ICC path to justice tested in Congo

Investigations for the International Criminal Court's first trial face serious logistical and security obstacles as well as charges of selective justice.

In many ways, the hope for a new era of international justice starts here in this dusty, war-scarred city far from almost everything.

This is where the first defendant charged and arrested by the International Criminal Court (ICC), a Congolese warlord named Thomas Lubanga, allegedly recruited children to fight in his militia. And this is where court investigators have been piecing together the landmark case, interviewing victims and gathering evidence in hopes of creating not just a solid prosecution for the ICC's first trial but also a model for holding alleged war criminals accountable.

But drive across ethnically divided Bunia and something else about the world's latest attempt to end impunity becomes clear: the challenges to international justice run deep.

"We should have no illusion about how difficult it will be for this court to fulfill its mission and its mandate," says Richard Dicker, the director for international justice at Human Rights Watch, who has worked on efforts related to the ICC for 14 years. "The crimes this court looks at are widespread and systematic. They occur ... in remote regions that are insecure, lacking in infrastructure. To investigate these crimes is an extremely challenging task."

For many involved in human rights and international law, the ICC's opening in 2002 was a long-awaited step toward a world where war crimes would not go unpunished. Unlike the tribunals for Yugoslavia and Rwanda – or the special court for Sierra Leone, which is scheduled to start hearing the war-crimes case against former Liberian President Charles Taylor next month – the ICC is a permanent court, independent from the United Nations and with international jurisdiction.

The court has delved into some of the world's most devastating modern conflicts – the long-running war in northern Uganda, the resource-fueled battles in the Democratic Republic of Congo (DRC), the crisis in Sudan's Darfur region. This week, the ICC announced a new investigation into violence in the Central African Republic.

The difficulties of investigating

In 2004, the Congolese government asked the ICC to investigate the many atrocities that took place in this country during and after the Second Congolese War, the five-year conflict that ended in 2003 and killed some 4 million people through hunger, disease, and violence. It didn't take long for investigators to zero in on Mr. Lubanga, who headed one of the militias fighting over the gold-rich Ituri Province.

Wide swaths of Ituri are still plagued by warring militias. The region is so volatile – and so underdeveloped – that it can take investigators days or weeks to travel short distances.

Still, prosecutors say they have pieced together a case that shows that Lubanga forced children to fight.

In January 2006, the ICC submitted an application for an arrest warrant against Lubanga. Two months later, the government handed him over without dispute.

Meanwhile, ICC investigators continued their work in and around Bunia, asking people such as Charlotte Agoyo what she remembered about Lubanga.

"Thomas Lubanga came and held a meeting here," Ms. Agoyo says, sitting in a neighbor's house on the western side of Bunia. "He said all children older than 10 should come for military service. Families who resisted would be considered enemies. Those who didn't agree were sliced with machetes."

Agoyo and her neighbors say they told ICC investigators about the fear they had when they saw children armed and vengeful, and about the families killed when Lubanga's militia raided their neighborhood.

But across town, where most of the residents are of Lubanga's ethnicity, people wonder about the ICC's focus.

Jean Paul Dhelo works at a rehabilitation center for child soldiers.

He says that he knows young boys who were in Lubanga's militia, but says he knows plenty of children conscripted by other militias, too.

"We welcomed children from all those armed groups," he says. "And in each group there was a leader. There should be other leaders who are arrested."

Mr. Dicker, of Human Rights Watch, says his organization has heard many complaints about the court unfairly targeting Lubanga – a sentiment that has made Bunia and surrounding areas dangerous for ICC investigators and those who cooperate with the court.

"There's a concern that the ICC is biased, or at least applying justice selectively," says Dicker.

Detaining suspects a tough issue

The ICC will probably face similar questions about selective justice – and logistics and security obstacles – as it moves into other war-torn countries.

But there will also be another, arguably greater, challenge for the ICC: actually detaining its suspects for trial.

Because it has no marshal service or enforcement authority of its own, the ICC is often powerless to act on its warrants, especially in ongoing conflicts.

Some people also say that without effective enforcement, the Court can actually exacerbate some conflicts by scaring the accused into more entrenched positions.

In 2005, for instance, the court charged five Ugandan rebel commanders with crimes against humanity. But Ugandan officials have been unable to arrest the men, and many involved in Ugandan politics – including Betty Bigombe, a former cabinet minister who has been mediating peace-treaty discussions – criticize the ICC warrants as undercutting peace efforts.

"It was her view and the view of other people that if indictments are issued against the leaders ..., then there would be no incentive for them to enter a peace agreement," said Richard Goldstone, chief prosecutor of the international tribunals for the former Yugoslavia and Rwanda, at seminar about the ICC in South Africa last year.

The situation in Uganda has prompted much debate about how the ICC should coordinate with countries that might want to grant amnesties for the sake of ending conflict.

Back in Bunia, Agoyo says she wonders why these foreigners are still so concerned about Lubanga. More important, she says as her neighbors nod in agreement, are daily concerns such as access to water. After years of war and instability, infrastructure in this dreary city of about a quarter-million is poor to nonexistent, and people still must walk to a distant, dirty stream if they want to drink or bathe.

Analysts agree the court's actions will mean little if development concerns such as Agoyo's are not addressed.

The tensions in Bunia, says Dicker, are no surprise. "We have to understand," he says, "that as important as it was to bring the court into being, it will not be a panacea."

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