Can War Crimes Trials Overcome Violence in the DRC?
AllAfrica.com - 11 hours ago
Photo: Tiggy Ridley/IRIN
A 13-year-old girl, raped by armed men, waits for treatment at a
health clinic in eastern DRC
On 20th November, 2012, over 130 women and girls in eastern DR Congo
were raped and sexually assaulted by members of the Congolese armed
forces.
The incident occurred after hundreds of soldiers from the national
army were driven out of the provincial capital of Goma by the M23
rebel group. Humiliated by military defeat, soldiers arrived en masse
in the nearby town of Minova, where they engaged in systematic
looting, pillaging and raping of local civilians.
This week a military court in Goma, North Kivu, handed down a
long-awaited judgment against 39 of the soldiers implicated in the
case. The decision delivered by North Kivu's operational military
court was remarkable in a number of ways.
First, it was one of only very few judgments of its kind worldwide in
which a domestic court has invoked the Rome Statute of the
International Criminal Court to prosecute rape as an international
crime.
Second, this legally complex and potentially groundbreaking war crimes
trial emerged from one of the most dilapidated legal systems in the
world, in a country lacking in the most basic infrastructure.
Yet, despite overwhelming evidence of mass rape in Minova,
extraordinarily high numbers of victim and witness testimonies, and
legal practitioners increasingly well-equipped to prosecute sensitive
sexual assault cases, the military court only managed to deliver two
rape convictions.
The case raises a number of important questions. How and why are
complex human rights decisions produced in environments of extreme
state weakness and ongoing conflict? And what does their existence
mean for overcoming violence and building the rule of law?
To answer these questions, it is necessary to look at the broader
socio-political landscape from which DR Congo's war crimes trials have
emerged.
In 2006, Congolese courts became the first domestic courts in the
world to invoke the Rome Statute of the International Criminal Court
to prosecute sexual violence as an international crime. Since then,
gender-based crimes have been widely prosecuted in both military and
civilian jurisdictions, far outnumbering prosecutions for any other
category of crime.
In 2012, over 70 percent of the inmates detained in North Kivu's
central prison were implicated in sexual offenses of some nature,
while other categories of crimes remain notoriously difficult to
prosecute.
Indeed, local courts have become so effective at prosecuting sexual
violence cases that some women feel incentivized to falsely identify
as rape victims in order to pursue material compensation or other
perceived social benefits.
In addition to the frequency with which domestic courts have ruled on
gender violence, protections afforded to victims and witnesses
testifying in court have also been fairly sophisticated.
In spite of extremely limited infrastructure, witnesses in military
trials are usually dressed head to toe in black to protect their
identity and are often offered the opportunity to testify using a
microphone from an adjoining area to avoid further trauma.
The protection afforded to vulnerable witnesses is especially
impressive given that courtrooms in eastern DR Congo, where they exist
at all, typically lack electricity.
This means that arrangements must be made to transport the relevant
technology, including a generator, to the courtroom, requiring both
commitment and creativity from justice sector personnel. Legal systems
around the world boasting far stronger infrastructure and resources
frequently fail to honor these basic rights.
Building the rule of law has long been viewed as central to the
process of ending conflict and consolidating statehood.
International organizations and foreign donors have invested billions
of dollars to these ends, in contexts as diverse as the Balkans,
Cambodia, East Timor, Guatemala, Peru and Rwanda.
The result is that local and international trials for grave human
rights abuses - particularly those involving genocide, war crimes and
crimes against humanity - have been increasingly common, even in
contexts of extreme state fragility and ongoing conflict.
In DR Congo, these types of trials have been made possible by the work
of legal capacity building projects pioneered by a coalition of
foreign and domestic stakeholders including the American Bar
Association's Rule of Law Initiative, Avocats sans Frontières, the
United Nations Development Program's Access to Justice Project, the
United Nations Mission in DR Congo (MONUSCO) and the Congolese justice
sector.
Under a 'mobile court' program, international donors partner with
domestic stakeholders to transport local lawyers, judges, prosecutors,
magistrates and defense counsel from the provincial capitals to remote
rural locations that have had little prior exposure to formal justice
sector institutions.
There, makeshift mobile courts carry out investigations and deliver
justice to victims and perpetrators of military and civilian violence.
However, despite notable successes in some areas, apparent human
rights victories like those observed in Minova should be approached
with some caution.
While the legal system in eastern DR Congo has frequently been
criticized for being too gender-sensitive (either by displacing other
categories of crimes or convicting defendants with insufficient
evidence) the Minova trial failed to deliver justice to the vast
majority of victims brought to testify.
Of the 39 defendants, only two received life sentences for the war
crimes of rape and murder, one received a life sentence for rape in
violation of the military penal code, one received a five-year
sentence for stealing a motorcycle, and a remaining 22 received
sentences ranging from between ten and twenty years for pillaging and
disobeying orders. Importantly, only one of fourteen implicated
officers was convicted, the remaining thirteen acquitted.
Why the Minova trial fell short of providing justice for the Minova
rapes highlights a set of broader challenges facing the Congolese
justice system.
The trial demonstrates that rather than providing an impartial venue
for pursuing legal accountability, human rights trials in eastern DR
Congo are inherently political processes.
Although the legal system has a strong track record of securing rape
convictions, this track record was immediately overturned when
higher-ranking officers were among the accused.
Too often, criminal trials offer spaces where deals and negotiations
between local elites may be struck, and junior officers can be
targeted while their superiors evade responsibility.
The failure to hold high-ranking officials responsible for the actions
of their troops in conflict can, in part, be attributed to an
unfortunate feature of Congolese law that forbids military officers
from being judged by officers of inferior rank.
This provision makes it notoriously difficult to hold any colonels or
generals legally accountable for their criminal actions through the
domestic justice system. Yet in practice other factors persist.
In the ground-breaking case against Lieutenant Colonel Kibibi and ten
of his troops for mass rape in Fizi, South Kivu, in 2011, a criminal
prosecution was permitted to proceed through the courts.
The trial was hailed as a major human rights victory. In just six
weeks, a full investigation and trial had been carried out, resulting
in a twenty-year sentence currently being served out by Lt. Kibibi in
Kinshasa.
In contrast, a similarly grave mass rape that took place in South Kivu
just five months later, involving Colonel Alexis Kifaru, was never
permitted to move through the justice system.
The case was obstructed in spite of the fact that military prosecutors
had procured a great deal of evidence for the case and Kifaru was
briefly detained in UN custody.
Close ties between Col. Kifaru and elites in the Congolese military
command structure protected the colonel from prosecution, whereas
Kibibi, who had reportedly fallen out of favour with his superiors,
was perceived to have been handed over to military prosecutors by the
Congolese army as a "sacrificial lamb" intended to evidence the
commitment of the armed forces to promoting human rights and gender
justice.
Similar dynamics can be observed in this week's Minova verdict.
Stories like those involving Kibibi and Kifaru make it clear that,
even if legal and logistical challenges could be overcome, criminal
prosecutions in environments of ongoing violence are necessarily
shaped by conflicts between different factions and elites.
When behind the scenes negotiations determine which cases get to
trial, which mysteriously disappear from the system, and who can bear
legal responsibility for acts of violence, criminal trials like those
in Minova will only be able to go so far towards building a culture of
legal accountability and the rule of law.
Logistical, legal, financial and technological support have proved
critical in training Congolese lawyers and judges; equipping the
justice system with tools to carry out day-to-day functions; and
contributing to a reduced societal tolerance for rape.
Yet, thus far, international stakeholders have proved unable to
overcome powerful inter and intra-group alliances that shape who faces
trial and who continues to evade justice. As a result, the landscape
of violence in eastern DR Congo continues to be characterized by
unchecked impunity.
Milli Lake is a final year PhD candidate in Political Science at the
University of Washington in Seattle. She has done extensive fieldwork
in the Democratic Republic of the Congo and other places.
This post is also published on Christoph Vogel's blog
http://www.google.ca/gwt/x?gl=CA&source=s&u=http://allafrica.com/stories/201405090554.html%3Fviewall%3D1&hl=en-CA&ei=8j9tU7CwHIeosgetrYCYDQ&wsc=yh
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