International Justice should have a deterrent effect: Lessons from renewed violence in Ituri, DRC.
Updated: Mar 13, 2020
After 12 years of on-going litigation at the International Criminal Court, renewed violence erupted in Ituri, Eastern Democratic Republic of Congo in 2017-18. Is this a repeat of the mass atrocities seen in the ICC's first cases?
After having spent time in the back hills of Ituri in 2007 in relation to the first ICC cases, it was a shock to hear that in spite of all the resources that went into seeking justice for the 2002-3 atrocities through the International Criminal Court and local military courts, there might be a repeat of similar kinds of violence.
There is an assumption that if you work on justice, peace will follow.(1) Instinctively we know this should be right in theory, but that there might be some caveats. Does international justice favour peace in practice, and what can we learn from the ICC's first cases? Has international justice in Ituri had any deterrent effect? Would a different model of international intervention have been more effective, such as a hybrid court? Were underlying causes and drivers of the conflict taken into account? Of-course there are many factors that trigger violence, and multiple actors and dynamics that are needed to build peace; justice is only one player.
Nonetheless, one would expect that an investment in justice should favour peace given the right conditions. Advocating for and strengthening these conditions provide the impetus behind the establishment of Rights for Peace. By and large, voices on the ground in Ituri are in agreement that the ICC's cases against four accused persons over the past 10 years have not delivered justice. On the contrary, there has been much disappointment about the Court's performance and tensions between ethnic groups continue with sporadic outbreaks of violence. Local actors criticise how the Court communicated with the local population, its inability to engage Church leaders and other actors in disseminating information, its inadequate investigations (or apparent lack there of), its apparently biased prosecutorial strategy - all of which might have had a deterrent impact if carried out differently.
A starting point to understanding the dismay of local actors can be helped by getting to grips with the underlying drivers of the conflict - something that the ICC seems to have bypassed entirely. External actors have been plundering lucrative gold mines in the Ituri hills since colonial times. How could justice be anything other than tokenistic if it fails to establish the pattern of violence and those responsible for it, which is intrinsically linked to the exploitation of these mines. To many the ICC has been "presque inutile" - somewhat pointless.
Natural wealth has been a constant driver of conflict in Democratic Republic of Congo, and Ituri is no exception. Ituri is the home to one of the world's largest gold mines. During colonial times, the Belgian state-owned Kilo-Moto Mining Company, is said to have extracted 65% of the Belgian Congo's total gold production.(2) These mining fields allegedly became the private purview of President Mobutu Sese Seko post-independence and were brutally overtaken by Ugandan troops during the 1996-8 "great war" that involved seven countries plundering mineral wealth in Congo.(3) Uganda officially started to pull out of the region in 2001,(4) as a result of international pressure and the negative publicity of widespread atrocities connected to the illegal exploitation of Congo's natural wealth in successive UN Security Council reports.(5)
According to UN experts, members of the Ugandan elite then put in place other strategies to maintain their revenue streams from the gold in Ituri.(6) They armed, trained and advised local armed groups, supporting the Hema elite of the region.(7) During colonial times, the Hema (cattle raisers) were favoured in administrative and other privileged roles over the Lendu (agriculturalist), fomenting divisions between the two communities. These divisive policies followed similar lines to those used by colonials in Rwanda between the Hutu and Tutsi. When colonial concession holders were forced to leave then-Zaire in 1973, the educated Hema managers of the mines registered the gold concessions in their own names, reinforcing the perception that the Hema elite had unjustly enriched itself further, taking over land and businesses, to the detriment of the Lendu population.
As described by a local woman: "the war is not between the Hema and Lendu, it is between the rich Hema and the rest of us".(8) “Every time there was a change of armed group,” said one witness to Human Rights Watch, “the first thing they did was to immediately start digging for gold."(9)
The atrocities committed in 2002-3 started with a wealthy Hema mining concession holder seeking to vastly extend his concession through bribes. His intention was to evict some 200,000 Lendu from illegally acquired land. Local concession holders recruited rebels to protect their land including the RCD-ML faction which already controlled much of Ituri and with its ally, the Ugandan army (UPDF), just across the border.
Lendu revolts to the land crisis were put down by UPDF and rebel soldiers. Hundreds of localities were destroyed by the UPDF and associated factions with widespread massacres and torture. While the Ugandan military trained thousands of Hema youth in Bunia and Uganda, the Lendu organised themselves to take revenge. A bloodbath ensued with Lendu massacring thousands of innocent Hema civilians in retaliation.(10) Competing local armed groups each received military and political support either from the DRC government, Uganda or Rwanda at different times, turning Ituri into a complicated battlefield.
Thomas Lubanga, first detainee at the International Criminal Court, was leader of the UPC militia who had gained support from warlords such as Jerome Kakwavu and the Rwandan army who supplied both with weapons and directed some of the bloodiest attacks on local Lendu populations in efforts to take Mongbwalu at the heart of the gold mining concessions.(11) Kakwavu was later promoted to General status within the government forces as part of attempted peace deals.
Lubanga was arrested by DRC authorities and transferred to The Hague in March 2006. The charges against him were confirmed in January 2007 but the trial only started two years later, after a close call whereby Lubanga was nearly released because of how the Prosecutor had collected evidence. It must be highlighted that Lubanga was only charged with one crime: recruiting children under 15 into armed groups. This was greeted with "ah bon?", a perplexed disbelief from local actors. Many Hema children were sent to join their Hema leader"voluntarily" - joining Lubanga's milita like "military service". Many others were of-course forcibly recruited, and all the girls were sexually abused. However, for the local population, the widespread massacres, including systematic slaughters of tens of thousands of people, widespread rape and looting along ethnic lines was at the forefront of their minds. The Prosecuter had completely missed the point. He did not attempt to address the heart of the injustices - the case was unashamedly tokenistic. It was the ICC's first case, and the Prosector's priority was to secure a safe conviction - not punish those most responsible for the atrocities with integrity. Lubanga was finally convicted in 2014 for recruiting child soliders and beacuase many of the children who were enlisted are Hema and have claimed reparation, to many it seems that the case has ironically favoured rather than punished the Hema elite, leaving the Lendu community vexed.
Unfortunately the second case did not address atrocities committed by the Hema either; it focused on a single attack against the village of Bogoro by two Lendu war lords. The case against one of these warlords was dismissed for lack of evidence, and the second case against Germain Katanga, was not able to secure a single conviction for sexual violence charges. Katanga was convicted and reparations are being implemented, involving some 'symbolic' monetary awards of $250 per named victim with a collective welfare programme for a wider group.
After a decade of relative peace, renewed violence erupted in Ituri in late 2017 with killings and strategically planned burning of entire villages. According to reports people were cut to pieces and children killed on the backs of their fleeing mothers. Thousands of people fled.(12)
A cattle rustling incident saw the Hema being favoured by government authorities, leaving Lendu short of 131 cows. The killing of a couple of Hema youths then saw a more significant retaliation of systematic targeting of Lendu. A Lendu clergyman who had been invited to give a sermon at a Hema church was found dead. A most significant escalating factor was incitement to violence and ethnic hatred broadcasted by local political leaders in the context of long delayed elections. The well planned killings by masked men in a series of villages in March 2018 left locals surprised. The killings and burnings smacked once again of external interests. The violence provided a perfect excuse to yet again delay national elections, with local leaders having much to gain by remaining in post.(14)
On a positive note, recruitment of children into armed groups has diminished with some locals attributing this to the ICC amongst others. Nonetheless, if deep-seated cleavages are not addressed, and reparations for former child soldiers are not forthcoming, these young people, now adults, might well consider their options in the face of renewed conflict, including re-joining an armed group.
Lessons Learned: Deterrence Requires Well Resourced Prosecutions that Uncover the Drivers of Conflict
Investigations and prosecutions must be informed by a deep understanding of the drivers of conflict to be able to target those most responsible - avoiding tokenism and too few cases.
A Conflict Analysis should underwrite a "Do No Harm" strategy for each Situation, identifying means to enhance the ICC's deterrence impact and red lines that would exacerbate existing divisions if crossed.
Effective prosecutions that also address the interests of victims require adequate resourcing if they are to have an impact. States need to consider the ICC's deterrent impact as well as its impact on affected communities if cases are to be judged 'helpful' rather than 'pointless' by local actors.
There needs to be a greater focus on long-term strengthening of civil society. Local actors have invaluable insights, capacities and resources but are not able to hold decision makers to account. They have key roles to play in informing understandings of the conflict, sharing knowledge about victimisation, harm and responsibility. However, their initiatives need to be amplified and strengthened, giving them sufficient agency to influence key actors.
Local actors are also best placed to engender narratives of unity and address divisions, building resilience against hate speech and incitement to violence that might be conveniently manipulated by outsiders.
(7) Uganda utilised a range of intervention tactics in the political and military affairs of Ituri. This are listed and documented in Human Rights Watch, Covered in Blood: Ethnically Targeted Violence in Northern DRC, July 2003, and in Human Rights Watch, 2001. Uganda in Eastern DRC: Fuelling Political and Ethnic Strife, March 2001
(10) op.cit. at (2).
(11) op.cit. at (2).