So, I went on vacation (I know, what was I thinking?) and while I was gone a hurricane-force Congo news cycle hit the interwebs. A hurricane-force hurricane also hit my vacation, but that was less of an issue.
Setting aside for now the mass rapes in Walikale and subsequent uproar about MONUSCO’s civilian protection capacity, let’s talk about the UN Mapping Report. The big news is that the UN High Commissioner for Human Rights has concluded that abuses committed by Rwandan forces in the Eastern DRC between 1994 and 2003 may constitute crimes against humanity or even genocide. Needless to say, Rwanda is none too pleased.
If you haven’t yet read Howard French’s analysis in the New York Times, I suggest that you do so. (I also suggest that we all chip in for some sort of plaque commemorating his heroic restraint in avoiding use of the phrase “I told you so” anywhere in the article.) TexasinAfrica provides some helpful additional commentary here. She also points out that the discussion of justice and accountability has gotten a bit confused and could maybe use a bit of lawyering.
I agree. And, given that I am a licensed law-talking-guy, I’ma take a shot at sorting this out. To review, the question on the table is: If these acts constitute crimes against humanity or genocide, where can the perpetrators be tried?
A few potential venues have been mentioned, including two existing bodies: the International Criminal Court and the International Criminal Tribunal for Rwanda. Let’s consider:
Option 1: The International Criminal Court (ICC)
- Who can be tried there? Nationals of State Parties to the Rome Statute (which Rwanda isn’t) OR others if the conduct (1) occurs on the territory of a State Party or (2) is part of a situation referred to the ICC Prosecutor by the UN Security Council.
- For what crimes? Genocide, crimes against humanity, war crimes.
- Committed during what time period? After July 1, 2002.
- Committed where? On the territory of a state party OR elsewhere if the accused person is a national of a state party.
Option 2: The International Criminal Tribunal for Rwanda (ICTR)
- Who can be tried there? Rwandans and those who committed applicable crimes on Rwandan territory.
- For what crimes? Genocide and other “serious violations of international humanitarian law.”
- Committed during what time period? Between January 1 and December 31, 1994.
- Committed where? In Rwanda OR in neighboring states if the perpetrators were Rwandan citizens.
Clearly, neither of these venues is a great choice since neither has jurisdiction over more than a year of the implicated time period.
Another possibility would be a new international tribunal to address crimes in the DRC. This is not very likely. There’s a reason the Security Council hasn’t created a new international tribunal in almost 20 years, and that reason rhymes with shmella shmexpensive. The more recently created international justice mechanisms (in Sierra Leone, East Timor, Cambodia, etc.) have been hybrid tribunals – bodies that are situated within a domestic judicial system but that apply international law and are staffed by a mix of international and local personnel.
Hybrid tribunals are an attractive option because they (1) are cheaper to set up and run than international criminal tribunals, (2) may be more accessible to victim populations, and (3) may help to build the capacity of a damaged or developing justice system. (Although incipient-social-scientist-Kate would like to interrupt lawyer-Kate here to point out that there isn’t actually much evidence supporting this last claim.) Unsurprisingly, this is the approach endorsed by the authors of the Mapping Report.
Bear in mind that there are other possible avenues toward accountability here. Individual perpetrators could be tried by the DRC’s domestic courts or by Rwanda’s military courts. However, given the scale of the atrocities, and their occurrence during a security crisis that has been the subject of sustained (or at least, intermittent) international concern, we should expect substantial international involvement in the accountability process. Odds are on a hybrid tribunal, place your bets.