The Role of Civil Society in International Law: The Relationship Between Civil Society Organizations and the International Criminal Court in the Central African Republic

 

By
Kelsey Davenport

March, 2010
 

This piece was written while the author was completing a Master of Arts degree in Peace Studies at the Joan B. Kroc Institute for International Peace Studies at the University of Notre Dame.

Introduction

While the creation of the International Criminal Court (ICC) is an important step toward ending impunity for individuals accused of acting in violation of international law, for the ICC to fulfill its mandate and take concrete steps towards prosecuting individuals and creating a culture of deterrence, cooperation from state actors and civil society is imperative. Due to its limited budget for both investigations and trials, support and assistance from the state and local organizations will greatly enhance the ability of the ICC to operate effectively. One way state and local organizations can help the ICC is by assisting in the collection of victim and witness testimony and facilitating the arrests of indicted individuals. Without this assistance, the ICC stands little chance of living up to its expectations.

Beginning in January of 2004, after the first case referral to the ICC by the Ugandan government requesting an investigation into crimes committed during the conflict between the Lord's Resistance Army (LRA) and government forces, it was immediately apparent that civil society cooperation and community support for justice were not to be taken for granted. The reasons behind the negative reactions to the ICC's involvement ranged from concern that indictments would push LRA leader Joseph Kony from the negotiating table and indignation that justice was being imposed by outsiders who would have little insight into the needs of the community.[1] The request for assistance made by government of the Democratic Republic of the Congo (DRC) in March of the same year was met with similar reactions by both civil society and the civilian population.

In contrast to the preceding investigations, however, civil society and civilian perceptions of the ICC's involvement in the Central African Republic (CAR) have remained neutral to positive. This environment has greatly assisted the Office of the Prosecutor (OTP) during its investigations into the atrocities committed in the state since 2002. The shift in environment between the reception of the ICC in the CAR versus its reception in Northern Uganda and the DRC is due in large part to actions taken by civil society groups[2] in the Central African Republic that began prior to ICC involvement and have continued since. These actions can be characterized in two main categories: (1) actions taken to build and maintain a positive relationship with the ICC and support its investigations, and (2) actions taken to end the social stigma of victimization in the CAR and build a support network amongst victims. While many civil society groups operate within the CAR, two organizations will be focused on, the Organization pour la Compassion et le Developpement des Familles en Detresse (OCODEFAD) and Central African Republic Branch of the International Federation for Human Rights (FIDH), acting in conjunction with the local organizations, Observatoire Centrafricain des droits de l'Homme (OCDH) and the Ligue Centrafricain pour la Defence des Droits de l'Homme (LCDH).

Overview of Conflict Dynamics in the CAR

To understand the actions taken by civil society organizations in the CAR, a brief overview of the conflict dynamics in the CAR is necessary. The history of violent conflict in the CAR dates back to the eve of independence from France in 1959 when Barthelemy Boganda, the candidate expected to be the first president of the state, died under unexplained circumstances in a plane crash. In August of 1960, upon being granted full independence, two of Boganda's aides became involved in a violent power struggle. For the next fifty years, periods of peace and fair, democratic elections were interrupted by coups, violent intimidation of civilians, and power struggles between warlords.

Despite this long history of violence, the Rome Statute creating the ICC did not enter into force until 1 July of 2002, so only alleged crimes that occurred after that date are eligible for ICC investigation. The Rome Statute was ratified by the CAR in October of 2001, eight months before it entered into force, giving the ICC jurisdiction in the CAR over crimes defined in Article 5(1),[3] including war crimes, crimes against humanity, and genocide.

Since entering into force, violence erupted once again in the CAR in late October 2002, when the former army chief of staff, Francois Bozize, attacked President Ange-Felix Patasse's government troops from the northern region of the state. To withstand the attack, President Patasse enlisted the aid of Congolese warlord Jean-Pierre Bemba Gombo, alleged leader of the Movement for the Liberation of Congo, and additional troops from Libya.[4] The conflict was characterized by violence against civilians and campaigns of rape and pillage executed by both sides.[5] Due to the diverse nature of the parties involved, it was often difficult for civilians to ascertain which group was committing the acts of violence against them. On 15 March 2005, Bozize successfully captured the capital, declared himself president of a transition government and was later elected president in May of 2005. Since his election, two rebellions in the Northern regions of the state have initiated campaigns of violence against the government troops and civilians.

International Criminal Court Involvement in the Central African Republic

On 22 May 2007, Luis Moreno-Ocampo, the Prosecutor for the International Criminal Court, announced his decision to open up investigations in the CAR. In his press statement Moreno-Ocampo stated that, "In the interests of deterring future violence and promoting enduring peace in the region, we have a duty to show that massive crimes[6] cannot be committed with impunity. We will do our part, working through our judicial mandate".[7] The decision made by the Office of the Prosecutor came two years after the CAR government, at the bequest of President Bozize, requested ICC assistance in July of 2005. Prior to that, in March of 2003, local civil society organizations sent in observations to the Office of the Prosecutor, citing widespread violence against civilians during the power struggle between Bozizi and Patasse, and the need for ICC assistance.[8] On 23 May 2008, the Pre-Trial Chamber III of the ICC issued an arrest warrant for Jean-Pierre Bemba Gombo, the alleged leader of the Movement for the Liberation of Congo (MLC), which operated in the CAR for former President Patasse. As the alleged military commander of the MLC, Bemba was charged on two counts of crimes against humanity (rape and murder) and three counts of war crimes (murder, rape and pillaging).[9] While Bemba is currently the only individual involved in the CAR conflict under indictment by the ICC, civil society organizations are calling for further investigations of both the armed rebel groups operating in the north and of government forces, particularly after the increase in violence in 2005.

Building a Relationship with the ICC

The neutral/positive reception of the ICC in the CAR is due in large part to actions taken by civil society organizations to pressure an ICC investigation, continued pressure on the ICC to open outreach offices in the state, and by advocating the idea that peace and justice are not mutually exclusive.

Lobbying for an ICC Investigation

Upon the Rome Statute's entering into force on 1 July 2002, two local civil society organizations concerned with human rights, the OCDH and the LCDH saw the potential for bringing perpetrators to justice under Article 12 of the Statute which gives jurisdiction to the ICC for war crimes, crimes against humanity, and genocide committed in any member state. Beginning in October 2002, the LCDH began recording witness and victim statements and documenting the failure of the CAR judicial system to take action to bring offenders to justice. Since the ICC is a court of last resort, cases are only admissible if the national courts prove unwilling or unable to carry out investigations and prosecutions. Given the involvement of state parties in the alleged violations of international law, however, it was a reasonable conclusion that the state judicial system would not have the capacity to investigate without international assistance.

The information gathered by the OCDH and the LCDH interested the International Federation for Human Rights (FIDH), a French human rights umbrella organization that both groups were affiliated with. FIDH sent a team, including several lawyers, to aid the local civil society groups in documenting and reporting the situation in the CAR. In February of 2003, FIDH published a report detailing the violent acts committed by Bozize's rebel forces, the government army, and the additional troops brought in by President Patasse, including Bemba's MLC.[10] The report was submitted to the ICC with a request for investigation in March of 2003.[11]

While the ICC did not announce its intention to investigate until four years later, the initial involvement of civil society remains pertinent to the ability and decision of the ICC to become involved in the situation in the CAR. By beginning documentation of international law violations at the onset of the Rome Statute's entering into force, the testimonies collected by the LCDH and the OCDH proved to be important records that aided the Office of the Prosecutor as it moved forward with the investigation. Additionally, the activities of these civil society groups put pressure on the government to take action of its own. After coming to power, President Bozize announced that action needed to be taken against the Congolese rebels that had operated in the CAR to ensure compliance to international law. While many speculate that Bozize's interest in jurisprudence was motivated by a desire to insulate himself against further attack, he appointed the president of the LCDH, Goungaye Wanfiyo, to act as the state counsel in the case.[12] Wanfiyo took the case, knowing that ICC might take an invitation to investigate more seriously if it was submitted by a state party, particularly after the Supreme Court of the state came to the conclusion that it did not have the capacity to try the cases itself.[13]

While civil society remains committed to ICC involvement, they recognize that civilian support for the Court is tenuous. The delays in bringing Bemba to trial and the lack of action against other perpetrators contribute to an increase in frustration levels regarding the judicial process amongst communities and in particular, victims. The OCDH and the LCDH believe that if the Court has a greater presence and visibility in the communities, support for international action will increase, and victims will maintain their willingness to give testimony.

When an ICC office finally opened in October of 2007, workshops were organized throughout the following year to create networks and educate actors from across a broad spectrum of professions on the work of the ICC and exchange information. Yet the FIDH acknowledged the need to pressure the ICC to do more to keep civilians involved, informed about the progress of the investigations and ongoing cases. They also wanted the ICC to open further outreach offices, particularly in the north, to give victims a sense of connection with the judicial process and a place to offer testimony.[14]

Commitment to Peace and Justice

The positive relationship between peace and justice in the Central African Republic is notable in its difference from Uganda, a counter example. When the ICC began investigating in Northern Uganda, a major concern amongst civilians was that ICC indictments would keep the LRA leaders from coming to the negotiating table. In other words, civilian observers were afraid that the pursuit of international justice would occur at the expense of peace.[15] Rather than framing the problem as pursuing justice as the cost of peace, civil society organizations in the CAR are quick to point out that crimes continue because of impunity; many of the perpetrators are government troops, and that the presence of the ICC will help check perpetrators. According to Bernadette Sayo, founder of OCODEFAD, impunity is causing the continuation of rape in the country and "justice is the only way forward."[16]

While Sayo spoke specifically of rape, tangible evidence exists that the presence of the ICC is proving to be a deterrent for some perpetrators involved in the rebellions in the northern regions of the state. For example, the reports of civil society organizations like OCODEFAD and LCDH brought the continuing atrocities in the north to the attention of Human Rights Watch, who sent researchers to the area. During an interview with one of the commanders of the Peoples Army for the Restoration of Democracy (APRD), upon hearing about the arrest of Bemba and learning that the use of child soldiers could bring about an indictment by the ICC, he requested UNICEF involvement in the demobilization of children from his armed forces.[17] On 7 July 2009, UNICEF confirmed that 182 children were released.[18] By building awareness, continuing to investigate, and working with other institutions that have a greater capacity, these civil society organizations demonstrate that international law and the pursuit of justice can benefit peace and at least in some cases, the presence of the ICC can serve as a deterrent.

A peace agreement was also signed in 2008 between the government and the APRD. Although it contained amnesty provisions, civil society groups affirmed a commitment to peace and justice by backing the peace agreement, but refusing to endorse amnesty.[19] During the periods of negotiation, the APRD was made aware that the ICC was investigating actions taken by both the rebel forces and the government during the period of hostilities between 2005 and 2008.[20] In a report issued in May of 2008, the FIHD, on behalf of the local civil society human rights organizations, issued a statement reminding both government forces and the APRD that while amnesty in CAR courts was granted in the peace agreement, that amnesty did not extend to ICC investigations and local groups would continue to press for further ICC indictments.[21]

Additionally, OCODEFAD and LCDH made concerted efforts to work with regional and international organizations to continue the push for both the recognition of successes that have come from the ICC investigations and to put pressure on the ICC to continue investigations, indictments, and open further outreach offices in the state.

Civil Society Work to Eliminate Social Stigmas

One of the primary foci of the ICC's investigations is the systematic use of rape against civilians. Under international law, the use of rape is considered a war crime and crime against humanity. In the CAR, widespread accounts of rape by armed groups operating on behalf of both Patasse and Bozize were recorded by civil society human rights groups and the ICC investigators. While the use of rape as a weapon of war is far from new, in the past, it has proven difficult to investigate and try in international tribunals because of the social stigma attached to sexual violence. According to Rhonda Copelon, "Admitting rape in a sexist society is a public dishonoring and has consequences for the ability to continue to build relationships with one's community and with male partners... To charge rape is to risk retaliation and death... is to risk being raped again - figuratively, at least - by the law enforcers."[22] Glasius observed these fears amongst victims of rape, both male and female, in the CAR, "Societal attitudes in the CAR are still such that rape is considered shameful for the victim..."[23]

The implications of the social stigma that surrounds rape result in the creation of an environment in which victims are hesitant to come forward and investigators subsequently conclude that without evidence of a systematic campaign of rape, indictments for those crimes will not hold up during international tribunals. In the case of the indictment against Bemba, civil society actions have played a critical role in creating an environment in which victims are coming forward to give accounts of their experiences, thus allowing ICC Prosecutor Luis Moreno-Ocampo to focus on sexual violence in this case. The organization primarily responsible for creating the environment in which victims feel more comfortable coming forward is OCODEFAD. Since opening in 2003, OCODEFAD has registered the testimony of over 2,000 rape victims and opened 19 branch offices throughout the state.[24] The founder, Bernadette Sayo, a rape victim herself, persevered in expanding the organization, despite threats to her own life.[25] Now OCODEFAD is organizing another campaign to combat the negative perceptions of rape that exist throughout society in the CAR.[26] While, at the time of writing, the results from this work cannot be judged, the intention of the program is to hold sessions and meet with community leaders to create a dialogue about victimization and the steps that could be taken to redress social stigmatization.

To organize victims to testify and raise their self-esteem, OCODEFAD created a program based on the work done by the United Nations Human Development Program. Now working with other international organizations, including the World Health Organization, the OCODEFAD provides medical help, psychological counseling, job trainings, and holds sessions to educate the wider community on the gendered aspect of rape. Due to the widespread nature of the rape campaign, many women contracted HIV, and OCODEFAD is only organization working in the area that is trying to raise funds for antiretroviral medications for these women.[27] Additionally, as most female victims are shunned by their communities, it becomes impossible for them to stay in school, marry, and find work. One of the jobs that they provide training for is the collection of testimonies by other victims.[28] Not only does this act as a source of employment, but it also brings women into contact with those who have suffered from similar crimes, thus building solidarity and a support network. By integrating programs targeting the economic, social, and judicial aspect of rape, OCODEFAD is looking at the immediate needs of the victims and looking towards a future where rape will be less stigmatizing, and less accepted as a tool of war. As Copelon says, because the tribunals have not addressed the gendered aspect of rape and worked to mitigate women's fears of retaliation,[29] it will fall to the community to do so if justice for these women is to be achieved.

Conclusion

Despite the actions taken by civil society organizations to foster support for the ICC, civilian cooperation remains tenuous. A major obstacle yet to be overcome is the widespread, but errant, belief amongst victims that by assisting with ICC investigations, the Court will provide them with financial and material assistance.[30] The slow pace at which the Court operates, and its interest in pursuing prosecutions against only the highest-level perpetrators are also potential sources of frustration for victims and organizations seeking justice. As a court of last resort designed specifically to try top level leaders, the ICC has no control over the trials of lower-level perpetrators. Without follow up by the national courts and trials of lower level perpetrators, many victims will still face the fear that their violators have gone unpunished.

The anticipation of these frustrations should not, however, undermine the contribution of civil society in the CAR to the work of the ICC. Nor should the ICC's contribution toward ending the culture of impunity in the CAR be overlooked. OCODEFAD and FIDH provide excellent examples of how civil society and the ICC can form a symbiotic relationship that will benefit victims without sacrificing justice or peace. OCODEFAD and FIDH have been successful because not only are they pressuring the ICC to continue investigation and providing them testimony, but they are also looking at the immediate needs of the victims and at the future by working towards ending the social stigma of victimization within local communities. In combination, these activities are creating an environment in the CAR more suitable to peacebuilding and one in which the ICC is in a better position to carry out investigations and prosecutions.


[1] Phoung Pham et al., Forgotten Voices: A Population Based Survey on Attitudes about Peace and Justice in Northern Uganda (University of California Berkley: International Center for Transitional Justice, 2005).

[2] For the purpose of this paper, civil society is defined as non-state, non-commercial, non-political organizations that not affiliated with armed groups.

[3] Article 5(1) of the Rome Statute also includes crimes of aggression, but these cases are inadmissible for trial and investigation until the member states reach a consensus on the definition of crimes of aggression.

[4] Background: Situation in the Central African Republic (Hauge: International Criminal Court, 2007)

[5] Marlies Glasius, "Global Justice Meets Local Civil Society," Alternatives: Global, Local, Political 33, no. 4 (2008), 413-433.

[6] For more information about what constitute war crimes and the mandate of the ICC to investigate war crimes see Hauss, Charles (Chip). "War Crimes ." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. (Conflict Research Consortium, University of Colorado, Boulder. Posted: September 2003) http://www.beyondintractability.org/essay/war-crimes-general /. Also see McMorran, Chris. "International War Crimes Tribunals." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. (Conflict Research Consortium, University of Colorado, Boulder. Posted: July 2003) http://www.beyondintractability.org/essay/int-war-crime-t ribunals/.

[7] Prosecutor Opens Investigation in the Central African Republic (Hauge: International Criminal Court, 2007) htt p://www.icccpi.int/menus/icc/press%20and%20media/press%20releases/2007/prosecutor%20op ens%20investigation%20in%20the%20central%20african%20republic?lan=en-GB (accessed 2 February 2010).

[8] Report of the International Investigative Mission into War Crimes in the Central African Republic: When Elephants Fight, the Grass Suffers (Paris: International Federation for Human Rights, 2003).

[9] The Prosecutor v. Jean-Pierre Bemba Gombo, The Prosecutor v. Jean-Pierre Bemba Gombo, (International Criminal Court 23 May 2008), http://www.icccpi.int/menus/icc/situations%20and%20cases/situations/ situation%20icc%200105/related%20cases/icc%200105%200108/case%20the%20prosecutor%2 0v%20jean-pierre%20bemba%20gombo (accessed 2 February 2010).

[10] Report of the International Investigative Mission into War Crimes in the Central African Republic: When Elephants Fight, the Grass Suffers, 1-93

[11] Ibid.

[12] Marlies Glasius, "We Ourselves, We are Part of the Functioning," African Affairs 108, no. 430 (2009), 52.

[13] Ibid., 52.

[14] Glasius, Global Justice Meets Local Civil Society, 421.

[15] Tim Allen, Trial Justice: The International Criminal Court and the Lord's Resistance Army (London: Zed Books, 2005). This is not to say that all individuals in the Northern Uganda oppose the ICC. There is a minority opinion that justice must be pursued regardless of an effect on the peace process. For a more detailed summary of civilian attitudes regarding peace and justice in the ICC see: Pham, Forgotten Voices: A Population Based Survey on Attitudes about Peace and Justice in Northern Uganda, 1-60.

[16] News Bulletin (http://www.hdptcar.net: Humanitarian and Development Partnership Team, 2008) (accessed 20 February 2010).

[17] Human Rights Watch, State of Anarchy: Rebellion and Abuses Against Civilians (New York: Human Rights Watch, 2007).

[18] UNICEF Welcomes Release of Child Soldiers and Urges further Demobilizations in the Central African Republic (Bangui: UNICEF, 2009), http://www.unicef.org/infobyco untry/media-50179.html (accessed 25 February 2010).

[19] Amnesty Granted by Cease-Fire and Peace Agreement is Unacceptable (International Federation for Human Rights, 2008),. http://www.fid h.org/Amnesty-granted-by-cease-fire-and-peace-agreement (accessed 25 February 2010).

[20] Background: Situation in the Central African Republic, 4.

[21] Amnesty Granted by Cease-Fire and Peace Agreement is Unacceptable.

[22] Rhonda Copelon, "Surfacing Gender: Reconceptualizing Crimes Against Women in Time of War," in The Women and War Reader, eds. Lois Ann Lorentzen and Jennifer Turpin (New York: New York University Press, 1998), 73.

[23] Glasius, Global Justice Meets Local Civil Society, 423.

[24] News Bulletin, 1-2.

[25] Glasius, "We Ourselves, We are Part of the Functioning," 62.

[26] News Bulletin.

[27] Ibid.

[28] Ibid.

[29] Copelon, Surfacing Gender: Reconceptualizing Crimes Against Women in Time of War, 73.

[30] Glasius, "We Ourselves, We are Part of the Functioning," 62.