Exploring the Concept of Plea Bargaining as a Potential Solution at the International Criminal Court: The Kenyan cases

Phoebe Oyugi, Case Manager, Ble Goude Defence Team

The International Criminal Court (ICC) faces tremendous challenges with regard to collection of evidence to be used at trial, language barrier, lengthy trials, long physical distance between the scene of crimes and the seat of the ICC, lack of state cooperation, and witness interference, among others. This is well illustrated, for example, by the challenges faced by the ICC during the prosecution of the Kenyan cases, that is, the cases against President Uhuru Kenyatta (Kenyatta) and Deputy President William Ruto (Ruto), both charged with crimes against humanity. These cases were among the most high profile cases at the ICC for many reasons among them being that it was the first time that a sitting head of state and his deputy appeared before an international tribunal. They therefore generated a lot of interest in the international community. Yet, both cases were terminated prematurely due to insufficient evidence.

In December 2014, the Prosecutor of the ICC having been ordered by the Chamber to either withdraw the charges against Kenyatta or commence trial, chose the former cause of action because she had insufficient evidence. Similarly, the charges against Ruto were vacated in April 2016 because the judges could not decide whether the insufficiency of evidence was due to the fact that there was simply no evidence to be found; or whether it was a result of witness interference. In both instances the Prosecutor blamed the insufficiency of evidence on the Kenyan Government, headed by the two accused persons, accusing it of failure to cooperate with her in obtaining evidence and of making deliberate attempts to frustrate the cases.

Because the Prosecutor was not able to present sufficient evidence, the Kenyan cases ended in a lose-lose situation. The ICC was unable to establish the truth or enforce international justice in fulfilment of its mandate; the accused persons still have the suspicion of crimes against humanity hanging over their heads and the possibility of being prosecuted afresh; and the victims received neither closure nor reparations. This lose-lose situation raises the question of whether such a situation could have been remedied through compromise.

This brings to mind the Anglo-American concept of plea bargaining, a compromise, which in its simplest form involves an agreement between the Prosecutor and the accused person where a guilty plea from the latter is obtained in exchange for a reduced sentence and/or the accused person’s cooperation in the investigations. This practise is not a novelty before international criminal institutions. International tribunals such as the International Tribunal for the Former Yugoslavia (ICTY) and the International Tribunal for Rwanda (ICTR) have resorted to plea bargaining by, for instance, reducing sentences in exchange of guilty pleas and cooperation by accused persons. This was used in several cases, for example, the Prosecutor v Todorovic and the Prosecutor v Sikirica at the ICTY, as well as the Prosecutor v Serushago and the Prosecutor v Ruggiu at the ICTR. This eventually led to the inclusion of Rule 62 ter of the ICTY Rules of Procedure and Evidence (RPE) which regulates plea agreements at the ICTY.

However, the concept of plea bargaining is not used at the ICC. The main obstacle to the introduction of the practice of plea bargaining before the ICC is that it seems to negate the principles upon which the Court is founded. A similar concern led the ICTY judges to reject, at first, the suggestion to introduce this practice at the ICTY.  However, due to the particularities of international criminal proceedings, such as lengthy, complex and costly proceedings, plea bargaining was eventually introduced, and a number of cases were settled in this manner at both the ICTY and ICTR. The ICC has experienced and continues to face similar challenges as those faced by the ICTY and ICTR, which necessitated the introduction of plea bargaining in these two Courts. This, therefore, necessitates an exploration of plea bargaining as a potential solution to some of the challenges bedevilling the ICC.

If plea bargaining were permitted at the ICC, it might have been employed in the Kenyan cases, mentioned above, to result into a potential win-win situation. The Kenyatta and Ruto cases, just like all cases at the ICC, had three participants namely the Prosecutor, the Defence and the victims of the Kenyan Post-election Violence (PEV), all who had conflicting interests. These conflicting interests may be summarised as follows: on one hand, the Prosecutor’s duty was to prove the charges against the two accused beyond reasonable doubt with a view to obtaining a conviction against the two; but she was unable to secure sufficient evidence partly due to the power and influence of the two accused within the situation country. She, however, enjoyed the support of the ICC and most of the international community, except the African Union (AU).On the other hand, both Kenyatta and Ruto wanted to be acquitted of all the charges against them and for their names to be cleared. Being the President and Deputy President of Kenya respectively, they had the power to potentially hinder the investigations, influence witnesses and influence the AU and most African states against the ICC. They seemed willing to do all it took to prevent the cases from proceeding at the ICC. Lastly, the victims of PEV wanted someone to take responsibility for the horrible crimes which were committed against them and to receive reparations.

The fact is that the two accused persons literally held the keys to Kenya, the one place which contained all the evidence the Prosecutor needed to establish the cases against them. It was not realistic for the Prosecutor to expect them to cooperate in helping her gather evidence against them. The accused persons also held the fate of the victims in their hands and had the power to put in place a national system of reparations if they so wished. For this reason, I think it would have been prudent to enter into discussions with them with a view to reaching a plea agreement. As part of the plea deal, perhaps Kenyatta and Ruto would have been required to take responsibility for some of the crimes that were committed during the PEV. As Kenyan leaders who enjoy massive support of the members of their respective political constituencies, even if they did not incite people to violence, I believe that they had it in their power to stop the violence or to reduce the effects thereof. In return, the Prosecutor would have offered to reduce or withdraw the charges against them. Alternatively an agreement would have been reached whereby upon conviction, the sentences would not include imprisonment. Furthermore, it would also have been prudent for the Victims’ Representative to enter into negotiations with the two accused persons with a view to setting up a reparation system to the benefit of all the PEV victims. The Kenyan government would have been required to, for example, ensure the resettlement of all the victims, some of who still live in camps as internally displaced persons to date.

Admittedly, this situation seems like a bargain of justice. However, in my view it seems like a practical solution in that it would have ensured that someone took some responsibility for the crimes committed and it would also have resulted in the victims’ reparation. As a result of the plea deal, Kenyatta and Ruto may also have had their names cleared and the ICC would have been unable to recommence cases against them in future. This to me seems like a win-win situation compared to what actually occurred.

Plea bargains are used all over the world especially in the United States where over 90% of federal convictions are achieved through guilty pleas. Furthermore, as shown above, plea bargaining has been used by other international tribunals, namely the ICTY and the ICTR, to settle cases. By not considering this potential solution, the ICC was unable to deliver the promise of international justice to the Kenyan people, the Prosecutor was deeply embarrassed by her inability to close these two high profile cases, Kenyatta and Ruto still have suspicion hanging over their heads and the possibility of future prosecution, and the victims did not receive any reparation. This is a very undesirable lose-lose situation which, in my opinion, ought to have been avoided by resorting to plea bargaining as described above.

Guest Post by Phoebe Oyugi (Phoebe Oyugi is a Kenyan lawyer who specialises in International Criminal Law, International Human Rights Law and International Humanitarian law. She currently works as a case manager and consultant in the Defence team of Charles Blé Goudé at the International Criminal Court)

Why the Tribunal Dealing with the South China Sea Dispute Should Step Aside to Make Way for a Negotiated Settlement

Ruikun Sun

Prof. Tom Zwart

Increasingly, in the West, in the class rooms of law schools and offices of foreign ministries, international law is being associated exclusively with courts and tribunals. The idea seems to be that something can only be regarded as law if it emanates from an international court. This judicialization of international law overlooks the fact that these international bodies owe their existence to treaties, which are concluded by states, which still are the main actors in international law.  

These international courts and tribunals are not the success story law professors and legal advisers would like us to believe. Thus, over time support for the International Court of Justice has been eroding. This is a consequence of the fact that weaker states use the Court to put pressure on more powerful states, which then renounce the jurisdiction of the Court if they lose. The International Criminal Court has been hailed as the global criminal court, but many of the big players, including three out of the five permanent members of the Security Council, have refused to sign up. Furthermore, the Court and its Prosecutor have managed to alienate the African states parties to such an extent that a mass exodus has almost become inevitable.

Political science teaches us that the support courts enjoy is not unlimited. To retain their legitimacy, they should stick to applying neutral and objective legal principles to facts in a technical fashion. Therefore, they ought to refrain from deciding cases which are unfit for adjudication. The South China Sea dispute, which is currently pending before an Arbitral Tribunal set up under the United Nations Convention of the Law of the Sea (UNCLOS), is such an unsuitable case for three reasons.

First of all, the case is a typical example of what Lon Fuller has called 'polycentricity'. The case involves so many actors and affects so many interests, that the binary format of a court case between opposing parties can never do justice to all. Six states and Taiwan have declared a stake in this matter, but the case only relates to the Philippines and China, while the latter does not even accept the authority of the Tribunal. Because of the remit of the Tribunal under UNCLOS, it is only able to deal with some lesser aspects of the dispute, but it will have to forgo on others, like the crucial issues of maritime boundaries and sovereignty. This means that an award on the merits will only settle part of the issues between some of the interested actors at best, while leaving out other affected parties and points of contention.

In addition, the Tribunal deals with the case on the basis of adversarial court proceedings which pit one party against another on the basis of polarising positions. Such an approach is alien to East Asia's culture of harmony, which relies on a willingness to invest in reconciling conflicts and differences. Consequently, in the region the award will be widely regarded as the fruit of a poisonous tree, and it will fail, therefore, to garner the necessary support.

Finally, the South China Sea, which serves as the passageway for half of the world's goods, is of vital geopolitical importance. Consequently, the dispute should be decided at the political level and not by a judicial tribunal. China has decided not to appear before the Tribunal because it contests its jurisdiction. It is an illusion to think that a legal award in a matter of high politics is going to gain any traction when one of the parties, which also happens to be a permanent member of the Security Council, refuses to take part in the proceedings.

The South China Sea dispute is ideally suited for what is called 'integrative negotiation', which favours cooperation over competition. Rather than opting for a win-lose outcome, where one party prevails at the expense of the others, the parties involved look for a win-win solution, which does justice to the interests of all. Considering the importance attached to harmony in the region, such an integrative approach has a high chance of being successful in this case.

One could rightly claim that thus far attempts to deal with the matter amicably through negotiations have not been successful. This is where something good may come out of the involvement of the Tribunal. In its decision it could appoint a Special Master, who will be entrusted with the responsibility to bring all directly affected parties to the table as part of integrative negotiations. The Tribunal will refrain from pronouncing itself on the merits of the case until a comprehensive settlement will have been reached, or, alternatively, until the Special Master reports that achieving such a settlement is unlikely. This will stimulate all parties involved to invest in the negotiations.

In the past reputable courts have decided to refrain from granting relief if the long term interest of justice so required. Thus, the legendary Chief Justice John Marshall of the U.S. Supreme Court denied the plaintiff's petition for a writ of mandamus in Marbury v. Madison in 1803. Chief Justice Marshall felt that issuing a mandamus would irreparably harm the relations between the Court and the executive branch headed by President Thomas Jefferson. The decision in Marbury v. Madison is widely regarded as a defining moment in the history of the Supreme Court, which went on to become to most highly respected judicial body in the world. Therefore, the members of the Arbitral Tribunal should draw inspiration from this very sound judgment.       

Guest post by Prof. Tom Zwart, Professor of Law, Utrecht University, and Director of the Cross-Cultural Human Rights Centre and  Ruikun Sun, Fellow at the Netherlands School of Human Rights Research

A Quest for Cross Cultural Perspectives to Human Rights

Receptor Meeting with Prof. Abdullahi An-Naim

On the 8^thof March 2016, the Receptor Group had the opportunity of meeting with Professor Abdullahi An-Na’im, one of the most ardent and talented supporters of cross cultural views to human rights. An-Na'im, a Sudanese born scholar is currently  the Charles Howard Candler Professor of Law at Emory Law, Associate Professor in the Emory College of Arts and Sciences, and Senior Fellow of the Center for the Study of Law and Religion of Emory University. He is a recognized scholar of Islam and human rights and human rights in cross-cultural perspectives. An -Na'im’s work is of particular importance and relevance at this particular juncture in time, especially in light of the recent terrorist attacks in Paris, including the radicalization of terrorist groups such as ISIS. He has recently written an opinion piece on this issue for The Conversation 

(read here) https://theconversation.com/how-islamic-law-can-take-on-isis-50113

At the meeting that took place on the 8^th An-Na'im shared some of his insights with the Receptor Team, mainly on his view on human rights, attaining  its effective implementation and cultural legitimacy, its monopolization by powerful states and the effective relationship it can share with Islam.

An-Na'im  is mainly concerned with questions of  legitimacy of internationally recognized human rights standards in different cultural and contextual settings, which he believes, is not solely the responsibility of states per se but also depends on the broader efforts of individuals and groups that come into contact with human rights issues. He takes the view that states are not the sole protector of human rights especially because they are prone and susceptible to promoting their own competing interests and goals. Furthermore, the state as an entity cannot effectively be held accountable by the international  system for its failure to adequately protect human rights, essentially because the human rights treaties that they sign up to, are without any without any real 'teeth' and therefore cannot  effectively guarantee a state’s commitment and resolve to upholding such rights. Many states as a result, end up taking these obligations lightly and in some cases start showing an indifferent attitude as a result.  

Relatedly another reason as An-Na'im puts, is that in almost every instance the state is hijacked by the market mainly because trade or business treaties carry more weight than human rights treaties do. Thus, he concludes, the state is essentially “a-moral” and that those who act on behalf of it mostly do so with their own interests in mind.  He therefore believes that human rights can be best achieved through moving away from a “state centered system to a more people centered system," one in which people or groups of people might be in the best position to promote and defend human rights.  Some of these actors would include civil society organizations, social scientists, lawyers and judges, as well as community leaders who are regularly in contact with human rights and are therefore in the best position to do so.

Specifically in this regard, An-Na'im has emphasized the value and need for dialogue. For example, he suggests that there should be more internal discourse and cross cultural dialogue to encourage goodwill, mutual respect and equality with other cultural traditions.  Internal discourse would naturally feature at a national level and would include scholarly works as well as political action. An-Na'im has stressed the importance of cross cultural dialogue and internal dialogue in order to reach consensus on a “body of beliefs” within the human rights framework. This, according to him is only achievable through dialogue and respect, and a common form of reciprocity between various cultures, which he suggests, is treating others in the same way as one would like to be treated. An-Na’im, therefore takes the position that human rights can only gain legitimacy and subsequently can only be observed if it is sanctioned through a person’s own cultural identity. This is what he believes is necessary and crucial for the cultural legitimacy of human rights.

On the relationship between the North and South and their prevailing power relations, An-Naim has observed that this is another area disenfranchising the effective spread and legitimacy of human rights. Here he spoke of the role of the international donor system and northern type NGO’s that continuously criticize the South and create a type of human rights dependency system indicative of neo-colonialism . Initially the Universal Declaration of Human Rights was a treaty owned by all states but later subsequently became  hijacked by more powerful states to the detriment of weaker states, in his view. As a result, this created a top down system of human rights where a type of imperialism and domination is the resultant order of the day and where human rights are imposed rather than shared, agreed upon and genuinely believed in. This same ‘colonizer and colonized’ mentality which was internalized in the past by Africa through colonialism, continues to be internalized through the conduit of human rights nowadays, indicative of the current North South divide.

An-Na'im, as a result calls for agency and self-determination of disempowered groups that do not equally participate in human rights dialogue and debate. In his view “agency of the subject of human rights” is critical and necessary. Each society must struggle for their rights because transformation and liberation can only take place if there is struggle within and without one’s society for change to occur. In his view change is inevitable and will in each society, come with time, but it is necessary that people themselves lead it. It is therefore essential internally that people engage with their own communities as well as with other individuals and communities across cultures, so as to find common ground and consensus.

Lastly on the issue of human rights and Islam, An-Na'im observes that secularization and religion are currently part and parcel of Islamic tradition. This, in his opinion should not be the case as it creates friction. Rather, it is necessary to separate the state and Islam but only to the degree that the state allows an individual freedom enough to practice his/her faith without fetter. While it is essential is that this type of model of separation, should allow for neutral decision-making by the state, it should not resemble the French model of laicity, where religion is accorded lower rights than for instance freedom of speech. So, while An-Na'im believes that separation of state and religion is necessary, it is necessary that it be done is a culturally and religiously sensitive way. This is because rights are not absolute and therefore need to be properly balanced for the good of the society concerned. On the adjacent  issue of terrorism and radicalization and the rise of ISIS, An-Na'im suggests that the roots of Islamic violence needs to be re-traced in order to understand the emergence of radical terrorism. In his opinion only Muslims can defeat ISIS, by exposing the fallacy of their religious claims. So Islamic dialogue is not only necessary, it is essential in combatting terrorism. On a personal level and from the side of his activist fervor and passion for the effective spread of human rights An-Na'im  eventually hopes to see Islam become a catalyst for social justice, equality and human rights.

Posted by Ingrid Roestenburg-Morgan

Religion, Culture and Radicalization

Zaineb Somra

There is a big difference between radicalization paired with violence and radicalization in general. Being a radical does not necessarily mean that you will have to bear any legal consequences. In a democratic society or country an individual is allowed to live as he wants, but of course within the boundaries of law. Every citizen belonging to a democratic society, has a right of freedom of expression. If a person is of the opinion, that only those Muslims who pray five times a day, are ‘true Muslims, then there is nothing wrong with such a statement or such a belief. As long as such radical thoughts and opinions do not lead to violence. For millions of people around the world, religion plays an important part in their daily lives, but due to such over zealous involvement such persons might sometimes forget the rational line between the moral and immoral, and that is what essentially leads to violence and radicalization. This is exactly what is happening in current day Europe, as well as many other countries, where people are using violence in the name of their religion as an unfortunate outcome.

Several academics, such as Frey (2004) and Gupta (2008) (Volintiru, 2010), have researched on the acts and beliefs of terrorists from a rational perspective. They state that the actions of terrorists are based on the well-being and economic status of their families. But other researchers have come to different conclusions, namely that the process of radicalization, is caused by a combination of several factors. Bakker and Veldhuizen (Veldhuizen ; Bakker, 2007) have divided the most common factors for radicalization, into three different categories. These three categories are, individual, social and external factors. Individual factors are related to psychological health and personal experiences, which play a significant role in the radicalization process. Some people experience a situation where they, including those that they love are being mistreated, marginalized or discriminated against by a dominant group within society, and thus perceive such a group to be their enemies. For example, for many radicalized individuals, the western world is seen as their enemy. As a consequence they believe that by becoming a member of a powerful group that is fighting against such an enemy, one is able to speak out and take revenge. The psychological health of that particular person determines how far he is willing to go, to seek revenge.  Another factor that contributes to the process of radicalization, is social surroundings, where some individuals prioritize their entire life in such a way so as to obtain a particular identity. They are, in other words, willing to accept any consequences, as long as they obtain their end goal and thus see joining the Jihad as one of the ways to achieve these goals. The last category of common factors is, external factors namely, politics, economics and culture. These factors can also play a role and increase the chances of radicalization, especially for vulnerable persons who might be economically, politically or culturally disadvantaged in each of their particular societies.

Picture Courtesy of Finn Church Aid

As was reiterated earlier, there are many existing factors at play, that influences the process of radicalization in general. This happens to be the case with regard to the Muslim community in the Netherlands as well. Many young Muslims in the Netherlands are unemployed and feel discriminated against. In addition, they grow up in a hybrid world of two separate cultures, namely the Dutch culture, which is the dominant and the most accepted culture, in opposition to their minority culture, which is the practiced culture at home and which has been taught and inculcated by their parents. This makes many young Muslims uncertain and confused about their identity in Dutch society, especially because they owe allegiance to two separate cultures both of which have entirely different norms and values and thereby making allegiance to one or the other a very difficult decision. Next to this, many young Muslims feel that they are second-class citizens in Dutch society. Amongst the Muslim population in The Netherlands, it is also striking to note that generally speaking the poverty level is high, whilst the educational level low, which is quite visible through deficiencies prevalent in the spoken language of Dutch. All these problems coupled together leads to frustration and disappointment within Muslim communities in The Netherlands, thereby increasing the chances of radicalization.

Radical groups, give an opportunity to disappointed and disengaged young Muslim- Dutch men, to obtain recognition and a desired identity. Furthermore, exacerbating the problem is that in certain cases, young men learning about the Muslim faith, are not properly educated by good Islamic scholars, which inevitably leads to incomplete and fragmented knowledge about Islam. The opportunity to deepen knowledge and awareness about the true Islamic faith is often scarce or lacking. Radical groups therefore take advantage and influence such individuals easily. They promise paradise in the after life, and such a martyr identity is well respected in radical surroundings.

In sum, it will certainly not be easy to solve the problem of radicalization, simply because of the numerous factors that influence this problem. It is important however, that Dutch society while professing tolerance, genuinely become more accepting of its own citizens who happen to practice the Muslim faith by assisting minorities like its Muslim youth with the problem of their divided identities and uncertain futures. It’s imperative that an atmosphere develops, where Muslim youth receive a fair chance in both social and professional spaces to improve their shortcomings, and hence become more accepted as part of Dutch society. This will help erase doubts and give more clarity on their role and identity in Dutch society and is bound to speed up the integration process, which in turn will decrease the chances of radicalization.  Currently, young Muslims are of the opinion that many people within The Netherlands, despise their religion and culture. This train of thought can only be stopped, if everyone feels at home and accepted in The Netherlands, regardless of his or her religion or background.

Guest Post by Zaineb Somra (Zaineb is a Dutch Scholar at the Hague University of Applied Sciences where she studies Public Management as well as a Member of the Receptor Team. She has also written a related piece in Dutch for the NRC Newspaper on Integration and Freedom of Speech in The Netherlands.  To access the piece follow the link below)

http://www.nrc.nl/handelsblad/2014/12/04/integratie-leidt-tot-verbod-op-antiwesterse-menin-1444034

SIM Summer Courses 2016

The Netherlands Institute of Human Rights will be offering three short summer school options in the coming summer months. These include:

International Human Rights Law: An Introduction (one week course)

http://www.utrechtsummerschool.nl/courses/law-economics/international-human-rights-law-an-introduction

International Law from a Gender Perspective (one week course)
http://www.utrechtsummerschool.nl/courses/law-economics/international-law-from-a-gender-perspective

Human Rights and Gender (two week combined course)
http://www.utrechtsummerschool.nl/courses/law-economics/human-rights-and-gender

For more information please visit the respective websites outlined above!

Posted by Ingrid Roestenburg-Morgan 

IJR Side Event 14 th ASP Session: Prosecuting Sexual and Gender Based Crimes

For those interested in issues of sexual and gender based crimes, The Institute for Justice and Reconciliation (IJR) based in Cape Town South Africa will be hosting an interactive side event on the 25th of November 2015, at the 14th Session of the Assembly of State Parties of the ICC. The event will be held at the Antarctica Room, at the World Forum Centre in The Hague and will take place between 1.30 pm to 3 pm. Some of the speakers will include Ms Gloria Atiba-Davies, Head, Gender and Children’s Unit, Office of the Prosecutor of the ICC; Ms Shamila Batohi, Senior Legal Advisor to the Prosecutor of the ICC, as well as Ms Kelly-Jo Bluen, Project Leader, International Justice, Institute for Justice and Reconciliation.

For more information on registration and attendance please visit 

 http://ijr.org.za/news-and-events.php?nid=274&type=news

The IJR is one of South Africa's leading institutes in transitional justice on the African Continent. It is unique, in that it is a hybrid- type, policy based, research institute, on the one hand, as well as a non-governmental organisation on the other. It was launched at the aftermath of South Africa's Truth and Reconciliation Commission, and is aimed at ensuring that lessons learnt from South Africa's transition from apartheid to democracy, would be taken into account in other contexts of transition as well. The IJR's uniqueness also stems from the fact that it operates from a deep position of knowledge and experience drawing on the lessons and experiences emanating out of the African transitional context. In other words, it thoroughly understands and effectively gauges the African context. Currently, the IJR shapes national approaches to transitional justice and reconciliation in Africa by drawing on community intelligence as well as macro-trend research and comparative analysis. Part of the IJR's objectives is to gain and use knowledge about justice and reconciliation in order to influence change. It's Justice and Reconciliation in Africa Programme operates in key areas of engagement such as,The Great Lakes (Rwanda, Burundi and DRC); The Greater Horn (South Sudan and Uganda), Southern Africa (Zimbabwe) and Kenya.

In 2008, the Institute was awarded UNESCO’s International Prize for Peace Education. It's patron is Archbishop Emeritus Desmond Tutu.

Desmond Tutu -Patron IJR

For more information on the IJR please visit their website:

http://www.ijr.org.za/index.php

Posted by Ingrid Roestenburg-Morgan

A Culturally Receptive Approach to Wartime Rape in the Democratic Republic of the Congo

Diewertje Wapstra

The Democratic Republic of the Congo (DRC) has been denounced ‘worst place on earth to be a woman’ and has received the infamous reputation of ‘rape capital of the world’. Ever since the Rwandan genocide in 1994, an overspill of refugees and armed rebels into the Congolese neighboring country has sparked continuous conflict and wide employment of rape as a weapon of war. Mass rapes are often accompanied by unparalleled levels of violence and torture since victims are subjected to intentional transmission of HIV/AIDS and STD’s, unwanted pregnancies and genital mutilation, leaving women permanently unable to engage in penetrative sex or conceive children.

Multiple explanatory theories have been formed on the phenomenon of wartime rape, including combatants’ need for sexual gratification from a biological perspective and militarized conceptions of masculinity from a socio-political point of view. However, a key factor that is often overlooked lies in the local cultural belief in magic. Of the various rebel groups active in the DRC, the Mai-Mai are among the most powerful armed forces active in the Kivu regions. They distinguish themselves from other armed groups by their strong belief and engagement in magical practices, which play a dominating role in their warfare strategies. Although the use of magic is characteristic for Mai-Mai soldiers, the belief has spread fast with the absorption of former combatants of rebel groups into the Congolese national army (FARDC). Deemed of high importance is a liquid potion called Mai, which is believed to protect soldiers during battle. Soldiers who wash themselves with the Mai potion are believed to become inviolable to their enemy’s ammunition, as bullets will instantly turn into water upon coming into contact with the liquid. In order to activate the magical properties, a strict behavioral code needs to be observed by the user. One such requirement calls for sexual intercourse prior to entering the battlefield. Since combatants are often stationed far from their wives, women of local communities have come to serve as substitute. These sexual encounters happen without mutual consent and are accompanied with force and violence, resulting from soldiers’ sense of entitlement since the sexual act serves the greater good. This entitlement sprouts from a militarized mindset in which men and women are expected to use their qualities in such ways as to advance and serve the nation and its warriors, including the requirement to make personal sacrifices. Women are thus expected to serve militaries with their bodies in order to provide them with the protection of the Mai potion on the battlefield. In this context, soldiers are provided with a justification for rape as they merely follow the rules of the Mai code. In the meantime, an own conception of justice is created in which the unwillingness of women to have sexual intercourse with a soldier is considered to be an injustice toward the safety and well-being of the combatant.

Present-day formal court systems of the DRC are reluctant to recognize cultural beliefs in legal procedures, as the acknowledgement of magic would violate the legal principle of due process under the rule of law notion. However, ignoring the belief in magic creates a gap between the perception of justice held by Congolese militants and the trial outcomes served by courts. Where formal verdicts are not perceived as ‘just’ because they are at odds with culturally determined world views, civilians will renounce from going to court as they are certain of receiving an unsatisfactory and even unfair outcome. Promotion of formal legal systems among the local population can be achieved through interaction and involvement from both sides: courts must acknowledge the role of cultural concepts in creating a sense of justice and vice versa civilian must be provided with a better understanding of the law. The inclusion of local authorities who are fully aware of and adept in cultural customs and beliefs, would provide formal courts with a higher legitimacy under the local population, for it displays the court’s acknowledgment of the role of socio-spiritual concepts in criminal acts. A similar construction forms the foundation of indigenous sentencing courts in Australia, also commonly referred to as Koori courts, where indigenous Aboriginal elders partake in criminal trials involving indigenous perpetrators. Instead of using customary law, Koori courts form a hybrid as they follow the Australian criminal code, yet with the addition of having respected elderly from the aboriginal community partake in the sentencing process. Application of this concept to the DRC by including well-respected authorities on the workings of the Mai potion in criminal trials of perpetrators of rape, creates a justice system that resonates with cultural beliefs while upholding national criminal laws. The inclusiveness of courts is likely to bring about a greater sense of accountability, attributing to verdicts being perceived as fair by the local population. Nonetheless, the acknowledgment of local beliefs must not be equated with the acceptance of cultural defenses leading to acquittal of charges, as perpetrators still need to be tried according to national legislation to provide victims with sufficient protection.

In conclusion, local beliefs in the magical qualities of the Mai potion form an important ulterior motive behind wartime rape in the Democratic Republic of the Congo. The magic practice has been embraced by a large number of soldiers and armed rebels, creating an own interpretation of justice in which women are expected to engage in sexual conduct for the protection of the warriors. This belief implicitly serves as a justification ground for rape of civilians and leaves perpetrators without remorse. Formal courts have largely ignored the sociospiritual factors behind rape and focus on delivering justice through sole application of the law. The courts’ disregard of cultural beliefs creates a narrow sense of justice which does not resonate with the civilian population. With the involvement of local authorities on the Mai potion in criminal procedures, a sense of acknowledgment of customary values is created, thereby reducing the gap between justice conceptions.

Guest Post by Diewertje Wapstra (Diewertje is a Dutch scholar and is currently completing at LL.M in Public International Law at Utrecht University)