Investigation and Prosecution

The conflict in the eastern region of the Democratic Republic of the Congo has been among the most destructive in the world in the past two decades. Atrocities continued in Ituri Province after July 1, 2002, when the Rome Statute entered into force, and with it, jurisdiction over the Democratic Republic of the Congo , already a state party. In 2003, the Prosecutor Luis Moreno Ocampo announced that he had selected the situation in Ituri as the most urgent situation for investigation, and the following year President Joseph Kabila referred the situation in his country to the Court for all crimes occurring after July 1, 2002. On June 21, 2004, the Prosecutor announced that he found reasonable basis to commence an investigation, and in October, the Congolese government signed an agreement with the Court to protect investigators and turn over government documents (Arsanjani and Reisman 2005: 398). The Congolese investigation suffered procedural setbacks, however, when ICC staff received a large amount of material from UN officials in the Congo on the understanding that the evidence would not be used at trial. Because of these confidentiality arrangements, the Prosecutor refused to turn over evidence to judges or defense lawyers and, at one point, faced dismissal of the case until the UN waived confidentiality of many documents. The episode may affect the willingness of the UN or other parties to give the Court confidential or sensitive information in the future (Bosco 2014: 138–140).

The situation in the Democratic Republic of the Congo presents special challenges, as the multiparty conflict is ongoing, with allegations of abuses by all sides. The conflicts in Kivu and Ituri provinces sparked intervention from foreign powers such as Rwanda and Uganda. In addition, the Congo’s own violence has spilled over into Chad , the Central African Republic , South Sudan , and northern Uganda. The Prosecutor had difficulty conducting any meaningful investigation on the ground and reaching the accused persons as a result of the state of insecurity and the prevalence of landmines. The Congolese government has promised assistance, but the government’s ineffective rule over the territory was one of the reasons for its initial referral (Arsanjani and Reisman 2005: 398). Human rights groups and victim communities have criticized the Prosecutor ’s strategy as selective and partial in favor of ruling elites within the government and military. All of the indicted individuals are political opponents of President Kabila and his government’s authority in the eastern region. One of them even subsequently became an ally of President Kabila after the indictments were issued and he was shielded from arrest, but Kabila turned him over to the Court when he defected (Tiemessen 2014: 452).

As explained above, the convictions of Thomas Lubanga and Germain Katanga were the first two issued by the International Criminal Court. The Court’s decision in Lubanga rigorously analyzed the child soldiers issue, but the Prosecutor ’s decision not to prosecute crimes of sexual violence in addition to the recruitment of child soldiers and the failure to disclose exculpatory evidence to the defense, twice causing the suspension of proceedings, were more controversial (Amman 2012: 810; Wiersing 2012: 22). One of Lubanga ’s paramilitary rivals, Mathieu Ngudjolo Chui , was prosecuted for the February 2003 assault on the village of Bogoro, which had been under Lubanga ’s control. As many as 200 people died in the attack, almost all unarmed civilians. Chui was acquitted by the International Criminal Court in 2012, upheld on appeal in 2015, but Germain Katanga , who also participated in the Bogoro attack, was convicted and sentenced to twelve years’ imprisonment in March 2014 (Bosco 2014: 140–141). Katanga’s conviction, however, provoked a dissent from one of the judges because the Prosecutor altered the charges against him after the trial opened. Bosco Ntaganda , a powerful militia commander in the eastern Congo, turned himself into the Court in March 2013 and is now involved in proceedings. One defendant, Sylvestre Mudacumara , remains at large (Tiemessen 2014: 452).

On December 16, 2003, Uganda referred the situation concerning the Lord’s Resistance Army (LRA ) to the Prosecutor , the first time that a state party had voluntarily submitted a case. Uganda was motivated by a desire to “internationalize” a conflict that had reached a stalemate and that attracted little attention from powerful states, leaving Uganda alone to negotiate a peaceful settlement with a ruthless, cult-like guerrilla force. The LRA referral raised the question of whether a state with a functioning judicial system—both willing and able to prosecute—could voluntarily relinquish jurisdiction in favor of the International Criminal Court. The referral has been successful in changing the situation on the ground, especially by placing international pressure on Sudan to end support for the LRA in an effort to destabilize now-independent South Sudan, which in turn increased the LRA ’s political isolation (Akhavan 2005: 403–404).

The conflict in Northern Uganda has partial roots in colonial divisions that favored the southern, largely Bantu ethnic groups and treated the northern Nilotic groups as laborers and soldiers. Uganda’s former presidents Milton Obote and Idi Amin were both northerners with a military background, but Yoweri Museveni, who led the National Resistance Army to power in 1986, forced the Acholi people to retreat to the north. His army perpetuated revenge killings and massacres and engendered many northerners, especially Acholi , to join new rebel groups. Led by a young female spirit medium named Alice Lakwena, a religiopolitical guerrilla force named the Holy Spirit Movement rapidly advanced to the capital city, but was eventually defeated by the Ugandan military and reorganized by Joseph Kony —said to have inherited Alice’s spirit—as the LRA. The Acholi , tired of war, became targets of the brutal tactics used by the LRA , which stockpiled weapons, trained soldiers, and raided northern Uganda from bases in what is now South Sudan (Baines 2007: 98–100).

After sustained lobbying by Acholi elders, civil society, and religious leaders, the government of Uganda passed the Amnesty Act in 2000, granting individual combatants of the Lord’s Resistance Army and other paramilitary groups immunity from prosecution. In 2004, the International Criminal Court’s indictments challenged the validity of the Amnesty Act and triggered the long-running “peace versus justice” debate about whether amnesty paved the way for an end to the conflict or granted impunity for atrocities (Anyeko et al. 2012: 108–109). The Acholi are one of the first victim populations to lobby their government for a blanket amnesty. The government only reluctantly passed the amnesty, intending it to facilitate the return of rebels. According to the amnesty, if the rebels pledged to denounce the rebellion, they would be protected from formal prosecution, given reintegration packages, and resettled into camps. Local leaders believed that the International Criminal Court’s indictments would undermine the amnesty and efforts to initiate peace talks. Given the traditional emphasis on reconciliation, communal accountability, and forgiveness in Acholi culture, local and religious leaders believed the amnesty law better incorporated these elements than international prosecution. The ICC Prosecutor attempted to accommodate local demands and withheld releasing indictments of the LRA until October 2005 to allow a new but ultimately unsuccessful peace negotiation to take place. The chief mediator, Ugandan government minister and ethnic Acholi Betty Bigombe, expressed her frustrations with Moreno Ocampo ’s decision to prosecute. The ICC continues to be perceived as an obstacle to peace: Kony and other high-level leaders have repeatedly threatened to end talks should the ICC Prosecutor pursue the indictments (Baines 2007: 101–102). In 2006, Kony met with a senior UN official and stated that he wanted the ICC warrants lifted as a condition for entering into formal peace talks, though negotiations eventually collapsed in 2008. The Court was placed in an awkward position as an obstacle to a peace process (Bosco 2014: 129–131). By 2011, about 24,000 individuals had reported to authorities, renounced involvement in the war, and surrendered weapons in their positions in return for amnesty (McNamara 2013: 660).

Currently, Kony and three others wanted by the Court are still at large, while one defendant has died. In January 2015, news reports indicated that Dominic Ongwen had surrendered to American forces stationed in the Central African Republic (BBC News 2015). Uganda has also begun domestic prosecutions of LRA commanders. In 2008, Uganda established the International Crimes Division (ICD) of the High Court to try individuals for war crimes . In 2011, the ICD heard its first case against Thomas Kwoyelo, for 53 charges of war crimes, though Kwoyelo eventually received amnesty under the Amnesty Act of 2000 and was ordered release by the Constitutional Court. However, his case was appealed to the Ugandan Supreme Court, and the decision may affect the legality of all amnesties issued under the Amnesty Act if the Supreme Court determines that an amnesty for war crimes is unlawful (McNamara 2013: 666, 671).

The Darfur conflict was rooted in historically complicated relationships between Arab and non-Arab (African) tribes. The Arab government in Khartoum has gradually disenfranchised the non-Arab peoples in Sudan , despite similarities in language and religion. Rebel groups acting against the Khartoum government, including the Sudan Liberation Army and the Justice Equality Movement, sought greater political representation. The President of Sudan, Omar al-Bashir , who came to power in 1989, has long sought to quell the Darfur -based rebel movements, providing Arab Janjaweed militiamen with military supplies. The Janjaweed uprooted about one million people in the Darfur region, however, and the atrocities perpetuated by the militia force bear hallmarks of ethnic or racial targeting that may fit the definition of genocide . The United States government announced in September 2004 that genocide was occurring, though a UN-backed panel found only crimes against humanity and war crimes rather than genocide (Falligant 2010: 735–738).

In March 2005, the United Nations Security Council referred the situation in Darfur to the Office of the Prosecutor , and an investigation was opened June 1, 2005. As then-Prosecutor Moreno Ocampo writes, the Office of the Prosecutor spent twenty months reviewing thousands of documents and interviewing victims . In April 2007, the Pre-Trial Chamber issued arrest warrants against Ahmad Harun, former minister of the interior and humanitarian affairs, and Ali Kushayb, a Janjaweed militia leader, for war crimes and crimes against humanity . The Prosecutor showed that they joined together to attack civilians in Darfur by coordinating a system in which the Janjaweed militia supplemented the Sudanese army and incited it to attack the civilian population. In December 2007, Moreno Ocampo informed the Security Council that Sudan was not cooperating with the Court. In Darfur , Ahmad Harun’s plan was to force people out of villages and into camps—camps that he tightly controlled. Finally, on July 14, 2008, Moreno Ocampo requested an arrest warrant against Sudanese President Omar al-Bashir for three counts of genocide , five of crimes against humanity, and two of war crimes (Moreno Ocampo 2011: 285).

Al-Bashir is currently the only defendant at the International Criminal Court indicted on charges of genocide . As Prunier (2011: 46–48) explains, the definition of genocide under the Genocide Convention was almost entirely driven by a specific historical event, the 1941–1945 genocide of the European populations of Jewish origin by the Nazi Party of Germany . The Darfur genocide does not precisely fit the “Holocaust paradigm,” because the ethnicities of the victims and the perpetrators are not overwhelmingly distinct from one another; the persecuted groups managed to fight back to some degree with their own militias; and the worst agents of the violence were Janjaweed militiamen who were not necessarily acting on behalf of the Government of Sudan , though they may have been acting with its knowledge and implicit consent.

Despite the promise of a Security Council referral, the International Criminal Court has not received cooperation from member states to arrest al-Bashir . Prosecutor Moreno Ocampo condemned countries that allowed al-Bashir to travel in international airspace, pointedly including meetings of the Arab League and the African Union , and even including travels to countries that were states parties to the Rome Statute . The indictments against the President of Sudan elicited an African backlash that Moreno Ocampo had overreached, and Western powers (including Security Council members) failed to place significant pressure on Sudan to turn al-Bashir over to the Court (Bosco 2014: 155–159). In 2010, Chad and Kenya , both states parties to the Rome Statute , each hosted al-Bashir at official functions and explained to the Assembly of State Parties that he had immunity from arrest. In October 2010, the Pre-Trial Chamber requested that Kenya report any problems that would impede or prevent al-Bashir ’s arrest and surrender when he visited the country (van der Vyver 2011