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THE ICC, CRIMINAL DETERRENCE and the REALITY of SEXUALIZED VIOLENCE in the DRC By

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THE ICC, CRIMINAL DETERRENCE and the REALITY of SEXUALIZED VIOLENCE in the DRC By OF NO CONSEQUENCE: THE ICC, CRIMINAL DETERRENCE AND THE REALITY OF SEXUALIZED VIOLENCE IN THE DRC by Andrea Ringrose BA Psychology, University of Victoria 2004 MAJOR PROJECT SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS In the School for International Studies © Andrea Ringrose 2011 SIMON FRASER UNIVERSITY Spring 2011 All rights reserved. However, in accordance with the Copyright Act of Canada, this work may be reproduced, without authorization, under the conditions for Fair Dealing . Therefore, limited reproduction of this work for the purposes of private study, research, criticism, review and news reporting is likely to be in accordance with the law, particularly if cited appropriately. APPROVAL Name: Andrea Ringrose Degree: Master of Arts in International Studies Title of Thesis: OF NO CONSEQUENCE: THE ICC, CRIMINAL DETERRENCE AND THE REALITY OF SEXUALIZED VIOLENCE IN THE DRC Supervisory Committee: Chair: Dr. John Harriss Professor of International Studies _________________________________________________________ Dr. Tamir Moustafa Senior Supervisor Associate Professor in International Studies _________________________________________________________ Dr. John Harriss Supervisor Professor of International Studies Date Approved: April 26, 2011 ii Declaration of Partial Copyright Licence The author, whose copyright is declared on the title page of this work, has granted to Simon Fraser University the right to lend this thesis, project or extended essay to users of the Simon Fraser University Library, and to make partial or single copies only for such users or in response to a request from the library of any other university, or other educational institution, on its own behalf or for one of its users. The author has further granted permission to Simon Fraser University to keep or make a digital copy for use in its circulating collection (currently available to the public at the “Institutional Repository” link of the SFU Library website <www.lib.sfu.ca> at: <http://ir.lib.sfu.ca/handle/1892/112>) and, without changing the content, to translate the thesis/project or extended essays, if technically possible, to any medium or format for the purpose of preservation of the digital work. The author has further agreed that permission for multiple copying of this work for scholarly purposes may be granted by either the author or the Dean of Graduate Studies. It is understood that copying or publication of this work for financial gain shall not be allowed without the author’s written permission. Permission for public performance, or limited permission for private scholarly use, of any multimedia materials forming part of this work, may have been granted by the author. This information may be found on the separately catalogued multimedia material and in the signed Partial Copyright Licence. While licensing SFU to permit the above uses, the author retains copyright in the thesis, project or extended essays, including the right to change the work for subsequent purposes, including editing and publishing the work in whole or in part, and licensing other parties, as the author may desire. The original Partial Copyright Licence attesting to these terms, and signed by this author, may be found in the original bound copy of this work, retained in the Simon Fraser University Archive. Simon Fraser University Library Burnaby, BC, Canada Last revision: Spring 09 ABSTRACT In addition to its retributive and restorative functions, by its mere existence the International Criminal Court is slated to play a deterrence role never before seen in international criminal law. However, unabated sexualized violence in the Democratic Republic of Congo evidences limits of the permanent ICC’s deterrent capacity. Despite the ICC’s investigation, and indictments and proceedings against Germain Katanga and Mathieu Ngudjolo for sexually violent war crimes and crimes against humanity, the nascent court is yet unable to elicit preventive effects. While deterrence theory is logically compelling, mechanisms and assumptions underlying it prove impractical when deterrence is assessed in reality. First, the ICC cannot execute certain, severe or swift enough punishment to generally deter. Second, deterrence theory’s assumption that perpetrators are rational actors engaged in utilitarian calculations of legal risk is dispelled by an analysis of Congolese perpetrators’ accounts. Evidently, prosecutions alone will not end sexualized violence in the DRC. Keywords: International Criminal Court, criminal deterrence theory, rational actor assumption, sexualized violence, Democratic Republic of Congo, Mai Mai militia, Forces Armees de la Republique Democratique du Congo (FARDC) iii DEDICATION For the resilient. iv ACKNOWLEDGEMENTS To start, I owe enormous gratitude to Dr. Tamir Moustafa, who provided unwavering support, without which, I could not have completed this project. I am also grateful to Professor Andy Mack for time spent on earlier concepts of this work. Thanks go to all teaching faculty in the School for International Studies, in particular Program Director John Harriss, for exposing me to academic disciplines beyond my usual library. I also wish to acknowledge UBC Law Professor, Benjamin Perrin, who selflessly provided insight into legal concepts pertinent to this research. I would like to salute the incredible group of people who made up the 2008 cohort for the MA in International Studies. I have never been surrounded by such an inspired, driven and capable collection of individuals. In particular, I would like to thank Nat, Doug, Brian, Marlieke, Karli and Kirsten for their enduring support on this extended journey. To Dr. Jehannine Austin and my colleagues in the UBC Dept. of Psychiatry, I am so grateful for your endless encouragement, laughter and accommodations throughout this program. I owe great thanks to my Mom and Dad, who are tirelessly supportive regardless of my endeavour, and to Krista and Dino, Michael and Tammy, and the kids, who I can always count on to cheer me on from the sidelines. To Stella, thank you for being such a perfect co- pilot, this paper is as much yours as it is mine, and Shy, thank you for helping to keep this fire alive. Kate and Sarah, you are special spirits beyond words. v TABLE OF CONTENTS Approval.............................................................................................................................ii Abstract.............................................................................................................................iii Dedication .........................................................................................................................iv Acknowledgements............................................................................................................v Table of Contents..............................................................................................................vi 1. INTRODUCTION .......................................................................................................... 1 2. THE ICC AS THE NEW FACE OF INTERNATIONAL LAW AND ITS PRE- EXISTING LIMITATIONS ................................................................................................. 7 2.1 Why have an ICC?...................................................................................................... 9 2.2 How shall the ICC deter atrocity crimes?.................................................................. 10 2.3 Other enumerated challenges for international criminal law ..................................... 13 3. A CONGOLESE WARSCAPE WARRANTING CALLS FOR INTERNATIONAL LEGAL INTERVENTION ................................................................................................ 20 3.1 Sexualized violence in the Democratic Republic of Congo...................................... 25 3.2 ICC involvement in the DRC ..................................................................................... 28 4. RELYING ON DETERENCE: AN UNDERSTANDING AND CRITIQUE ................... 32 4.1 Are they always rational, calculating Individuals?..................................................... 34 4.2 Punishments must be certain, swift and severe, or at least certain .......................... 42 a. Certainty ............................................................................................................. 42 b. Severity............................................................................................................... 46 c. Celerity................................................................................................................ 50 5. RELINQUISHING ANY LAST HOPE FOR DETERRENCE IN THE DRC: PERPETRATORS’ RATIONALIZATIONS FOR SEXUALIZED VIOLENCE ................. 55 5.1 Uniformed actors inside a dim reality........................................................................ 58 5.2 Where to go from here: Reducing isolation and disempowerment, and forging community ties for prevention................................................................................. 64 6. CONCLUDING THOUGHTS ...................................................................................... 70 REFERENCES ............................................................................................................... 74 vi The ICC’s authority is far too attenuated to make the slightest bit of difference either to the war criminals or to the outside world. In cases where the West in particular has been unwilling to
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