Dear readers – please find below a commentary written by Olivia Bueno at the International Refugee Rights Initiative in consultation with Congolese activists.  The views and opinions expressed here do not necessarily reflect the views and opinions of the International Refugee Rights Initiative or of the Open Society Justice Initiative.

On December 18, 2012, the ICC will announce the second verdict in its history against Mathieu Ngudjolo Chui. In contrast to the fear and anticipation which preceded the March verdict against Thomas Lubanga, this decision is being awaited quietly by people in the affected region of eastern DRC. Many opinion leaders are hesitant to speculate on the potential implications of the decision in the case, adopting a wait and see attitude. In the words of one community leader, “We must first observe the process up to the end.” (Il faut d’abord observer la procédure jusqu’au bout).

Why this more reserved response? Does this reflect a simple difference of approach between the leaders in the Lendu and Ngiti communities (to which Katanga and Chui belong) and their counterparts in Mr Lubanga’s Hema community in terms of willingness to engage in public outreach efforts? One activist speculated that the community was less willing to take a vocal stand because they felt more under pressure due to the more serious and extensive nature of the ICC charges against their militia leaders. Or is it linked to the fact that the Court has already delivered one judgment impacting Ituri and the experience is known? Does the fact that the Lubanga decision was received without major incident on the ground make people feel less uneasy?

The mood has perhaps been rendered further confused by the decision issued by the Chambers on November 21, 2012  to sever the cases of Chui and Katanga, which were tried together , and by the resulting delay the verdict in Mr. Katanga’s case. The judges have based their decision to do this, after closing arguments and six months into their deliberations, on a re-characterization of the facts and the suggestion that a different framework for assessing criminal responsibility should be used in Mr. Katanga’s case. (See “After Case Closed, Judges Propose Changes to the Charges Against Germain Katanga”).

The decision to separate the cases so late in the trial, and after prosecution and defense have both completed their arguments, is very hard for many in Ituri to understand especially as the legal reasoning is so technical. Broadly people are asking why this happened so late in the process and what it is likely to mean for the verdicts. Internationally, some who are following the trial more closely are wondering whether the gymnastics around reframing of the charges so late in the day suggest a desire to reinforce the possibility of a guilty verdict. If the judges ultimately find Mr. Katanga guilty using what appears to be a lesser form of liability will this be seen as a victory in the community hoping to see leniency for “their” leader? Or will it be seen as inappropriate legal manipulation?

Rumblings about the quality of the trial and engagement of the court so far are thus beginning to be heard on the ground. A spokesman for the Lendu community, for example, described the weaknesses of the case against the two accused on the radio on September 30, 2012 calling the investigation and prosecution an “hurried enquiry” and “superficial”. “No matter what the decision that will come down from the court,” he asserted, “no victim and no Iturian will be convinced.” A local journalist and former youth leader acknowledges that these statements reflect a mistrust of the court which is developing in the Lendu and Ngiti population, worried about the conviction of its leaders in the aftermath of the conviction of Thomas Lubanga. On the other hand, the sentence which was handed down to Lubanga is perceived in the community as quite lenient and has raised an expectation in the community that a similar leniency might be accorded to “their” defendants in the interest of the equitable treatment of communities.

At a session held by the local NGO Justice Plus in Bunia on October 17, 2012 on “The State of the Reparations Question in the Lubanga,” participants expressed concern about equal treatment of communities, arguing that Ngudjolo and Katanga should benefit from the same consideration which was given to Lubanga in his lighter sentence in order to promote reconciliation, the peaceful cohabitation of different ethnic groups, and lasting peace in Ituri as a whole. They worry that if their defendants are convicted—and there is sense that they will—and if sentences are too harsh, that that that will exacerbate the sense in the Lendu community that they have been treated unfairly. This sense has already been fostered by the lack of Lendu victims in the ICC cases (In the Lubanga case both perpetrator and victims were from the Hema community: in the instant cases perpetrators are from the Lendu and related communities but victims are again Hema). Others argued that the court must be allowed to carry out its work independently and should have the freedom to treat opposing parties of the conflict differently if there are different legal circumstances.

For many, however, reflection on the Katanga and Chui trials seems to have stirred up old concerns about the court and the reach of its justice. Several of those engaged at the consultation reiterated the criticism that the court has prosecuted only a few small fish while leaving the most powerful actors, at both the national and international level, unpunished. A local human rights NGO, Action Citoyenne pour la Paix, expressed this sentiment at the October debate mentioned above. Likewise a Hema leader interviewed for this blog said, “the victims want all the actors implicated in the crimes in Ituri to be judged.” A Lesse leader reflected similarly, “the court should proceed to arrest all the actors, including the big fish (la cour doit procéder à l’arrestation de tous les acteurs, y compris les gras poissons).”

The question to what extent accountability efforts have contributed to peace and security was also raised as a concern. When asked about the reaction of victims to the ICC processes, an Ngiti leader said “here there is disappointment because the process has not ended insecurity in Ituri.” (Ici, il y a que la déception car les procès ne mettent pas fin à l’insécurité dans la région de l’Ituri.) A Nyali leader reflected similar sentiments, “Really there is great concern because the level of insecurity is rising on the ground. We cannot go two days without registering a case involving weapons in Bunia town. (Vraiment il y a déception car l’insécurité est grandissante sur terrain. Il ne passe pas deux jours sans enregistrer un cas de main armé dans la ville de Bunia).”Indeed, the FRPI militia (the former militia of Germain Katanga) is still quite active and continues to occupy the territory of Walendu Bindi, according to a local activist. According to the same activist the existence of the ICC investigation may be impeding efforts to bring and end to the standoff: militia groups are afraid to negotiate with the government because they are concerned about being arrested. Particularly in the light of the increasing insecurity in Ituri and the panic caused by the M23 advance in North Kivu, the impact of the Court’s decisions in this respect will need to be monitored very closely.