The Fractured Power
How to Overcome Tribalism
On March 21, 2016, the International Criminal Court (ICC) found Congolese rebel leader turned politician Jean-Pierre Bemba guilty of war crimes and crimes against humanity. After holding Bemba in detention for nearly eight years, the court determined that Bemba failed to stop his Mouvement de Libération du Congo (MLC) troops from committing atrocities against civilians in the Central African Republic (CAR) during an attempted coup there in 2002–3. Bemba remains in detention pending sentencing and a judgement on reparations.
Bemba’s conviction marks much more than the end of a successful prosecution at the ICC. It establishes that commanders are responsible for the actions of their troops, even if they did not directly order the actions, and even if those soldiers are part of a non-state militia. The decision is also a triumph for advocates against sexual violence, as it holds Bemba responsible for the rape and assault committed by his MLC troops. And for the ICC, the case confirms that the court can prosecute war crimes trials and obtain convictions—a major win for an institution with a checkered record.
But despite these victories, the politics surrounding the decision to arrest Bemba—let alone the way in which the ICC pursued charges—have done little to appease critics of the court, both inside and outside the region.
Bemba was the ICC’s first big catch. During the Second Congo War in August 1998, the MLC helped then CAR President Ange-Félix Patassé fend off coup attempts from political rival and future CAR president François Bozizé. MLC troops were accused of pillaging and of killing and raping CAR civilians as they retreated from the country, with Bemba commanding troops from afar. Bemba went on to serve as one of the Democratic Republic of Congo’s (DRC) four vice presidents between 2003 and 2006. During the country’s first postwar election in 2006, Bemba forced DRC President Joseph Kabila into a run-off election, only to lose his bid with 48 percent of the vote. His surprising electoral success, as well as his surging popularity among the Congolese electorate, made Bemba the face of Congo’s political opposition until his forced exile by Kinshasa in March 2007. Bemba was then arrested in Brussels on June 10, 2008, and charged with multiple counts of war crimes and crimes against humanity.
Bemba’s arrest prompted popular outrage throughout the DRC and accusations that the ICC is an instrument of victor’s justice. Indeed, the case was politically expedient for France, which had supported Bozizé’s 2003 coup. It was advantageous for the United States and other European nations that had rallied behind Kabila’s post-transition presidency in the DRC, supporting the devil they knew over one that they didn’t. Given the mounting evidence of sexual violence in conflict zones, Luis Moreno-Ocampo, the ICC’s first prosecutor, was under pressure early on by international advocacy groups to prosecute such a case. The Bemba trial provided an opportunity to highlight the use of rape as a weapon of war. Bemba, therefore, was an easy target for prosecution: with few friends outside of the region, he was low-hanging fruit for an ICC that needed to show that it could prosecute war criminals successfully.
Beyond criticisms of the ICC’s choice of target, the trial also raised concerns among international human rights advocates, who feared that Kinshasa would use it to marginalize opposition parties in the DRC. And to some extent it did—Kabila consolidated power after his narrow electoral defeat and Bemba’s arrest, MLC sympathizers in government were dismissed, and the local assembly in Bemba’s home province of Equateur was suspended by the central government. Today, post-verdict, the MLC is weaker than ever. The party has split into two factions, with one wing under the leadership of a former Bemba loyalist who joined Kabila’s government. Other opposition leaders and parties have since filled the vacuum, and have coalesced to prevent Kabila from pursuing a third term, which would be in direct violation of the DRC’s constitution. Bemba’s supporters had hoped that he could have been convicted on lesser charges at worst, which would have allowed him to return home and run for election in 2016.
Although the ICC’s verdict was unanimous, it has not been able to dodge questions about its fairness about whom it targets for trial. Bemba has been charged for crimes committed in CAR, leaving some Congolese to wonder why he has not been brought to justice for crimes his troops may have committed within the DRC, since that is where most of the fighting occurred. And the ICC has yet to bring any CAR leaders to justice for their own crimes. The same can be said for MLC foot soldiers—the perpetrators of the crimes Bemba was convicted of not stopping—who remain at large. In a country with a long history of human rights activism and one that showed early support for the ICC, few see Bemba’s verdict as anything other than a failure of justice for all but a few victims. Instead, many Congolese assert that the ICC has achieved a verdict that is made to appease the international criminal justice system rather than to meet the everyday justice needs of victimized populations.
Across the border in CAR, where the nation’s focus is on sexual abuse allegations levied against UN and French peacekeepers, the verdict was met with quiet acknowledgement rather than celebrations in the street. Local reports in CAR have focused instead on the upcoming decision on reparations, noting that there are approximately 5,200 victims awaiting some form of financial compensation from the court. Given Bemba’s considerable family wealth (much of it seized after his arrest), the victims’ compensation will need to be managed carefully by the ICC.
Despite the good will enjoyed by the ICC initially in the Congo as elsewhere in the region, the ICC’s reputation in the region has suffered as a result of the Bemba trial, and not just because the court went after one of the country’s popular leaders. The ICC’s case selection process is seen as flawed, as it is almost exclusively state referrals to the ICC by member states, meaning that governments often refer cases that will implicate their political rivals. This leads to a perception that the ICC not only targets Africans but also that it is captive to the region’s partisan politics.
Worse yet, the ICC’s small-team approach to investigations—what Pascal Kambale, a Congolese human rights lawyer, has called “hit-and-run investigations,” has prioritized bureaucratic efficiency over longer, more thorough investigations. Short investigations may have saved money, but they have not yielded faster trials: Bemba spent nearly eight years in detention before he received a verdict. The length of the trial was due to a combination of appeals and the prosecution’s strategy to present as much evidence as possible to entertain multiple paths to conviction, even when such evidence was of little probative value.
The court had every right to target Bemba’s cross-border activities in the CAR, but there are plenty of instances where Ugandan and Rwandan soldiers have crossed into the DRC to commit crimes of a similar nature. The ICC, however, has not announced any cases against these parties, as neither states nor the UN Security Council have referred these cases to the court. The court must find a way to through which it can have standing to pursue these cases as well, so that it can be seen as delivering justice equitably and avoid reinforcing false national narratives.
Lastly, relying on the ICC as the primary mechanism of international criminal justice in Africa means that that the court’s temporal jurisdiction cannot address all of the crimes that have been committed over the last two decades. This is particularly important in Africa, given that so many wars in the region are rooted in post–Cold War conflicts, thus preceding the Rome Statute. Despite whatever the ICC does in the CAR or DRC, it will still fail to provide justice to every aggrieved party on the continent that suffered through decades of violence. Therefore, there is a need to support hybrid or mixed courts, as well as national conversations about justice that build national capacities to prosecute these crimes. This would provide proximity justice to victims that current legal frameworks lack.
As the ICC matures, it must also grapple with its credibility problem. Although the court may celebrate the fact that its prosecutors won the Bemba case, many in the region do not believe that Bemba has met the court’s standard of being the “most responsible” person for the violent acts. At the very least, the ICC must be more transparent about its practices and its selection of cases, as the referral system provides too many opportunities for politicians and states to retaliate against old rivals. During the ICC’s initial years, former prosecutor Luis Moreno-Ocampo even admitted that the court’s case against Kenyan President Uhuru Kenyatta and deputy William Ruto were politically motivated, creating a backlash in Africa that haunts the court to this day. Even though Ocampo’s successor, Fatou Bensouda, is undertaking corrective measures such as more thorough investigations and beginning to pursue cases outside Africa, it may be too little, too late. Even the court’s supporters in Africa have expressed grave reservations about its execution of justice. If the ICC fails to fix its strategy in bringing war criminals to justice, the court’s efforts may end up doing more harm than good—forestalling real justice in favor of high profile, self-satisfying verdicts.