It’s About Time: Calling on the ICC investigate Atrocities Perpetrated by former DRC President Kabila

An election poster featuring Joseph Kabila (Photo: Nic Bothma/EPA)

It is no secret: the International Criminal Court (ICC) struggles to bring to justice perpetrators from all sides of the conflicts that it intervenes in. That is true for many of the situations under ICC investigation. In Uganda, only members of the Lord’s Resistance Army have been targeted by the ICC. In Cote d’Ivoire, only members of the former government have been prosecuted by the Court. This one-sided justice is also apparent in the Democratic Republic of Congo (DRC).

The DRC was one of the first situations where the ICC opened an investigation. Yet fifteen years later and despite ongoing atrocities and subsequent warnings from the ICC Prosecutor, only a handful of individuals have been brought to justice. None have been members of the regime of former President Joseph Kabila. That must change.

I am proud to announce that the Canadian Partnership for International Justice (CPIJ), where I am a collaborator, has decided to challenge the asymmetric approach to justice in the DRC and to call on the ICC Prosecutor to investigate atrocities committed by Kabila and his agents. The CPIJ’s full letter (in both English and French) to the Prosecutor can be found here. Here is an excerpt:

Re: Atrocities committed in the Democratic Republic of Congo by former President Joseph Kabila Dear Prosecutor Bensouda:

We write to urge the Office of the Prosecutor (OTP) to investigate former President Joseph Kabila and senior officials from his government for the commission of crimes against humanity in the Democratic Republic of Congo (DRC). Ongoing impunity for these crimes has contributed to a climate of fear and an alarming escalation of political violence in the DRC, including in Ituri, amid rumours that President Kabila is planning to return to power.

Although the OTP has previously investigated and prosecuted a handful of perpetrators of international crimes in the DRC, these cases have been limited to members of rebel and opposition groups. Regrettably, the OTP has yet to seriously address the role and responsibility of President Kabila and relevant government officials in the commission of politically motivated violence including killings, arbitrary detentions, torture, sexual violence, enforced disappearances, and persecution.

We would like to draw your attention to three instances of bloodshed and brutality that exemplify the nature and gravity of crimes attributable to President Kabila and his senior military and political officers.

….

Last year, the OTP did not undertake an investigative mission to the DRC in the face of mounting evidence that national courts are either unwilling or unable to genuinely investigate and prosecute the culprits of these crimes. 24 Former President Kabila and his senior officials still control much of the government in the DRC, including a highly partisan judiciary.25 In 2018, President Kabila further entrenched his impunity by passing a decree that effectively immunises former heads of state from criminal prosecution.26 Conversely, independent judges, prosecutors, and human rights advocates who courageously pursue truth-seeking and accountability regularly face imprisonment, torture, harassment, death threats, and even assassinations.27

As you powerfully stated at the conclusion of your visit to the DRC in 2018, “all those responsible on all sides for these alleged heinous crimes should face justice.”28 Unfortunately, it has been two years since the OTP’s visit and impunity is still rampant. This latitude has emboldened perpetrators and continues to destabilise the country and erode the rule of law. The current resurgence of violence in Ituri you have raised concern about in your recent statement is a direct result of this worsening situation.29 Any future investigation into these troubling events must consider the responsibility of former President Kabila and his senior officials who continue to exercise power behind the scenes.

With this letter, we add our voices to those of Congolese and international civil society and human rights organisations30 to urge your office to thoroughly examine the role of President Kabila and other senior government officials implicated in crimes against humanity, without delay. It is time for the ICC to act.

About Mark Kersten

Mark Kersten is an Assistant Professor in the Criminology and Criminal Justice Department at the University of the Fraser Valley in British Columbia, Canada, and a Senior Consultant at the Wayamo Foundation in Berlin, Germany. Mark is the founder of the blog Justice in Conflict and author of the book, published by Oxford University Press, by the same name. He holds an MSc and PhD in International Relations from the London School of Economics and a BA (Hons) from the University of Guelph. Mark has previously been a Research Associate at the Refugee Law Project in Uganda, and as researcher at Justice Africa and Lawyers for Justice in Libya in London. He has taught courses on genocide studies, the politics of international law, transitional justice, diplomacy, and conflict and peace studies at the London School of Economics, SOAS, and University of Toronto. Mark’s research has appeared in numerous academic fora as well as in media publications such as The Globe and Mail, Al Jazeera, BBC, Foreign Policy, the CBC, Toronto Star, and The Washington Post. He has a passion for gardening, reading, hockey (on ice), date nights, late nights, Lego, and creating time for loved ones.

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