Why Is the ICC Prosecutor Ignoring the Congolese Government?

As has been widely reported, a second Congolese warlord has been transferred to the ICC to stand trial:

Germain Katanga, who led the Forces for Patriotic Resistance (FRPI) in Ituri, was flown from the capital, Kinshasa.

Prosecutors say Mr Katanga – known as Simba – led the FRPI in Ituri in north-eastern DR Congo in 2003. He was arrested two years ago.

He is accused of murder, sexual enslavement and forcing children under 15 to fight as soldiers.

Judges said there were reasonable grounds to believe that Mr Katanga, 29, led the attack on the village of Bogoro in which 200 civilians were killed.

The prosecution alleges his fighters, which had the support of the Lendu ethnic group, committed atrocities against civilians of the Hema ethnic group in the Ituri region.

Although Katanga is certainly deserving of prosecution, his transfer is rather ironic, given that two recent UN reports on the situation in the DRC both indicate that the worst abuses in the country are being committed by the Congolese government, not by rebel groups:

Government soldiers in the Democratic Republic of the Congo (DRC) remain responsible for the country’s worst human rights abuses, carrying out arbitrary executions and raping, robbing or extorting civilians, according to the latest report by the United Nations peacekeeping mission.

The human rights assessment for July, released today, shows that Congolese police, soldiers and members of rebel groups fighting the Government have also perpetrated serious abuses, especially in the violence-wracked Kivu provinces in the far east of the vast country.

The UN mission, known as MONUC, reported that a widespread climate of impunity allows many of these abuses to go unpunished, even months after they were committed.

It cited a separate report by the UN Human Rights Office in the DRC indicating that Congolese soldiers and police officers used indiscriminate and excessive force – and in some instances carried out summary executions – in quelling protests in Bas-Congo province by an opposition movement in late January and early February. Six months after those events, the people responsible for the human rights violations have not been arrested.

Today’s report details numerous instances of human rights abuses by the Congolese armed forces (FARDC), including at least 10 documented cases of arbitrary executions and one particularly gruesome case on 29 July in which a soldier in North Kivu province allegedly raped and then chopped to death a Hutu woman and her three-month-old baby.

It further outlines rights violations by the Congolese national police (PNC) and by armed rebel groups, including the murder and rape of villagers and the extortion and robbing of civilians.

The assessment also finds continued weaknesses and systemic failures in the administration of justice across the DRC and that prison inmates and family members who visit them in jail have been beaten by authorities.

Unfortunately, the Prosecutor has shown little interest in investigating or prosecuting anyone in the DRC other than the rebels — the result, no doubt, of the fact that the Congolese government self-referred the situation in the DRC to the ICC. In theory, that shouldn’t matter: the Prosecutor is free to investigate anyone responsible for committing a crime in DRC territory, government or rebel. In practice, however, the Prosecutor is largely dependent upon the goodwill of the Congolese government to operate effectively in the country — a lesson he has learned the hard way in Darfur. Hence his emphasis on the rebels.

It’s a dangerous game. The Prosecutor has claimed that his investigative decisions are based on four principles: independence, impartiality, objectivity, and non-discrimination. But that’s not how they appear: to date, he has focused exclusively on rebels in the DRC and in Uganda, and early indications are that his investigation into the situation in the Central African Republic will be no more even-handed.

There is, of course, no easy solution to this problem. At a minimum, though, it counsels skepticism toward self-referrals, which have led to all but one of the Prosecutor’s current investigations. (The exception being Darfur, of course, which resulted from a Security Council referral.) Self-referrals may make it easier for the Prosecutor to conduct investigations, but they also have significant costs, as Human Rights Watch has explained:

We believe it is important for the prosecutor to acknowledge that systematically selecting situations that have been voluntarily referred may ultimately carry significant negative implications regarding his perceived and actual independence. For example, there is a risk that the prosecutor may be perceived as a tool of the referring government. Further, waiting for states to refer situations can create delays that could have an impact on the integrity and availability of evidence of ICC crimes on the ground. In the worst case scenario, it could risk subjecting the prosecutor to manipulation by a state party wanting to use the prospect of voluntary referral as a stalling tactic to destroy any evidence of its own involvement in crimes that may be in the jurisdiction of the ICC.

I don’t know whether the DRC is stalling for time. But it seems clear that the Prosecutor’s single-minded focus on investigating the rebels runs the risk of making him seem like a tool of the Congolese government. That is a disturbing prospect, to say the least, with Thomas Lubanga Dyilo’s trial — the ICC’s first — set to focus the world’s attention on the DRC to an unprecedented extent.