/ 7 December 2010

No peace without justice

As the trial of Congolese rebel leader Jean-Pierre Bemba gets under way, political analysts will go into overdrive about what the case means for the fragile peace in the Democratic Republic of Congo (DRC).

In addition, many will see this as a crucial test of the International Criminal Court’s (ICC’s) ability to deliver justice in a region where politics is inextricably linked to bloodshed and instability.

The Bemba case matters for a number of reasons. It matters to me, because in May this year I travelled to South Kivu province to meet people in the DRC whose lives in the past decade have come to be defined by rape and murder.

Among all my memories of that visit, one is particularly vivid.

I sit in an unlit room with two colleagues, talking to staff about a project we fund — a legal clinic at the famous Panzi Hospital.

They tell us about the just-passed Sexual Violence Act and how they use it as a tool not only for justice, but also to educate far-flung communities about rape and the abuse of women.

We have heard these words before, in dozens of projects around Southern Africa, so we are slightly jaded. We nod politely. We are aware of the context, of the war that has raged across the Kivus since 1998. But this does not feel all that different from a poor community anywhere else in Southern Africa.

The stories
They tell us about the audio tapes they have made that play over loudspeakers on certain days advertising their services and they begin to tell us about the many women who have come forward. They cite the progress they have made in Uvira.

Then, a particularly articulate young man who has led the group discussions until now begins to cry. His mouth is stretched open and he is heaving. He cannot help himself. He is surprised and embarrassed but he doesn’t know what else to do.

He begins, through his sobs, to describe what he has seen and then stops himself — for his own sake as well as ours. It is an utterly unrehearsed moment of grief; wide and gaping. My colleagues and I are Africans, just like him. Ostensibly, this provides us with an additional layer of empathy. But as he calms himself, I am ashamed. Before this moment, we didn’t understand.

The project lawyer is an understated young woman named Nina. She breaks the silence and takes us back to the work, to the projects they run. She has experienced enough of these meetings to know that we are expected to go back to Johannesburg with facts and figures.

And so, as though the reality of 17 different kinds of rape perpetrated in the communities in which she works every day did not exist, she begins to rattle off numbers, taking us back to terrain we can navigate: workshops have reached more than 1 000 women; 700 have come forward for counselling; 1% have pursued cases.

I want to cry but I feel silly. We know why the reporting rates are so low. But it is hard not to ask.

She is patient with us: “Because the perpetrators are not known. And those who are will simply come back, especially if you talk.” “So what do you do with all these women who cannot take their cases forward?” we ask. “We train them about justice.” Her response lacks irony. I look at her and she continues. “And always, we tell them about the ICC. That is the best part of the training we give them.”

Now it is impossible not to cry and not to be outraged at the same time. What does the distant International Criminal Court in The Hague have to do with women who cannot even approach a local court?

Nina smiles at us, patiently. “The ICC is our hope,” she says. She is not an idealistic Westerner. She is a Congolese woman, a legal assistant, who speaks four languages and knows that in this forgotten part of the world justice has many definitions.

“For them, knowing about the ICC helps them to recover. It helps to know that one day the ICC will come and hear their stories. One day then, the rape will stop.”

Whether this is true, it matters that some survivors believe it. It matters immensely that, as the Bemba trial begins this week, it is the victims of the contest in the Central African Republic (CAR) who will take centre stage: more than 1 000 applications have been filed by victims wishing to appear before the court to testify against him.

Former leader of the Movement for the Liberation of Congo (MLC) and later vice president of the DRC, Bemba faces charges of war crimes and crimes against humanity at the ICC in The Hague. The charges arise from a campaign in 2002-2003 when MLC combatants entered the Central African Republic to help put down a coup attempt there. Hundreds of rapes and deaths followed.

Yet, even for those of us who support the notion — as articulated in the founding principles of the ICC — that there can be no peace without justice, and even for those with an ideological commitment to the court itself, it is difficult to deny that there are a number of problematic elements in the case against Bemba.

The trial
The primary problem is that he is standing trial alone: the former president of the CAR, Ange-Félix Patassé, who invited Bemba’s rebels into the country in 2002, remains uncharged despite the fact that no less than the deputy prosecutor of the ICC, Fatou Bensouda, has indicated that “he is a co-perpetrator”.

In the CAR the victims of the 2002-2003 battle between the current president, Francois Bozizé, and the then president, Patassé, wonder why a foreigner is standing trial while their own countryman has escaped the long arm of the ICC.

On the other side of the border, in the DRC, Bemba’s victims in Ituri province, where the Banyamulenge terrorised the population between 2002 and 2006, wonder why he is being charged only for crimes that took place in the CAR.

For those in Ituri who want to know what happened to their loved ones and why, justice will remain elusive — even if Bemba is successfully prosecuted in this case.

And, of course, at the political level DRC President Joseph Kabila continues to be dogged by claims that Bemba’s referral had more to do with politics than justice, that his popularity ensured that he would find his way to The Hague when others who have perpetrated serious crimes remain at large and that the prosecutor is either haplessly incompetent or willingly playing into the hands of African politicians.

Yet beneath all the commentary and the legal acrobatics that will continue to surround this case there are a number of important facts that must be kept in mind by people committed to peace and democratic progress in the Great Lakes region. Bemba does not deny that he and his troops were in the CAR at the time that the atrocities were committed. He does not deny having controlled a rebel army. He does not even deny that his troops committed terrible acts.

Instead, his defence rests on the idea that he was not the commander in charge and therefore did not know about and was powerless to stop the atrocities.

It is a defence that will certainly ring hollow, not only for the victims of the crimes he is alleged to have committed, but for all survivors who have been caught in the crossfire between elite and dangerous men.

This week we are reminded why the ICC is an absolutely essential institution for a global community committed to ending impunity for crimes against humanity. That the powerful Bemba can be brought to trial, despite his wealth, connections and denials, speaks volumes about the potential of the court.

Sisonke Msimang is the executive director of the Open Society Initiative for Southern Africa