On the brink of collapsing into another round of slaughter, the Democratic Republic of Congo has been in a continual state of civil war since gaining independence from Belgium in 1960.
Those who regard the intervention of the International Criminal Court as the universal solution for ending impunity and promoting the rule of law would do well to ponder this history.
Within days of independence, Congolese hopes for a successful transition floundered.
Units of the national army mutinied and a few days later Katanga, the country’s richest province, declared itself independent with Moise Tshombe as president. To the surprise of the newly installed Congolese government, Belgium chose to intervene and landed troops in Katanga in support of the secessionist regime.
Patrice Lumumba, the first democratically elected prime minister of the country, was assassinated with the collusion of Belgium and the United States. He was replaced by the corrupt and autocratic Mobutu Sese Seko, who ruled the country until 1997, when he was overthrown by Laurent-Désiré Kabila, supported by neighbouring Rwanda and Burundi.
War escalated, involving several African countries, with Kabila senior being assassinated in 2001 and succeeded by his son, Joseph Kabila.
The Congolese war formally ended in December 2002 with the signing of a peace accord in Pretoria, facilitated by then-president Thabo Mbeki, which resulted in the official withdrawal of all foreign troops from the country.
But peace was still under threat, with the Kivu provinces and Ituri District engulfed in conflict because of the continued presence of former Rwandan armed forces and Interahamwe militias.
Given the depth of suffering endured in these areas, the memories of past atrocities continue to run deep. Corruption and theft of minerals by Congolese leaders, as well as by the country’s neighbours, continued.
Instigated by resource-hungry individuals, companies and nations, rival armies and militias
executed massacres, overran villages and butchered civilians in pursuit of a safe haven from their enemies — a situation that continues to prevail.
The international community insists that for peace to succeed, human rights need to be affirmed, international law needs to be adhered to and impunity must end. This has resulted in the arrest of four Congolese warlords accused of war crimes and crimes against humanity by the ICC.
Bosco Ntaganda, a former military chief of staff for the rebel Congrès National pour la Défense du Peuple (CNDP), has in turn been indicted by the court.
But Kabila has ignored the warrant for his arrest and appointed him to a senior position in the Congolese army, which raises questions concerning the willingness of the DRC government to honour its obligations as a signatory to the Rome Treaty.
On the other hand, the Kabila government has requested the extradition of Laurent Nkunda, the former head of the CNDP, who is being detained in Rwanda following his arrest by Rwandan authorities, while at the same time granting amnesty to CNDP forces in the region. This causes Kabila’s critics to suggest that Kabila is using the ICC to achieve his political goals rather than to serve international justice.
Neither Kabila nor the ICC are seen as agents either of justice or of peace in the DRC’s eastern provinces. Government forces are as responsible for civilian atrocities as the rebel militia groups and the ICC is seen by many in the area as an instrument of Kabila’s government.
The eastern provinces have almost become another country since the time of Laurent Kabila’s rule.
Throughout this period, exiled Rwandan génocidaires, under the banner of the Forces Démocratiques de Libération du Rwanda (FDLR), continued their military attacks on Rwanda, which resulted in concerted efforts by Rwandan forces to eliminate them.
Now there are rumours that some within the Rwandan-backed CNDP are seeking to align the movement with the FDLR, with ominous consequences for Congolese sovereignty over its eastern provinces.
All this suggests three things. One, the DRC is under threat of collapsing back into full-scale war. Two, the DRC stands to lose its territorial integrity. Three, this has implications for the response of the DRC government to the intervention of the ICC in dealing with warlords in the country.
As regional political interests and realignment of the country’s militia groups continue to evolve, the DRC may well be compelled to opt for a peace born of compromise before international justice.
This is a subtext in the present spat between those demanding the arrest of Sudan’s President Omar al Bashir and the African Union leaders who are opting for a negotiated peace to the Sudanese crisis. If international law is to be respected, it cannot be reduced to a form of law that is imposed through the barrel of a gun or a police officer armed with a warrant for the arrest of a tyrant — what Hannah Ahrendt called ‘legal violenceâ€.
This was a form of law tried by both colonialists and dictators on the African continent, many of whom believed that theirs was a superior form of law to be imposed to the benefit of all. There is clearly no simple solution to the integration of peace and justice.
The struggle to walk the tightrope between the two is likely to be part of the peace-building agenda for the foreseeable future in the DRC, no less than in other African countries.
There is no fixed formula or holy grail on offer. So spare a thought for Kabila as he struggles to govern a country that is close to having forgotten what either justice or peace entails.
Marian Matshikiza is the Institute for Justice and Reconcilation’s project leader for the African Great Lakes region and Charles Villa-Vicencio is a senior research fellow at the institute