Responses Providedby the United Nations to International Crimes

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Context of the Research

The situation of mass atrocity in the Democratic Republic of the Congo is one of the most alarming of the history humankind. It claims more than four million of deaths, another four million of displaced persons and thousands of victims of sexual violence. The DRC has been undergoing a large scale of international crimes. Some of these international crimes occurred before the entry into force of the Rome Statute of the International Criminal Court (hereafter ICC). 1 The United Nations urged the DRC to bring to justice those allegedly guilty of international crimes and the DRC either denied the commission of international crimes or claimed its inability to handle any prosecutions. Ideas of an ad hoc tribunal for the DRC started to emerge from 1998.
First a United Nations fact-finding commission suggested the extension of the competence of the International Criminal Tribunal for Rwanda (ICTR) to the DRC. Secondly, during the peace negotiations in Sun City (South Africa), the forces of the Congolese nation decided to apply for an international criminal tribunal mirroring the ICTR. Following that recommendation, the Congolese President expressed the need for such a jurisdiction at one of the UN General Assembly. Thereafter, the civil society in the DRC has been strongly advocating the implementation of an International Criminal Tribunal for the Democratic Republic of Congo (ICTDRC).
It is appropriate to analyse the relevance of the DRC‘s statement in relation to those crimes, as well as the feasibility of an International Criminal tribunal for the DRC. Since there has been a focus on the alleged perpetrators of crimes to the detriment of victims, it is also relevant to consider the problem of reparation. Other crimes occurred after the entry into force of the ICC. The DRC has referred them to the ICC. On the one hand the latter has started investigations and prosecutions; on the other hand, the former conducted its on proceedings. The relationship between the DRC and the ICC has raised two issues. The first one is the issue of complementarity, appearing in the concurrent proceedings before the ICC and national courts.
The second is the issue of cooperation characterised by the DRC‘s refusal to surrender a suspect to the ICC. The DRC stated that the suspect contributed remarkably to the peace building. If the simultaneous proceedings (before the ICC and domestic courts) have not generated comments, the refusal to surrender Bosco Taganda has seriously undermined the local legitimacy of the ICC in the DRC.2 This picture brings to mind the question of the nature of concurrent proceedings3 and that of the effectiveness of the ICC. One must also underscore the UN‘s presence in the DRC. It has been performing tasks pertaining to its original mandate and assisting the ICC, but it faces the criticism of failing to protect civilians from international crimes. Therefore, it is appropriate to assess the UN‘s behaviour in relation to the crimes committed in the DRC after the entry into force of the ICC.

Thesis Statement

Reviewing the responses provided for international crimes committed before the entry into force of the ICC, this thesis will prove the unwillingness rather than the inability of the DRC to prosecute the alleged offenders. It will identify the double standard used by the UN in responding to allegations of international crimes in the Great Lakes region as the main trigger of international criminality in the DRC. The thesis will criticise the absence of reliable reparation mechanisms (for victims of international crimes) at both national and international level.
As for the responses provided to international crimes committed after the entry into force of the ICC, this thesis will commend the efforts started by the DRC to handle criminal cases, as well as efforts by the ICC to work towards reparation for victims. It will consider the simultaneous proceedings before Congolese courts and the ICC as an expression of work division rather than a violation of the complementarity principle. The thesis will argue that the ICC suffers from congenital weaknesses, affecting its local legitimacy in the DRC. It will commend the support of the UN to the ICC, but will also highlight its failure to protect civilians against international crimes. 1.1.3 Explanation of Suggested Title My suggested title is ̳A Critical Appraisal of Legal Responses to International Crimes Committed in the Democratic Republic of the Congo.‘ I prefer the term appraisal, because it includes the assessment of existing responses as well as the suggestions of responses where there is not a response at all, or where the existing response appears to be inadequate. The term response refers to prosecutions, truth–telling processes, reparations and peace-making, as well as silence.

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Table of Contents :

Declaration
Dedication
Summary
Opsomming
Table of Contents
Acknowledgements
Abbreviations and Acronyms
Introductory Part
Chapter 1: Introduction and conceptual framework
- 1.1.2 Thesis Statement
- 1.1.3 Explanation of Suggested Title
- 1.1.4 Research Methodology
- 1.1.5 Literature review
- 1.1.6 Brief explanation of outline
Chapter 1: Introduction
Chapter 3: Responses from the United Nations
Chapter 4: Review of responses from States
- Part II: Analysis of responses to crimes committed after the entry into force of the Rome Statute
Chapter 5: Background
Chapter 6: Appraisal of responses provided by the Democratic Republic of Congo
Chapter 7: Analysis of the ICC‘s role in the Congolese context
Chapter 8: Responses provided by the United Nations
Chapter 9: Concluding remarks
- 1.2.2.1.1 Adoption of basic principle of reparation
- 1.2.4.1.1. Challenges of the duty to prosecute
- 1.2.4.1.1.1. The large number of alleged perpetrators
- 1.2.4.1.1.2. The immunities of foreign suspects
1.2.7.1 War crimes
1.2.7.2 Crimes against humanity:
1.2.7.3 Genocide
1.2.9. Responses to international crimes
Part 1: Critical appraisal of legal responses to international crimes committed in the DRC before the entry into force of the ICC Statute
2.1. Ethnic conflicts
2.2. Conquest and decline of the AFDL
- 2.1.2.3. Legal classification
- 2.2.1.4. Legal classification of acts committed
- 2.2.2.1. Crimes committed by the FAC, FAA and ZDF
- 2.2.2.2. Crimes committed by the RCD
- 2.2.2.3. Crimes committed by the MLC
- 2.2.2.4. Crimes committed by the ALIR
- 2.2.2.5. Crimes committed by Rwandan and Ugandan Armies
- 2.2.2.6. Legal classification of crimes committed after the AFDL‘s decline
- Chapter 3: Responses from the United Nations
  - 3.1. Supporting the peace processes
  - 3.2. Military responses
  - 3.2.1. The operation ̳Assurance‘
  - 3.2.2. MONUC
  - 3.4. Creation of internationalized tribunal
  - 3.5. Calls for accountability
  - 3.5.2. Call for an international investigation and Condemnation of third states
  - 3.7 Silence on the reparation issue
  - 3.7.1 Compensation
  - 3.7.2 Guarantee of non-repetition
  - Chapter 4: Critical appraisal of responses from States
    - Conclusion to part
    - Part 2: Critical appraisal of legal responses to international crimes committed in the
    - DRC after the entry into force of the ICC Statute
    - Chapter 5: Background to International Crimes Committed in the DRC after 1 July
    - 5.1. Bas-Congo
    - 5.2. Equateur
    - 5.3. Katanga
    - 5.3.1. The Gedeon Kyungu‘s rebellion
    - 5.3.2. The Ankoro incident
    - 5.3.3. The Kilwa incident
    - 5.4. North Kivu and South Kivu
    - 5.4.2. The Kiwanja incident
    - 5.4.3. Military operations to dismantle FDLR
    - 5.5.1. Interethnic violence in the Ituri district
    - 5.5.2. LRA‘s atrocity
    - Chapter 6: Appraisal of responses provided by the DRC
      - 6.1.1. Implementation of the military criminal code
      - 6.1.2. Law on the protection of children
      - 6.1.3. Bill implementing the ICC
        
        6.1.3.3.1. Referral of cases to the ICC
        
        6.6.3.2. Privileges and immunities
        
        6.2.1. Proceedings before the ICC
        
        6.2.2. Proceedings before domestic courts
        
        6.2.2.2. Main issues of trials by the military courts
        
        6.3 Fulfilment of the Responsibility to Protect
        
        6.3.1. Peace agreement concluded with rebels
        
        6.3.2. Demobilisation, disarmament and reintegration
        
        Chapter 7: ANALYSIS OF THE ICC‘S ROLE IN THE CONGOLESE CONTEXT
        
        7.1 The complementarity between the ICC and the DRC
        
        7.2 The ICC‘s attitude towards individuals‘ concerns
        
        7.1. Critical thoughts on the complementarity between the ICC and the DRC
        
        7.1.1. Critical review of the admission of the situation in the DRC before the ICC
        
        7.1.1.1. The DRC: Unable or unwilling
        
        7.1.1.2. Review of the OTP‘s strategy in the Congolese situation
        
        7.1.2. The ICC and peace building in the DRC
        
        7.1.2.1. The relationship between peace and justice
        
        7.1.3. The ICC‘s local legitimacy in the DRC
        
        7.1.3.1. Criticism of the ICC‘s policy
        
        7.1.3.2. Impact of the ICC on the domestic courts
        
        7.1.4. Rethinking the Complementarity between the DRC and the ICC
        
        7.2. The ICC and individuals‘ concerns
        
        7.2.1. The ICC and the defendants

CHAPTER 8: Responses Providedby the United Nations to International Crimes
- Committed after 1 July
- 8.1.1. Legal framework of the relationship between the UN and the ICC
- 8.1.1.1. The ICC and Rule of Procedures and Evidences
- 8.1.1.2. The Negotiated Relationship Agreement between the International Criminal
- Court and the United Nations
- 8.1.2. UN‘s in relation to the situation in the DRC before the ICC
- 8.1.2.1. MONUC‘s assistance to the ICC
- 8.1.2.4. Submission of amicus curiae
- 8.2. Responses falling under the UN‘s general mandate
- 8.2.1. DDRRR AND DDR
- 8.2.2. Fact finding missions
- 8.2.2.1. Missions on alleged human rights violations committed by the Lord‘s
- Resistance Army (LRA)
- 8.2.2.2. Investigation report on Congolese Army‘s abuse in North Kivu
- 8.2.3. Thematic report
- 8.2.3.1. Report on the illegal exploitation of natural resources and other forms of
- wealth of the DRC
- 8.2.3.3.Report on remedies and reparations for victims of Sexual violence in the
- DRC
- 8.2.4. Reinforcement of local capacities
- 8.2.5. UN‘s preventive diplomacy in the DRC
- 8.3. Appraisal of UN‘s action in the DRC after 1 July
- Conclusion to part
Chapter 9:Concluding Remarks