Justice From the Ground Up

Last week, as part of the Open Society Justice Initiative’s multifaceted efforts to complement the work of the International Criminal Court (ICC) by aiding domestic courts' “complementarity” efforts, I found myself back in the hauntingly beautiful province of South Kivu, in the Democratic Republic of Congo (DRC). There, a mobile court which specializes in gender crimes but has discretion to hear other cases is holding a series of trials for the next couple of weeks in the village of Kamituga. The mobile court finished other rape and other atrocity trials in Walungu a couple of weeks ago.

While the premise of complementarity insists that domestic courts have the primary responsibility to investigate and prosecute war crimes, crimes against humanity, and genocide, and the ICC should be a court of last resort, it is nonetheless fundamentally about ending impunity for very serious crimes. For years, both the military and civilians acted without legal consequence. Therefore, the mobile gender justice court, which has jurisdiction over both military and civilian crimes, still complements the work of the ICC by upholding the law and facilitating trials for horrific crimes, including sexual violence, which the Rome Statute recognizes as among the most serious crimes of concern to the international community.

The vast majority of the local mobile court trials are not prosecuted as war crimes or crimes against humanity, but as domestic rape, murder, theft, or other so-called “ordinary” crimes. To the individual rape survivor, whether committed as part of a widespread or systematic attack, whether committed in connection with an armed conflict or not, whether committed with an intent to destroy a particular group, or whether committed as opportunistic or as a strategy of warfare, the consequences of having the most private and intimate part of one's body violated, and sometimes brutally destroyed, are equally devastating. The sexual, physical, psychological and societal harms inflicted are severe, regardless of why the crime occurred.

I was in the Congo accompanied by Judge Mary McGowan Davis, who is undertaking an assessment of the mobile gender justice court project in order to determine how well it has functioned since its establishment sixteen months ago, and to advise stakeholders on ways the mobile courts can be improved upon.

One of the greatest benefits of having a court that travels to the people instead of making the people—typically the poorest and most marginalized in the society—travel to it, is in sensitizing and educating the public about the gravity of sex crimes.

I saw young boys and elderly men shake their heads in disapproval when an accused contradicted himself repeatedly. I saw young girls and women nod with approval when a lawyer insisted that rape is an exceptionally grave offense. I watched one boy, who appeared to be about eleven, stand barefoot for hours on end, paying rapt attention as the defendant, victim, attorneys, and judges debated a case. He was enthralled, entertained, and appalled. And very likely educated.

In Kamituga, the president of the court told us that these mobile gender justice courts are causing a reduction in rape crimes, now that perpetrators know the court will be coming to their community to investigate and prosecute rape and other serious crimes. He said that the positive impact that the court is having in remote areas is tremendous. People long viewed as untouchable are actually being arrested, tried, and imprisoned. It seems—but needs to be confirmed—that the court is having a deterrent effect.

True, the trials held in Kamituga aren’t war crime or crime against humanity cases, but they are being held simultaneously to the parallel war crime and crime against humanity cases being heard five thousand miles away in the Hague for atrocities committed in the DRC. In my view, they do complement the work of the ICC. Furthermore, after hearing these trials in their own communities, those who would have otherwise never seen a real trial before will assuredly have a better understanding of what justice means, of what a trial involves, and of what the law stands for.

When the Callixte Mbarushimana trial for crimes, including sex crimes, committed in the Kivus begins in the ICC later this year, tens of thousands more Congolese who have witnessed these mobile court trials first hand in South Kivu will have a far better understanding of what is happening and why, and they will perhaps even follow the trial by radio.

Since the landmark Fizi/Baraka rape as a crime against humanity trial held against 11 military accused in February, including against Lt. Col. Kabibi, two other courts have held mass rape trials in eastern DRC for atrocities committed during the war. Senior, mid-level, and junior military officials have been convicted in these trials, with some sentenced to life imprisonment. In the three military trials held within the past two months, an astonishing 37 military and one police officer have been tried for rape crimes. At the end of March, General Kakwavu and two other senior officers went on trial in Kinshasa for rape crimes committed some seven years ago. The General represents the highest official yet to be arrested for sex crimes. All of this is unprecedented. And promising.