Since 1998, the Democratic Republic of Congo has struggled with bitter successive conflicts affecting vast regions of the country, especially in Kivu and Ituri regions during and after the Second Congo War.
Despite several peace agreements made between combatants in 2003, the extreme atrocities committed against vast numbers of the population soon became internationally acknowledged as possible crimes against humanity, including genocide, rape, forcible transfer and sexual slavery.
When the Democratic Republic of Congo (DRC) referred the first cases to the International Criminal Court in 2004, it was President Joseph Kabila who signed a letter written to the then ICC Chief Prosecutor Louis Moreno-Ocampo requesting him to investigate the DRC situation in order to determine if any person within the territory of the DRC should be charged with crimes as stipulated in the Rome Statute.
The state authorities have committed to cooperate with the International Criminal Court.
The DRC authorities have so far exhibited cooperation in the cases of six indicted and charged individuals, having arrested and delivered three of them to the ICC for prosecution.
It is Joseph Kabila’s signature that began the first investigations ever to be conducted by the ICC, and today it is Joseph Kabila’s government that stands in the path of justice by refusing to arrest an indicted fugitive from justice, Omar Hassan Al-Bashir, the current President of Sudan.
On February 25th 2014, in total disregard of its legal obligations under the Rome Statute, the DRC hosted President Bashir at the 17th Heads of State and Government summit of the Common Market for East and Southern Africa (COMESA). Despite calls by the President of the Assembly of State Parties, H.E Tiina Intelman, and a request by the OTP that the DRC arrest Bashir the moment he arrived in Kinshasa, the Congolese authorities refused to comply, stating that they were following the wishes of the African Union (AU).
To date, 90 civil society organizations have added their voices to the demand for the arrest of President Al-Bashir.
“Congo as an ICC member has an obligation to arrest and transfer President al-Bashir to The Hague, where he is wanted for crimes against humanity and war crimes,” said Georges Kapiamba, president of the Congolese Association for Access to Justice, based in Kinshasa.
For the DRC to turn their backs on the Darfuri victims and to side with the man charged with horrific crimes against them is not only a devastating blow to justice in the case of Sudan, but also a clear hypocritical stand taken by the very initiators of the court processes and functions in Africa.
“Having long worked closely with the ICC, Congo should demonstrate that it stands on the side of Darfuri victims, and arrest al-Bashir,” said Descartes Mpongo, executive secretary of Christian Activists Actions for Human Rights in Shabunda of the Democratic Republic of Congo.
Unlike other African states like Kenya, Zambia, South Africa and Malawi that have avoided state visits by Bashir by cancelling events, inviting other government officials or relocating events, the DRC was brazen, choosing to host Bashir and then purporting to justify its actions.
The DRC has refused to comply by Assembly Resolution ICC ASP-12/Res.3 adopted in November 2013 by the Assembly of State Parties which categorically states among other measures that “contacts with persons in respect of whom an arrest warrant issued by the Court is outstanding should be avoided when such contacts undermine the objectives of the Rome Statute.”
When it comes to the weak argument that the DRC is complying with the wishes of the AU, it is only fair to note that the July 2009 Resolution concerning the arrest of President Bashir was passed without a vote, and holds no legal weight over the Congolese authorities.
DEMANDS TO WITHDRAW
Since the indictment of President Bashir, the AU has developed a strained relationship with the ICC, one that began with the now pervasive myth of the ICC being an “imperial and neo-colonial court” funded by western nations. It is important to note that when it comes to funding of the court, all state parties are obligated to contribute to the financial requirements of the ICC, and that includes the DRC and Kenya.
More importantly, the clear antagonistic demands to withdraw AU member states from the Rome Treaty en masse appear to stem primarily from countries that have refused to sign the treaty. Indeed, the increased insistence on non-cooperation with the ICC comes from most notably from AU member states that are not state parties to the Rome Statute. Madame Tiina Intelman, President of the Assembly of State Parties was quite categorical.
“As President of the Assembly, I deplore the visits of persons subject to arrest warrants of the Court to any State Party. I urge the authorities of the Democratic Republic of the Congo to fully comply with their obligation to cooperate with the Court.”
It is unlikely that the Dafuri victims will ever see justice given the fascist and insidious nature of the current Sudan regime and the ICC may indeed be their only hope to not only see justice for crimes already committed but a possibly more stable political future in the absence of Bashir’s government.
It is indeed deplorable for persons’ with arrest warrants to visit any state party in the first place. But it is without a doubt the rankest mockery for the State party that has thus far seen the most action taken on behalf of their victims to turn around and deny the victims of Sudan that same chance at justice from the ICC.