Competing with the ICC for Justice: The Central African Republic

At the ICC, survivors have no choice but to compete for recognition and reconciliation—and ultimately, for justice. Acquittal complicates this inequity: well after the trauma is revisited in testimony, telling the truth becomes a performance for the sake of the Court, not for justice. This article, which examines the role of the ICC in the Central African Republic (CAR), is the first in a series of posts that will explore the impact of acquittal in international criminal justice on ongoing conflict.

A survivor’s participation at trial is heavily limited by legal procedure. While courts aim to produce a public narrative of fact, to do so they must establish their own legitimacy as objective arbiters of truth. Enshrined in the very foundation of a justice process that is considered “fair” and “objective” is the notion that the courtroom is a space designed for telling what is factually true, a space that is not beholden to those doing the telling. Thus, courts find value in only specific types of testimony, given in specific ways.

In the ICC, the rules of procedure dictate the types of testimony—and indeed the kind of victim—it considers too subjective and unreliable to give admissible evidence. The court, therefore, also dictates the kind of testimony, and the victims, that are worthy of public recognition and acknowledgement. As one young Central African woman put it to Marlies Glasius, “We want the Court think about justice but also to support us to redo our life.”

As the ICC struggles to relate to survivors, it is imperative to examine what happens when international crimes against humanity are proven, but go unpunished as commanders are acquitted.

THE PROSECUTOR V. JEAN-PIERRE BEMBA GOMBO

At independence in 1960, political power in CAR was arranged along fault lines of neglect, in a complex network of personal favors and predation left by French colonization. For decades, multiple coup d’états and mutinies formalized violence as a mechanism of political control. The violence that began as unchecked personal animus between President Patassé and former Army Chief of Staff General Bozizé in 2002, escalated over the course of a year to a coup characterized by widespread cruelty and brutal violence targeted against civilians.

Following Bozizé’s bloody and brutal coup, the ICC charged Jean-Pierre Bemba Gombo—Patassé’s Congolese rebel commander, who led the Mouvement de Libération du Congo (MLC) while they used sexual violence to terrorize communities—with crimes against humanity for murder and rape and three counts of war crimes for murder, rape, and pillaging. On 20 June 2016, Bemba was convicted, becoming the first person to be convicted of rape on the basis of command responsibility at the ICC. However, two years later, Bemba was acquitted on appeal. Though the Appeals Chamber did not contest that Bemba’s troops perpetrated grave crimes against humanity as well as war crimes, it challenged his responsibility for these crimes as the MLC’s commander.

COMMAND RESPONSIBILITY

According to Article 28 of the Rome Statute, an individual commander is criminally responsible for crimes committed by forces under their direct or effective authority, command, and control, when that commander knew or should have known forces were committing or about to commit criminal acts, and when the commander failed to take “all necessary and reasonable measures” within their power to prevent, repress, investigate, and prosecute those crimes.  

The ICC’s charges against Bemba established that the such criminal acts as sexual violence or forced conscription were the legal responsibility of Bemba himself, rather than that of MLC perpetrators. Sexual violence, pillaging, murder (or the numerous other crimes that the Prosecutor failed to include) were determined not to be individual instances of a poorly managed military “taking advantage of a coercive environment,” but rather the direct and explicit acceptance of crimes against humanity as a means of waging war. Thus, the Trial Chamber treated command responsibility as a mode of liability.

In the context of how to ICC understands the nexus of command responsibility, this is important because it establishes a clear line between a commander’s failure to act and what E. Van Sliedregt describes as “a form of participation” in violence (Clark 2016, 672, see FN 38). Because a commander engages in violence through the actions of the troops they lead, their liability for violence rests not only in their own actions, but on those of their troops. When a commander fails to explicitly discourage a crime against humanity, the commander is personally participating in the crime.

Despite acknowledging that MLC soldiers perpetrated crimes against humanity and war crimes, particularly rape and other forms of sexual violence, the Appeals Chamber’s majority opinion concluded that the conviction exceeded the charges; Bemba could not be responsible for every crime perpetrated by every, and in this case any, MLC combatant, he was not located within CAR at the time of those crimes.

Thus, Bemba’s acquittal served to establish a legal framework centered away from the victim and indeed the violence of the acts of crimes against humanity.

The process of telling, and the outcome of acquittal, effectively flattens public memory of sexual violence. To be the Court’s victim is to inhabit a constructed, liminal identity caught up in the willingness to perform a personal memory of trauma to the satisfaction of the Trial Chamber and its telling of factual truth. While the Trial Chamber memorialized a flattened memory of violence in CAR, the Appeals Chamber atomized the distinct features of responsibility and victimization.

In acquittal, the Appeals Chamber vacates not just the sentence, but substantively, the meaning and legibility of legal justice for survivors. Victims, though welcomed for their participation upholding the legal procedure of justice, are then literally stripped of their recognition as victims and its sole benefit: reparations. In so doing, the Appeals Chamber—and the ICC at large—truncates any actualization of legal justice.

COMPETING WITH THE ICC

It is critical to understand the impact of a survivor’s participation in trial not just for the Court, but for survivors and the larger project of transitional justice. In performing as a “victim” for the Court, survivors become the objects of justice, instruments a court uses to demonstrate that there is someone who needs to be punished. In its process of “unmaking” these victims, the Bemba Appeals Chamber disconnected victims from the crimes that they survived, but also from reclaiming a sense of ownership over what they survived by testifying.

Through this process, the ICC creates divergent streams of justice for victims at trial, preferring the justice that is legible to the institution over a form of justice that is legible to the survivor. Participating in justice at the ICC means that a survivor must allow themselves to be made and unmade a victim at the will of the Court. They must accept a practice of performing justice in which they are given and necessarily then denied the status of victim. Thus, survivors who testify are made into instruments of justice, left waiting for recognition to be able to “redo” their lives and live beyond victimization. Without recognition and reparations, the practice of transitional justice remains located theoretically and practically outside CAR, at the ICC.

Because such institutions of transitional justice reproduce an identity for victims and perpetrators that is caught up in diametrically opposed and competing meanings, the ICC—and the memories the Court constructed as it adjudicated who is responsible—loses sight of survivors needs.

It matters where justice is done, by who and for whom. When survivors and their needs do not drive this process, the process itself loses its legitimacy. Worse still, it excludes survivors from reconciling what they have survived in meaningful ways.

When the practice of legal justice ultimately fails to articulate liability for those criminally responsible, violence and injustice live on in the public memory. Targeting ordinary people with personal and intimate violence becomes the normal business of politics. To date, sexual violence remains rampant in the CAR: ex-Séléka and anti-Balaka rebels who terrorize CAR today use the same methods as the MLC to exert control over communities. And yet, the ICC’s CAR II investigations of Alfred “Rambo” Yekatom and Patrice-Edouard Ngaïssona—though they cover a broad scope of violence over the significant period of CAR’s most recent civil war—don’t include any charges of gender-based violence, sexual violence, or rape. Victims of Bemba’s violence, Bozizé’s violence, and Djotodia’s violence are left without legal recourse for what they have survived and continue to be subjected.

Survivors are left to wonder if the ICC has given up on justice for sexual violence and rape and we are all left to question whether justice at the ICC is really justice at all.

Image Credit: UNICEF | Pierre Holtz

Violence and Dissent in Modi’s India

2014 was a turning point for India. The year marked Prime Minister Narendra Modi’s election victory. The BJP government not only won, but also dominated the election by winning with a majority–the first of this kind of majority in twenty years. Though the election was won on the promises of development, the creation of different employment opportunities, and agricultural reforms, the BJP-led government has failed at keeping these promises.

Instead of the creation of a better society, the country has witnessed a rise in intolerance towards minorities, increased violence, and suppression of any form of dissent against the party in power. Furthermore, the conflict within Kashmir has further deteriorated under Modi’s rule, with an increase in civilian as well as military officials’ deaths.

In Modi’s India, questioning the state has led to online trolling, arrests, and even killings of those who dare to publicly voice their dissent against the government. The Bhima Koregoan commemoration emphasizes the silencing of dissent and violence in Modi’s India and demonstrates why the Modi government is a threat to the diversity and democracy in India.

In order to shed light on the recent atrocities being committed by the government, the SOAS India Society organized an panel titled, ‘Violence and Dissent in Modi’s India,’ to discuss the violence surrounding the Bhima Koregoan case. On New Year’s Eve, 2017, thousands of lower-caste Hindus–who are known as Dalits–gathered at the Bhima Koregoan war memorial to commemorate the 200th anniversary of the Anglo-Maratha war.

The commemoration is significant; it was organized to pay respects to the fighters of the Mahar regiment who fought against the upper-caste regiment and won the battle. Though the commemoration was a peaceful celebration, it soon turned violent when the attendees were attacked by upper-caste Maratha groups. Following the violence, instead of the arrests of those who incited the violence, local police arrested various activists and attendees.

Though the violence was only perpetrated against harmless attendees, it was followed by nation-wide harassment and the arrests of scholars and activists who publicly spoke against the crushing of dissent and curbing of freedom of speech in Modi’s India.

The panel at Violence and Dissent in Modi’s India consisted of three panellists who explored on the violence surrounding the Bhima Koregoan case. The first speaker, Dr Mayur Suresh, is a lecturer in Law at SOAS, University of London. Due to his law background, Dr Suresh focused on the law under which those arrested in the Bhima Koregaon case were charged by the police: the Unlawful Activities (Prevention) Act (UAPA). Put into effect following the second emergency period in India (1967), UAPA was enacted as a response to two separatist campaigns.

A recent amendment was made to the law in 2002, which expanded UAPA to include POTA (Prevention of Terrorism Act). Hence, with the introduction of this act, the events of Bhima Koregaon or lower-caste assertion were being linked to terrorism. This is evident as the first information report (FIR) filed by the upper-caste Maratha group,s who attacked the attendees of the Bhima Koregoan commemoration event, emphasized the violence as a response to the speeches being made at the event.

The law is highly problematic as it enables the state to arrest the accused for a time period of six months of longer without providing the accused with the relevant information about the charges for which they are being convicted.

Furthermore, arrestees cannot attain the granting of bail. Not only does this law act as a threat to freedom of speech, it also enables the state to practice draconian laws and arrest any individual they view as a threat without substantial evidence. Dr Suresh highlighted how the law is a key tool used by the state to curb dissent.

The second speaker, advocate Susan Abraham, is a lawyer and human rights activist. She emphasizes how the violence that was unleashed on the attendees on 1 January led to a greater movement of people from the Dalit community, who came together for a state-wide strike in protest of the violence perpetrated by Hindutva groups. No action was taken, nor was any judgement passed in January.

Following the violence that occurred during the Bhima Koregoan commemoration, months later on 6June, the government of Maharashtra issued the arrests of prominent scholars and activists related to the Bhima Koregaon commemoration violence, including Rona Wilson, Sudhir Dhawale, Mahesh Raut, Surendra Gadling, and Shoma Sen. They were arrested, with terrorism related charges, under UAPA five months after the event. In addition to the brutality unleashed by the state by imposing this law, the five individuals were arrested on the premise that they were plotting collectively to assassinate Prime Minister Modi. During the arrests, not only were they assaulted by the police, but their laptops and documents were seized.

Despite wide-scale protests domestically and on an international level, the government refused to allow bail for the activists involved and declared war on “urban naxals.” This term is used to label those who dissent against the government in power and the enemies within India who “act as a threat to the integrity and unity of the country.” Following a second round of arrests and raids by the police, on 28 August 2018, Dr. Abraham’s own house was raided by the authorities and her husband Vernon Gonsalves was arrested.  

The third speaker, Professor Romila Thapar, is a renowned historian and professor at Jawaharlal Nehru University (JNU) in New Delhi. In a recorded video, Professor Thapar emphasized the role of government in changing the content of school textbooks in order to glorify the role of Hindus in Indian history. In history textbooks across Maharashtra and Rajasthan, the role of Mughals and Muslim rulers is being erased and replaced with the accomplishments of Hindu Maratha and Rajput rulers.

She stressed the silencing of dissent with a clear focus on university campuses, noting how dissent is met with violence. She highlighted how fear is being spread specifically within universities by Hindutva forces, who perpetrate violence with impunity.

Professor Thapar’s contribution is important as it highlights how the education sector is being widely targeted by the Modi government to suit their interests and to magnify the role of Hindus. This deliberate rewriting of history according to the interests of the ruling party is a threat to the learning process of students who are forced to learn a distorted version of history.

The election of Narendra Modi has not only led to an increase in hate crimes against minorities and lower-caste Hindus, but also in the legitimization of violence without any repercussions. Dr Suresh, Advocate Abraham, and Professor Thapar provide different reasoning for why the Modi government is a threat to the unity of the country. Laws such as UAPA, arrests of activists for voicing their dissent, and the changing of school textbooks are systematically employed by the Modi government to crush dissent.  The violence at the Bhima Koregaon commemoration is a clear example of the rise of the Hindutva groups and the rise of politics of repression in all forms, ranging from the public sphere to even a private declaration of dissent against the state. Minority groups, students, scholars, and activists are under a clear threat.

The attacks on university campuses and changing of school textbooks are a clear reflection of this. Any form of dissent is met with abuse, arrests and even deaths of those who publicly oppose the government in power. The curbing of dissent has taken various forms and the application of laws, such as UAPA, which entails a form of institutionalized discrimination and violence.

Hence, the targeting of minorities and suppression of dissent isn’t just a threat to the well-being of the citizens of India, but also a threat to our constitution, which allows all citizens of India with the right to question authority, dissent, and requires tolerance of the diverse groups living in our nation.

The four pillars of democracy–the Executive, Judiciary, Legislature, and Media–are constantly being used by the government to silence any form of dissent. Not only has the Prime Minister failed to fulfill the promises on the basis of which he was elected in 2014, but his government has become the root cause of the growing intolerance and rise in communal violence across India.

Unfortunately, in Modi’s India, being critical of the Prime Minister is conflated with being an enemy of India. Therefore, in light of the escalating tensions with Pakistan, the conflict in Kashmir and the upcoming Lok Sabha elections, it is important now more than ever to come together as a secular and democratic nation to fight against intolerance, hate, and prejudices, collectively. The upcoming elections are the only chance for the citizens of India to come together and use the power of the ballot to vote this hateful, intolerant, and fascist government out of power and save our democracy.

Further Reading:  

1. Shantha, Sukanya. (2018), ‘The People’s Fighters: Meet the Five Arrested in the Bhima Koregoan Case’. The Wire. Available from: https://thewire.in/caste/meet-the-five-arrested-in-the-bhima-koregaon-case

2. Torgalkaer, Varsha. (2018), ‘One Killed in Clashes at Bhima Koregoan Battle Anniversary Event in Pune; Situation Tense in Maharashtra’. The Wire. Available from: https://thewire.in/caste/one-killed-clashes-bhima-koregaon-battle-anniversary-event-pune

3. The Wire Staff. (2018), ‘In Nationwide Swoop, Five Rights Activists Arrested, Several More Raided’. The Wire. Available from: https://thewire.in/rights/police-take-sudha-bharadwaj-into-custody-raid-homes-of-lawyers-activists-across-cities

Image Credit: Frederick Noronha