15 as bodyguards and combatants during the Ituri conflict. The other charges against the two rebel commanders are based on their individual criminal responsibility under Article 25 (3) (a) for jointly committing through other persons the various crimes against humanity and war crimes.
The Prosecution alleges that throughout the Ituri conflict forces under the command of Katanga and Ngudjolo Chui implemented a policy of systematically targeting the civilian Hema population. As noted above, the conflict was fuelled by the involvement of Ugandan, Rwandan and DRC forces, and as such the Chamber in the Lubanga trial held the Ituri conflict to be international in character, largely due to the fact that Uganda was a major supplier of weapons to armed groups in the region.22 (See also the International Court of Justice’s condemnation of the role of the Ugandan People’s Defence Force (UDPF) on the territory of the DRC,23 which the Trial Chamber relied upon in its determination.) The UDPF are also substantially implicated in offering direct military support to various (warring and opposing) armed groups in the DRC. For these reasons, the Trial Chamber at the ICC proceeded with only those offences against Katanga and Ngudjolo Chui charged in connection with an international armed conflict.
The Prosecution charges specifically relate to an attack on the village of Bogoro on 24 February 2003. The FPRI and FNI forces of Katanga and Ngudjolo Chui launched a joint attack on the village, having initially organised themselves to oppose the military forces of the Hema ethnic militias. The Prosecution alleges that the attack which resulted in the deaths of around 200 civilians was targeted to raze the village by killing Hema civilians and their homes. Through the killing or displacement of civilians, as well as the destruction of their property, it is alleged that Katanga and Ngudjolo Chui sought control of both Bogoro and the route to Bunia (the capital of Ituri province). In his opening statement at the start of the trial the Prosecutor described:
[..] hundreds of men, women and children, under the command of Katanga and Ngudjolo, armed with automatic weapons, machetes and spears, descended on the village […] Civilians and UPC [Lubanga’s Hema militia] soldiers were killed without distinction. Some were shot in their sleep, some cut up with machetes to preserve bullets. Others were burnt alive after their houses were set on fire by the attackers.
Katanga and Ngudjolo Chui are further charged with using children under the age of 15 in the killing of civilians and the pillaging of Bogoro, as well as using children as escorts and personal bodyguards. Those who fled the attack were allegedly hunted down and cut into pieces, with others imprisoned by FNI/FRPI combatants in rooms filled with corpses. In the course of this attack, civilians were raped and reduced to sexual slavery by forces under Katanga and Ngudjolo Chui’s control. Evidence presented by the Prosecution, including NGO and UN reports, has also established the direct involvement of Ugandan forces in the Bogoro attack.
The Pre-Trial Chamber has granted 345 victims the right to participate in the proceedings. Legal Representatives of the victims have given oral submissions including regarding the involvement of Rwanda in the conflict.
4.4.3 ‘Complementarity’ challenge
Prior to the start of the trial, the Defence for Germain Katanga sought to prevent the commencement of proceedings by arguing that a trial would violate the principle of ‘complementarity’ enshrined in the ICC Statute.
This founding principle of the Rome Statute and the ICC is enshrined in the Preamble as well as articles 1 and 17 of the Statute, and dictates that the Court may only investigate and prosecute cases when the state concerned is “unwilling or unable” to do so itself. In effect, the principle ensures that national criminal proceedings are given precedence over the ICC. Unlike the international criminal tribunals for Rwanda and the former Yugoslavia which enjoy primacy over national jurisdictions, the ICC is therefore largely subordinate to national courts. The origins of the principle are concerns for sovereignty and the national administration of justice. According to the ICC Appeals Chamber, complementarity strikes a balance between safeguarding the primacy of domestic proceedings and the purpose of the ICC to “put an end to impunity”.24
According to Katanga’s Defence motion, filed on 11 March 2009, evidence from the DRC demonstrated a clear intention on the part of the DRC to prosecute Katanga for crimes against humanity committed during the attack on Bogoro. The Defence argued that the test currently employed and developed in the Lubanga case is the wrong test to be applied in the assessment of admissibility. Rather than the “same conduct” test, which the Defence argued amounts to primacy rather than complementarity, the Defence forwarded a combined “comparative gravity”/”comprehensive conduct” test.25 Under this test the Defence claimed that investigations against Katanga in the DRC “were of the same or greater gravity as the charges brought by the ICC Prosecutor” and thus the case before the ICC violates complementarity.
On 12 June 2009, Trial Chamber II unanimously dismissed the motion, finding no grounds to support the submission that complementarity had been violated. Presiding Judge Bruno Cotte confirmed that the DRC had “quite clearly decided to allow the court to institute proceedings” and was “quite clearly unwilling to prosecute” Katanga.26 The Chamber stated that only one of the two criteria (‘unable’ or ‘unwilling’) had to be satisfied, and that the DRC had clearly demonstrated its desire for the ICC to prosecute the case. On 25 September 2009, the Appeals Chamber rejected each of Katanga’s five grounds of appeal on the issue. The Appeals Chamber said that at the time of admissibility proceedings there were no domestic proceedings ongoing against Katanga, and reiterated that the DRC had made clear that it wished the ICC to prosecute the case.27
The search for justice in the DRC is far from straightforward, with the legal proceedings introduced above representing the mere beginnings of justice for the Congolese people. Seeking to conduct this search for justice at the international level also has its drawbacks, given the impossibility of addressing all of the factors that created and perpetuated the years of violence and humanitarian disaster. Significant obstacles to administering justice also remain at both the international and domestic levels. What follows is a mere introduction to some of the principal impediments to justice in the DRC.
5.1 Bosco Ntaganda
Bosco Ntaganda is an ethnic Rwandan Tutsi who fought for the Rwandan Patriotic Front (RPF) during the Genocide in 1994. He is the alleged Deputy Chief of General Staff for Military Operations of the Hema Forces patriotiques pour la libération du Congo (FPLC), the military wing of the Union des patriotes congolais (UPC). In his position within the UPC, Ntaganda was ranked third in its hierarchy behind Thomas Lubanga. Currently, Ntaganda remains at large.
As part of the peace process in the DRC, Ntaganda was appointed to the rank of General in the Congolese Armed Forces but subsequently refused the position. At around 2006, Ntaganda left the UPC to move to North Kivu where he joined Laurent Nkunda’s Congrès national pour la défense du peuple (CNDP). However, in 2009 Ntaganda claimed to have ousted Nkunda in the CNDP leadership. Following this development, CNDP forces under Ntaganda’s control have fought alongside the Congolese army in joint military operations launched by the DRC and Rwanda to disarm the FDLR Hutu rebel group in the Kivu region.
The ICC issued an arrest warrant under seal for Ntaganda on 22 August 2006. It was unsealed on 28 April 2008 after the Pre-Trial Chamber ruled that the circumstances of the case had changed, specifically in that potential risks to the warrant being made public had ceased. Ntaganda is wanted on three war crimes charges for enlisting, conscripting, and using children under the age of 15 in active hostilities during the Ituri conflict. None of the charges before the ICC relate to his activities as a commander in the CNDP in the Kivu conflict despite Ntaganda also being implicated in crimes committed in the Kivus. According to the charges, Ntaganda played an essential role between July 2002 and December 2003 in the enlistment and conscription of child soldiers to the FPLC in Ituri; charges for which Thomas Lubanga is being tried at the ICC.
During the proceedings against Lubanga at the ICC, several witnesses and evidence have identified the role of Ntaganda in the conflict. However, as of November 2009 there were no signs that Ntaganda would be brought before the ICC, with the DRC continuing to renege on its obligations under the Rome Statute to arrest and transfer him to the ICC’s custody.
5.2 Laurent Nkunda
Laurent Nkunda is a Congolese national of Tutsi ethnicity who fought with the RPF to overthrow the Hutu extremist government responsible for the Genocide in Rwanda in 1994. Demonstrating his allegiance to Rwanda, Nkunda also fought in the First Congo War in 1996 to install Laurent-Désiré Kabila as DRC President, and then joined the Rwandan-Ugandan-backed RCD rebel group which fought in the Second Congo War to overthrow Kabila. Following the official end to the war in 2003, Nkunda joined the national army of the newly-organised Transitional Government of the DRC, formed on the back of the peace process. Despite attaining the rank of General, Nkunda left the army with many former RCD troops still loyal to his command and began a series of attacks claiming to be defending the interests of Congolese Tutsis. In 2005, an international arrest warrant was issued for Nkunda by the DRC, seeking his arrest for war crimes and crimes against humanity.
After leaving the army, Nkunda established the Congrès national pour la défense du peuple (CNDP) in North Kivu. As well as fighting the FDLR rebels, Nkunda has opposed the government of Joseph Kabila in fighting during the Kivu conflict.
In October 2008, Nkunda’s rebels launched a major offensive against the DRC army, UN peacekeepers and the FDLR, seeking to capture the town of Goma. The fighting resulted in what the UN described as a humanitarian catastrophe. However, on 22 January 2009, Nkunda was arrested by Rwandan authorities in an apparent deal struck between the two neighbouring governments which saw Rwandan troops enter the DRC in an offensive to disarm the FDLR. It was at this time that Bosco Ntaganda claimed to have ousted Nkunda in the CNDP leadership. Nkunda’s arrest was surprising in both its timing and its very fact, since allegations have existed for many years that his forces were directly supported by Rwanda.28 It remains unclear whether Rwanda will extradite Nkunda to the DRC to face the charges against him.
5.3 Rwanda, Uganda and the fight over natural resources
The International Court of Justice has proven largely ineffective in bringing justice to the DRC following the actions of Rwanda and Uganda. As identified, the Court declined jurisdiction over the case against Rwanda, and whilst it severely criticised the role of Uganda in the DRC, Uganda has yet to pay the compensation that was ordered as a result of the Court’s Judgment. The Court also failed to deal with the issue of exploitation of the DRC’s wealth of natural resources, an issue which continues to raise foreign interest in the DRC and an issue over which the government in Kinshasa, hampered by the vast territory of the country and its inability to fully exercise its sovereignty over that territory, has shown few signs of effectively controlling.
Despite consistently-cited allegations to this effect, in its Judgment, the ICJ found insufficient evidence to prove a governmental policy by Uganda to exploit the natural resources of the DRC. Nevertheless, the ICJ found “ample credible and persuasive evidence”29 that officers of its national army were involved in plundering those natural resources.
These findings have been confirmed in several UN reports, the most authoritative of which come from the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the DRC (‘the Panel’). Having been established by the Secretary-General in 2000, the initial report of the Panel found that military leaders in the region had systematically exploited the DRC’s natural resources through international networks, otherwise legitimate companies and individual businessmen. The report concluded that President Kagame of Rwanda and President Museveni of Uganda “are on the verge of becoming the godfathers of the illegal exploitation of natural resources and the continuation of the conflict” in the DRC through their indirect assistance to illegal activities, policies regarding rebels, and attitudes towards their respective armies.30 In its final report delivered to the UN in October 2002, the Panel found that despite the withdrawal of foreign troops, the networks for exploiting the DRC’s resources were already deeply embedded to the extent that this process could take place independent of the presence of such troops.31 Moreover, it declared that the armed clashes that broke out between Ugandan and Rwandan troops in Ituri were the direct result of each force’s desire to control diamonds in the region.
The Final Report of the Panel further concluded that in Ituri,
the traditional enmity over land and the ongoing feud between the two groups is used as rationale by the Hema, and especially the extremist sub-clan Gegere, for importing arms and training their own militia with the ultimate unspoken objective of consolidating their economic strength in the region.
In several resolutions the UN Security Council has condemned the illegal exploitation of the DRC’s natural resources.32 Yet another expert report from December 2008 detailed the role of natural resource exploitation in the Kivus. The report found that the principal method of funding for the FDLR is through mineral exploitation, estimating that the Hutu extremist group, acknowledged as controlling most of the mining sites in North and South Kivu, “is reaping the profits possibly worth millions of dollars a year from the trade of minerals” in eastern DRC.33 However, the UN has so far failed to act more purposefully on the Panel’s findings, and reports continue to demonstrate the exploitation of the DRC’s natural resources, particularly their transportation through Rwanda and Uganda.34
5.4 Europe and the FDLR
Operations jointly undertaken by the DRC and Rwanda in 2009 were intended to finally disarm the FDLR rebels in the Kivus. However, evidence that emerged in November 2009 suggested that the operation alone would be insufficient to completely eliminate the rebel group’s activities. On 17 November 2009, the FDLR’s president, Ignace Murwanashyaka was arrested in Germany, charged with leading a terrorist organisation, as well as war crimes and crimes against humanity.
Evidence of the FDLR’s presence in Europe surfaced in 2008 after Germany refused to extradite Callixte Mbarushimana, the Secretary-General of the FDLR, to face genocide charges in Rwanda in 2008. Furthermore, the FDLR’s website, hosted by a European server, was temporarily suspended in 2009 after investigations into the group’s activities.35 Nonetheless, specific attention to the presence of the political leadership of the group in Europe only gained prominence after the arrest of Murwanashyaka in November. Since then, evidence of regular communication between the rebels in the DRC and contacts in Europe has been widely reported. A leaked UN group of experts’ report reportedly confirms a vast network of supporters of the FDLR in Europe as well as the United States, particularly among the Hutu diaspora. These supporters allegedly facilitate the trafficking of arms and funds to the FDLR in the DRC.36
Seeking justice in a country of the size of the DRC would pose an immense task anywhere in the world, even without considering the country’s extreme underdevelopment and the difficulties experienced by a government in the far West of the country trying to exercise control in its most troubled eastern provinces. Combined with the meddling hands of foreign forces, the muddled approach to peacekeeping, the wealth of resources and the remaining influence of both domestic and foreign militias, these factors serve to create probably the most complex situation in which crimes of a massive scale have been perpetrated. It is unsurprising that there have been more deaths in the DRC than anywhere else since WWII.
The successive conflicts in the DRC, including the spillover from the Rwandan Genocide, have created the largest humanitarian disaster in modern memory. Millions of innocent civilians have died from disease and starvation, not to mention those who have been the direct targets of violence between militia groups, rebel forces and foreign troops. Many of these deaths result from the ethnic nature of much of the violence, rooted firmly in the colonial period, and the shifting allegiances of the perpetrators. Civilians have been the targets of widespread rape and sexual assault, brutal and systematic massacres, and many other unmistakable violations of international laws, much of which has been committed by the hands of children forced to take part in the hostilities by rebel commanders.
Whilst more positive developments have started to emerge from the DRC with the achievement of peace in certain provinces and the cooperation between previously warring parties in advancing the protection of civilians, it is clear that the search for justice will be long and complicated. Given the history of the DRC and regional and ethnic relations, as well as prevailing factors such as its natural resources, there is reason for caution when faced with ostensibly positive agreements to lay down arms and the rejection of future recourse to aggression. However, as the brief background presented above demonstrates, the search for justice is gaining momentum.
3 Resolution 1279 (1999); Resolution 1291 (2000)
4 The granting of land titles to Hema families under ‘Zairianisation’ can be traced to the superiority granted to the Hema ethnic group under Belgian rule, in yet another demonstration of racist Western anthropological categories being imposed on African communities. The same process in Rwanda was at least partially to blame for the 1994 Genocide as Tutsis were considered a superior race compared to Hutus.
5 In its Judgment of 19 December 2005, the International Court of Justice (ICJ) found that “the Ugandan presence in Ituri caused a conflict between the Hema […] and the Lendu. […] land was seized from the Lendu by the Hema with with the encouragement and military support of Ugandan soldiers.” (Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ Reports 2005, p. 101, para. 209).
6 This incident was reported in The Guardian in February 2000. According to the report, the Deputy Prime Minister of the region identified an “invisible hand at work in the region” which had facilitated the organisation of Lendu militias.
9 UN SC Resolution 1484 (2003).
10 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Jurisdiction of the Court and Admissibility of the Application, Dissenting Opinion of Judge Koroma, ICJ Reports 2006, p. 61, para. 21. See also W. Van Genugten, Forum prorogatum and ius cogens standards, Hague Justice Portal, 16 March 2006.
13 Article 12 (2) (a) (b).
14 Respectively, Article 13(a), (b) and (c).
15 Under Article 5 (2) of the Statute, the Court may only exercise jurisdiction over the crime of aggression once State Parties agree on the definition of the crime and the conditions under which it can be prosecuted. Such an agreement has not yet been concluded. Aggression is generally considered to be a crime under customary international law.
16 The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3) (e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008, 13 June 2008, p. 41, para. 93.
17 The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled “Decision on the release of Thomas Lubanga Dyilo”, 21 October 2008.
18 The Prosecutor v. Thomas Lubanga Dyilo, Case No. ICC-01/04-01/06, Reasons for Oral Decision lifting the stay of proceedings, 23 January 2009.
20 Respectively, articles 7 (1) (a) and (g) of the Statute.
21 Respectively, articles 8 (2) (b) (xxvi), 8 (2) (b) (i), 8 (2) (a) (i), 8 (2) (b) (xiii), 8 (2) (b) (xvi), and 8 (2) (b) (xii).
24 The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui , Case No. ICC-01/04-01/07, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, 25 September 2009, p.33, para.85.
25 The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui , Case No. ICC-01/04-01/07, Motion Challenging the Admissibility of the Case by the Defence of Germain Katanga, pursuant to Article 19 (2) (a) of the Statute, 11 March 2009, p. 29, para. 51.
26 The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui , Case No. ICC-01/04-01/07, Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute), 16 June 2009.
27 The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui , Case No. ICC-01/04-01/07, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, 25 September 2009.
28 In a UN report released in December 2008, “consistent and credible” evidence was found linking Rwanda to financial support, the supply of equipment and the provision of troops to the CNDP rebels of Nkunda during the Kivu conflict. See S/2008/773. Final report of the Group of Experts on the Democratic Republic of the Congo, 12 December 2008.
30 S/2001/357. Letter dated 12 April 2001 from the Secretary-General to the President of the Security Council. Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo. Available at: <http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N01/323/54/IMG/N0132354.pdf?OpenElement>.
31 S/2002/1146. Letter dated 15 October 2002 from the Secretary-General addressed to the President of the Security Council Final report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo. Available at: <http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N02/621/79/PDF/N0262179.pdf?OpenElement>.
32 See e.g. Resolution 1457 (2003); Resolution 1698 (2006); Resolution 1856 (2008); Resolution 1857 (2008).
33 S/2008/773. Letter dated 10 December 2008 from the Chairman of the Security Council Committee established pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo addressed to the President of the Security Council. Final report of the Group of Experts on the Democratic Republic of the Congo. Available at: < http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N08/618/77/PDF/N0861877.pdf?OpenElement>.
35 Daily Nation, Congo rebel force’s website shut down, 2 September 2009. Available at: <http://www.nation.co.ke/News/africa/-/1066/651972/-/13702jaz/-/index.html >.