Between Rhetoric and Action: The Politics, Processes and Practice of the ICC's Work in the Democratic Republic of the Congo (DRC)

Abstract

This monograph attempts to respond to some of the questions raised in respect of the work of the International Criminal Court (ICC) in the Democratic Republic of the Congo (DRC). In this regard, it has three main objectives. First, by focusing on a State Party where the ICC’s Office of the Prosecutor is currently conducting investigations, it considers the cooperation relationship between the ICC and the DRC. In this regard, it appears that, irrespective of the lack of legislation implementing the Rome Statute in that country, the DRC continues to cooperate with the ICC in its investigations. In view of erroneous positions taken by some states and commentators that only those countries where crimes have been perpetrated, in particular those in respect of which investigations are ongoing, have immediate obligations in relation to the ICC’s work, the monograph seeks to outline and illustrate broader obligations for member states in general. It demonstrates that the work of the ICC in places like the DRC engages the duties of ‘non-situation states’ in various ways. Second, by examining the practice of the Court since the situation was referred to it, the monograph considers the role of politics – domestic or otherwise – in the work of the ICC. Third, it examines the perceptions around the work of the ICC in various sectors of Congolese society, including government, victims, civil society and the general public. By extension, it addresses some of the questions hat the work of the ICC in Africa has raised, including the allegation that the ICC is ‘targeting’ African countries and that somehow these countries are unwilling participants in the process. By identifying and discussing the various factors that informed the referral of the situation by the DRC, the monograph seeks to discredit the single-factor explanations of the circumstances under which the ICC became engaged in the DRC. In this regard it explores various factors that influenced those events and continue to have a bearing on current perceptions and operations of the Court. These influences include the role of victims and non-governmental organisations (NGOs); international pressure, in particular from the United Nations (UN) and European Union (EU); the transition from conflict and the new government’s will to rebuild the country governed by rule of law and respect for human rights; the absence of reliable and ready domestic mechanisms; and the continuing conflict in the east of the country. The study makes a set of findings, conclusions and recommendations. On the issue of cooperation between the DRC and the Court, the monograph concludes that the ICC cannot succeed in its work without effective and reliable cooperation and assistance from member states, in particular states where investigations are ongoing. Such a relationship has to be given effect by some instrument – usually implementing legislation. In the absence of this, the DRC has signed the Agreement on Judicial Cooperation in terms of which the relationship between the Court and the country is regulated. In outlining the relevant provisions of the Agreement on Judicial Cooperation, which stipulates in detail the framework for cooperation and the granting of assistance to the Court, it became apparent that for the DRC to meet these obligations, a well-resourced Office of the Attorney General and Director of Prosecutions, both equipped with the necessary capacities, is essential. The monograph notes that these elements are for the most part lacking and that, despite the existence of political will to assist the Court, complaints have emerged on the ground that the ‘ICC is too demanding’. In view of ill-equipped law enforcement agencies, the various forms of assistance – for the most part of a technical character – impose heavy burdens on existing structures. The study finds that perceptions of the ICC in different sectors of Congolese society are varied. It also notes that these perceptions have been influenced by several factors, which have varied with the prevailing political circumstances. With respect to government, the study finds that the government views the role of the ICC in prosecuting serious crimes as an important one, not only in fighting impunity and doing justice for victims but also in sending a message to those who are still actively involved in armed conflict and various forms of violence that they have to choose the path of peace. It is noted that having received numerous complaints from victims regarding crimes committed in the DRC, the Office of the Prosecutor worked to persuade the government that a referral would be appropriate. While perhaps assigning too much responsibility to the ICC, the government sees its work as crucial in the fight against impunity. The failure of the Truth and Reconciliation Commission (Commission Verite et Reconciliation) to achieve anything significant in the two years it was in existence, and weaknesses in the criminal justice system, including lack of independence in the judiciary, informed the decision to involve the ICC. The government has responded to insinuations that it is working with the ICC to target political enemies by emphasizing that the Court is an independent institution and that the government has no influence whatsoever on the Court and its various organs. The monograph found that allegations of impropriety seem unjustified in the absence of evidence pointing to any improper dealings between the Court and the government. However, the unconditional political support afforded by the government to the Court and its Office of the Prosecutor in particular seems unmatched by actual capacities on the ground to execute various requests for assistance and cooperation.