Democratic Republic of the Congo

One week after the International Criminal Court Appeals Chamber acquitted a Congolese politician-warlord whom a Trial Chamber unanimously had convicted of rape, pillage, and other crimes, practitioners and scholars continue to debate the decision’s significance. Indeed, the case, Prosecutor v. Bemba, has been invoked in both the papers so far presented at the 2-day ICC Scholars Forum now under way at Leiden Law School’s Hague campus.

My own initial thoughts – concerned not about the decision’s fact-based details but rather to its refashioning of the legal doctrine of command responsibility – have been published at EJIL: Talk!, the blog of the European Journal of International Law. My post, entitled “In Bemba and Beyond,” discusses command responsibility as “a time-honored doctrine with roots in military justice and international humanitarian law.” Placing this appeals judgment in the context of other decisions, the post warns:

“Together, such rulings suggest a turn away from the goal of assigning responsibility at high levels, and toward a jurisprudence which acknowledges (with regret) the commission of crimes, yet holds no cognizable legal person responsible.”

Full post here.

kabuyaD3_17aug15A favorite aspect of my new position is becoming acquainted with Georgia Law’s vast global community.

Yesterday was a special treat: We at the law school’s Dean Rusk International Law Center received a visit from an alum who is doing great work back home in the Democratic Republic of the Congo.

The alumnus is Mukendi Kabuya, who earned an LL.M. degree here in 2010. He’s now an attorney at Kinshasa’s Delt-August Law Firm, where his practice includes international investment, immigration, and business matters.

Last year, Mukendi co-founded a child-rights nonprofit modeled on the Court Appointed Special Advocate (CASA) program, where he used to work. CASA Democratic Republic of Congo is based in Kinshasa, but works throughout the country to provide in-court assistance to abused and neglected children – including children who have survived armed conflict and similar violence. This critical effort comes at a critical time: Congo’s juvenile justice system is very young. Before it was established, children found themselves relegated to the adult system.

While here, Mukendi, who is President of the Africa Chapter of the UGA Alumni Association, stopped by the university’s African Studies Institute. And he talked about his work and career with Georgia Law’s newest LL.M. students, who begin classes today. He’s pictured above talking with two just-enrolled students from Nigeria, Gladys Ashiru, at left, and Oluwakemi “Kemi” Kusemiju.

Looking forward to the next visit from this impressive alum.

kivu“[F]or targeting children in situations of armed conflict, including through killing, rape, abduction and forced displacement,” yet another Congolese armed group has been added to the United States’ sanctions list.

On Tuesday, the Department of the Treasury announced sanctions against the Allied Democratic Forces, which it described as a group of “1,200 to 1,500 armed fighters” that in 2013 began attacking civilians in North Kivu, a province of the Democratic Republic of the Congo that borders Uganda. (credit for (c) Associated Press map) The militia’s actions against children reportedly include:

  • “brutal attacks on women and children in several villages, including acts of beheading, mutilation, and rape”
  • “kidnapping as well as recruiting children, allegedly as young as 10 years old, to serve as child soldiers against the Ugandan government”

As this list of all Treasury sanctions indicates, the Allied Democratic Forces join many other designated groups and individuals; to name a few, persons pursued (with varying results) via the International Criminal Court Situation in the Democratic Republic of the Congo, such as Germain Katanga, Thomas Lubanga Dyilo, Callixte Mbarushimana, Sylvestre Mudacumura, Mathieu Ngudjolo Chui, and Bosco Ntaganda. All were put on the list following the implementation of a decree signed by President George W. Bush in 2006, Executive Order 13413, “Blocking Property of Certain Persons Contributing to the Conflict in the Democratic Republic of Congo.” Section 1(a)(ii)(D) of that Executive Order expressly calls for sanctions against persons whom the Secretaries of State and the Treasury determine

to have committed serious violations of international law involving the targeting of children in situations of armed conflict in the Democratic Republic of the Congo, including killing and maiming, sexual violence, abduction, and forced displacement ….

Taken in conjunction with Monday’s U.N. Security Council imposition of a travel ban and assets freeze against the group – sanctions that also cite the group’s offenses against children – the U.S. sanctions will block “[a]ll property and interests in property in the United States or in the possession or control of U.S. persons in which the ADF has an interest”; moreover, “U.S. persons are generally prohibited from engaging in transactions with the ADF.”

fatouTwelve years ago today, a treaty aimed at removing anyone under 18 from combat entered into force – a milestone marked annually as Red Hand Day, also known as the International Day against the Use of Child Soldiers. A significant commemoration has been taking place all this week at The Hague, where International Criminal Court Prosecutor Fatou Bensouda and her staff have sought confirmation of child-soldiering charges brought against Bosco Ntaganda, the Congolese ex-militia leader who surrendered 11 months ago, after years as an ICC fugitive. (credit for photo, from video clip of Bensouda delivering opening statement at Monday’s session)

Ntaganda had been charged back in 2006 along with a colleague: Thomas Lubanga, the former leader whose trial led to the 1st ICC verdict, a 2012 conviction for the crimes of conscripting and enlisting children under 15 and of using them to take active part in hostilities in a non-international armed conflict, the 2002-2003 civil war in Ituri, a region in the eastern part of the Democratic Republic of the Congo. An ICC Trial Chamber ruled that the conduct occurred in violation of Article 8(2)(e)(vii) of the 1998 Rome Statute of the ICC.

At this week’s confirmation hearing, ICC Pre-Trial Chamber II – composed of Presiding Judge Ekaterina Trendafilova and Judges Hans-Peter Kaul and Cuno Tarfusser – has been considering the same charges against Ntaganda. The Prosecutor’s January 2014 submission to the chamber thus states (p. 5 ¶ 4):

‘… Bosco NTAGANDA is charged with the war crimes of enlisting and conscripting children under the age of 15 and using them to participate actively in hostilities within the region of Ituri during the entire period of the charges.’

Most notably, prosecutors have lodged additional charges, charges not presented in Lubanga, of crimes committed against children while they were in Ntaganda’s militia. (An NGO statement on this development is here.) The same paragraph of the Prosecutor’s submission thus concludes:

‘He is also charged with rape and sexual slavery of child soldiers within his own group during this same geographic and temporal scope.’

The charges point toward a broader presentation of the ways that children are affected by armed conflict (an approach I discussed in this newly published article, “Children and the First Verdict of the International Criminal Court”; note that although I am honored to serve as the ICC Prosecutor’s Special Adviser on Children in and affected by Armed Conflict, I contribute this and all blog posts in my personal capacity).

The week-long confirmation hearing in Ntaganda is set to conclude tomorrow. Further information, including links to documents and webstreaming, available here.

petitionSupporters of a new ad hoc tribunal have taken their campaign online. As reported this weekend on any number of French-language media, 52 women signatories – dubbed marraines, or godmothers – have launched the above Petition for an International Criminal Tribunal for the Democratic Republic of the Congo. Addressees include: French President François Hollande; U.S. President Barack Obama; the Presidency of the Security Council; U.N. Secretary-General Ban Ki-moon; European Union President Van Rumpoy, African Union President Nkosazana Dlamini-Zuma; and Mary Robinson, U.N. Special Envoy on the Great Lakes Region of Africa, the region within which the protracted Congolese conflict has taken place.

This French-language petition focuses on the findings of a U.N. “mapping exercise” respecting human rights violations that occurred in the Congo between 1993 and 2003. (Notably, most of those violations predated the July 1, 2002, entry into force of the Rome Statute of the International Criminal Court; although not stated, presumably the absence of ICC jurisdiction over such cases forms one reason for the bid for a standalone tribunal.) The ensuing 500-plus page report, completed in 2010, documented the commission of many crimes of international concern against civilians – in particular, against children and women.

The petition envisages establishment of an ad hoc tribunal as a replacement to the International Criminal Tribunal for Rwanda, now winding up its work after 2 decades as a U.N. Security Council-established body. The full text of the 15-paragraph petition may be read here. In part, the marraines write (my translation):

‘We fear with good reason that future generations, more enlightened and more philosophical, will accuse the French, Europeans, and Americans of this century with complicity in barbarity – a complicity contrary to the the universal values on which we have founded our humanity.’

They further contend:

‘To do nothing would constitute discrimination against Congolese women, a denial of international justice and, as such, an encouragement to the commission of “gynocide” or “femicide.”‘

The initial signatories included Collège de France professors Mireille Delmas-Marty (prior post) and  Françoise Héritier, former French governmental ministers Rama Yade and Roselyne Bachelot, and many others. (Reportedly spearheading the effort is a man, however; he is Hamuli Réty, former head of the association of ICTR lawyers.) In the week or so that this website has welcomed additional joinders, more than a thousand more people have signed.

gomaWith a U.N. Intervention Brigade in place and moving toward operation-readiness in the next month, questions have surfaced regarding the legal status of the deployment.

More than 3,000 troops from Tanzania, Malawi, and South Africa reportedly have assembled in Goma, in the eastern part of the Democratic Republic of the Congo. (map credit) This Intervention Brigade, Melbourne Law Professor Bruce “Ossie” Oswald writes in a new ASIL Insight, is intended as the United Nations’ “first-ever ‘offensive’ combat force.” By dint of Security Council Resolution 2098 (March 28, 2013), the Brigade has been authorized “to undertake military operations against armed groups” in order to “help the Congolese Government strengthen its control over territory.” As stated in ¶ 12(b) of Resolution 2098, the U.N. mission, MONUSCO, is authorized to support Congolese authorities, working unilaterally or together with Congolese armed forces,

‘taking full account of the need to protect civilians and mitigate risk before, during and after any military operation, [to] carry out targeted offensive operations through the Intervention Brigade …, in a robust, highly mobile and versatile manner and in strict compliance with international law, … to prevent the expansion of all armed groups, neutralize these groups, and to disarm them in order to contribute to the objective of reducing the threat posed by armed groups on state authority and civilian security in eastern DRC and to make space for stabilization activities; …’

(A little further into the resolution, ¶ 12(d), which makes no reference to the Intervention Brigade, authorizes MONUSCO to “[s]upport and work with the Government of the DRC to arrest and bring to justice those responsible for war crimes and crimes against humanity in the country, including through cooperation with States of the region and the ICC.” The International Criminal Court Situation in the Congo currently lists 1 at-large accused.)

Though some civil society groups were reported to support the Brigade, in recent weeks 19 nongovernmental organizations wrote U.N. Secretary-General Ban Ki-moon to express concern about the relation between the Brigade and other activities in the region. In a followup interview, one organization stressed the need to keep any “military action” separate in order not to block humanitarian access to civilians.

Meanwhile, Oswald’s Insight unpacks numerous legal issues, though it offers no certain answers to them. He asks:

► Is the Brigade to be considered a party to the conflict, and if so, does that consideration extend to the entire U.N. mission in the country?

► What is meant by the Security Council’s grant to the Brigade of authority to “neutralize” armed groups?

That uncertainty gives rise to other questions. One such question jumps to mind on reading Oswald’s quotation of a 1999 Secretary-General’s Bulletin to the effect that if members of the Brigade are classified as combatants in the conflict,

‘they “can be legitimate targets for the extent of their participation in accordance with international humanitarian law”.’

Article 8(2)(b)(iii) of the Rome Statute authorizes the International Criminal Court to prosecute persons for the war crime of

‘[i]ntentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict ….’

Notably, the offense already has been charged in the court, in the Situation in Darfur, Sudan. Oswald’s reasoning suggests that in a different situation in some future case involving an entity like the new Brigade, that final proviso might require considerable interpretation.

Now that the story of the surrender of Bosco Ntaganda has ended with his transport to the International Criminal Court detention center, and given that his 1st court appearance set for Tuesday morning, it’s high time to review the precise charges against this former fugitive.

drc_iturPursuant to a request by the ICC’s 1st Prosecutor, Luis Moreno-Ocampo, a 1st warrant sought the arrest of Ntaganda in August 2006. It described him as “Deputy Chief of General Staff for Military Operations” for the Forces Patriotiques pour la Libération du Congo. Conjoined with the Union des Patriotes Congolais, the UPC/FPLC operated as a political-military organization made up mostly of members of the Hema ethnic groups in Ituri. The UPC/FPLC were among several armed groups at war in that region, located in the eastern part of the Democratic Republic of the Congo. (credit for map (c) BBC) The 1st warrant alleged that Ntaganda was No. 3 in the group, led by UPC/FPLC President Thomas Lubanga Dyilo, a co-accused who was himself a Hema born in the region (in contrast with Ntaganda, who is said to have been born in Rwanda).

Only child-soldiering then was charged. Applying the standard required by Article 58(1)(a) of the Rome Statute of the ICC, judges thus issued the 1st arrest warrant after finding “reasonable grounds to believe” that Ntaganda was responsible for

► (i) enlisting,
► (ii) conscripting, and
► (iii) using to participate actively in hostilities

children under the age of fifteen, in an armed conflict of an international or a non-international charter, in violation of Articles 8(2)(b)(xxvi) and 8(2)(e)(vii), respectively.

There matters lay for nearly six years – until last May 14, when the ICC’s second Prosecutor, Fatou Bensouda, sought to expand the list of charges against Ntaganda. Her request came 2 months to the day after the ICC conviction of Lubanga for unlawful enlistment, conscription, and use of underage children in an internal – but not in an international – armed conflict. As I wrote in an American Journal of International Law casenote, in its judgment of conviction, Trial Chamber I had refused to consider trial evidence of sexual abuse in Lubanga, for the reason that the indictment did not include stand-alone charges of sexual or gender-based violence. Expansion of the charges in Ntaganda could avoid a repeat of the result in Lubanga.

The request was granted on July 13 of last year. After reviewing allegations of attacks on non-Hema civilians in Ituri – “in Mongbwalu town and Sayo village between 18 and 23 November 2002” and “in Lipri, Bambu, Kobu and surrounding villages between 17 February 2003 and 2 March 2003” – a pre-trial chamber issued the 2d arrest warrant in Ntaganda. Judges agreed that the Prosecutor had shown the requisite reasonable grounds to believe the accused’s responsibility on 7 additional counts, which alleged crimes against humanity and war crimes in a non-international armed conflict, as follows:

► 1: Murder Constituting Crimes Against Humanity (Article 7(1)(a));
► 2: Murder Constituting War Crimes (Article 8(2)(c)(i));
► 3: Attack against a Civilian Population Constituting War Crimes (Article 8(2)(e)(i));
► 4: Rape and Sexual Slavery Constituting Crimes Against Humanity (Article 7(1)(g));
► 5: Rape and Sexual Slavery Constituting War Crimes(Article 8(2)(e)(vi));
► 6: Persecution Constituting Crimes Against Humanity (Article 7(1)(h)); and
► 7: Pillaging Constituting War Crimes (Article 8(2)(e)(v)).

The form of liability charged in both warrants is that set forth in Article 25(3)(a) of the ICC Statute, concerning commission of an offense

‘whether as an individual, jointly with or through another person, regardless of whether that other person is criminally responsible.’

As is not uncommon among ICC judges, the panel in the 2d arrest warrant decision referred to this as “indirect co-perpetrator” (para. 66), even though that label, derived from the practice of some ad hoc tribunals, does not appear in the ICC Statute. This is the same form of liability at issue in the first two ICC cases to be tried to verdict – not only in the March 2012 conviction in Lubanga, but also in the December 2012 acquittal in Ngudjolo. As is evident at para. 67 of the 2d arrest warrant decision, ICC jurisprudence has constructed a many-element test for whether Article 25(3)(a) has been satisfied. But in each of the cases tried to verdict, 1 out of 3 trial chamber judges objected to the burden that the construct places on the prosecution. (The opinion to this effect in Lubanga, by Judge Adrian Fulford of Britain is at pages 594-607 of the pdf document here; that in Ngudjolo, by Judge Christine Van den Wyngaert of Belgium, is here.) It is thus notable that at para. 66 of the 2d arrest warrant decision in Ntaganda, the pre-trial chamber “underline[d]” that its determination did “not prejudice any subsequent finding regarding the applicability of a different mode of liability at a later stage of the proceedings.”