Dear readers – please find below a commentary written by Olivia Bueno at the International Refugee Rights Initiative (IRRI) in consultation with Congolese activists. This time, we would like to give special thanks to the activists on the ground, who provided insight and reporting in the immediate aftermath of the verdict. Although for security reasons they cannot be cited by name, their contributions were critical to the posting. The views and opinions expressed here do not necessarily reflect the views and opinions of the International Refugee Rights Initiative or of the Open Society Justice Initiative.
The run up to the International Criminal Court (ICC) verdict in Ituri was marked by fear and anticipation, highlighted by rumors that the judgment would be favorable to Thomas Lubanga. Since the announcement of the verdict last week, there have been no major security incidents, but the mood remains tense and a serious national debate is developing about the Court. The strands of this conversation are varied. Those who support Lubanga view the verdict as unjust and are attacking the Court; others, particularly victims, express qualified satisfaction but express concern about the future. In the national media, a debate is ongoing about questions of sovereignty, Congo’s role in fighting impunity, and the appropriateness of the Court’s approach. Meanwhile, Iturians remain concerned about how this debate will affect security, and victims and witnesses feel particularly vulnerable.
Prior to the announcement of the verdict, a dominant rumor in Ituri was that the ICC would announce a decision favorable to Mr. Lubanga, either finding him not guilty or issuing a relatively light sentence which, with time already served, could result in Lubanga being released soon. Supporters of Lubanga’s Union of Congolese Patriots (UPC), which now functions as a political party, were, according to one activist, seen wearing t-shirts emblazoned with the slogan “he will be acquitted.” John Tinanzabo, the interim president of the UPC and a member of the national assembly, had been quoted in the press as saying that a conviction would be “a last minute judicial surprise.”
March 14: News of the Verdict Reaches Ituri
Against this backdrop, the population anxiously awaited the announcement of the verdict. According to sources on the ground, in the Mudzipela neighborhood of Bunia, a Lubanga stronghold, people gathered around radios to listen attentively to Lubanga’s fate. People also gathered in the central market around radios in groups of two to five, from 9:30AM waiting for news. When, around 10:00 AM, they realized that the verdict would not be played live on the radio, some headed to a local internet café to hear the news that way. There was reportedly a strong security presence in the area around the UPC headquarters and in the Mudzipela neighborhood, which local commentators interpreted as preparations to monitor and contain an impromptu celebration in the event that Lubanga were to be acquitted.
For these supporters, hearing the verdict was painful. An activist in Bunia described how a Hema lawyer reacted when she received a phone call informing her of the verdict, saying that she looked drained, “like someone had informed her of a death.” Others expressed quiet satisfaction. One activist pointed out that victims and others who welcomed the decision were forced to do so quietly, out of fear for potential reprisals. One local activist noted, “You can see the tension in the fact that not a single Iturian organization has issued a public statement responding to the Lubanga case. One hears from organizations in Kinshasa, but in Ituri, people do not feel free to speak out.”
The population at large is nervous about the potential of Lubanga supporters and the UPC to destabilize Bunia town and surrounding areas. On Saturday, March 17, a rally planned by the UPC to protest the verdict was blocked by a heavy show of force from anti-riot police. Although for the moment the UPC has called on its supporters to remain calm and allow the appeals process to work, the angry words of its leaders attacking the ICC and the attempted demonstrations make others nervous. Particular concern in this context is focused on witnesses and intermediaries, who are accused of participating in a vendetta against Lubanga. In the words of one activist, their situation “will become more worrying because the situation is now brought home to the masses.” Although the role of intermediaries and witnesses on the process has been discussed in Bunia for some time, the verdict brings home the implications of this engagement with the Court in a new way.
In this tense environment, distinct views are forming around the verdict. Those who see the outcome of the trial as unjust, in particular members of Lubanga’s Hema community and UPC partisans, are experiencing disappointment and frustration; those who see the verdict as fair, on the other hand, express qualified satisfaction. Although the latter, including many victims and human rights activists, welcome the verdict as a positive step, questions of “what next?” minimize their satisfaction.
Disappointment and Frustration
It is clear that Lubanga continues to enjoy significant support in Bunia. In the days following the decision these supporters have expressed disappointment and frustration. Another woman, quoted by Radio Okapi, said “[w]e expected his release, but we are surprised that he was convicted. I am against this judgment. Personally, I would like them to physically show us these children who were enlisted.” A UPC press conference that had been scheduled for Wednesday evening never took place, with speculation that this might have been due to a split in the party’s leadership about how to react. Could it also be that the UPC were so convinced of an acquittal that they had prepared the press conference only for that eventuality?
On the radio, however, the UPC interim president attacked the Court. He said that he was sorry that the Court had reached this decision and described the process as “political.” He said that it was designed for “settling accounts,” accusing the government of the DRC of manipulating the Court to settle scores domestically. “The government says that it is cooperating with international justice, but they are protecting Bosco Ntaganda [Lubanga’s co-accused].”
Indeed, a number of serious questions have been asked about the integrity of the process, for instance about the level of proof presented at the trial. In the words of one Hema, “The real child soldiers, if they exist, would be for us to produce as we know them.” The others are accused of being liars. Others see the ICC as a mechanism more preoccupied with its own institutional development and securing a win at trial than with delivering justice for Ituri. Some see the process as one in which the strong impose their will on the weak, or as a western intervention that cannot, or does not care to, understand Congo. In Tinanzabo’s words: “I am a close colleague of Lubanga’s. If we committed crimes, then why have I been elected a member of the National Assembly? We have to see if international justice is suited to Congo.” Many in the Hema community still see Lubanga as a hero. As one activist said, he is seen as “a savior who sacrificed himself to avoid the extermination of the Hema people.”
Although questions of process are being raised most vociferously by Lubanga’s supporters, it is by no means limited to this group. As IRRI documented prior to the verdict in its report Steps Towards Justice, Frustrated Hopes: Reflecting on the Impact of the ICC in Ituri, those on the ground in Ituri were familiar with some procedural issues, including the use of intermediaries and quite critical of the Court for not doing enough to ensure that those acting on its behalf were doing so appropriately. Although the judges found that there was sufficient evidence to find Lubanga guilty, they also criticized the prosecution’s methods in this area. Since the verdict, it has been debated in the national press.
Those who see Lubanga as guilty of the crimes that he is accused welcome the verdict, expressing satisfaction and relief. The general population shares this satisfaction according to one activist, “One can read a lot of smiles on people’s faces.” Victims also appear to be relieved; the Ligue pour la Paix et les Droits de l’Homme (LIPADHO), a Congolese human rights organization, quoted one victim as saying, “We had lost hope of seeing this baobab fall and we were afraid that he would return in triumph to Bunia.”
A number of issues, however, dampen this feeling of satisfaction. As noted above, there is fear of expressing too much warmth for the decision might bring down reprisals from angry UPC supporters. In addition, it does not take long in talking with activists for them to ask “what next?” Those who welcome the verdict quickly begin asking about the next phase in the proceedings in the Lubanga case and, more broadly, what is next for the fight against impunity. Even those who see Lubanga as guilty do not think that he committed these crimes alone, and they ask when others will face the same justice.
Next Steps: Remaining Phases of the Lubanga Process
On the legal front, there is still much to be determined. The verdict could be overturned on appeal. Lubanga’s lawyers will have 30 days from the receipt of the French translation of the judgment to file their appeal. Given the length of the published judgment translation will take some time, and litigation in the appeals process will continue for some time after that.
The ICC still needs to address the question of Lubanga’s sentence, “a determining factor,” in the words of one activist, of how the process as a whole is viewed on the ground. The ICC Prosecutor, Luis Moreno-Ocampo, has indicated that he will seek “close to the maximum” sentence for Lubanga’s crimes. As one victim put it, “It is one thing to be convicted, but he may be given a suspended sentence or time served. In this case it means nothing.” The Congolese government has indicated in the media that they would be pleased with a heavy sentence. On the ground, however, there is a divergence of views. One activist argues that a heavy sentence “will be perceived as unjustified” given perceptions of the crime on the ground as a lesser crime than other atrocities that have been committed. On the other hand, he argues that “a weaker penalty will not be dissuasive for others.”
For victims, perhaps the most important element of the verdict is that, in the words of Guy Mushata of the International Center for Transitional Justice, it “will open the way to reparations.” As one victim said, “It is good that he has been convicted, but the most important thing is the height or value of the reparations that should console us.” Another asked, “What do they say about our women who have been raped, our houses that have been burned, and our goods carried off.” La Synergie des ONG Congolaises pour les Victimes (SYCOVI), a victim’s organization in the DRC, pointed out that there is now hope that the Court will carry out reparations efficiently. If badly managed, they warn, the process could re-traumatize, rather than assist, victims. Effective reparations, as Mushata has noted, could serve as a model to the Congolese justice system, which has awarded reparations in a number of cases, but not succeeded in recovering and handing over any of those awards.
What Next in the Fight for Justice?
The idea of deterrence is critical to arguments in support of international justice generally, so it is not surprising that they also feature prominently in reactions to the Lubanga verdict. Those who welcome the decision highlight the critical role that it may play in deterring future crimes. For example, in the words of one prominent activist, Dismas Kitenge, “The Lubanga trial and this verdict have the potential to have an important deterrent effect on the commission of international crimes in the country, and in particular the use of child soldiers.” Likewise, SYCOVI greeted the decision as having “a dissuasive character for those who have, to this day, the intention of creating hotbeds of tension in the DRC.”
For others, however, this deterrent impact is called into question by the fact that this is the only ICC verdict in the Court’s ten years in existence. In a poll on the website of Radio Okapi, only 14 percent of respondents, for example, highlighted the potential deterrent impact as their primary response to the verdict. By way of contrast, the majority (62 percent) focused on the need for additional prosecutions. Iturians and other Congolese seem to be looking beyond the judgment and asking “what next?” in terms of the fight against impunity more broadly.
The Kinshasa-based newspaper Le Phare has pointed out “there are plenty of senators, members of the national assembly, ministers, provincial governor, superior officers in the army and the policy … who should be in the same box as Lubanga.” One activist, concurred, urging that the charges “should not be limited to Lubanga alone, because this crime was committed by nearly all the belligerents in the war in the DRC.” One Ituri resident said, “It is regrettable to see that there has been only one person convicted in relation to the disaster that occurred in Ituri.”
One of the most visible cases in this regard is that of Bosco Ntaganda, who was charged alongside Lubanga for recruitment of child soldiers in Ituri but who remains at large, operating openly in the eastern Congolese town of Goma. Many activists and NGOs, including the Congolese Coalition for the International Criminal Court, used the opportunity of the verdict to call on the Congolese government to arrest him. The Minister of Justice, however, when interviewed by AFP, would only say that the government continues to cooperate with the Court and that he could not say more.
Beyond Ntaganda, as research by IRRI has shown in the Steps Towards Justice report, the call for accountability for Rwandan and Ugandan interveners has been particularly strong – and has been renewed since the verdict. The local NGO LIPADHO put it starkly, “Other co-authors and accomplices found in the political spheres and in the armed forces of Kinshasa, Kigali, Kampala as well as Bujumbura should be prosecuted.” This sentiment has been repeated by other activists and on various blogs reflecting on the crisis.
Looking forward, what can be done to ensure that we learn from reactions to the Lubanga verdict? What can be done to address the security concerns raised by witnesses and intermediaries? What more can be done to address the allegations of bias at the Court? How can communications strategies and interventions on the ground respond to potential responses to decisions on Lubanga’s appeal and sentencing? What can be done to follow up on the need to pursue justice more broadly?