That Report - Will There Be a Tribunal?

The UN mapping report is due to be released tomorrow. It has claimed a lot of space in the news, with Rwanda and Uganda denouncing it firmly - Uganda has belatedly suggested that it might have to withdraw peacekeeping troops from Somalia, mimicking Rwanda's move from a month ago (one would think their threats would have carried more weight if they had come at the same time). I have not seen the new version of the report yet (it is scheduled to come out tomorrow), but it appears to be roughly the same version as was leaked a month ago, although the allegations of genocide against Rwanda have been couched in more careful language.

So what will the result of all this be? Will there be a special court to try the crimes detailed in the report?

We mentioned previously here that six countries in the region (Congo, Zimbabwe, Rwanda, Angola, Uganda and Burundi) were considering issuing a joint statement rejecting the report. Apparently that was a false alarm - the Rwandan government was pushing for this, and the Belgian foreign minister tried to pre-empt the move by mentioning this to the press. Fortunately, the Congolese government had never been on board with this initiative, which they rejected, prompting the Angolans to follow suit. Finally, it is only Burundi, Rwanda and Uganda who (I think) have officially condemned the report.

Kabila has been on the record on numerous occasions in the past pushing for an international tribunal for the Congo. It is telling that he has apparently now tasked his UN ambassador, Atoki Ileka, to draft an official response to the report. Amb. Ileka is known to be a strong supporter of an international tribunal, and he apparently likes the mapping report, as well. Human rights groups are trying to pursuade him that he shouldn't ask for an international tribunal - which would be slow and expensive - but should instead accept the recommendation of the mapping report and endorse the special court, which would also be more respectful of Congolese sovereignty, as it would be under Congolese jurisdiction.

Several hurdles remain. First, and most obvious, Kabila is currently in the middle of a peace deal with the Rwandan government to stabilize the eastern Congo. He may not want to overturn the apple cart quite yet by opening the floodgates for indictments against Rwandan officers for crimes committed in the Congo, especially not before elections in 2011.

Secondly, it is unclear how the court can be both independent and under Congolese jurisdiction. It is a line that other courts - in Kosovo, East Timor and Sierra Leone - have had to tread, with mixed success.

Rwandan troops in the Kivus?

There have been more and more reports of Rwandan troops in the Kivus this past week. Internally, MONUSCO military intelligence has reported unconfirmed allegations of two RDF battalions in Walikale to help out with the Congolese army's operations there. The head of the UN mission, Roger Meece, however, says these allegations are unfounded.

At the same time, the Congolese security services along the Rwandan border in North Kivu report an increased number of Congolese Tutsi refugees returning from Rwanda and heading towards the highlands of Masisi.

Add to these rumors information coming from an unexpected source: CNDP officers. Several ex-CNDP officers have confirmed these allegations of RDF deployment, however they don't think they are here to help against the FDLR. According to them, the Rwandan troops have primarily come to make sure that CNDP troops don't rebel when they are re-deployed outside of the Kivus (some say as far away as Bas-Congo, on the other side of the country). There has been no official announcement of any major military re-deployment, but many believe this was discussed by Presidents Kagame and Kabila during the recent meetings in Kigali.

Rwanda has been worried for quite some time about ex-CNDP members taking part in an armed opposition to their government, privately linking Nkunda's supporters to the grenade attacks in the capital, for example. It is possible that Kinshasa has seized upon these concerns to press for the ex-CNDP troops to leave the Kivus, where they have had a prominent role in anti-FDLR operations as well as in controlling mining areas.

There is a long history of resistance by Congolese Tutsi troops to leave the Kivus, where they are close to their families and are well enough organized that they have to be taken seriously. In early 1998, a group of Congolese Tutsi mutinied in South Kivu, protesting redeployment and mistreatment. Rwandan General James Kabarebe had to go to the Rusizi plain himself to negotiate. Then, several months later, another group led by Comd Murekezi mutinied at a military camp in Goma (his followers included many officers who later joined Nkunda's insurgency). Rwandan troops had to kill several of the officers and imprison others on Iwawa island to put down the mutiny.

Quo Vadis, Vital?

Many Congolese believe that Vital Kamerhe will be Kabila's main opponent for the 2011 elections. But does he have the guts for it?

Kabila's detractors in Kinshasa are frustrated that he still hasn't officially declared his candidacy - even though the polls are still over a year away. Some were also outraged when he appeared on the podium with Kabila during the independence day celebrations on June 30th. A picture of the two together was the cause of much debate.

But there have been two developments that might reassure his supporters.

First, he met with MLC opposition leader Jean-Pierre Bemba in his jail cell at the International Criminal Court in the The Hague a few weeks ago. According to members of the MLC, Bemba told Kamerhe that he would support him for the 2011 elections if Bemba is not out of jail by then. If this is true, it will be a boon for Kamerhe, who is from South Kivu and - although he spend much of his time growing up in Bandundu and Kinshasa - is seen by many Congolese as an easterner. One is left wondering what MLC officials make of this, especially those who want to be MLC candidate for elections in 2011 (Francois Mwamba, the head of the party, for example).

Secondly, according to several sources close to Kamerhe, he will be holding his first opposition meeting in Brazzaville next month. He is trying to persuade people close to Kabila to defect and join him. He has received some support from Kivutians and people from the Kasai who are disappointed with Kabila's performance. The Kivutians are mostly upset about the ongoing violence in their region - Kabila had campaigned as the bringer of peace for the 2006 elections - while the Kasaians feel marginalized and impoverished despite the great diamond wealth in their provinces. It is telling that Kabilas' trip around the country this month focused on these two regions, perceived to be electoral battlegrounds for the 2011 elections.

Congolese from all over the world will be travelling to Brazzaville for the meeting, but I doubt many of Kabila's allies will come. It is too early for most to pick sides and throw their lot in with Kamerhe, who is still a bit of a wild card. Many doubt whether he has the guts or endurance to go the distance. He will inevitably have to face persecution and those who rally to his side risk losing economic assets and lucrative positions if Kamerhe loses.

Bosco suspended; CNDP to be relocated?

This just in:

Apparently, Presidents Kagame and Kabila also discussed the fate of General Bosco Ntaganda during their meetings. They decided to suspend him as the deputy commander of Amani Leo operations and informed him last week about their decision. They also recommended for the two wings of CNDP (pro-Bosco and pro-Nkunda) to reconcile their difference. The two wings then apparently met in Goma and suggested that Bosco seek asylum as there was little they could do for him.

Also controversially, the presidents discussed the redeployment of CNDP forces outside of the province, a matter that has always been fiercely resisted by the CNDP. They are afraid for their safety and that, once outside of the province, they will lose their military importance and clout. Bas-Congo was reportedly mentioned as a redeployment location.

These decisions, if implemented, would be extremely significant.

The mineral export ban: What gives?

President Kabila announced the suspension of mineral exports from the eastern Congo last week, although soon afterward the mining ministry said that the measure would not concern the stockpile of minerals that trading houses had already purchased and were waiting to export.

The decision came after Kabila met with Kagame repeatedly in Kigali and after Rwanda said it would implement a tin tracking project of its own with ITRI, the tin industry body that is beginning a small certification project in the Congo. The decision was supported by the largest Malaysian Smelting Corp, the largest buyer of Congolese tin, as well as by ITRI.

This raises numerous questions:

1. The motive: Sources within the Congolese army and the mines ministry say that the decision is linked to a military offensive that the army is planning in Walikale to secure key mining areas. That alone, however, doesn't seem to be sufficient - the Congolese army has carried out many offensives in the past (Kimia I & II, Umoja Wetu) without banning minerals. It is more likely that both the offensive as well as the ban are intended to reconfigure the mineral trade in the Kivus. How it is to be reconfigured is another question.

Does the government intend to completely sanitize the sector before allowing tin exports to start up again? That would require clamping down on major mafia networks within the Congolese army and administration, instoring discipline in the security forces as well as pushing rebel groups out of mining areas. In other words, it would take months if not years. In connection with this, some analysts have suggested that Kabila may be talking with outside investors who are willing to engage in industrial exploitation of the mines, which would allow Kinshasa to benefit more directly, instead of allowing local mafia networks to flourish.

Others have speculated that there has been feuding within the Congolese government and the restructuring will just displace one patronage network in favor of another. For example, General Gabriel Amisi, the commander of the land forces, is irked that his allies in the field - Col Etienne Bindu, Col Samy and some even say Col Cheka - have been pushed out of the most lucrative mining areas by ex-CNDP commanders. Others point to the fact that Col Innocent Kaina (ex-CNDP) has recently stopped all exploitation in the Bisie mine and tightened control over the area. Will he re-start trade with new traders?

2. The consequences: Already, the price of cassiterite (tin) has reportedly dropped from $4,5/kg to $1/kg in the Bisie mine over the weekend. Mining sources are worried that the embargo could spark riots or general lawlessness in the areas around the mines. It is also likely that the embargo will encourage massive smuggling, which is often facilitated by military officers in Goma, Bukavu and across Lake Kivu. Of course, the ban will also diminish the profits of armed groups in the mineral trade, which, if managed correctly, could lead to increase rates of demobilization. You will notice however, that some commanders could make more money through smuggling while other stand to lose quite a bit.

A suivre.

What did Kagame and Kabila talk about?

There have been some persistent rumors in the region about a possible new deployment of Rwandan army soldiers into the Congo. Of course, these kinds of rumors are a dime a dozen around Goma nad Bukavu. These, however, come from sources within the CNDP officer corps, as well as from inside the Rwandan government, so perhaps we should give them more credence.

Our ears, therefore, perked up when we found out that Joseph Kabila met with Paul Kagame several times (one source says up to four times) during the three days that Kabila spent in Kigali to attend Kagame's inauguration. What were they talking about?

If there were another deployment of Rwandan troops, what would its purpose be? There are three schools of thought here, as far as I can tell. The first is that they are genuinely worried about a new coalition of anti-Kigali forces - the CNDP defector Emmanuel Nsengiyumva, the FPLC commander Gad Ngabo, the FDLR and the Cheka Mai-Mai. I'm not sure about this, although some people have linked this coalition to Rwandan dissident Kayumba Nyamwasa. These armed groups are fairly weak and I doubt they pose much threat to Kigali (although they could carry out isolated, damaging strikes).

The second hypothesis is that the forces are going in to secure key mining areas that have recently become destabilized by the Mai-Mai Cheka and the FDLR. The news this week that many flights have been suspended into parts of Walikale due to the kidnapping of pilots there the other week would strengthen this hypothesis.

The third hypothesis is that the RDF want another go at the FDLR. They only had five weeks in 2009 when they went in, and the FDLR has been significantly weakened - they want to give them a coup de grace. The skeptics here would point out that the Umoja Wetu operations of last year did not do too much damage against the FDLR, who sufffered more from the Kimia II operations that followed.

A lot of hypotheticals here, as you can see.

UN report on rapes released - why is MONUSCO so bad at protecting civilians?

The UN released a report today on the mass rape that took place in and around Luvungi at the beginning of August. There had been an uproar about MONUSCO’s lack of response to the rapes – the peacekeepers had a base 30km away – so the Secretary General had sent his assistant in charge of peacekeeping to investigate.

The report – which I have uploaded here – does not really say anything we didn’t know. MONUSCO knew that the FDLR and Mai-Mai had taken over the area and that they had committed a few abuses, but they were unaware of the scale of the rapes (they had heard about one, unconfirmed) until days after the assailants had left town. MONUSCO is under-resourced and staffed and there was no way for the villagers to contact them, as there is no cell phone coverage in the area.

The report continues: Protection of civilians is primarily the duty of the Congolese army, but MONUSCO did fail. The UN will now try to set up ham radios the villagers can use to contact them in case of an emergency. They will carry out night patrols and have already deployed 750 soldiers to the area to try and hunt down those responsible for the attacks. Furthermore, the UN will provide clear instructions its peacekeepers during these kinds of situations, i.e. when a new armed group moves into an area.

MONUSCO was somewhat unfairly singled out in this case. It does not appear that its troops were aware of what was going on – they were guilty of not patrolling enough and not keeping their ears close enough to the ground. But this does not appear to be like Kiwanja in 2008, when over a hundred people were massacred within earshot of a MONUC camp.

But this report does beg the question: Why were all of these sensible suggestions not implemented previously? For example, we know some of those who were responsible for the Kiwanja massacre – they include Bosco Ntaganda, Innocent Zimurina and Captain Seko, all of whom have been integrated into the Congolese army. Why not bring them to justice?

We have known for a long time that UN officers have scant guidance in how to deal with these kinds of situations. Why not provide clear instructions for all contingencies a long time ago?

MONUSCO has a long history of failing to protect civilians in imminent danger. If protection of civilians is the number one priority of the mission, why has it failed to address these failings?

A few preliminary answers:

1. 1. MONUC has the mandate to protect civilians in imminent danger, but also to support the Congolese army. These two parts of the mandate can contradict each other – MONUSCO may not intervene to protect civilians if this would cause friction with the Congolese army. In general, the UN has often toned down the protection of civilians if it feels aggressive action might offend parties to peace process. When the RCD carried out the Kisangani massacre in May 2002 close to a UN base, MONUC was trying to keep the faltering peace talks in South Africa together. MONUC mistakenly thought Nkunda was a key figure in the peace process in the Kivus in May 2004 when he took control of Bukavu. Similarly, arresting Bosco Ntaganda could jeopardize the current fragile peace deal between Kigali and Kinshasa. This is a real problem, but we have erred on the side of extreme caution. The problem with argument is that MONUSCO compromises on justice today for a peace that never comes. In the end, all parties know they are unlikely to face any consequences for grave abuses. Remember that it was Laurent Nkunda and Gabriel Amisi who were both involved in the Kisangani massacre – both became repeat offenders later.
2. 2. Protecting civilians in imminent danger does not make much sense militarily. If the danger is imminent, it’s probably too late to intervene. By the time you get your attack helicopters in the air and the SRSG to sign off on an order, the attackers have probably come and gone. So protecting civilians is mostly about deterring in advance and hunting down those responsible afterwards. In Ituri, for example, MONUC created demilitarized zones, so they didn’t have to wait until militias began killing to act – anyone with a gun in the DMZ could be disarmed, by force if necessary. In December 2006, Indian blue helmets told Nkunda that if he advanced on Goma they would open fire – he did, and MONUC put up attack helicopters, killing between 300-600 of Nkunda’s soldiers. After that, Nkunda’s troops had new found respect for the UN. Also, if you hunt down those responsible and make them face justice, your rivals might begin taking you seriously. But if your reaction is sometimes harsh and sometimes spineless, you lose all credible deterrence.
3. 3. The UN Security Council provides mandates but not the resources. MONUSCO does not have enough resources and troops, and those ones it has do not want to die in the Congo. They are loath to send troops on dangerous missions and therefore interpret their mandate in a very conservative fashion. At the end of the day, there are few incentives for the Indian or Moroccan government to risk their soldiers’ lives in the Congo – there is little glory if they succeed and a ton or opprobrium if they fail. In the absence of a sense of urgency and vision, the bureaucracy of the UN and the risk-averseness of the troop contributors take hold.

I would make four recommendations. First, do as much work before and after the violence as possible – identify hot spots and patrol frequently; demilitarize areas that could be particularly contentious; if large military power shifts happen, pay close attention, as this is often when harsh counterinsurgency operations take place. Secondly, focus on gathering information. MONUSCO civilian intelligence is excellent, but consists of a handful of people. Its military intelligence is much less developed, as it relies on foreign troops to don’t speak the language and don’t know the area. But if MONUSCO had been more pro-active and had had better local contacts, it would have found out about the rapes sooner. Some UN commanders are excellent and do this, but it should not be left up to the individual’s discretion. Third, when violence does break out, react swiftly and with clear instructions to UN commanders on the ground about how to employ the use of force, rules of engagement, etc. And lastly, hunt down the perpetrators. Protecting civilians does not stop when the violence is over You need to do policing operations to bring those who carried out the attacks to justice together with the Congolese government. In this case, we know that is was probably “Colonel” Mayele from the Cheka Mai-Mai and Colonel Seraphin from the FDLR who took part in the operations. In the past, MONUSCO has pursued militias who have killed peacekeepers, but seems to be much less aggressive when it comes to Congolese victims.

The foreign wanderings of Joseph Kabila

President Joseph Kabila is well known for his dislike of attending large diplomatic gatherings. He did not attend the AU summit in Kampala or the France-Africa summit in Nice, both held this summer. He also did not attend the inauguration ceremony of his Burundian counterpart Pierre Nkurunziza a few weeks ago.

All the more remarkable that he did attend the inauguration of Rwandan President Paul Kagame yesterday. It was the first time Joseph Kabila has been to Rwanda as president, and probably the first time since 1998, when the war between the Congo and Rwanda first kicked off. It just goes to show how important the recent co-operation between the two countries is for Kabila.

It is also a bit amusing (or foreboding?) to see the pro-Kabila Kinshasa newspapers sympathize with Kagame's suppression of the opposition. L'Avenir tells the story of Laurent Kabila who hung up on Secretary of State Madeleine Albright in 1997 when she ordered him to open political space. "It was as if she had asked him to open the dyke to make way for the flood," the newspaper quipped. And to think that the same newspaper just a few years ago was lamenting the annexation of the eastern Congo by "the Tutsi."

There are also persistent rumors that a second Umoja Wetu operation (i.e. a new Rwandan troop deployment into the Kivus) might be in the offing, but more on that soon.

Erratum

I reported a few posts ago that the Congolese government was opposed to the option raised made by the mapping report to create an independent tribunal to judge the crimes committed during the war, composed of Congolese and foreign judges but separate from the judicial system.

That is true, but upon further scrutiny, the Congolese government does endorse a second option proposed by the mapping team: Creating special mixed chambers within the Congolese justice system, which could be staffed by foreign and Congolese judges and prosecutors. This is also the option endorsed by much of civil society, as well as the UN Special Rapporteur on the Independence of Judges and Lawyers.

This option has the advantage of helping to build the capacity of the Congolese justice system, respecting the country's sovereignty and being able to function at a much lower cost. Of course, it runs the risk of succumbing the various pressures and flaws that currently encumber the Congolese judiciary. It might also be more difficult to obtain collaboration from states in the region if the courts are domestic in nature and mandate.

Sorry for this misreading.

At least somebody liked the mapping report

So the Rwandan, Congolese and Ugandan governments are particularly happy with the UN mapping report. Nonetheless, a list of 220 Congolese NGOs signed onto a statement praising the leaked UN mapping report, saying that it could finally shine some light on the many injustices suffered by the Congolese people. Like the Congolese government, they recommend the creation of special mixed chambers within the Congolese justice system, an option proposed by the mapping report (and not adequately reported in this blog).

(They also take the opportunity to accuse John Numbi, who is barely mentioned in the mapping report, of attacking human rights defenders).

UN, Kigali and the leaked report

There were a few interesting articles on Turtle Bay, Foreign Policy's UN blog, this week. The first brings some nuance to the idea that UN Secretary General Ban Ki Moon put pressure on the UN High Commissioner for Human Rights to edit out the allegations of acts of genocide against the Rwandan government. Drawing on conversations with UN officials, Turtle Bay suggests that Ban voiced concern about the g-word and asked High Commissioner Navi Pillay to conduct a legal review to make sure the use of the word was appropriate.

The head of UN peacekeeping operations Alain Le Roy also voiced his misgivings, worried that the report could undermine the peacekeeping operations in Darfur, where Rwanda contributes 3,500 people, mostly troops.

However, the article suggests that Pillay never forced to remove the allegations of genocide from the report. Which then begs the question: Why was the report leaked only a few days before its expected publication if nothing was going to be changed, especially since UN officials close to the report had been able to maintain uncharacteristic silence for a year since the report had been finished and submitted?

A second, related article at Turtle Bay discusses the decision by the International Criminal Court prosecutor Luis Moreno Ocampo to send his deputy to attend Paul Kagame's presidential inauguration tomorrow in Kigali. Given the leaked UN report, is this good form? Ocampo argues that he wants to discuss how to bring an end to the "ongoing genocide" in Darfur (is there really an ongoing genocide in Darfur?) with African leaders. Critics of course point out that Kagame's troops may themselves have been guilty of systematic, mass abuses in the Congo.

Documents on the mapping report

As I am sure you have seen, the UN High Commission for Human Rights has decided to postpone the publication of the UN mapping report for another month, so as to allow the countries concerned to formulate their responses and publish them at the same time.

In the meantime I have uploaded the leaked draft of the mapping report along with the responses of the Congolese government and the Rwandan government.

UN Mapping Report (June 2010 draft)

Congolese government response

Rwandan government response

Will there be any justice for the Congo?

In all of the drama of the UN mapping report, most of the media have forgotten what the report was intended to do: hold the perpetrators accountable, provide the Congolese with some justice for all the crimes that have been committed.

So what are the chances that there will be justice?

Whatever chances there were have been somewhat diminished by the Congolese government's official reaction, a 51-page document. Parts of their response praise the mapping report, saying that it "honors the victims and puts into perspective to the truth, reparations and the guarantee of non-occurrence (sic)." Elsewhere the government seem to nitpick, saying that the report did not deal with the "massive abuses carried out by MONUC," in particular the "massive rapes" against Congolese women. (The report dealt with the period between 1993-2003; most reported MONUC abuses happened after June 2003, although not all of them). They do, however, rightly ask about the responsibility of outside countries - one can only assume western ones - that did not carry out the abuses but financially supported the countries that did.

But the important message comes only on page 48, when it responds to the recommendation to create a mixed court, as in Sierra Leone, to judge the most serious crimes committed during the war. The Congolese government appears to reject this recommendation, saying that it could cause "seriously damaging discrimination against judges and other judicial officials," presumably because they would subjected to outside interference. Instead, they suggest creating "specialized chambers" within the Congolese justice system.

I don't find this convincing - the Congolese justice system is barely functional due to lack of resources and interference by the executive. Any credible tribunal would have to be independent, both financially as well as politically, and able to investigate anything within its mandate. Nonetheless, the language used by the government leaves some room for compromise - they don't say as much, but I could image that there could be foreign judges or prosecutors, and their work could be independently financed, albeit within the confines of the Congolese judiciary.

As for the truth and reconciliation commission, the government seems to dismiss the idea, asking whether this could be useful in a country with a democratically elected parliament, which could set up "an ad hoc commission to establish the truth about the abuses committed between 1885 and today." Just as a reminder, the South African TRC was set up under a democratically elected government. And setting up a commission to review all of the abuses - and there were many - since 1885 seems to be a recipe for doing nothing.

We will have to see whether anybody outside of the NGO community takes up the cause of a mixed tribunal or a TRC. I have my doubts. Perhaps a compromise will be reached in maintaining another, less intrusive recommendation made by the team: A vetting out of abusive officials from the security services. Or maybe not even that.