Africa: Is the International Criminal Court Going After the Wrong People?

Many of the ICC’s greatest triumphs have been in prosecuting war criminals in the eastern Congo. Yet relentless violence there continues.
The eastern Democratic Republic of Congo (DRC) is a region fabled for its verdant rainforests and rare wildlife. Unfortunately, it is equally notorious for being the theatre of some of the country’s fiercest violence, particularly during the Second Congo War (1998-2003). Because of this latter attribute, it also has the distinction of being one of the main regions on which the International Criminal Court (ICC) has focused its attention and extensive resources.
Since the Congolese government referred the situation to international tribunal in 2004, the court in The Hague has issued arrest warrants for six individuals and convicted three. Thomas Lubanga Dyilo was, in fact, the first ever person arrested under an ICC warrant in 2006 and the first convicted by the court in 2012. The former head of the Union des Patriotes Congolais (UPC) rebel group was found guilty of conscripting child soldiers and using them to fight in hostilities. He was followed by Germain Katanga who became the ICC’s second ever conviction in 2014. The former leader of the Forces de Résistance Patriotique d’Ituri (FRPI) was found guilty on five counts of war crimes and crimes against humanity as an accessory to the 2003 massacre in the village of Bogoro. Finally, former militia leader Bosco Ntaganda was found guilty of 18 counts of war crimes – including rape, murder and the use of child soldiers – in July 2019. He was sentenced to 30 years in prison, the most severe sentence handed down by the ICC so far.

Since it began investigating the eastern Congo, the ICC has expended vast resources prosecuting those deemed to be responsible for violence. In trials that have lasted several years, it has called hundreds of witnesses to the stand and spent hundreds of millions of dollars.

Given that the Rome Statute, which established the court, declared that a key goal was to “put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”, one would expect the ICC’s colossal focus on the eastern DRC to have led to a reduction in violence in the region. Yet this does not seem to have been the case. Fighting has largely continued unabated. In the last few years, hundreds of people have been killed and thousands have fled. At the end of this April, UNICEF reported that there had already been 175 grave violations since the start of the year, including the recruitment of children into armed groups, killing and sexual violence. “Every day, children and their rights are undermined through relentless violence and grave rights violations,” said the humanitarian agency’s senior coordinator for the region.

Following the roots
Why have the high-profile prosecutions of war criminals, some leading to long prison sentences, not deterred others following in their footsteps? One reason could be that the ICC has been going after the wrong people. The court has thus far targeted militia leaders guilty of war crimes and has largely treated the conflict as being driven by ethnic rivalries. Many analysts, however, suggest that violence in the region is part of much wider dynamics that have their roots in the colonial and post-colonial administration of the DRC and involve factors including corruption, marginalisation, resource inequality and economic exploitation. As the UN Special Rapporteur on Human Rights in the DRC noted in 2003, “despite the ethnic appearance of the conflict, its root causes are of an economic nature”.
Indeed, there are many interested parties in the eastern Congo’s conflict beyond armed groups. For instance, competition for the control of resources such as gold mines has long been a defining feature of life and violence between militants, yet a 2015 investigation found that just 2% of net profits from illegal resource exploitation in the DRC ends up in the hands of armed groups.

Others that benefit from the insecurity include transnational criminal networks, neighbouring states, and multinational corporations. A UN Expert Panel in 2003 named 29 companies associated with “elite networks” in the DRC and listed 85 companies deemed to have breached OECD guidelines. Profits from the illegal extraction – and the associated violence and human rights abuses – have flowed to governments in Rwanda, Zimbabwe and Uganda as well as to mining companies, arms dealers and other businesses in the likes of Switzerland, Russia, Kazakhstan, Israel, Belgium, the Netherlands, and Germany.
A paper by Global Witness has highlighted how foreign businesses in Ituri province made payments to rebel groups and provided them with the facilities to exploit natural resources. It concluded that “the trade in natural resources still underpins some of the most serious violence in eastern DRC”. Multinational corporations have also been implicated in high-level corruption by bribing corrupt leaders in exchange for access to the Congo’s natural resources.
Follow the money
The ICC is well aware of these underlying dynamics. In fact, before issuing its indictments in the DRC, the then ICC Prosecutor Louis Moreno Ocampo himself noted that “there is general concern that the atrocities allegedly committed in the country may be fuelled by the exploitation of natural resources there and the arms trade, which are enabled through the international banking system”. He added that “if the alleged business practices continue to fuel atrocities, these would not be stopped even if current perpetrators were arrested and prosecuted.”

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When it came to issuing indictments, however, the ICC simply targeted those directly involved in mass atrocities. This focus has obscured and absolved the wide network of more powerful actors facilitating, driving and profiting from the Congolese people’s misery. This approach has been mirrored in its trial of the Lord’s Resistance Army’s Dominic Ongwen in which I am currently representing the victims. The ICC’s focus on one prominent individual rather than deeper factors again means that many powerful people and organisations will avoid justice.
So far, many of the ICC’s greatest successes have been in convicting armed leaders from the eastern Congo. Yet despite the vast amount of time, expertise and resources spent on the region, its activities appear to have done little to reduce violence there.
The Rome Statute declares that the “most serious crimes of concern to the international community as a whole must not go unpunished”. Nearly 20 years after it began operations, it is high time for the ICC to rethink what those “most serious crimes” really are.
Anushka Sehmi is a lawyer from Kenya currently representing victims before the International Criminal Court (ICC) in the case of The Prosecutor v. Dominic Ongwen.

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