On January 10, Serge Brammertz, the deputy prosecutor in charge of investigations at the International Criminal Court (ICC), was given a six-month temporary assignment as head of the UN's fact-finding committee on the assassination of the former Lebanese Prime Minister. Since his departure, Congolese NGOs, which had already advised the Court to issue arrest warrants before the December 18 referendum [IJT-37], are concerned that the ICC "legal proceedings will be stalled" in the Democratic Republic of Congo (DRC). In a country where individuals suspected of war crimes hold political office, and whose terms may be renewed following the March 5 legislative elections, the question is: why is the ICC waiting to issue its first arrest warrants in the DRC? Since July 2003, one month after taking office, ICC prosecutor Luis Moreno Ocampo, has been saying that he intends to focus specifically on Ituri, a district in the northeast on the Congolese-Ugandan border. There, six militia groups that in many cases have ties to former Congolese belligerents currently in power in Kinshasa, some of which are supported by the Kampala government, fought from 2002 to 2004 over control of the mineral resources while terrorizing the civilian population - massacres, gang rapes, torture, conscripting children, etc. The matter was referred to the prosecutor, who opened an investigation three months later into the "serious crimes" committed in this country [IJT-8]. At the beginning of December 2005, he said the investigation is in a "very advanced" stage.

Under the protection of the local UN mission, MONUC, Chris Aberi Monangabo, the prosecutor for the district's capital, Bunia, has arrested approximately ten militia leaders since summer 2004. The first wave of arrests began in June 2004. Floribert Kisembo, head of a dissident faction of the main militia group, the Hema party Union of Congolese Patriots (UPC), was arrested for recruiting new militiamen, including children. Pitschou Iribi, acting president of the majority Lendu rival movement, the Nationalist and Integrationist Front (FNI), was arrested for criminal conspiracy. Both men were released soon after for lack of evidence. A second wave in Kinshasa in March 2005 targeted Thomas Lubanga, historical leader of the UPC, Floribert Ndjabu, president of the FNI, and five of his lieutenants, and Germain Katanga, leader of the Patriotic Force of Resistance in Ituri (FRPI, allies of the FNI). Katanga was arrested for his presumed responsibility for the Nyakunde hospital massacres in September 2002. Yves Kahwa Mandro, head of the PUSIC, a dissident UPC militia group, was arrested a month later. On January 19, the Bunia court sentenced him to life in prison for murder. Justin Ngole Dalo (a.k.a. "Commander Koliba"), former military leader of the FNI and prime suspect in the murder of nine Bangladeshi peace keepers in February 2005, has been incarcerated since December. Other arrest warrants have been issued in Bunia, including against Bosco Taganda (UPC), who is presently at large.

Some of these suspects may be indicted at some point by the ICC. When asked about the legality of their pre-trial detention, the Bunia prosecutor explained that "under Congolese law, a suspect against whom an arrest warrant has been issued can be incarcerated initially for five days. This period can be extended to up to three months by decision of a single judge. After the three months, a judge in chambers has to issue a new ruling to extend the detention for an additional month, as many times as necessary. This procedure was followed for all the militia leaders who are currently behind bars." Monangabo stressed that all the proceedings against the militia leaders are for crimes under ordinary law, even though they "have probably been involved in more serious crimes that would fall under international criminal law. Yet, the Congolese court system does not have the resources to investigate such crimes at this time," he adds. "It is therefore possible to initiate complementary proceedings with the ICC on these cases."

Speaking on condition of anonymity, one MONUC official said, "90% of the cases [brought before the Congolese courts] are dropped. And we have seen rather serious irregularities in the rare cases that are brought to trial." Two trials have been especially criticized. These cases involved soldiers from the Congolese army who were tried before the military courts in Lumumbashi and Lubero for war crimes and crimes against humanity at the end of 2004 [IJT-16]. The first trial (still in the appeals stage) resulted in acquittals and light sentences. In the second trial, however, thirty some soldiers were sentenced to death after two days of hearings. A third trial got underway in October before the Mbandaka military court. This case also involves soldiers, who are being tried for the rape of approximately one hundred women in Songo Mbojo in December 2003. These crimes were qualified as crimes against humanity according to the Rome statute and not according to the Congolese military code, which was a first. This is "significant progress," notes the UN observer.

Trials or peace?

In The Hague, a source close to the prosecutor believes that "in the bill to adapt domestic law to the Rome statute that is before the [Congolese] Parliament, the jurisdiction given to military courts in terms of international crimes and applying the death penalty is problematic" - since the local court system cannot guarantee fair trials. As for the logjams in the Congolese courts, "they only reinforce the legitimacy of ICC intervention in the DRC." What about the length of the investigations? "The NGOs, UN, etc. have already gathered a lot of information. What takes time is converting this information into evidence. Witnesses have to be interviewed and different versions have to be cross-checked, especially since written documents are rare (i.e. a signed order to destroy such and such a village)." This source also alluded to the political side, admitting that "the major uncertainty hanging over the work of the Court is this: should we prosecute at any cost or give peace a priority?"

Improved security in Ituri in 2005 has facilitated the ICC's work. The UN began exerting stronger military pressure in December 2004, which led to the disarming of 15,000 combatants. In addition, leaders of the Hema and Lendu communities publicly criticized militia acts and some of the militia leaders were arrested. According to another source close to MONUC, "the murder of the peace keepers [in February 2005] was a catalyst to put individuals who were already on the international community's radar screen out of commission. By refusing to comply with the agreement signed in Kinshasa [on May 14, 2004] to disarm and to become parties to the peace process, they could no longer claim exemption from legal proceedings." Such is not the case with their onetime allies who chose to end the war and to join the transition government, something that the ICC took into consideration in targeting its investigations of the Ituri militia leaders.

The delays in integrating the army (only 10% of the 160,000 known armed men have joined the ranks of the regular army) require a cautious approach. Human Rights Watch reported that the former belligerents still have the ability to cause military harm and that they may use this power if the election results do not swing in their favor or if their names come up at the ICC. A MONUC analyst confirms this outlook, saying, "It makes political sense to delay indictments for the benefit of those who have joined the transition. The crimes that fall under ICC jurisdiction have no statute of limitations and it wouldn't bother me if the highest-ranking officials were tried in 2011 instead of 2006." Conversely, the political repercussions of issuing arrest warrants against Ituri leaders who are currently being held by the Congolese authorities could only be positive since these leaders "are no longer a destabilizing factor." Thus, it seems that there is nothing to stand in the way of the ICC issuing arrest warrants against these leaders. Switzerland's disconcerting neutrality

The Swiss Federal Council wants to pass restrictive legislation to adapt its domestic law to the ICC in which only persons with a "close link" to the Confederation would be liable to prosecution. "Based on this concept, only war criminals and perpetrators of genocide who have a second home or family [in Switzerland] or refugee status can be arrested in Switzerland," explains Philip Grant, UK DRC, Congo, ICC, Brammertz, Ocampo, Thomas Lubanga, Floribert Ndjabu, Germain Katanga, Yves Kahwa Mandro, DRC awaiting first arrest warrants president of the Swiss NGO Trial. "The fact that a genocidaire comes [to Switzerland] to see his banker does not constitute a close link and it would be impossible to arrest him." A Human Rights Watch report from June 2005 traces the gold mined in Ituri to Europe via Uganda. The report revealed in particular that AngloGold Ashanti, the legal concessionary of the gold-bearing site in Mongbwalu since 1996, has been able to mine the site since the end of 2003 thanks to support from the Nationalist and Integrationist Front (FNI), an Ituri-based militia liked to Uganda that took control of the site after five battles that cost the lives of over 2,000 civilians. "In 2003, approximately 60 million USD in Congolese gold was exported to Uganda, with the bulk of it headed to Switzerland," adds the report.