Category Archives: DR Congo

International Criminal Court says no to suspension of reparations process in Jean-Pierre Bemba Case

Convicted Congolese warlord Jean-Pierre Bemba Gombo received a huge setback recently when the Trial Chamber of the International Criminal Court on May 5, 2017 rejected his appeal which urged the Court not to continue with reparation proceedings till his pending appeal was decided.  In the case of the Prosecutor v. Jean-Pierre Bemba Gombo, decision on the defence’s request to suspend the reparations proceedings, the Court observed that Article 75 of the Rome Statute gives the Chamber the power to make a reparations order against any convicted person.

Post the conviction and the order on sentence, in July 2016 the Chamber made an order requesting submissions relevant to reparations and in October 2016 the Prosecution, Defence, Legal Representative of Victims (LRV), Office of Public Counsel for Victims (OPCV), Trust Fund for Victims (TFV) and the Registry filed their observations on reparations. Finally in February 2017, the Chamber issued an order inviting submissions on experts to assist the Chamber in its determinations on reparations.

The defence team of Bemba Gombo urged the Chamber to refrain from instructing expert witnesses and to suspend the reparations process at the latest after the selection of any expert(s) and the finalisation of any letter of instruction as it argued that it was inconsistent with the rights of the accused as it operated as an effective presumption of guilt and also placed a heavy burden on the defence’s resources. It argued that even in the Katanga case, the reparation proceedings started only after the withdrawal of the appeals when the LRVs asked the Chamber to set a schedule for filing observations on the principles for reparations in August 2014, two months after the parties had withdrawn their appeal.

It further argued that as reparation orders were intrinsically linked to the individual whose criminal responsibility was established in a conviction and whose culpability for these criminal acts was determined in a sentence and that an accused should not have to remedy harms that are not the result of the crimes for which he was convicted, continuing with the reparations process whilst there was an extant live appeal against conviction was inappropriate.

But the Chamber refused holding that the Appeals Chamber in Prosecutor v Lubanga (Judgment on the appeals against the “Decision establishing the principles and procedures to be applied to reparations”) had identified five constitutive elements, which, at a minimum, must be contained in an order for reparations: 1) it must be directed against the convicted person; 2) it must establish and inform the convicted person of his or her liability with respect to the reparations awarded in the order; 3) it must specify, and provide reasons for, the type of reparations ordered, either collective, individual or both; 4) it must define the harm caused to direct and indirect victims as a result of the crimes for which the person was convicted, as well as identify the modalities of reparations that the Trial Chamber considers appropriate based on the circumstances of the specific case before it; and 5) it must identify the victims eligible to benefit from the awards for reparations or set out the criteria of eligibility based on the link between the harm suffered by the victims and the crimes for which the person was convicted. For addressing these elements the Chamber needed to take a number of preparatory steps. Also the legal texts of the Court contemplated that reparation proceedings may commence in parallel to a pending appeal. Referring to the established practice that preparatory steps to facilitate and expedite the reparations proceedings are launched following a conviction, it held that the issuance of a reparations order is not prejudicial to the rights of the convicted person irrespective of whether there is an appeal against the conviction decision.

The Chamber further observed that in the present proceedings reparations were only at a preliminary stage. Finally Article 64(3)(a) of the Rome Statute gave the Trial Chamber the power to suspend the proceedings if this was necessary to facilitate the fair and expeditious conduct of the proceedings. But suspending the reparations case would in fact be fatal to the fair and expeditious conduct of the proceedings.  It held that the suspension of all reparations proceedings until after the Appeals Chamber had rendered its decision would substantially impact the victims’ interests to access reparations in a timely manner. Thus the Court disallowed the relief sought by Bemba Gombo.

‘Nyama tembo kula hawezi kumaliza’: DR Congo, Ntaganda, Kabila and the road ahead (PART 5 of 5)

The Swahili proverb means ‘You never finish eating the meat of an elephant’. Skullduggery continues.

Though there was a substantial decrease in violence post 2003, low level conflicts in certain pockets continued. Katanga insurgency continues till date. Ituri conflict is primarily between agriculturalist Lendu and pastoralist Hema ethnic groups in north-eastern Congo. Hostilities in Ituri Province started in 1999. The Front des nationalistes et intégrationnistes [National Integrationist Front] (FNI) and Forces de Résistance Patriotique d’Ituri [Front for Patriotic Resistance of Ituri] (FRPI) fought for Lendu while Union des patriotes congolais [Union of Congolese Patriots](UPC) fought for the Hema. Finally, in December 2003, after the UPC split, fighting decreased significantly in Ituri Province.

Thomas Lubanga Dyilo, founder of UPC and the Force patriotiques pour la libération du Congo (FPLC)[military wing of UPC], was found guilty by ICC of committing the war crimes of the enlistment and conscription of children under the age of 15 and using them to participate actively in hostilities between 2002 and 2003 and has been sentenced to 14 years of imprisonment. The Appeals Chamber confirmed the verdict in 2014. ICC, in 2014, found Germain Katanga, commander of FRPI, guilty as an accessory of one count of crime against humanity (murder) and four counts of war crimes (murder, attacking a civilian population, destruction of property and pillaging) and has sentenced him to 12 years imprisonment. But Mathieu Ngudjolo Chui, former leader of FNI, was acquitted. In February 2015, the Appeals Chamber confirmed the acquittal.

Bosco Ntaganda, former Deputy Chief of the Staff and commander of operations of FPLC has been charged of various war crimes including murder and attempted murder, attacking civilians, rape, sexual slavery of civilians, pillaging, displacement of civilians, attacking protected objects, destroying the enemy’s property, conscription of child soldiers under the age of fifteen years and using them to participate actively in hostilities and various counts of crimes against humanity, allegedly committed in 2002-2003 in the Ituri Province. The Chamber found that there was a widespread and systematic attack against the civilian population pursuant to an organisational policy adopted by UPC and FPLC to attack civilians perceived to be non-Hema. The Chamber also found that an armed conflict had taken place between the UPC/FPLC and other organized armed groups. The trial has already commenced last month and is expected to be a cyclopean one. Due to the gravity of charges and the number of crimes he is accused of, the trial is of much consequence.  It is the first trial, at the ICC, where a commander will be charged with rape and sexual violence committed against child soldiers under his command. The case is significant because Ntaganda evaded justice for nine long years and even an international campaign for his apprehension could not get Congolese government to arrest him. But astonishingly, he voluntarily surrendered in 2013.

In the political arena, President Kabila is desperately trying to change the country’s constitution so that he can remain in power beyond his second and final five-year term. This has raised a storm of protests in the country. Opposition leaders have openly criticised any such moves. Last week, Moïse Katumbi, the multimillionaire governor of copper rich Katanga Province, a close aide of Kabila and the second most powerful man in Congo, announced leaving the ruling party. Congolese remain profoundly sceptical about their future. This makes the political situation all the more gripping.

African quagmire metamorphosed to cataclysmic carnage : DR Congo, Ntaganda, Kabila and the road ahead (PART 4 of 5)

The escalating disquietude of Rwanda and Uganda with Kabila government led to a protracted tragedy of modern Africa. Kagame’s plan for another regime change in Kinshasa was anticipated by Kabila resulting in his dismissing all Rwandan soldiers and ordering them to return home. Kabila even started recruiting ex-Hutu militias who had been accused of killing Tutsis in the 1994 genocide.

A rebellion group by the name of Rassemblement Congolais pour la Démocratie (RCD) alongwith Congolese Tutsis and Banyamulenge (ethnic Tutsi of South Kivu of Congo), with active assistance of the Rwandan Army, started a rebellion against Kinshasa. The rebels initially made rapid progress but intervention by neighbouring countries like Angola and Zimbabwe in favour of Congo turned the tables. Robert Mugabe’s dream of becoming a regional power broker and Angola’s concern about its internal security were the primary reasons for their involvement in this foreign crisis. Namibia and Chad soon joined the fray assisting Kabila, whereas Tutu led Burundi government took the side of Rwanda and Uganda. Active military assistance of Angola and Zimbabwe saved Kabila’s regime.

The war, though ostensibly fought for saving the national governments, was primarily to capture and exploit the vast natural resources of Congo. Unsurprisingly, Angola and Zimbabwe Generals started looting, despoiling and grabbing diamond, gold and other mining businesses. On the other hand, Rwanda and Uganda turned eastern Congo into their own fiefdom.  All the belligerents indiscriminately plundered the natural resources at an unprecedented scale. Gradually RCD splintered into rival factions. The war became even more complicated with multitudinous factions changing sides as per their financial interests. Banyamulenge fighters also split into separate factions. Rwanda and Uganda even fought among themselves for the spoils of the war! It seemed as if war would never end. But Kabila’s assassination in January 2001 changed the scenario. Kabila Jr., ‘western educated’ and ‘english speaking’, but a political greenhorn, was put in place of his father.  Since Kabila Sr. was considered as the major impediment to a peaceful settlement of the war, as he adamantly refused to share power, the change of guard was seen as a positive development towards the peace negotiations. Gradually Rwanda too found it difficult to sustain the war as RCD splintered and many joined the Congo government. Many from the Banyamulenge changed sides. Finally Suncity agreement, in April 2002, provided the framework of the multipartite government in Congo. Later in July, the main belligerents Rwanda and DRC signed a peace deal (Pretoria Accord). Congo and Uganda also signed a peace deal (Luanda Agreement). These peace deals led to the withdrawl of Rwandan and Ugandan troops from DRC’s territory and led to a substantial contraction in hostilities. In December 2002, the primary warring factions like the national government, MLC (Mouvement pour la Liberation du Congo, a group backed by Uganda), RCD, split factions of RCD as well as the opposition party alongwith representatives of civil society signed an agreement which formally ended the bloody second Congo War. In July 2003, the transitional government was formed.

But Kivu, Ituri and Katanga conflicts persisted despite the formal end of the Congo War. Alleged role of Ntaganda in Ituri conflict is now before the ICC.

Silhouette of labyrinthine rancor (Hutu and Tutsi) : DR Congo, Ntaganda, Kabila and the road ahead (PART 3 of 5)

‘The Land of a Thousand Hills’, Rwanda has been of particular interest to western countries as it lay along the border line between Francophone and Anglophone Africa.

Rwandan kingdom was inhabited by a Hutu majority and Tutsi minority. The Hutus were predominantly agriculturist whereas the Tutsis were chiefs and aristocrats. Though they spoke the same language (Bantu) and shared the same customs, in physical appearance, Tutsis were taller than Hutus. Ethnic divisions were well entrenched. Subsequent German and Belgian rules exacerbated ethnic tensions. Colonial masters favouring Tutsis during their rule extended the Tutsi hegemony over Hutus. Introduction of identity cards by the Belgians in the 1920s formed a deep chasm between the two tribes. Belgians established a Tutsi bureaucracy completely trampling Hutu aspirations. Even education was made a Tutsi monopoly. Hutus were relegated as labourers.

In such an unequal society, came independence in 1962. The new state was led by Kayibanda, a politician completely devoted to the cause of Hutu hegemony. Fearing decimation by Hutu extremists, Tutsis started a never ending exodus to neighbouring countries including Congo and Uganda. The new government’s economic policies were initially in the right direction. Inflation was kept low and GDP increased. But Hutu Tutsi rivalry started showing signs of its revival. Kayibanda’s hate campaign against Tutsis couldnot save his own government and he was ousted in 1973 by the Army Commander, Habyarimana. Kayibanda’s preference to southern Hutus over northern Hutus led to his downfall. Habyarimana installed a one party dictatorship. His party (Mouvement Républicain National pour la Démocratie et le Développement, MRND) was also anti-Tutsi. In the beginning, the fledgling country had relative prosperity. But suddenly a sharp drop in world coffee prices posed grave challenges to its economy. Allegations of corruption also rocked Habyarimana’s regime.

Hundreds of thousands of Tutsi exiles living in Uganda had nurtured their ambitions of returning to their nation. The new ruler of Uganda, Museveni, having taken help form the Tutsi refugees in the overthrow of Obote government, was more than willing to help the Tutsi reclaim their country. These circumstances led to the launch of Rwandan Patriotic Front (RPF) in 1987. RPF’s first attempt turned out to be a misadventure but it provided the French Government an opportunity to increase its influence on the country as Habyarimana had requested for assistance.

Along with the 90s came the democratization wave in Africa. Arusha Accords, signed in 1992, established a transitional government ending the one party system whereby RPF was formally inducted into the Government. But again the peace was shortlived. UN’s role in maintaining peace was strangely limited. On 6th April 1994, Habyarimana’s aircraft was shot down as it flew towards the Kigali airport. His assassination could have been the handiwork of either Hutu extremists or the RPF. But the Hutu extremists pounced on this opportunity to start a chilling extermination of Tutsis, the Rwandan genocide. This barbaric pogrom which lasted for around 100 days, killing around 800,000 to 1 million Tutsis, forced RPF leader Kagame to return to war and he finally took over the capital. Reluctance  of the US and western powers during this genocide was baffling. Soon after Kagame captured the capital, Hutus started fleeing to Congo. This exodus of hundreds of thousands of Hutus included even those who had actively participated in the insane butchering of Tutsis. These Hutus, now refugees in Eastern Congo, started fomenting trouble for the local Tutsis as well as the Rwandan government. Mobutu’s role in the Hutu power zealots increasing disturbing tendencies was viewed with great abhorrence in Kigali. The only alternative before Kagame was the overthrow of Mobutu. With active assistance of Uganda, Rwanda waged the First Congo War. Mobutu was replaced by Laurent-Désiré Kabila, a small time guerilla leader. In May 1997, Kabila after being sworn in as the President, changed the name of the country from Zaire to ‘the Democratic Republic of Congo’. Soon thereafter exiled dictator Mobutu died in Morocco.

But more tribulations were in store for the Congolese as Kabila changed his allegiance, finally culminating in recrudescence of hostilities.