The Deterrence Effect of the International Criminal Court on Non-State Armed Groups

A Study of Levels of Violence in the Democratic Republic of Congo

By Laura Blom

MASTER THESIS POLITICAL SCIENCE – INTERNATIONAL RELATIONS

September 2015

STUDENT NUMBER 10892133 SUPERVISOR DR. RAM MANIKKALINGAM SECOND READER PROF. DR. MARLIES GLASIUS DATE OF SUBMISSION 30-09-2015

Table of Contents List of abbreviations ...... 2 1. Introduction ...... 3 2. Literature Review ...... 5 2.1 The ICC ...... 5 2.2 International Justice in International Relations theory ...... 6 2.3 The Academic Debate on the ICC ...... 9 Political Realism ...... 9 Judicial Romanticists ...... 12 3. Theoretical Framework ...... 14 3.1 The Deterrence Hypothesis ...... 15 Normative Factors ...... 16 Material Effects ...... 18 3.2 Hypotheses ...... 20 4. Research Design ...... 21 4.1 Case Selection ...... 22 4.2 Data Collection and Examination ...... 23 4.3 Operationalization of variables...... 24 Dependent Variable – Levels of Violence ...... 24 Independent variable – ICC presence ...... 26 5. Conflict in the DRC and ICC Presence ...... 27 5.1 Conflict in the DRC ...... 27 5.2 The ICC in DRC ...... 29 High Profile Cases in DRC...... 30 6. Data examination ...... 33 6.1 A longitudinal study of levels of violence in DRC: statistics and figures 2003-2014...... 33 Levels of violence in Ituri: 2003-2014 ...... 35 Levels of violence in Kivu: 2003-2014 ...... 36 6.2 Explaining levels of violence in DRC ...... 37 Normative Effects ...... 37 Material Effects ...... 40 7. Concluding Remarks ...... 45 Bibliography ...... 49 Appendix 1: Tables and Figures on Levels of Violence in DRC ...... 58 Appendix 2: Interview with ICC Official ...... 60

List of abbreviations ACLED Armed Conflict Location & Event Data Project CNDP Congrès National pour la Défense du Peuple, National Congress for the Defence of the People DRC Democratic Republic of Congo FARDC Forces Armées de la République Démocratique du Congo, Armed Forces of the Democratic Republic of Congo FDLR Forces Démocratiques de Libération du Rwanda, Democratic Forces for the Liberation of Rwanda FPLC Forces Patriotiques pour la libération du Congo Patriotic Forces for the Liberation of Congo (Military Wing of UPC) FRPI Force de Résistance Patriotique en Ituri, Front for Patriotic Resistance in Ituri GBAV Global Burden of Armed Violence project HRW Human Rights Watch ICC International Criminal Court ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the Former Yugoslavia IRC International Rescue Committee IRIN Integrated Regional Information Networks: humanitarian news and analysis LRA Lord’s Resistance Army M23 Mouvement du 23-Mars, March 23 Movement MONUC United Nations Organization Mission in the Democratic Republic of the Congo MONUSCO United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (Successor of MONUC) MSF Médecins Sans Frontières NGO Non-Governmental Organization OTP Office of the Prosecutor of the ICC UCDP Uppsala Conflict Database Program UNHCR United Nations High Commissioner for Refugees UNSC United Nations Security Council UPC Union des Patriotes Congolais, Union of Congolese Patriots WHO World Health Organization

1. Introduction The crimes committed in World War II, including atrocities such as genocide, war crimes and crimes against humanity, have shocked the world to the extent that they promised this would happen “never again”. Unfortunately, time has shown that this has been an empty promise. Around the world, atrocities continue to be committed with devastating consequences. Since the Cold War, conflicts have become even more frequent, no longer occurring primarily between states but also within the state (Kaldor 2001, 6), for example in Central Africa. The emergence of non-state actors as parties to an international conflict has posed several problems for international law, because international law is based on state sovereignty, and rules and treaties that are established by and for states.

The international community has struggled with the consequences of these developments. In the 1990s, the international community set up ad hoc tribunals to bring the perpetrators of atrocities to justice. These tribunals, the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal for Rwanda (ICTR) were established to try crimes committed in a specific time- frame and during a specific conflict. However, it was decided that a permanent international court should be established to deal with perpetrators of crimes of concern to the international community and the rise of non-state actors in global conflict. To that end the Rome Statute for the establishment of an International Criminal Court was adopted in 1998 by 120 states, and the International Criminal Court (ICC) came into being on July 1st, 2002 (ICC Website 2015a).

The existence of such a court has sparked debate among scholars of international relations and international law. The Preamble of the Statute reads that the court was set up to prosecute crimes that “threaten the peace, security and well-being of the world” (Rome Statute, Preamble), and to end impunity for these crimes. However, this has raised questions as to what the Court is supposed to do in the event of a conflict between justice and peace.

Recent developments in global justice have emphasized this debate. After World War II, the Allies accepted Germany’s unconditional defeat, which meant that their leaders would be effectively removed from power and prosecuted by a tribunal. Because their leaders were in no position to negotiate immunity at their trial in Nuremberg, these trials are often cited as an example of “victor’s justice”, referring to the victor’s ability to exercise justice without constraints (Bass 2000, 8). In this context there was no need to balance the demands of peace and justice, because the leaders had already been removed from their position of power.

Another development is that states are no longer the only perpetrators of international crimes, which raises questions on the effectiveness of the ICC in ending impunity for international crimes. Groups like Islamic State (IS), Boko Haram, the Lord’s Resistance Army (LRA), Al Shabaab and many other non-state armed groups appear to have no concern for legal constraints at all. Additionally, some argue that leaders of non-state armed groups are less likely to be affected by international pressure than state

3 officials are (Dudouet 2010). There are also concerns about the applicability of rules of international law to armed groups. As most international legal arrangements are made by and between states, the position of armed groups within this legal framework is unclear1.

Since World War II, the number of situations in which the international community seeks to end atrocities through negotiations rather than military intervention has increased (Akhavan 2009, 625). The use of ad-hoc tribunals such as the ICTY and others in the mid-1990 to prosecute those who have committed atrocities can be seen as a substitute for military intervention. In light of these developments, a new model of global justice emerged (Akhavan 2009, 626). The fact that the same leaders that were responsible for committing acts of ethnic cleansing were still in power, meant that a peace agreement with these leaders had to be negotiated to put an end to armed conflict in the region. In this context, the pursuit of justice often competes with the necessity of reaching a peaceful solution to the conflict. This issue lies at the heart of the “peace vs. justice” debate (Akhavan 2009, 627).

Social scientists are divided about the impact that ICC involvement can have on reaching a peaceful solution to a conflict. Some argue that the ICC will have a preventive effect on the commitment of crimes, while others say that the ICC is too weak an institution to render such an effect (see Goldsmith 2003; Goldsmith & Krasner 2003; Burke-White 2002; Cobban 2006). There are even those who argue that instead of preventing crimes under its jurisdiction, the ICC has a detrimental effect on the establishment of peace and the continuation of conflict. The main implication of this debate for broader international relations theory concerns deterrence and the efficacy of international legal institutions. This research project engages with this discussion, by stating the question:

“Does the presence of the ICC in the Democratic Republic of Congo have a dampening effect on levels of violence?”.

Two sub questions will help providing an answer to this question. Essentially, these questions are two sides of the same coin. The first is: “in what ways might the ICC’s presence in situations of ongoing conflict involving armed groups increase levels of violence?” The second relates to possible mitigating effects the ICC’s presence might have on levels of violence and states the following: “in what ways might the ICC’s presence in situations of ongoing conflict involving armed groups reduce levels of violence?”.

The thesis will proceed as follows. First, the literature on the concept of justice in International Relations theory will be discussed. Then, the theoretical debate on the ICC as an instrument of international justice will be outlined, leading up to a theoretical framework for answering the research question. As the stated research question is a difficult one to answer, Chapter 4 will specify the

1 For a detailed discussion on this subject, see Zegveld, Liesbeth. 2002. Accountability of Armed Opposition Groups in International Law. Cambridge: Cambridge University Press. 4 research design, including methodology, case selection and specification of the variables. Chapter 5 will give a very short oversight of the conflict in eastern DRC and the ICC’s presence there. In chapter 6 the results are presented, leading up to a conclusion on whether the ICC reduces or exacerbates levels of violence in the DRC in chapter 7.

2. Literature Review In order to get a sense of the debate in which the ICC is situated, it is important to understand the theme of justice in international relations theory. The ICC is an institution of international criminal justice, so the debate around it reflects different theoretical stances on justice. This chapter will start by introducing the Court as an international institution, including some notes on the Court’s resources and functioning. After this, three different theoretical perspectives on the ICC from international relations theory are provided. The last section will discuss the current academic debate on the ICC itself.

2.1 The ICC The International Criminal Court is part of an international human rights regime, which is mainly characterized by state accountability with weak enforcement (Kim and Sikkink 2010, 942). The ICC supplies individual criminal accountability for a small set of core human rights and war crimes: these include genocide, war crimes and crimes against humanity. Another crime which was included in the Rome Statute is the crime of aggression. However, as its definition and rules of procedure were not inserted into the Statute until 2010 and this amendment still needs to be ratified by the State Parties, no prosecutions based on this crime have been initiated.

Before an official investigation is initiated, preliminary examinations take place. The Office of the Prosecutor (OTP) evaluates the available information to ensure that the conditions laid down in the Rome Statute are satisfied (ICC Website 2015b). This information has been required through one of the following referral modes: referral by a state party, the UNSC or the exercise of proprio motu powers by the Prosecutor, which means the Prosecutor can refer a case at his or her own initiative (Rome Statute, Article 13).

Once a situation is officially referred to the ICC, the OTP can proceed to an official investigation. During the official investigation the Prosecutor can ask the Pre-Trial Chamber to issue indictments, summons, and arrest warrants (Rome Statute, Article 57.3a). These requests can be made public, in which case they send a strong signal to the international community, or remain sealed. The ICC lacks enforcement powers and has to rely on the ability and willingness of states to cooperate in providing information and enforcing arrest warrants (Bosco 2011, 169). A recent example of non-cooperation by a State Party was the failure of South Africa to arrest Sudanese president Al-Bashir on a presidential

5 visit in June 2015. The president is wanted by the ICC on war crimes charges, but left South Africa despite the fact that as a member of the ICC, South Africa is obliged to arrest anyone charged by the Court, including state leaders (BBC 2015).

When, and if, the Court reaches a sentence, the accused can be either convicted or acquitted. The sentence is announced in public and if possible in the presence of the accused (Rome Statute, Article 76). In case of conviction, the Court can impose one of the following penalties (Rome Statute, Article 77): imprisonment for a specified number of years, but not exceeding 30 years; a term of life imprisonment; a fine; or a forfeiture of proceeds, property and assets derived directly or indirectly from the crime. When the accused is sentenced with imprisonment, he will be transferred from the seat of the Court in The Hague to one of the States of enforcement to serve his sentence (ICC Website 2013).

2.2 International Justice in International Relations theory The concept of justice is strongly debated in the realm of IR. Scholars disagree on the relevance of justice on an international level. Linklater (1999) offers an oversight of how theorists of international relations think about international justice. The following paragraphs will briefly review the different political perspectives on justice: realism, neoliberal institutionalism and social constructivism.

Realism

From a realist perspective, sovereign states are the international system’s primary actors. This system is constantly in a condition of anarchy (Schiff 2008, 4). World affairs are defined by self-identified state interests, that are not subject to collective constraints except as agreed upon by states. The primacy of state sovereignty limits the penetration of international law into national legal systems (Bassiouni 2009-2010, 290-291). States are rational actors that seek to maximize their self-interest (Grieco 1988, 487).

The realist perception of justice is that it does not, and cannot, play a significant role in international politics, because powerful states are not inclined to treat others equally if this will endanger their interests or the balance of power. Justice is and must remain a matter for domestic politics. This view is reflected in the classical realism of Hobbes (1651). In his ‘state of nature’, man are constantly at war with one another (Donnelly 2013, 35). They will not be inclined to give up their sovereignty except for vital state interests.

International institutions, from a realist perspective, are mere tools of states that they use in their continuing competition with each other. States will not sacrifice sovereignty in order to enforce international laws against genocide, crimes against humanity, or war crimes without any potential benefit tied to it (Schiff 2008. 5). From a realist perspective, it is hard to find an explanation for the

6 existence of an institution as the ICC: it was established by states but not clearly in any state’s interest (Simmons & Danner 2010, 226). Furthermore, the Court will be used by states to further their interests, rather than help ending impunity for serious crimes.

Shift to Neoliberal Institutionalism

For a long time, realism offered the prevailing position on international justice. However, in the 1970s, two contrasting positions emerged. The first argued that order between old states and newly independent states would be strengthened by redistributing power and wealth from the rich to the poor. The second argued that interdependence would blur the distinction between domestic and international relations. Also, justice considerations would arise concerning who benefits from global arrangements. These positions represent the start of the challenge of realism in a phase of globalization. At the same time, developments such as the passing of the age of bipolarity (the Cold War) and the realization that inequalities of wealth continue to grow have led justice considerations to move to the center of the discipline of International Relations theory (Linklater 1999, 474).

The importance of globalization and justice is articulated by Kant (Kant & Beck 1795), who believed that peace is the permanent state of mankind, only to be interrupted by war (Bassiouni 2009-2010, 281). Human beings can be characterized as free or intelligent beings, which results in respect for the humanity of human beings. All human beings should therefore be treated as an agent or person (Nardin 2006, 452). This thought lies at the heart of the rise of universal human rights.

Neoliberal institutionalists build on this view of international politics, but combine liberalism with realist ideas. They assert that states will support cooperation if it produces absolute or relative gains. When seeking such gains, they can decide to cooperate in order to reduce international transaction costs, create new collective goods and prevent collective bads. In such cases they may decide to establish international organizations to achieve these objectives. Their explanation for the existence of the ICC is the following: if the ICC can assist in furthering the state’s normative objection of countering impunity, the institution should receive continued or increasing support (Schiff 2008, 7).

Social Constructivism

A third perspective on justice is offered by social constructivism. Social constructivists argue that “all visions of how the world works are based on ideas that people develop within a social, historical context” (Schiff 2008, 7). International institutions, in this view, embody normative commitments that represent personal, national and global identities. Constructivism can explain the development of the consensus on which the ICC is based: during the 1990s government leaders became convinced that passivity regarding crimes such as genocide, war crimes, and crimes against humanity was incompatible with their identities. As a consequence, they sought action and established the ICTY,

ICTR and a few years later the ICC. The constructivist perspective explains the anti-impunity norm and international law as the result of context and ideas (Schiff 2008, 8).

The struggle between a Hobbesian model of realpolitik, which serves states’ interests, and a Kantian one of human values of justice and peace, has favored the former over the latter for a long time. Only in the last two decades has there been a shift in the direction of emphasizing justice and peace goals. Bassiouni (2009-2010, 283) argues that this shift is attributable to the increasing globalization, which brings states’ interests and human rights closer together. As a strong proponent of international criminal justice mechanisms, Bassiouni argues that “the rule of might is gradually losing ground to the rule of law, and accountability is gaining over impunity” (2009-2010, 284).

Non-State Actors in International Conflicts

While international justice recently gained momentum in international relations theory, another development had an impact on international justice: the increasing involvement of non-state actors in conflicts. Since the end of World War II and especially since the end of Cold War bipolarity, conflicts between states have increasingly involved insurgent groups and non-state armed groups (Bassiouni 2007-2008, 712-714). Armed groups are “non-state organizations that have the capacity for systematic military action” (Vinci 2006, 27). This definition is broad, but intents to exclude groups like mobs or actors which are in effect an extension of the state. It includes organizations like warlords and warlord organizations, such as the armed groups active in DRC.

The emergence of such actors has posed problems for international humanitarian law. As most international legal arrangements are made by and between states, the position of armed groups within the international legal framework is unclear (Engstrom, Cantor & O’Brien 2011). Following the increase in the number of conflicts involving non-state armed groups, international institutions have been set up to help resolve such conflicts and deal with the aftermath of civil and intrastate war. This was accompanied by a vigilant search for punishing perpetrators of international crimes such as genocide, crimes against humanity and war crimes. The number of international criminal prosecutions of individuals for these crimes has increased, a development that has been termed the “justice cascade” by Kathryn Sikkink (2011).

It is clear that justice has come to play a more prominent role in international relations. The fact that criminal cases of international justice arise at all within international legal jurisdiction is a promising sign of progress towards a system of global justice (Burchill 2005, 70). However, there remains disagreement over the position of justice within international relations, and with the emergence of international legal institutions, the debate has reached a new chapter: what are the effects of such institutions on the commitment of international crimes, and consequently its effects on establishing lasting peace? The next section will discuss the academic debate on the ICC and its consequences.

2.3 The Academic Debate on the ICC Among social scientists there is a substantial debate on the International Criminal Court’s ability to encourage peace and stability and deter international crimes. Social scientists are divided about this institution, arguing that the ICC can even endanger achieving its main purposes: justice, peace and stability (Simmons & Danner 2010, 225). The ICC, as an institution of international justice, states that it aims to “help end impunity for the perpetrators of the most serious crimes of concern to the international community” (ICC Website 2015a). In the Preamble of the Rome Statute it is recognized that these crimes threaten the peace, security and well-being of the world, and that the Court seeks to “contribute to the prevention of such crimes” (Rome Statute, Preamble). However, some argue that this aim can be in conflict with the object of establishing peace. The establishment of a permanent international criminal tribunal beyond ad hoc tribunals has given the debate on “peace vs. justice” systematic relevance in global governance (Akhavan 2009, 625). The question is whether justice always contributes to peace, or if the two can be in conflict. Some insist that peace must come before justice, and argue that the consequences of trials for the consolidation of peace and stability can be detrimental, thus calling into question the existence of international criminal tribunals (Vinjamuri & Snyder 2004, 353).

This chapter will provide a discussion of the academic debate on the ICC. While some argue that the ICC’s presence will have a preventive effect on the commitment of violence and atrocities, others say that the ICC will not be able to provoke such an effect because it is too weak as an institution. Opponents of the ICC even argue that contrary to preventing crimes, the ICC has a negative effect on the establishment of peace.

The academic debate on this subject has been rather polarized, which allows us to speak of “opponents” and “supporters” of ICC presence (Alexander 2009, 7). Akhavan (2009) captures these stances with the caricatures of “political realists” and “judicial romantics”. The former “seeks peace by appeasing the powerful” (2009, 625) , whilst the latter is blind in his pursuit of justice. Of course, not every scholar discussed in this chapter fits neatly into one of these categories, but given the polarized nature of the debate this distinction can help to provide an oversight of the most important arguments put forward in this discussion.

Political Realism Many scholars are skeptical about the ICC’s role in enhancing international peace and stability. Some argue that international criminal tribunals are not only ineffective, but even counterproductive in enhancing peace. These scholars are influenced by realist theories that emphasize the importance of great power politics and cost-benefit rationales (Akhavan 2009). The argument here is that the benefits of using violence exceed the costs of being prosecuted by the ICC. Furthermore, Alexander (2009, 29- 30) notes that critics of the ICC not only deny its effectiveness in deterring violence, but that the

Court’s presence can even be counterproductive, doing more harm than good. The most significant point of critique is that the ICC is likely to precipitate atrocities by subverting peace deals. When the search for justice endangers peace prospects during ongoing conflict, there arises a conflict of “peace vs. justice”. Two other issues raised among critics of the ICC is that the Court ignores political realities and power balances, and that it diverts scarce resources from institutions that might prevent atrocities more efficiently (Alexander 2009, 30). The following part will explore these arguments in depth.

Subverting Peace deals

A prominent criticism of the ICC is that the Court’s presence in a conflict can have a dampening effect on peace-building efforts. The underlying rationale for this argument is made clear by Morris (2002, 135), who argues that perpetrators, when confronted with the possibility of being prosecuted once they relinquish power, might cling more fiercely to power. This makes them less eager to initiate peace negotiations. It could also work the other way around: the ICC could undermine a government’s offer of amnesty to a rebel group, an offer which might otherwise have ended the rebellion (Alexander 2009, 31).

This effect is emphasized by Scharf (1999, 508), who observes that in order to put an end to violence and violations of international humanitarian law, leaders of the various parties to a conflict must cooperate. This is acknowledged by Akhavan (1996) in his discussion of the ICTY. He observes that “it is not unusual in the political stage to see the metamorphosis of yesterday’s war monger into today’s peace broker” (1996, 271). It does therefore not seem realistic that such leaders will participate in peace negotiations when they face the possibility of life imprisonment after reaching a peaceful solution. The securing of their personal well-being might be a necessary part of any peace deal, for them to relinquish power (Scharf 1999, 508-509).

Southwick (2005, 112), in her discussion of the ICC’s impact on the peace process in Northern Uganda, reaches a similar conclusion. She observes that the ICC’s investigation of the leadership of the LRA impedes peace efforts. The issuance of arrest warrants for top leaders will deter them from surrendering, because they risk imprisonment when they do. Southwick argues that in situations of ongoing conflict, it is more important to end violence than to pursue strategies of justice that undermine amnesty and negotiations (2005, 113).

Cobban (2006, 27) argues that the fact that the Court prosecutes while conflict is still ongoing often exacerbates existing political rifts, making it harder to conclude a peace deal and consequently prolonging conflict. War-torn societies are often highly divided and deeply traumatized. A trial then determines who are winners and losers, which can have detrimental effects as both parties are still involved in the conflict. Similarly, Ku and Nzelibe (2006, 781) emphasize that by prosecuting

10 individuals whose cooperation is essential to successful peace negotiations, international criminal tribunals risk exacerbating humanitarian atrocities in weak states. Political bargains involving belligerents are often necessary to establish democracy and political stability. Tribunals can undermine these bargains and consequently cause more instability, leading to more human suffering.

Political realities

Another reason why the prosecution of perpetrators of atrocities according to universal standards of justice risks causing more atrocities than they would prevent is given by Snyder and Vinjamuri (2003/2004, 5). They argue that such prosecutions pay insufficient attention to political realities. The ICC, for example, has not been able to gain the support from important political actors such as the United States and several states where abuses occur. This follows from a fundamentally flawed understanding of the role that norms and law have in establishing a political order. Instead of creating universal rules, these rules should follow from a political bargain among contending groups, and consequently from the establishment of institutions that can enforce the law. When this sequence is reversed, norms of justice are ineffective and an obstacle to political bargaining (Snyder & Vinjamuri 2003/2004, 6). To have an impact on behavior and outcomes, rules and norms must ensure the support of dominant political actors. These actors in turn must establish and support the institutions that will sanction compliance with the norms. Thus, in order to effectively try perpetrators of international crimes, it is crucial that the ICC secures the support of the most powerful states such as the US. If it fails to do so, the presence of the ICC in war-torn societies risks causing more violence than it would prevent (Snyder & Vinjamuri 2003/2004, 13).

Goldsmith (2003) emphasizes this risk, and argues that the ICC depends on the United States (US) for its success. Without the US’s military, political and economic support, the ICC becomes an ineffective institution which has decision-making power over many of the same peace and security issues typically governed by the UN Security Council (Goldsmith 2003, 91). This structure ignores the reality that the ICC has no enforcement power of its own. To exercise arrest warrants, the ICC relies on its member states. It is important to acknowledge this, as has become clear in the case of the ICTY: in order to be able to effectively put Balkan leaders on trial, the ICTY relied heavily on US military, diplomatic and financial power.

Goldsmith and Krasner (2003) even argue that courts that exercise universal jurisdiction through criminal prosecutions can prolong conflicts, consequently resulting in more deaths. Affected groups will view such prosecutions as “unconvincing, self-serving, and discriminatory” (Goldsmith & Krasner 2003, 50-51). They criticize proponents of universal jurisdiction by arguing that there is no universal consensus on the nature of international crimes. Also, the claim that leaders should be held accountable for their crimes regardless the consequences overlooks the fact that such a prosecution may cause more harm than the original crime in question (2003, 51).

Alternative Options

Ku and Nzelibe (2006, 780) argue that international criminal tribunals are not very likely to deter the perpetrators of international crimes. Instead, harsh local sanctions are much more effective. Because international criminal tribunals often cannot provide a high certainty or severity of sanctions, perpetrators are more likely to account for their actions when their crimes are addressed by another institution. In fact, ICC presence might actually complicate the stabilization efforts made by other international bodies, such as the UN (Alexander 2009, 30).

Branch (2007) also expresses his concerns about the effect of the ICC’s interference in war-torn countries. In his analysis of the political effects and consequences for peace and justice of the ICC’s intervention in Northern Uganda he draws disturbing implications. The origins of these implications are twofold: first, consequences resulting from the political instrumentalization of the ICC by the Ugandan government; and second, consequences resulting from the discourse and practice of the ICC as a body purporting to enforce international law (Branch 2007, 179). Branch argues that instead of a pacifying effect on the conflict in Uganda, the ICC’s presence allowed the Ugandan government to gain international support for its militarization of the conflict and its entrenchment. By looking only into the role of the rebels in the conflict, the ICC contravened its own mandate and subsequently the interests of both justice and peace in the region (Branch 2007, 179-180).

Judicial Romanticists In contrast to these critical views of the functioning of the ICC, its proponents highlight the positive consequences of the ICC. These proponents value the importance of norms and ideas in defining the behavior of actors. They believe that accountability should never be subjected to power politics (Bassiouni 2002, 41). Advocates of international criminal tribunals, termed “judicial romanticists” by Akhavan (2009, 7) argue that international criminal tribunals can help prevent international crimes such as genocide, war crimes or crimes against humanity. They say that the threat of prosecution can deter future perpetrators from committing crimes. These scholars believe that accountability for crimes is critical to lasting peace (Vinjamuri & Snyder 2004, 347).

The central argument in favor of international criminal tribunals is the concept of deterrence. The argument put forward is that war crime tribunals have a potential significance in both preventing and deterring future conflicts (Orentlicher 1991, 2540). The ICC, for example, issues statements when they hear about allegations of violence saying that they will not hesitate investigating (Interview with ICC official), anticipating that the legal risk will prevent actors from resorting to violence. Rosenberg (1995) explains that international courts can help prevent future crimes by breaking circles of violence. International trials send a signal to all perpetrators of international crimes, both high-ranking officials and lower-level officials following orders. For example, the deterrence effect of international tribunals has proven particularly strong when ethnic conflict broke out in the Balkans in the 1990s (Vinjamuri

& Snyder 2004, 348). By placing the blame of atrocities carried out in the name of ethnicity on individual leaders instead of on an entire ethnic group it was possible for competing ethnic groups to break the cycle of violence and continue to coexist in one region. The international criminal tribunals of the Former Yugoslavia and Rwanda have set a precedent that makes international criminal accusations a serious political impediment for individuals, and thereby helps end impunity (Akhavan 2001, 7).

Simmons and Danner (2010) argue that the ICC is very useful as a mechanism to further violence reduction and peace. From a credible commitment perspective, they suggest that under certain circumstances ICC commitment can contribute to conflict reduction and peaceful negotiations. The credible commitment theory suggests that some governments rationally use the ICC to tie their hands as they proceed towards conflict resolution (Simmons & Danner 2010, 227). The credible commitment theory as employed by Simmons and Danner applies to heads of state, but a relevant insight is that from this perspective, the ICC may prevent atrocities even before initiating a prosecution.

Alexander (2009, 3) emphasizes that the ICC represents something qualitatively different from other international criminal tribunals It has the potential to be universal in territorial jurisdiction and has continuing temporal jurisdiction over a state once that state has accessed the Rome Statute. Additionally, the complementarity of the ICC to national jurisdictions is something that has never been seen before on the international level. Furthermore, Alexander states that the ICC operates with an unprecedented degree of political independence. The Prosecutor can initiate cases on his own accord. These characteristics make the ICC something historically novel.

Gilligan (2006) focuses on a rational choice model instead of the norms. Admittedly, institutions of criminal justice have trouble with enforcement of their actions, because they have to rely on member states for enforcement measures. However, Gilligan’s point is that institutions like the ICC may not need enforcement powers in order to deter atrocities at the margin (2006, 938). While Gilligan’s focus is on heads of state, this argument can be extended to leaders of armed groups who often operate in regions where the state’s influence is weak.

The academic debate has illustrated that scholars disagree on what the effects are of international criminal tribunals in general and of the ICC in particular. While some are questioning the deterrent effect of prosecutions based on the fact that hard evidential facts are missing (Wippman 1999, 474; Alexander 2009, 4), one could also argue the opposite. As Akhavan points out: “there is little evidence to support the contention that tribunals are a disincentive to peace” (2009, 629). Therefore, the next chapter will present the theoretical framework which will be used to explore whether the ICC’s presence reduces or exacerbates violence.

3. Theoretical Framework Overall, there appears to be little empirical evidence to support either supporters of the Court or its critics (Drumbl 2005, 548). Neither have been particularly thorough in how they make their arguments, so it is unclear whether this disagreement stems from faulty logic or from unstated assumptions (Gilligan 2006, 936). The fundamental question that remains involves the balancing of interests between achieving global deterrence through the preclusion of impunity on the one hand, and the recognition of the need to stop leaders from committing atrocities on the other (Akhavan 2009, 634).

One way to look at to what extent the ICC can achieve its goals of international peace and stability, is to look at the relation between ICC presence and levels of violence. The research of Kim and Sikkink (2010) offers a starting point for an analytical framework for analyzing the effects of ICC presence. In this chapter the linkage between the ICC’s presence and levels of violence will be theoretically developed. The literature suggests a number of ways in which the ICC can impact levels of violence. Rational theories such as realism assert that actors will cease violence when the costs of committing violent acts will exceed the benefits. Vice versa, when the benefits gained from using violence exceed the costs, actors will choose to use violence. Constructivists, on the other hand, argue that the ICC will render positive outcomes because of its normative influence on actors.

This thesis will combine both arguments to explore how the ICC might increase or reduce levels of violence in the DRC. In doing so, it will build on Kim and Sikkink’s (2010) discussion of the deterrent effects of human rights prosecutions. They identify two categories of mechanisms in which such prosecutions can deter future human rights abuses: material effects and normative effects (Kim & Sikkink 2010, 957). These mechanisms will be discussed in the following paragraphs. Whereas they discuss the deterrence effect of human rights trials on states and government officials (2010, 943), the focus of this thesis is on the effects of an ICC prosecution on a non-state actor: armed groups.

The starting point of this thesis is the claim that if any, the ICC’s presence does not exacerbate violence. This thesis will look at the relationship between ICC presence and levels of violence, and the extent to which the Court is able to exercise a deterrent effect or whether it increases levels of violence. In doing so, the complexities inherent to the subject should be kept in mind. The aim of the ICC is to contribute to the prevention of crimes by ending impunity for their perpetrators. So if, in fact, the ICC does provide an impediment to international peace, as critics argue, the ICC contradicts its own goals.

The following sections will discuss mechanisms through which the ICC can deter crimes. First, the deterrence hypothesis will be explained, after which normative factors will be discussed. Then, the material mechanisms are defined. From this discussion follow four hypotheses on the effect of the ICC’s presence on levels of violence.

3.1 The Deterrence Hypothesis The central argument in favor of international criminal tribunals is the concept of deterrence. This concept is related to literature on domestic legal systems2. This literature deals with the extent to which punishment can prevent crimes. Now that criminal trials are held on an international level, this discussion has entered the realm of international justice. The argument put forward by proponents is that war crime tribunals have a potential significance in both preventing and deterring future conflicts (Orentlicher 1991, 2540). The ICC issues statements when they hear about allegations of violence, saying that they will not hesitate investigating. The Court anticipates that the legal risk will prevent actors from resorting to violence (Interview with ICC official).

Deterrence is related to the broader concept of prevention in criminal law. ‘Prevention’ in this paper refers to “all methods by which an institution mitigates the occurrence of the crimes in question” (Alexander 2009, 9). Deterrence is one of these methods through which prevention of crimes may be achieved. There are two kinds of deterrence: specific deterrence and general deterrence. Specific deterrence refers to “the capacity of a legal system to induce individual perpetrators not to commit additional crimes” (Wippman 1999, 476), while general deterrence “discourages potential criminal behavior in society at large” (Akhavan 1999, 746). Crimes under the jurisdiction of the ICC are so grave that it is hard to think of an example in which someone has been convicted, served time, and released only to find him or herself again in a situation in which they might commit such a crime (Alexander 2009, 22). Therefore in this discussion of the ICC, deterrence refers to general deterrence.

General deterrence can be defined as “the goal of deterring people generally from committing certain crimes” (Alexander 2009, 10). It has its roots in the classical criminal deterrence model, based on an assumption of rationality. This model predicts that an increase in enforcement leads to an increase in cooperation (Kim & Sikkink 2010, 943). According to Alexander (2009, 11-16), the effectiveness depends on the certainty of punishment and the severity of punishment. General deterrence theory focuses on how sanctions can affect the future behavior of actors. Sanctioned offenders are subject to incapacitation, which refers to the physical restraining of convicted offenders from committing crimes through incarceration (Nagin 1998, 345), but general deterrence applies to society at large (Kim & Sikkink 2010, 943).

Kim and Sikkink (2010) discuss the deterrence hypothesis in relation to human rights trials and truth commissions. They find that both normative pressures and material punishment are at work in deterrence. These mechanisms will be discussed in the following paragraphs. It should be kept in mind,

2 For a discussion of deterrence in domestic legal systems, see Nagin, Daniel. 1998. “Criminal Deterrence Research at the Outset of the Twenty-First Century”. In Crime and Justice: A Review of Research, ed. M. Tonry. Chicago: University of Chicago Press, pp. 1-42. 15 however, that it is difficult to completely isolate the material costs of prosecutions from their effects on norms, since one may follow from the other.

Normative Factors As Kim and Sikkink (2011, 940) assert, trials are not only instances of enforcement or punishment, but also have a symbolic meaning that communicates and dramatizes norms. The ICC’s effects should therefore not necessarily be measured in how many verdicts are reached or how many individuals are on trial but also on effects resulting from the communication of norms. For this reason, this thesis will employ a theoretical framework incorporating mechanisms of prevention from the literature. This framework will consider both normative and material factors, an approach consistent with findings by Kim and Sikkink’s (2010) research on human rights trials. Their conclusion is that any attempt to look at the deterrence effect of human rights prosecution should include both normative and material factors. Kim and Sikkink’s (2010) research on deterrence mechanisms provides a starting point for the analysis of the ICC’s impact on levels of violence.

The first category identified by Kim and Sikkink (2010) through which prosecutions exercise their deterrence effect is through normative impacts. As a lot of critique on the ICC is based on the argument that the Court is not effective enough, an appropriate way to look at possible preventive effects is by looking at normative reasons which occur even in the absence of strong enforcement (Kim & Sikkink 2010, 944). The following section will look at normative ways in which the ICC can exercise a deterrent effect on the commitment of violent acts. Issues such as reputation, esteem, and legitimacy are at stake in human rights debates. This is where the normative argument comes from: through processes of mobilization of shame, advocacy networks and international institutions can cause behavioral change without strong enforcement (Risse, Ropp & Sikkink 1999). Whereas Kim and Sikkink investigate this effect on current and future state officials (2010, 945), this thesis aims to explore this effect on the behavior of armed groups.

General Moral Influence

Alexander (2009, 9-29) discusses major mechanisms by which the ICC might arguably prevent atrocities. One mechanism discussed by Alexander (2009, 26-29) is the general moral influence that the ICC is supposed to have on societies at large. In the long term, the ICC can have an educational role in the rule of law, affecting the deterrence equation by changing preferences for committing the crimes at issue. However, it is essential that the ICC establishes an image of legitimacy for this mechanism to have an effect.

In addition, Orentlicher (1991, 2540) suggests that tribunals may serve as an education in the rule of law to the peoples of new democracies, authoritarian regimes, and failed states. Trials may inspire these peoples to “affirm the fundamental principles of respect for the rule of law and for the inherent

16 dignity of individuals”. Mayerfeld (2001), in this respect, adds that the ICC can be particularly suitable for this task, considering its interaction with domestic legal systems and its international symbolism.

Bassiouni (2002), a fervent proponent of the establishment of the ICC, identifies the emergence of accountability and justice as internationally recognized values as necessary tools for the maintenance of world order and peace. The fact that the ICC is able to establish and apply clear international norms and standards for accountability results in predictability and ultimately deterrence (Bassiouni 2002, 384).

As Rosenberg (1995) argues, international trials send a signal to all perpetrators of international crimes, which can contribute to breaking cycles of ongoing violence. This effect of international tribunals has proven particularly strong when ethnic conflict broke out in the Balkans in the 1990s (Vinjamuri & Snyder 2004, 348). The individualization of guilt placed the blame of atrocities on individuals, which allowed the different ethnic groups to break the cycle of violence and stop blaming each other for what had happened. This precedent of the ICTY and ICTR has been emphasized by the ICC. These tribunals and the ICC have introduced international criminal accusations as a serious political impediment for individuals (Akhavan 2001, 7).

Legitimacy

International criminal prosecutions can also have an effect on the image of legitimacy of an actor. The maintaining of an image of legitimacy is recognized as a normative effect by Kim and Sikkink (2010, 945). Even when a prosecution does not result in conviction, it can impose a loss of prestige and legitimacy on leaders. One such strategy employed by non-governmental organizations (NGOs), international institutions and the media is ‘naming and shaming’. This concept refers to a “policy of punishment by publicity” (DeMerrit 2012, 598), which is used to inflict “reputational damage on moral grounds” (Kahn 2005, 4) on the perpetrator. The ICC can contribute to this practice through its indictments and public statements.

Armed groups can be denied legitimacy through strategies of naming and shaming, which implies certain costs. It can lead to a loss of trust, reduced credibility and a loss of reputation. By being marked as criminals, armed groups risk losing local and international support (Herr 2010, 8). Damage to a group’s reputation can incur social costs such as a reduced bargaining power or distrust (Herr 2010, 24). By naming and shaming a non-state armed group, it will come to fear for its reputation. For instance, the ICC can carry out a preliminary examination when they receive communications on suspected crimes. These examinations can take place without any publicity, but practice has shown that they have become public regularly (Bosco 2011, 178). When they do, this can have consequences for suspects since the entire international community is aware that the ICC shows interest in their actions.

Armed groups often have a strong need for legitimacy to effectively exercise power. The stigmatization of leaders through indictment can hinder their exercise of power (Herr 2010). Through naming and shaming, leaders of armed groups can be incapacitated. Incapacitation aims at stopping former perpetrators from committing future crimes. It can be linked to the importance of legitimacy for political leaders or elites. Incapacitation means that the perpetrator’s capacity to commit crimes is eliminated because he is removed from his position of power (Alexander 2009, 22-24). This can be done by force but also by eradicating a leader’s image of legitimacy. An example of an extreme method of incapacitation is the death penalty. However in the case of the ICC, it might not even be necessary to imprison a perpetrator in order to incapacitate him or her. The indictment of a person might in some situations be enough to lead to the removal of that perpetrator from positions of responsibility, and thus to prevent him or her from committing future crimes.

Material Effects Material effects mostly have their roots in rational choice literature, which argues that violence is used because the benefits exceed the costs (Kim & Sikkink 2010, 944). Whereas Kim and Sikkink (2010) make this argument about ‘repression’, in this thesis the argument is extended to use of violence. In this view, international criminal prosecutions can produce sanctions of various sorts, including arrest, incarceration, loss of income or prestige, which can affect the costs of using violence. The focus here is mainly on effects that affect the group’s political and economic concerns.

Political Effects

This section deals with the political consequences that the ICC’s presence can have for armed groups. It discusses which political incentives an armed group can have to resort to violence, to see how the ICC’s presence can alter the cost-benefit calculus of using violence. Political effects are the result of formal sanctions by the ICC, for example apprehension or the inability to travel. It is difficult to isolate political effects from those following from more informal social sanctions. For instance, political effects can follow from the loss of legitimacy and reputation, because these can be essential in political arenas (Kim & Sikkink 2010, 945). Therefore this section should be viewed in addition to the section on legitimacy, but with a focus on the material effects and sanctions.

First, the use of violence can produce political benefits such as the repression of political opponents (Kim & Sikkink 2010, 944). By threatening or attacking opponents, it is possible to diminish their political strength. Using violence gives armed groups a military advantage over other actors that do not resort to violence (Bangerter 2011).

Secondly, using violence can also be a way to ensure the support of the local population. By terrorizing them they will come to fear the armed group, a way of ensuring their support or passivity. The population can also be used to acquire international attention for the cause a group is fighting. For

18 example, the Revolutionary United Front, a rebel group in Sierra Leone, reportedly started maiming people, stating “when we started cutting hands, hardly a day BBC would not talk about us” (Bangerter 2011, 375).

Third, violence can be used as a strategic tool. It shows that the group remains an important player in the conflict that needs to be taken seriously. Violence can be used as a tool to achieve the goal of power. Power can compromise anything that establishes and maintains control of men over men. Armed groups will pursue the attainment of power, because it allows them to fulfill many interests (Vinci 2006, 32-33).

On the other hand, the use of violence can also lead to political costs. Allegations of the use of violence can lead to the loss of external support. Political costs can also incur the inability to exercise command due to imprisonment or international notoriety (Kim & Sikkink 2010, 958). For example, when an arrest warrant is issued for a leader of an armed group, it may impair his ability to travel or to participate in peace negotiations. This could either lead to the position of the leader being called into question, or it could impair the progress of the peace negotiations.

Financial Effects

Following the political section, this section will discuss the financial effects that can arise from the use of violence, and that can be altered by the ICC’s presence. The strategic value of the use of violence can also translate to financial benefits.

First, the expropriation of the wealth and property of opponents and civilians can lead to significant financial gains (Kim & Sikkink 2010, 944). In the DRC, the exploitation of natural resources can lead to significant financial benefits. The actions of armed groups are in part directed by the accumulation of wealth. The generated wealth is often used instrumentally, to achieve some higher goal (Vinci 2006, 30). By accumulating wealth through violence, armed groups can buy equipment and training for their fighters.

Furthermore, by using violence, armed groups can escape recruitment costs. The use of child soldiers is a cheap way to get new recruits. The threat of the use of violence and the setting of examples can create fear, which causes child soldiers to stay. This way armed groups do not have to pay their fighters of promise them part of the profits.

As discussed in the section on normative effects, transnational pressure such as the indictment by international criminal courts can lead to a loss of reputation (Herr 2010, 24). This, in turn, could lead to material losses. As Herr (2010, 25) explains, pressure from the international community can achieve success in influencing non-state armed groups by altering the cost-benefit calculus. By placing the norm violation on the international agenda, thus exerting pressure on the group in question, the costs

19 of violating the norm can exceed the benefits. For example, aid cutoffs from external actors can follow from prosecutions.

Governments, international institutions and NGOs can exert significant influence on the cost-benefit calculation of a non-state armed group, for instance by imposing financial sanctions (Herr 2010, 26). Once the costs of prosecution limit the benefits of using violence for financial gains, armed groups will likely look for other means to pursue their objective.

3.2 Hypotheses This thesis argues that through normative and material effects, the ICC’s presence will contribute to lower levels of violence. Considering the mechanisms described above and the deterrence hypothesis, four hypotheses can be formulated that will be the focus of the empirical analysis. The first two hypotheses deal with the normative effects the ICC can wield on levels of violence.

H1: The general moral influence of the ICC’s presence can be associated with lower levels of violence in situations of ongoing conflict.

The expectation for this first hypothesis is thus that when the ICC starts scrutinizing events, a general moral influence on the people in the region, including armed groups, the population and the government, will lead to lower levels of violence. The second hypothesis concerns another normative effect, the impact of legitimacy.

H2: By altering the image of legitimacy of armed groups, the ICC’s presence can be associated with lower levels of violence in situations of ongoing conflict.

This hypothesis gives the expectation that through naming and shaming, the ICC’s presence will damage the image of legitimacy of armed groups, which will lead to lower levels of violence. The third and fourth hypotheses discuss the material effects of ICC presence. As discussed above, these effects can be financial or political. Therefore the third hypothesis is the following:

H3: Political effects resulting from ICC presence alter the cost-benefit calculation of armed groups, which can be associated with lower levels of violence.

The expectation for this third hypothesis is that when the ICC starts scrutinizing events, political effects such as an decrease in external support or the inability to effectively lead an armed group, can lead to lower levels of violence. The idea behind this is that the costs of using violence will exceed the benefits, because the ICC’s presence increases the costs of using violence or reduces the benefits. This cost-benefit calculus also applies to the last hypothesis:

H4: Economic effects resulting from ICC presence alter the cost-benefit calculation of armed groups, which can be associated with lower levels of violence.

These hypotheses will be used in the data examination, to see whether the ICC’s presence can lead to lower levels of violence.

4. Research Design This research project seeks to explain the effects of ICC prosecutions on levels of violence attributable to armed groups. The project uses a qualitative research design, employing the method of case study analysis. The analysis focuses on the group level. The assumption underlying this is that armed groups act as unitary actors (Vinci 2006, 28). The research on the ICC’s deterrence effect is still in a starting phase, making individual cases suitable for observations about this effect on the ground. Therefore, case study analysis results as the most adequate choice for this research. The situation under study is the situation in the Democratic Republic of Congo (DRC) in the period 2003-2014, and in particular focuses on two high-profile cases: Thomas Lubanga Dyilo and Bosco Ntaganda. The analysis first offers a longitudinal descriptive overview of levels of violence in DRC, with a focus on the regions in which the armed groups of Lubanga and Ntaganda operated and in which the ICC is investigating crimes: Ituri and the Kivus. Then the explanatory value of the hypotheses on normative and material effects will be inspected.

The theoretical debate on this topic is fierce, but the reality in which these tensions play out is much more complex than the abstract debate suggests. The Court’s impact is affected by numerous factors, of which many are outside of the Court’s control. This complexity calls for modest intentions and a precise empirical approach. Empirical evidence to support either of the stances in the debate on effects of international criminal tribunals is limited. Therefore, further qualitative research is an important and necessary step in order to explore the nature of these effects.

This approach has its limitations. One of the difficulties with measuring the success of the prevention of crimes such as genocide, is that it must be measured by what does not happen (Akhavan 2011, 4). One way to look at the effect of the ICC’s presence in a conflict is to look at levels of violence. The ICC aims to contribute to the prevention of the most serious crimes of concern to the international community such as genocide, war crimes and crimes against humanity. These crimes are particularly heinous forms of collective violence, as will be explained in the following paragraphs. Therefore changes in the levels of violence in areas where the ICC is scrutinizing events can say something about the effectiveness of the ICC in preventing crimes.

The increase or decrease of violence is monitored by many actors such as NGOs, government agencies and the media. By examining data and reports on levels of violence and linking them to the presence of the ICC by examining reports by various institutions, this research project will try to see whether the ICC’s presence in the Democratic Republic of Congo can be associated with an increase or

21 decrease of violence. The remainder of this chapter will specify the case selection, data collection and the operationalization of variables.

4.1 Case Selection As the ICC is a relatively young organization, its number of cases is limited. Twenty-two cases have been brought before the court, in nine situations, most notably in the Democratic Republic of Congo. It should be noted, however, that the Office of the Prosecutor can also choose to scrutinize events when no formal investigation has been initiated, without announcing their investigation.

For the purpose of analysis, this thesis will look at two high-profile ICC cases in the Democratic Republic of Congo: Thomas Lubanga and Bosco Ntaganda. There are several reasons for this choice. First of all, the DRC was the first situation ever to be referred to the ICC and was consequently followed very closely by the international community. These individual cases have therefore received a lot of attention from NGOs and the media. This has resulted in extensive documentation of these cases, which allows for more sources of information.

Secondly, these cases are amongst the earliest cases of the ICC, and therefore they have the greatest possibility that their effects on levels of violence are visible. The ICC is still a relatively young organization, and it is well possible that its effect might only play out in the long term. The earliest cases have the best likelihood that these long-term effects have become visible. Therefore it makes sense to investigate some of the oldest cases in order to look at the Court’s effect in the best way possible.

Third, the armed groups in the DRC represent examples of non-state armed groups that are increasingly involved in conflicts around the world. The cases of Lubanga and Ntaganda account for some of the armed groups that were or are under ICC scrutiny, and represent different factors in the conflict. Different armed groups are involved actively in different regions of the DRC. This allows for a more full understanding of the effects the ICC has had on the ground.

Fourth, these cases capture some controversies as to the effectiveness of the ICC. The case of Thomas Lubanga was received with high hopes and optimism, as it was the first case in which an arrest was carried out and a sentence reached. On the contrary, the case of Ntaganda has raised questions on the effectiveness of the ICC, as the DRC government refused to arrest him while he was wanted by the ICC, and even integrated him into its national army. Because of this contrast, these cases cover a broader range of circumstances in which the ICC’s effectiveness can be tested: one success case and one case that exposed the ICC’s struggles.

The time frame for investigating these cases ranges between 2003 and 2014. The ICC has been scrutinizing events in DRC publicly since 2003, so the investigation of ICC effects on levels of violence is set to begin in that year. There are little or no numbers available on levels of violence in

2015, so this year is excluded from the analysis. The ICC has communicated extensively that it was scrutinizing events in Ituri, the region in which both Lubanga and Ntaganda started their military carrier. Therefore it is arguable that the leaders and their groups were aware of the fact that the ICC was observing their actions. The reason that the time frame is not set to begin when a formal indictment against one of the individuals was issued, is that the ICC’s deterrent effect, following the theoretical framework, can also influence a group’s behavior by only being present. To account for most of the contributing factors, the time frame will range from the beginning of the ICC’s investigation in the DRC.

4.2 Data Collection and Examination It is hard to measure the direct impact of the ICC on the behavior of armed groups, because it is difficult to distinguish the Court’s impact from other factors. The ICC often has an indirect impact, for example when its involvement led the DRC government itself to open cases against perpetrators of ICC crimes (Interview with ICC official). The impact of sentences is still difficult to know at this stage, because the sentences were only reached in 2012 and 2014 (Interview with ICC official). Therefore a variety of sources is used, including statements, reports and other documents, mostly second-hand sources of either the ICC itself, NGO’s or news agencies, but also including an expert interview with an ICC official. The documents that were analyzed have been issued from 2003 onwards, when the ICC became involved in the DRC situation.

The data will be collected through the analysis of documents and statistical data found on the internet and in various archival records, for example from Uppsala Conflict Data Program (UCDP). The data will be analyzed using process tracing method. Process tracing refers to the method in which the researcher tries to “seek evidence of the pressures, incentives, motivations, and decision-making calculus in any given instance of action” (Parsons 2010, 92). An example of process tracing is measuring the influence of international organizations (IO’s): what evidence do we have that IO actors held certain views, and did IO contacts or actions feature prominently in the process and timing of regulatory change? It is often thought that process tracing is a distinctively constructivist method, but actually all kinds of plausible mechanisms in human actions – rational choice, constructivist, or otherwise – make interpretive claims about what people perceived and thought (Parsons 2010, 92). Through process tracing, evidence is gathered of events taking place and people holding certain views and convictions, which makes it suitable for investigating the ICC’s effects on levels of violence in DRC.

Given the importance of context factors and reality-checks in this study, input from experienced practitioners is of great value. Therefore an ICC official was interviewed during the final stage of the research, to see whether the information gathered from the internet corresponds with that of the ICC.

A semi-structured interview was held, the questions of which can be found in Appendix 2. This interview will be used in particular to get a sense of how the ICC sees the effects of its actions.

4.3 Operationalization of variables Before proceeding to the analytical part, it is important to operationalize the variables. The abstract concepts identified in the theoretical framework need to be transferred to something that is measurable in the real world. The following section will discuss the dependent and independent variables.

Dependent Variable – Levels of Violence This thesis explores the impact that ICC presence has on levels of violence. ‘Violence’, in a broad sense, can be defined as “the use of physical force to inflict injury on persons or cause damage to property” (Badie, Berg-Schlosser & Morlino 2011, 2708). However, to be able to measure violence to some extent, a more specific discussion of the concept is in place.

In the context of the ICC, it is important to distinguish between violence and atrocities, such as genocide. War crimes, crimes against humanity and genocide are all breaches of international humanitarian law, which represent the most serious of human rights violations. Violent acts can cumulate into these atrocities. Genocide is defined as:

any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group. (Rome Statute, Article 6).

The second crime is crimes against humanity, defined as a number of acts outlined in the Statute that are “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. These crimes include, among others, crimes as murder, torture and rape (Rome Statute, Article 7).

The third crime within the jurisdiction of the ICC are war crimes. War crimes are defined as “grave breaches of the Geneva Conventions of 12 August 1949” and “other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law” (Rome Statute, Article 8).

So atrocities consist of violent acts, but violent acts are not necessarily atrocities. To facilitate the scientific measurement of violence, we need to define the various forms. A useful source of measuring violence is data on fatalities (Krug et al. 2002, 7) . It can be used to monitor changes in fatal violence over time. Although killing is not the only indicator of violence, the number of deaths is the measure

24 that is most often used to determine overall levels of violence in a city or country. It is the most serious violent act and the most visible. Furthermore, it is usually reported more accurately than other violent acts (Buvinic & Morrison 1999, 1). The number of homicides is the most widely recognized indicator to determine overall levels of violence (Gilgen, Krause & Muggah 2010, 15).In nearly all countries, it is a legal requirement that all deaths are certified and registered. However, in the African region the regional coverage of death registrations is less than 10 percent. This poses serious problems for using mortality rates as a measure for violence. The World Health Organization (WHO) offers a useful definition in this context. They define violence as:

The intentional use of physical force or power, threatened or actual, against oneself, another person, or against a group or community, that either results in or has a high likelihood of resulting in injury, death, psychological harm, maldevelopment or deprivation (Krug et al. 2002, 5)

It should be noted that in addition to the use of ‘physical force’, the WHO also includes use of power. This should be understood to include acts that result from a power relationship, including threats and intimidation. The definition of violence solely in terms of injury or death thus limits the understanding of the impact it has on individuals, communities and society at large (Krug et al. 2002, 5).

Violence can thus include a whole range of acts. The act of killing, but also sexual violence, torture, and recruitment of child soldiers are considered violence. Even the threat of abuse can be seen as violence. However, data on such crimes are hard to come by and often unreliable (Gilgen, Krause & Muggah 2010, 16). Therefore this thesis will first discuss levels of violence in terms of fatalities, after which documents are analyzed to get an impression of other forms of violence.

Collective violence

The discussion above refers to violence on an individual scale. Because the unit of analysis is the behavior of groups, violence on a group level is of relevance to the analysis. Collective violence can be defined as follows:

The instrumental use of violence by people who identify themselves as members of a group – whether this group is transitory or has a more permanent identity – against another group or set of individuals, in order to achieve political, economic or social objectives (Krug et al. 2002, 215).

Genocide, then, is a particularly atrocious form of collective violence. Its definition has a distinct collective dimension, because it means the targeting of a group. According to Krug et al. (2002, 6), collective violence can be divided into social, political and economic violence. Collective violence is violence committed by larger groups of individuals or by states. Political violence, in this context, includes war and related violent conflict, but also acts carried out by larger groups that are similar to

25 state violence. Economic violence includes attacks by larger groups motivated by economic gain. Social group violence includes for example crimes of hates committed by an organized group.

The measurement of collective violence poses several problems. Whereas military casualties are usually recorded using standard procedures, the collective violence carried out by a non-state actor is clearly harder to measure. It is subject to manipulation, as parties of a conflict often try to change data on casualties in their favor. According to the WHO, estimates for mass killings of civilians may vary by a factor of 10 (Krug et al. 2002, 217). There also exists a lack of access to services from which data can be collected. Furthermore, it is hard to attribute violence to one particular group or set of individuals, because perpetrators will do their best to hide evidence of their abuses.

The thesis will therefore be limited to looking at overall levels of violence in terms of fatalities, and use reports by actors such as NGOs and local civil society to get an impression of who are the perpetrators. As explained in the theoretical part, the ICC can also impact those who are not directly under investigation.

Independent variable – ICC presence The thesis investigates the effect of ICC presence on levels of violence. The ICC is considered ‘present’ when it is scrutinizing events in a region in some way. ICC presence thus refers to all processes carried out by the ICC, including indictments, arrests, preliminary investigations and detention.

The ICC looks at situations in which one or more crimes under the jurisdiction of the Court appear to have been committed. After opening of an investigation into a situation, the Prosecutor of the ICC determines whether one or more specific persons should be charged with the commission of such crimes (Rome Statute, Art. 13-14). Because of this structure, once a situation is referred to the ICC all actors that are active in that area are under ICC scrutiny. Therefore in this thesis, ICC presence covers the period of time from the start of an ICC investigation into a situation.

In the DRC this presence applies as follows. In July 2003, the Prosecutor of the ICC announced that he will be following the situation in the DRC closely, with a focus on the Ituri district. In September 2003, he informed the State Parties to the Rome Statute that he would be prepared to seek authorization to start an investigation under his proprio motu powers. However, he acknowledged that it would facilitate his investigation if the situation would be actively supported and referred to the ICC by the DRC itself. Consequently, the government of the DRC referred the situation in the country to the Court in March 2004 (ICC Website 2004).

The thesis will proceed as follows. The next chapter will discuss in detail the situation in the DRC and the role of the ICC therein. Chapter 6 will then look into levels of violence in DRC with a focus on Ituri and the Kivu regions, after which one section will address the material effects of the ICC’s

26 presence in these regions, and one section will address the normative effects. The cases of Thomas Lubanga Dyilo and Bosco Ntaganda and their armed groups will serve as case studies to investigate these effects.

5. Conflict in the DRC and ICC Presence This chapter will provide some background information on the conflict in the DRC and what action the ICC has taken in this situation. It then discusses the Lubanga and Ntaganda cases.

5.1 Conflict in the DRC The Democratic Republic of Congo, formerly known as Zaire, has been torn by conflict for many decades. Since the country became independent from Belgium in 1960 it has known high levels of violence, continuing human rights violations and intrastate conflict. Its richness of natural resources has contributed to the prolonging of these conflicts (UCDP)3. The most recent phase of the conflict in DRC has its roots in an armed rebellion led by the Alliance of Democratic Forces for the Liberation of Congo (AFDL), supported by neighboring countries Rwanda and Uganda who succeeded to topple the regime of Mobotu in 1997. However, this regime switch resulted in a war known as “Africa's first World War”, involving more than seven African countries. Although militias active during the First Congo War (1996-1997) did cause insecurity in rural areas, their influence beyond their local fiefs remained limited. It wasn’t until the government in Kinshasa and foreign powers started to support certain groups during the Second Congo War (1998-2003) that the militias became more influential (Stearns, Verweijen & Baaz 2013, 20-21). Negotiations took place and in 2003 a peace agreement was concluded and the country's first democratic elections were held. Unfortunately post-election violence broke out as the National Congress for the Defence of the People (CNDP) fought the newly elected government. This particular conflict ended in 2009 and recurred in 2012 when a new armed group, M23, took up arms complaining that the last peace agreement was implemented too slowly. Also, the Patriotic Alliance for a Free and Sovereign Congo (APCLS) joined the fight against the government, and in the region of Katanga the group Kata Katanga started fighting for independence. Overall, the DRC remains a site of continuing conflict and insecurity. The regions that are most inflicted by non-state and one-sided violence are Kivu, Ituri and Katanga4 (UCDP).

3 Uppsala Conflict Data Program (Date of retrieval: 29-04-2015) UCDP Conflict Encyclopedia:http://www.ucdp.uu.se/gpdatabase/gpcountry.php?id=38®ionSelect=2-Southern_Africa, Uppsala University 4 Uppsala Conflict Data Program (Date of retrieval: 29-04-2015) UCDP Conflict Encyclopedia: http://www.ucdp.uu.se/gpdatabase/gpcountry.php?id=38®ionSelect=2-Southern_Africa, Uppsala University. 27

In Kivu, which consists of North and South Kivu, there have been tensions between ‘foreigners’ and autochthonous tribes. The following groups are active (IRIN 2010): (1) the Democratic Forces for the Liberation of Rwanda (FDLR), a Rwandan Hutu group that strives for Hutu representation in Rwanda. The group has formed an alliance with former DRC President Laurent- Désiré Kabila but has been opposed by his successor, Joseph Kabila; (2) the National Congress for the Defence of the People (CNDP), led by Laurent Nkunda until he was placed under house arrest. Bosco Ntaganda replaced him, turning the CNDP into a political party with its fighters joining the Congolese army; (3) the Patriotic Forces for the Liberation of Congo (FPLC), looking for control over some North Kivu areas; (4) the Allied Democratic Forces/National Army for the Liberation of Uganda (ADF/NALU); (5) the Lord’s Resistance Army (LRA), a Ugandan group aspiring the establishment of a Christian theocracy in Uganda; (6) the Front for Patriotic Resistance in Ituri/Popular Front for Justice in Congo (FRPI/FPJC) that battles the DRC army; (7) the Enyele/Independent Movement of Liberation and Allies (MILIA); and (8) the DRC armed forces (FARDC).

In Ituri region the conflict mainly involves the Lendu and Hema ethnic groups (UCDP)5 who fight over natural resources in the region. The conflict has been ongoing since 1972 and escalated in the summer of 1999. The Hema-group was backed by the Ugandan army who wielded considerable control in the region, leading to further escalation in 2002. The Union of Congolese Patriots (UPC) fought for the Hema while the Congolese Rally for Democracy-Liberation Movement (RCD-ML) fought for the Lendu tribe.

Finally, in Katanga region a rebel group called Kata Katanga fights for Katanga independence from the DRC. Since the DRC itself became independent from Belgium, separatists have continued to trouble the region (UCDP)6.

5 Uppsala Conflict Data Program, http://www.ucdp.uu.se/gpdatabase/gpcountry.php?id=38®ionSelect=2-Southern_Africa#, accessed 04-05-2015, Uppsala University 6 Ibid. 28

Figure 1: Map of the Democratic Republic of Congo. Source: United Nations, http://www.un.org/Depts/Cartographic/map/profile/drcongo.pdf, retrieved 03-05-2015.

5.2 The ICC in DRC The DRC government signed the Rome Statute on September 8, 2000, and ratified it on April 11, 2002. So when the Rome Statute entered into force on July 1, 2002, the DRC became a state party to the Statute granting the ICC jurisdiction over all crimes covered by the Rome Statute and committed in the DRC after July 1, 2002 (Broache 2014, 13).

The Prosecutor of the ICC has made public that it was scrutinizing events in the DRC as of July 2003, initially focusing on crimes committed in the Ituri region. The Office of the Prosecutor stated that it intended to request authorization from the Pre-Trial Chambers to initiate a formal investigation into the situation, but that active participation on the part of the DRC would be helpful. After the DRC referred the situation to the ICC in March 2004, the ICC started its first formal investigation ever on the 23rd of June, 2004 (ICC Website 2004) . So far the ICC has initiated prosecutions in six cases in the DRC situation, as listed in Table 1.

In the DRC, the ICC is used by local actors, government actors and the UN to call upon armed groups to cease violence. For example, the Goma agreement of 2008 between the Congolese government and various armed groups in eastern DRC included some provisions for amnesty at the insistence of the

CNDP and other armed groups, but those crimes under the jurisdiction of the ICC were excluded from the agreement (Interview with ICC official; IRIN 2008).

Individual Stage of ICC Prosecution Armed Group Thomas Lubanga Dyilo Concluded (Convicted 14-03- Patriotic Force for the 2012) Liberation of the Congo (FPLC) Bosco Ntaganda Awaiting trial in ICC custody, National Congress for the arrested 22-03-2013 Defence of the People (CNDP); March 23 Movement (M23) Germain Katanga Concluded (Convicted 07-03- Front for Patriotic Resistance in 2014) Ituri (FRPI) Callixte Mbarushimana Confirmation of charges Democratic Forces for the declined, released from ICC Liberation of Rwanda (FDLR) custody 23-12-2011 Sylvestre Mudacumura Investigation initiated, arrest Military wing of Democratic warrant issued 13-07-2012: at Forces for the Liberation of large Rwanda (FDLR): FOCA Mathieu Ngudjolo Chui Concluded (Acquitted 18-12- Nationalist and Integrationist 2012) Front (FNI) Table 1: ICC cases in the situation of the DRC. Source: ICC website, http://www.icc- cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200104/Pages/situation%20index.aspx, accessed 05-05-2015

High Profile Cases in DRC The ICC has carried out six cases in the situation of DRC so far, of which two cases have gathered significant international attention. The case of Thomas Lubanga has received lots of attention, being the first prosecution initiated and the first conviction by the ICC ever. This case has been scrutinized by many, as it served as a test-case for the ICC’s ability to carry out prosecutions.

The case of Bosco Ntaganda has also received international notoriety, mainly because of the fact that he has been integrated into the Congolese army after being indicted by the ICC, thus sparking much discussion on both the DRC government and the ICC’s ability to achieve enforcement of arrest warrants. These cases will be used to look at the deterrent effect of the ICC in the regions of Ituri and Kivu, where these individuals or their groups have been active.

In preparation of the case against Thomas Lubanga Dyilo, the ICC has scrutinized events in the DRC region of Ituri. The first person to appear before the ICC ever, Lubanga was found guilty on the charge of war crimes, in the form of the enlisting and conscription of children under the age of 15 years and using them to participate actively in hostilities (ICC Website 2015c). Lubanga was leader and founder of the Union of Congolese Patriotes (UPC) and commander-in-chief of its military wing, the Patriotic

Forces for the Liberation of Congo (FPLC). The crimes for which he was indicted by the ICC were committed from 1 September 2002 to 13 August 2003. He was found guilty on 14 March 2012.

In Ituri region the conflict mainly involves the Lendu and Hema ethnic groups (UCDP)7, who fight over natural resources in the region. The conflict has been ongoing since 1972 and escalated in the summer of 1999. The Hema-group was backed by the Ugandan army who wielded considerable control in the region, leading to further escalation in 2002. The Union of Congolese Patriots (UPC) fought for the Hema while the Congolese Rally for Democracy-Liberation Movement (RCD-ML) fought for the Lendu tribe.

The UPC was founded by Lubanga in mid-2002 and had its base in the Ituri province (UCDP)8. The UPC was established as a local attempt by the Hema ethnic group to regain military and political control over the Ituri district in DRC which had been occupied by several external and internal forces. This attempt was driven by elite interests from within the Hema-community, who were the socio- economically dominant ethnic group in Ituri. The UPC has received external support first from Uganda, and later from Rwanda (Tamm 2013, 8). The rebel group fought, like government armies and numerous other militias, for the region’s gold mines and trade routes (HRW 2012). Between March and December 2003 the UPC split several times. After a first split the remainder of the UPC split into a faction led by Lubanga (UPC-L) and one led by Kisembo (UPC-K). The faction led by Kisembo eventually integrated into the Congolese army, but UPC-L continued to rebel under the command of Ntaganda, on behalf of Lubanga (Tamm 2013, 39). In 2005 Lubanga was arrested in Kinshasa and in 2006 he became the first person ever against whom an ICC arrest warrant was issued. The UPC continued to exist very briefly, and effectively ceased to exist as an armed group when an alliance brought together most of Ituri’s remaining rebel leaders into the Mouvement révolutionnaire congolais (MRC, Congolese Revolutionary Movement). Some of its former combatants continued their fight even after the conclusion of the peace deals in November 2007 (Tamm 2013, 44). Today the UPC exists only as a political party, although some of its military leaders, such as Bosco Ntaganda, have remained active in other armed groups after the UPC’s military wing ceased to be active (Tamm 2013, 9). For example, two former UPC combatants, “Col. Hitler” and “Col. Semire” have joined Coalition des Groupes Armés de l’Ituri (COGAI) in May 2012, together with their followers (Tamm 2012). A sealed arrest warrant was issued by the Office of the Prosecutor (OTP) on 10 Februari 2006, after which Lubanga was arrested by the DRC authorities on 16 March 2006.

7 Uppsala Conflict Data Program, http://www.ucdp.uu.se/gpdatabase/gpcountry.php?id=38®ionSelect=2-Southern_Africa#, accessed 04-05-2015, Uppsala University 8 Uppsala Conflict Data Program (Date of retrieval: 29-04-2015) UCDP Conflict Encyclopedia:http://www.ucdp.uu.se/gpdatabase/gpcountry.php?id=38®ionSelect=2-Southern_Africa# , Uppsala University. 31

Bosco Ntaganda has been member and leader of several armed groups active in the DRC. To begin with, he replaced Thomas Lubanga as chief of staff of the Union of Congolese Patriots (UPC), active in the Ituri-region of the DRC when the latter was confined to Kinshasa in 2005. In early 2009, he replaced General Laurent Nkunda as chairman of the National Congress for the Defence of the People (CNDP). CNDP draws its support from Tutsi population in the North Kivu region, and is additionally supported by Rwanda (UCDP)9.

Ntaganda, born in Rwanda in 1972, was chief of military operations for the UPC, an ethnic Hema militia group. He stands accused before the ICC of acts committed in this function between 6 August 2002 and 27 May 2003 in the province of Ituri, DRC: he has been charged with 13 counts of war crimes and 5 counts of crimes against humanity. After UPC president Lubanga was kept under house arrest in Kinshasa, Ntaganda took over as acting head of the UPC. After defecting from the UPC following internal conflicts in 2006, he left Ituri to become the military chief of staff of the CNDP, operating in the Kivu provinces (HRW 2008). Ntaganda, who has also been called “The Terminator”, was also one of the founders of the M23 rebel group, which was created following a mutiny of former CNDP members from the Congolese army in March 2012. Intense fighting followed between the Congolese army, supported by the international peacekeeping mission in North Kivu, and M23 (Enough Project 2015). However, M23 did suffer from internal friction, especially between Colonel Makenga and General Ntaganda.

A warrant for his arrest was issued under seal on 22 August 2006, and unsealed on 28 April 2008 (ICC Website 2015c). On 18 March 2013 Ntaganda surrendered himself voluntarily to the US Embassy in Kigali and was transferred to ICC custody on 22 March 2013. He is currently awaiting trial after the charges were confirmed on 9 June 2014 (ICC Website 2015c).

The conflicts in Ituri and the Kivus are intimately related. Ntaganda moved to North Kivu in 2006, after leaving the UPC following internal disputes (HRW 2015). The fact that Bosco Ntaganda features prominently in both conflicts is an example of this connection. The conflicts do have their own unique dynamics because of inter-ethnic tensions, migration, resource allocation and positioning in national politics (Bueno 2012, 6).

9 Uppsala Conflict Data Program (Date of retrieval: 30-04-2015) UCDP Conflict Encyclopedia: http://www.ucdp.uu.se/gpdatabase/gpcountry.php?id=38®ionSelect=2-Southern_Africa# , Uppsala University 32

6. Data examination This chapter presents an overview of reported levels of violence attributable to armed groups in DRC during the time that Thomas Lubanga Dyilo and Bosco Ntaganda were under ICC scrutiny or in custody, with a focus on the region of Ituri and the regions of North and South Kivu. The first section will give an overview of the reported levels of violence, after which the next section will examine reports, news articles and other documents to investigate how the ICC might have affected these levels of violence. In the second section the relevance of the different hypotheses is also examined. The purpose of this section is to provide insight in how levels of violence have changed since the ICC became involved in the region. It is important to note the complexity of the situation in DRC, in which many different actors operate, including armed groups, government forces, NGOs and local civil society. The inferences that are drawn therefore represent an indication of what might happen when the ICC becomes involved.

Furthermore, the reported level of violence might not be accurate. Perpetrators might have hidden evidence, and considering the remoteness of some of the areas in which perpetrators operate it is well possible that more violent attacks have been carried out that have not appeared in the available sources. Also, as it is a situation of ongoing conflict, some areas are inaccessible to NGOs simply because it is too dangerous. Therefore statistics on violence in eastern DRC are hard to come by.

6.1 A longitudinal study of levels of violence in DRC: statistics and figures 2003- 2014. This section will discuss the changes in levels of violence in DRC. Levels of violence in DRC appear to remain high, although some decrease can be seen in the Ituri district. The first paragraph will discuss statistics and figures that cover the entire DRC, because region-specific numbers are scarce. This will contribute to the overall image of how levels of violence have changed over the years in DRC. The remainder of the section will focus on levels of violence in Ituri and in the Kivus. Three sources are used that collect data on violence: the Global Burden of Armed Violence (GBAV), Armed Conflict Location & Event Data Project (ACLED) and International Rescue Committee (IRC).

First, GBAV measures ‘violent deaths’, which are casualties that are directly attributable to armed conflict. This does not include deaths attributable to diseases or epidemics that broke out due to conflict. It is therefore useful in explaining how levels of violence have changed. Figure 2 (see Appendix 1) shows the violent deaths rate per 100,000 people for the DRC over the years 2004 to 2012. As can be seen from the chart and table 2, violent death rates show an overall decline since 2004, with a small peak in 2009. The sharpest decrease is seen between the years 2007-2008.

Second, the IRC report on mortality in DRC records a significant reduction in the risk of violent deaths in the eastern provinces since 2004. The proportion of all mortality attributable to violence has declined from 1.5 percent to 0.6 percent in the unstable eastern provinces. In their 2004-2007 survey,

33 they conclude that the risk of death from violence has declined by almost 30 percent in eastern DRC. Perpetrators of these deaths included police, Mai Mai (local self-defense militias), FDLR and Congolese national army FARDC (Coghlan et al. 2007, 8).

The crude mortality rate (which includes all deaths reported, not just those directly attributable to violence) is still recorded as 2.6 deaths per 1000 a month, which is 85 percent higher than the sub- Saharan average. In addition, these slight improvements are threatened by the escalation of violence in North Kivu province (Coghlan et al. 2007, iii).

The estimates by the IRC have been widely used but also criticized. The Human Security Report project (2013, 105), by contrast, identifies a sharp decline in the number of deaths perpetrated by both government and non-state actors in DRC between 2009 and 2010. HSR group argues that methodological errors had the effect of increasing deaths attributable to violence. However, for this analysis it is the relative increase or decrease that is important, not the absolute number (HSR group 2009/2010, 131).

Furthermore, ACLED measures ‘political violence’, which they define as “the use of force by a group with a political purpose or motivation”. As discussed in the research design, political violence is one form of collective violence, and therefore of interest to this analysis which focuses on collective violence. ACLED data shows that since 2011, violence levels have increased significantly in DRC. This is primarily due to a sharp rise in conflict in the Kivu regions. In 2013, conflict levels have reduced compared to the peak of activity in 2012. However, this year’s conflict levels remain significantly above average for the DRC.

Figure 4 shows both the conflict events and reported fatalities in Congo from January 2001 until September 2013. Especially the reported fatalities are of interest. It shows that after a peak in violence in 2002/2003, fatalities are relatively low for the years 2004 until 2008. In 2009-2010 an extreme peak is shown, which ACLED attributes to the military operation of DRC and Rwanda against the CNDP. This surge disappears in the first months of 2011, after which numbers rise again in 2012.

Despite the recent defeat of M23 rebel group, violence carried out by armed groups in Eastern Congo continues. Groups like the FDLR, Raia Mutomboki and Sheka remain active in the region. Most of Eastern Congo, including the provinces of North and South Kivu, remain under the control of these armed groups who prey on civilian populations: killing, raping, the recruiting of child soldiers, burning villages and ill-treatment of civilians (Sawyer 2013).

Overall the situation in DRC remains fragile. The databases show that since 2004, levels of violence have declined overall. Over the years 2004-2008, violence has decreased, but in 2009-2010 violence increased again. In recent years, violence continues to be a threat to the DRC population.

Levels of violence in Ituri: 2003-2014 After the signing of the Sun City Agreement in 2002, a power sharing agreement between several national parties, violence continued unabated in Ituri, because the main rebel groups active in the region did not sign (Bueno 2012, 6). Throughout 2006 heavy fighting continued in Ituri (Tamm 2013, 43). Médecins Sans Frontières (MSF 2007, 13) notes that in 2006 the reported main perpetrators of violence were armed men. The overall level of violence appears to be lower than previous years.

In 2007, MSF reports that there is an overall decrease in the intensity and recurrence of conflicts in the Ituri district. However, they also report that civilian populations in the area are still subject to high levels of violence, in particular sexual violence. Despite an ongoing pacification process, military operations can be linked to direct violence against civilians, such as rapes, brutality, house destructions, looting and induced displacement of populations. Violence is reported as the main cause of death for people over five years of age (37,5%). In 2007, 150.000 people are internally displaced (MSF 2007). Tamm (2013, 8) confirms this trend. Since 2007, the district of Ituri has witnessed a sharp decline in violence and displacement. Despite several attempts to start new insurgencies since then, their success has been modest.

In contrast with these reports on an improvement in the year 2007, ACLED data shows that 2008 and 2009 have shown a very sharp increase in conflict in Orientale province, largely due to an increase in rebel activity (ACLED 2013, 7). ACLED data shows that in Orientale province, in which Ituri district is situated, both violence against civilians and battles have outnumbered those in the Kivus, with a sharp rise in both types of violence from 2007-2010. This is in contrast to what other sources report. An explanation for this difference is that ACLED includes attacks in Orientale province by the Lord’s Resistance Army, an armed group from Uganda, in its report. Of the total amount of violent activity carried out by LRA, only 8% was carried out in Ituri (ACLED 2013, 4).

Militias in Ituri district have been targeted by military operations and were considerably weakened, so that in 2009, only two groups remained in the district of which the FRPI is the most important. Though foreign support cannot be excluded, it would be rather limited if it existed (Spittaels & Hilgert 2010, 3). In addition, only few Mai-Mai groups (local self-defense militias) were active in Ituri, compared to the rest of Eastern DRC. The plundering and stealing of the armed groups throughout 2009 indicate they are short on food and other supplies (Spittaels & Hilgert 2010, 29). The groups seem to be primarily motivated by greed for natural resources, however they continue to cause insecurity (Spittaels & Hilgert 2010, 3).

In 2011, BBC reports that the UN’s deputy representative in DRC said that Ituri’s rebels did have virtually no operational capacity left. However, he also admitted that the remaining armed groups “still represent a large threat to the population” as they struggle to survive (BBC 2011). Today, the conflict in Ituri continues on a low level after most of the militias demobilized in 2007 (IRIN 2007; BBC

2011). In 2015, the UN Security Council (UNSC) reports that the security situation in Ituri remains precarious. Armed groups continue to carry out rapes, murder and destruction of property (UNSC 2015, 5).

It appears that levels of violence in Ituri have decreased since 2004. Because of remaining insecurity and ongoing conflict in other regions in eastern DRC such as the Kivus and greater Orientale, the situation in Ituri remains fragile, but a slight improvement in terms of levels of violence can be observed.

Levels of violence in Kivu: 2003-2014 The Kivus became the stage of large-scale violence against civilians somewhat later than Ituri. IRC in its report of 2007 observes an ‘escalation of violence’ in North Kivu province since December 2006 (Coghlan et al. 2006/2007, iii). As ACLED data shows (see figure 2), violence against civilians rose significantly after 2010, especially in North Kivu. In 2013, UNHCR statistics show an alarming rise in rape and violence in the province of North Kivu (UNHCR 2013). The UNHCR reported in 2014 that at least 256 people have been massacred in North Kivu province in the period October – December 2014 (UN Group of Experts on DRC 2014).

The ACLED country report on DRC shows that while M23 is the successor group of CNDP, there have been tactical changes adopted as the group evolved. M23 is reportedly more violent than its predecessor. Where CNDP’s average monthly fatality levels during the 2006-2008 period are established at 4 casualties per month, casualties attributable to M23 were 28 fatalities per month on average during the period April 2012 to September 2013 (ACLED 2013, 3).

HRW (2012a) reports that in 2008, Ntaganda commanded troops from the CNDP when they attacked the North Kivu town of Kiwanja. On November 5, 2008, Ntaganda was filmed by international journalists as he led the attack which killed an estimated 150 people.

In January 2009, a deal was struck between DRC and Rwanda to launch a joint military operation in eastern DRC. Nkunda, leader of the CNDP, was arrested and the CNDP were integrated into the Congolese army, including Bosco Ntaganda. However, the military operations amounted in a disaster for civilians. Both armed groups and the national army have targeted civilians amounting in 1.300 civilians being killed in North and South Kivu between January and September 2009 (HRW 2010). In the following year, CNDP continued to carry out their own military operations under the guise of the Congolese army (HRW 2011).

When Ntaganda was made a general in the Congolese army in 2009, he ordered or was implicated in serious abuses. Local chiefs who objected to his authority were assassinated, intimated or threatened. Troops that had stayed loyal to him rather than to the official military hierarchy carried out numerous

36 attacks on civilians. In 2009, at least 270 civilians were killed by troops under his command in western Masisi territory (HRW 2012a).

In the first half of 2010, HRW reported 25 attacks on villages in this area, resulting in at least 105 civilians killed. Witnesses said Ntaganda commanded these attacks (HRW 2012a). Former CNDP troops, newly integrated in to the national army, conducted unilateral operations against another armed group, the FDLR, and their allies. Ntaganda continued to play the role of deputy commander of the joint military operations, and simultaneously continued to be implicated in assassinations (HRW 2011).

Since January 2010, HRW has documented the following abuses that were either directly ordered by Ntaganda or in which he was implicated: at least 20 targeted killings, two attempted killings, four enforced disappearances, and 18 abductions and arbitrary arrests. In late 2010, hundreds of young men and boys were forcibly recruited, including at least 121 under the age of 18. In 2011 and 2012, attacks against civilians continued, including killings, rapes and burned homes (HRW 2012a). In July 2012, Ntaganda’s troops attacked several villages in North Kivu, raping at least 46 women and girls and summarily executing 33 young men and boys (Tampa 2015).

Overall, levels of violence in the Kivu regions remain alarmingly high. Taking into consideration the amount of reports of attacks by groups affiliated with Bosco Ntaganda, these groups share the responsibility for the reported levels of violence. The amount of violence against civilians has increased since 2004, with peaks in 2009, 2011 and 2012.

6.2 Explaining levels of violence in DRC In line with the theoretical framework, this section will look at the relevance of the hypotheses on how the ICC might affect levels of violence. These are twofold: the normative effects in the regions, including legitimacy and a general moral influence and the armed groups’ material interests, including political and economic effects. The previous section looked into how levels of violence have changed over the years 2003-2014. This section will discuss reports from NGOs and the media to make inferences as to how the ICC may have reduced or exacerbated levels of violence, with a focus on the Lubanga and Ntaganda cases and their armed groups.

Normative Effects Legitimacy

Ntaganda was burdened by his international notoriety in executing his command over M23. This led to Makenga being favored over Ntaganda for the position of command (Stearns 2013a, 3). Ntaganda worried that he might be sold out as part of a compromise arranged in a peace talk, as an international arrest warrant was issued against him by the ICC. This led to clashes within the M23 about peace talks

37 with the DRC government (Stearns 2013a, 3). The stigmatization of one of the M23’s supreme leaders as a war criminal may have contributed to the public denunciation of the group.

HRW (2014) concludes that public denunciations and international aid suspensions to Rwanda have contributed most to the defeat of M23. When allegations of Rwandan support to armed groups in DRC resulted in international aid suspensions to Rwanda, the country stopped its support to M23. Although a causal link between the ICC’s involvement and the end of foreign support is hard to sustain, it seems plausible that the stigmatization of armed groups as war criminals by the ICC has led to international pressure on the Rwandan government to put an end to their support of these indicted criminals.

In the Kivus, armed groups that control strategic routes and tax travelers that want to pass through often allow foreign journalists to pass through, because it would draw too much attention to them if they did target foreign journalists (BBC 2012a). This suggests that the armed groups are concerned about maintaining an international image of legitimacy (Herr 2010).

Lubanga’s conviction, together with a weakened Congolese government due to fraudulent presidential elections, led to renewed international pressure for the arrest of other militia leaders such as Ntaganda. At the same time, following the verdict Ntaganda unexpectedly defected from the national army (Hall 2012, 1). According to the BBC, Ntaganda “feared any moves against him would increase the possibility of him being arrested and sent to The Hague”. In addition, Makenga distanced himself from Ntaganda following the ICC indictment (BBC 2012b).

International Crisis Group says: “following an international outcry, some of these warlords were arrested, including Thomas Lubanga, who was the first person to be tried at the ICC in The Hague. However, as soon as these leaders were removed, others sprang up to replace them” (Stearns 2007). Lubanga was in fact replaced by Bosco Ntaganda, who has continued to be active in DRC for many years. Lubanga’s removal as leader of UPC may have contributed to the group’s downfall, but his successor caused significant harm in the Kivus.

On the other hand, Enough Project (2015) reports that Ntaganda’s surrender to the US Embassy in Rwanda and his subsequent transfer to the ICC signaled a turning point for engagement with the M23. Stearns, Verweijen and Baaz (2013) assert that Ntaganda was burdened by his international notoriety in executing his command over M23. For example, before the M23 split between the Makenga-faction and the Ntaganda-faction, Makenga was favored over Ntaganda for the position of command. Also, one of the clashes between these two factions was about peace talks with the DRC government. Ntaganda worried that he might be sold out as part of a compromise arranged in a peace talk, as an international arrest warrant was issued against him by the ICC. With Ntaganda out of the way, a breakthrough for engagement with the M23 became more likely.

General moral influence

Local that have been interviewed about the deterrent effect of the ICC acknowledge that they were reassured because of the removal of perpetrators from the scene. They also state that leaders of armed militias “do not want to be arrested” (Bueno 2012, 10). The verdict in Lubanga’s case has sent out a warning signal internationally and created international jurisprudence on the crime of recruiting child soldiers, which makes it easier to convict future perpetrators of this crime, both nationally and internationally (Interview with ICC official). Additionally, the ICC’s involvement has placed a stigma on the use of child soldiers, both with recruiters and the children themselves and their families. They are aware of their rights and of their role as both victim and perpetrator (Bueno 2012, 10).

This effect is emphasized by Mariana Goetz, program adviser for REDRESS, a London-based legal/human rights NGO, who says: “no doubt in eastern DRC about the fact that child soldiering is a crime. Previously people thought that children were doing military service that was somehow legitimized by the state of conflict” (IRIN 2011).

Additionally, the ICC receives communications on human rights abuses and collects and documents evidence, which in turn is used by actors such as the UN Group of Experts on the DRC (UNSC 2005, 50). Tamm (2013, 38) states that the international community took action on the situation in Ituri after thousands of people sought shelter at MONUC’s headquarters during the fighting for Bunia in 2003, and other “reports about other massacres in Djugu and Irumu territories”. This could indicate that the ICC’s documentation of events in DRC leads other international actors with more enforcement powers, such as the UN, to take action to tackle armed groups.

While children and their parents have become more aware of their rights and might be more opposed to their children serving in militias, the increased awareness that the recruitment of child soldiers is a crime punishable by the ICC has also led to negative effects. HRW reports that whereas militia leaders used to openly admit that they had children in their ranks and handed them over to MONUC or UNICEF as part of the demobilization process, many have denied this practice following the confirmation of charges against Lubanga (HRW 2008, 68). HRW calls these developments “indicative of the ICC’s potential to change the behavior of alleged perpetrators in relation to crimes in its jurisdiction” (HRW 2008, 68). While this is indicative of a change in behavior caused by the ICC, warlords appear to have changed their behavior in response to the ICC’s presence by starting to hide evidence of the use of child soldiers (Davis & Hayner 2009, 33).

Also, the continuation of abuses and the eruption of violence in North Kivu in 2007, including grave crimes by forces affiliated with Bosco Ntaganda, indicates that the Court’s impact remained fragile and limited without the arrest of Ntaganda (HRW 2008, 69). A report by the International Center for Transitional Justice acknowledges that the ICC arrests have made it clear that the use of child soldiers

39 and sexual violence are indeed criminal acts. However, many leaders continue to believe that acts such as arbitrarily killing of civilians are an acceptable part of war (Davis & Hayner 2009, 33). The fact that the groups continue to attack civilians even after the ICC has indicted one of their leaders indicates that the moral influence of the ICC has not been sufficient to lead reduce levels of violence.

On the other hand, HRW researchers were told that some commanders of armed groups have warned their troops to refrain from attacking civilians or committing human rights violations after the ICC announced the opening of an investigation in the DRC (HRW 2008, 67). This suggests that the armed groups are aware of the ICC’s presence and that this has urged them to be more careful in their actions. This general moral influence may have led to lower levels of violence, although a causal link cannot be constituted based on anecdotal evidence alone.

The Lubanga verdict triggered calls for the arrest of his co-accused, Bosco Ntaganda (HRW 2012a; UNSC 2012, 46). Pressure for his arrest was increased, both nationally and internationally. Anecdotal evidence suggests that at least some militia leaders have voiced concern or even modified their behavior out of fear of being indicted and prosecuted by the ICC (HRW 2008, 68). In the wake of Lubanga’s arrest in 2006, HRW reports that some individuals allegedly responsible for war crimes have expressed fear of arrest. They are aware of their own vulnerability to prosecution. The general moral influence of the ICC’s presence has possibly sparked international pressure on armed groups and their supporters.

Material Effects Financial Effects

The financial interest hypothesis implies that violence is employed when it renders financial benefits, and that levels of violence will thus be lower if the costs of using violence become higher than the benefits. The prediction suggests that levels of violence will be lower when the ICC’s presence affects the financial revenues of the employment of violence by armed groups.

In DRC, the situation is complicated by the presence of natural resources in the eastern provinces. Gold is the most important conflict mineral in the region, with at least 12 tons worth roughly $500 million smuggled out of the area every year. Other conflict minerals are tin, tungsten and tantalum. Armed groups use revenues from the illicit trade of gold and tin to benefit its leaders and supporters and to fund their military campaigns (De Koning 2013, 1). Also, the civilian population is often targeted when armed groups fight over control over these mines.

In Ituri the conflict mainly revolves around natural resources and land ownership (UCDP) 10 . According to HRW (2015), competition for the region’s lucrative gold mines and trading routes has been a major contributing factor to the fighting in Ituri. Not only local militias but also foreign armies fought each other and often targeted civilians, committing numerous abuses. Armed groups in the region, including the UPC, carried out widespread ethnic killings, torture, and rape. In recent years, the government has taken control of most of the big mines. According to the BBC (2011), for local residents it now remains unclear what the objective of the militias is. Local sources mention gold mines, but Ituri’s main deposits are in areas that are free of rebel activity.

The fact that the UPC received external support from Uganda and Rwanda when it operated in Ituri has contributed to its fast rise (Tamm 2013, 46). When the international community began to pressure Rwanda and Uganda to stop interfering in the region, large parts of the Hema community were forced to demobilize. At that point, peace seemed better for business than the use of violence. As explained by Hema leaders, the majority of the Hema community is therefore now opposed to renewed conflict (Tamm 2013, 48). This implies that the costs of using violence became higher than the benefits, because it was bad for business.

In the provinces of Kivu, preying on people has become an extractive industry, in combination with the control over profitable tin or gold mines and strategical cities and routes where travelers can be “taxed” (BBC 2012a). After Ntaganda was removed from the scene in eastern Congo, his former co- commander Makenga is taking over his gold-smuggling network (De Koning 2013, 1). M23, under Ntaganda’s command, allegedly has built alliances with other armed groups in the region. These include infamous groups like the Nduma Defence of Congo (NDC), Justin Banaloki also known as “Cobra Matata” who remains active in Ituri district, and several others (De Koning 2013, 2).

In addition, neighboring countries exploit the weakness of the Congolese institutions by allowing their nationals, among them Bosco Ntaganda, to plunder the Kivus (BBC 2012a). International pressure on these governments could lead them to stop this practice and crack down on their nationals that roam the DRC’s territory.

According to a UN report on the DRC, the 2012 increase in violence was partly caused by government attempts to end the exploitation of gold and tin mines by the national army. Not only the army participated in these activities, rebels have also resorted to criminality. When Ntaganda and his followers defected from the army, the plundering of banks has made them rich, thus strengthening their political and ethnic power bases (BBC 2012b).

10 Uppsala Conflict Data Program (date of retrieval: 24-09-2015) UCDP Conflict Encyclopedia: http://www.ucdp.uu.se/gpdatabase/gpcountry.php?id=38®ionSelect=2-Southern_Africa#, Uppsala University. 41

Also, the BBC reports that troops under the command of Ntaganda and Makenga started to defect in April 2012 and have established their own fiefdoms because they feared that they’d be redeployed following the announcement by the DRC government that they will carry out the ICC’s indictment. This would threaten the officers’ money-making capacity (BBC 2012b). Ntaganda also stands accused of involvement in illegal mineral smuggling by a UN Group of Experts. Through these illegal activities he has been able to acquire wealth which he uses to facilitate the continuation of human rights abuses by his group (HRW 2012a). Attacks carried out in 2011 and early 2012 were linked to control over land in parts of North Kivu. This involved killings, rapes and burning homes. Land disputes were resolved by force (HRW 2012a).

In June 2012, the UN Group of Experts presented compelling evidence of Rwandan support to the M23 rebels in its report (UNSC 2012). After the brutal attack on the village of Chengerero of 2012, the United States, the United Kingdom, Germany, the Netherlands and Sweden announced the suspension or delay of assistance to Rwanda in light of these findings (Tampa 2015). In spite of this, Rwandan military support for M23 and abuses by M23 has continued for a while (HRW 2012b). But as M23 received most of its military support from Rwanda, including personnel, weapons, ammunition and other supplies, it was severely weakened when this support ended in late October 2013 (HRW 2014). Other reports also indicate that one of the main reasons that the M23 was defeated was that its foreign support dried up. Stearns (2013b) says that reports from the frontlines indicate that M23 “was largely left to its own devices”, as Rwandan supporters did not respond to calls for military aid. Ida Sawyer, a HRW researcher based in DRC, also acknowledges the waning of Rwandan support as the most crucial aspect in the M23’s defeat (Smith 2013).

These reports show that the UPC lost its control over the gold mines, but no link was found between their loss of control and the ICC’s presence in Ituri. However, Rwandan support for both M23 and UPC dried up following international pressure and the suspension of assistance from foreign supporters to Rwanda. The ICC’s presence may have contributed to this increased international awareness, as the Court has documented evidence on the cases that were used by other international actors to address foreign support. In this case, the armed groups could no longer terrorize the population because their financial support dried up, something to which the ICC’s presence may have been a factor. In the case of Ntaganda, it appears that he defected from the army following the ICC indictment, since he considered the financial benefits of using violence to sustain his control over natural resources bigger than the costs implied by the threat of the ICC. This led to higher levels of violence as M23 clashed with MONUSCO and FARDC, as supported by the surge in violence in the Kivus in 2012 (see Figure 3).

Political Effects

After splits within the UPC that caused the military leader of UPC, Kisembo, to defect and the increased pressure from MONUC in Ituri, the UPC started to proliferate itself politically, which had been its objective from the outset. In May 2004, UPC signed a peace deal with other Ituri armed groups and the DRC government, agreeing to support the Disarmament and Community Reinsertion (DCR) program for Ituri. UPC-L continued to demand ministerial positions in the government, and though this did not happen, UPC became the first of Ituri’s armed groups to be recognized as a national political party (Tamm 2013, 41).

Despite this, most of Ituri’s armed groups continued to fight both each other as MONUC and FARDC. At the end of 2004, violence increased in Ituri when armed groups including UPC fought against MONUC, FARDC and each other over control over key mining areas and trading routes, increasingly preying on their own communities. Following this fighting many of the leaders were arrested, including Lubanga. After the arrests, the UPC effectively ceased to exist as an armed group in June 2005 (Tamm 2013, 41). The ICC concludes that Lubanga exercised an overall coordinating role over the UPC’s activities, being involved in planning military operations, making decisions on recruitment policies and being informed of the operations of the military wing (ICC Website 2015c, par. 1356). The apprehension of such an important leader signifies a setback for the UPC and may have contributed to its downfall.

The UPC nowadays still exists as a political party (Tamm 2013, 9). However, it is nothing compared to the role it played nationally at the height of its power in 2002. The UPC has risen from being a discussion group to one of the most powerful politico-military movements in Ituri, only to fall as rapidly as it has risen. Tamm (2013, 9) concludes that a resurge of the UPC is unlikely because of social and political shifts in Ituri: businessmen have thrived in a relatively peaceful climate, the military leadership has been fragmented, and regional power plays have somewhat abated.

Despite these developments, security in Ituri remains an issue of concern. Other armed groups continue to attack civilians. Some of the former UPC combatants continued to fight, even after the conclusion of peace deals in 2007 (Tamm 2013, 44). Cobra Matata, another notorious militia leader, was asked to become the head of a new coalition of several smaller militias. While this coalition never became as influential as the UPC had been, and should not be seen as its direct successor, the legacy of the UPC clearly continues to play a role in the destabilization of the conflict (Tamm 2013, 45).

As for the political effects of the ICC on Ntaganda’s group, both CNDP and M23 are of interest. In October 2008, the CNDP declared a ceasefire after heavy fighting with government forces in North Kivu, demanding talks with the government by threatening to resume fighting if they refused (HRW 2009, 61). This suggests that for the CNDP the use of violence is a legit political instrument.

HRW asserts that war lords were continuously ‘rewarded’ for their atrocities against civilians by being integrated in the national army (HRW 2015). When the Court requested the DRC government to arrest Ntaganda in 2009, they refused to do so arguing that Ntaganda was crucial to any peaceful solution to the conflict in the Kivus. The US Special Advisor for the Great Lakes Region raised concerns over the adverse effects of Ntaganda’s participation in the Congolese army, rendering it inexcusable that the DRC refused to transfer Ntaganda to the ICC. These statements helped contribute to the international community’s increased attention to the Ntaganda case (Gueye 2010), so that in April 2012, the president of DRC announced that he was prepared to arrest Ntaganda, who was still serving as a military commander in the Congolese army.

Not long after this announcement, Ntaganda and soldiers loyal to him defected from the army and created a new rebellion, M23 (HRW 2015). The creation of M23 has led to a spate of violent clashes in eastern DRC which has caused many civilians to flee (Townsed 2012). Pressure from the ICC on the DRC government has led Ntaganda to leave the army and resume his abusive behavior against civilians (HRW 2015). This indicates that Ntaganda perceived the threat of apprehension as an incentive to start a new rebellion, as the costs of complying with the rules were higher than the benefits resulting from the use of violence.

There are also many allegations of recruitment for the M23 by Rwandan military authorities. According to HRW, Rwandan authorities recruited an estimated 600 young men and boys in Rwanda. This number is even larger than those recruited by the M23 itself in Congo (HRW 2012b). In its 2014 final report, the UN Group of Experts on the DRC also mentions the continuation of Rwandan support to M23 throughout 2013. Even after its defeat, M23 received various forms of support from Rwandan territory, including recruitment (UNSC News Centre 2014, 3).

M23 was reportedly significantly more violent than its predecessor CNDP. According to ACLED, this could indicate that M23’s operational capacity was higher in terms of funding and logistics, that is has higher rates of popular support, or that the response of Congolese an international military actors has increased in intensity (ACLED 2013, 3). The armed groups that Ntaganda joined over the years became more violent. This indicates that he did not consider his indictment by the ICC such a threat that he would cease violence. This indication corresponds with levels of violence in the Kivus, which have increased significantly in 2009 and after 2012 (see Figure 3), while Ntaganda’s arrest warrant was unsealed in 2008.

Ntaganda turned himself in in March 2013, which signaled a turning point for engagement with the M23 (Enough Project 2015). According to Smith (2013), one of the reasons for the M23’s capitulation was that it was weakened by factionalism and infighting, resulting in Ntaganda turning himself in to the ICC. As Ntaganda’s position within the M23 was weakened because of his indictment by the ICC,

44 this may have inspired other influential figures within M23 such as Makenga to begin questioning his leadership.

Once physically removed from their position of influence and cut off from their networks, the targeted militia leaders have not been able to retain the intense support that could lead to an increase in violence because of their arrest (Davis & Hayner 2009, 23). Even before apprehension, their international notoriety resulting from the ICC’s interest in their case has hindered their effective exercise of leadership. While other leaders may have taken their place to resume what they were doing, the arrests of the leaders do not seem to have sparked any additional violence. Furthermore, the apprehension of leaders that exercised effective control over their groups has weakened the groups, which in the case of the UPC has contributed to its downfall. This contention is supported by the lowering of levels of violence in Ituri since the ICC’s presence. However, the ICC’s indictment of Bosco Ntaganda was accompanied by an increase in levels of violence attributable to CNDP and M23, in particular while he was still at large.

7. Concluding Remarks Focusing on international justice, this thesis has examined whether there exists a relationship between the ICC’s presence and levels of violence in the DRC, by stating the question: “Does the presence of the ICC in the Democratic Republic of Congo have a dampening effect on levels of violence?”. Building on Kim and Sikkink (2010), the thesis made use of a theoretical framework that intends to explain, at least in part, what effect the ICC’s presence has on levels of violence committed by armed groups. Assuming that both normative and material effects are in play, the thesis hypothesizes four mechanisms that could explain how the ICC’s presence affects armed groups. These are: legitimacy, general moral influence, financial effects and political effects. Of course, keeping in mind the complexity of the situations that the ICC investigates, these mechanisms want to be only a partial solution in explaining the dependent variable: levels of violence.

First, levels of violence in DRC with a focus on Ituri and Kivu regions have been documented. After this, one section explored material effects of the ICC’s presence on levels of violence, and one section explored normative effects of the ICC’s presence on levels of violence. The two categories of mechanisms have different starting points. The first looks at the importance of the symbolic meaning of the ICC that communicates and dramatizes norms, while the second has its roots in rational choice theory, and views armed groups as rational actors that include the ICC’s presence in their cost-benefit calculation. The way in which these two factors affect levels of violence in DRC is summarized below.

The first hypothesis proposed that a general moral influence of the ICC’s presence would be associated with lower levels of violence. Despite rendering incentives to hide crimes and a limited and

45 fragile impact due to weak enforcement powers, the ICC has inspired other international actors such as the UN to take action to tackle armed groups. By setting jurisprudence for the conviction of future war criminals, documenting evidence on human rights abuses, and communicating norms, international pressure for the arrest of other militia leaders was increased following Lubanga’s verdict. International and national awareness was raised for crimes committed in Ituri and the Kivus. Although levels of violence were not directly reduced following ICC presence, it is possible that it contributed to other actors taking action.

The findings partially support the normative hypothesis on legitimacy. The expectation is that the ICC’s presence damages the armed group’s prestige and legitimacy, which leads to a loss of trust, reduced credibility and a loss of reputation. This could affect external supporters. The ICC and other international actors marked Ntaganda as a criminal. In spite of this, Ntaganda has been able to continue his violent activities for a long time. When Rwandan support for M23 stopped in 2013 as a result of international pressure, to which the ICC may have contributed, levels of violence in the Kivus decreased. Lubanga’s loss of legitimacy did not necessarily lead to a reduction in levels of violence as he was replaced by other radical individuals.

The hypothesis on political effects of ICC presence rendered the expectation that its presence would increase the political costs of using violence. The case of Lubanga has shown that his apprehension by the ICC has contributed to the UPC’s downfall. The case of Ntaganda has shown that his inability to exercise command of his group due to international notoriety following an ICC indictment has led to internal fraction, which led to a turning point for engagement with M23. However, the threat of apprehension led to the creation of M23 and higher levels of violence in the Kivus in during 2012. Furthermore, the refusal of the DRC government to apprehend Ntaganda at first is indicative of the low political leverage of the ICC.

Following the hypothesis on financial effects of ICC presence, one would expect to see lower levels of violence when the ICC’s presence increases the financial costs of using violence. The case of Ntaganda has shown that this expectation does not hold. The financial benefits of using violence in eastern DRC are high, considering the region’s richness in natural resources. Ntaganda has possibly perceived the ICC’s presence as a threat to his financial benefits, resulting in heavy fighting in the Kivus in 2012. In the case of Lubanga no relation was found between the ICC’s presence and financial benefits of the UPC.

Overall it remains hard to tell what the effects of the ICC’s presence in DRC have been on levels of violence, considering the complexity of the conflict in eastern DRC and the number of actors that are involved. Nonetheless, the findings in this thesis are cautiously supportive of the argument that the ICC’s presence does not exacerbate levels of violence in the DRC. The findings indicate that mostly through normative effects, the ICC’s presence helps raise international pressure and awareness of

46 crimes committed in DRC. The most promising argument in terms of the ICC’s ability to reduce levels of violence is in creating awareness at an international and local level. International notoriety due to indictment hinders leaders of armed groups in exercising their leadership. The apprehension of leaders in DRC weakens the armed groups and has improved engagement with the armed groups. The verdicts of the ICC establish international jurisprudence on international crimes, which can enhance the ICC’s deterrent effect.

Admittedly, effects of ICC presence pose several difficulties. First, the absence of enforcement powers poses problems for the ICC’s credibility as an institution, and has consequences for both normative and material effects. When State Parties can simply refuse to exercise arrest warrants against their nationals or suspects on their territory, the threat of the ICC’s presence remains fragile and limited. The findings in terms of material impact on levels of violence were few, which could be a consequence on the ICC’s weak enforcement powers. Furthermore, the increased international awareness can lead leaders of armed groups to hide their crimes, which makes it harder to convict them. However, the debate should not be focused solely on immediate outcomes, because this ignores the possible long-term effects and goals of justice, which are expressed through normative effects.

This study has several limitations. First of all, it is worth noting that it is hard to establish a causal link between the ICC’s deterrence effect and levels of violence, because one would have to measure what does not happen. This thesis has tried to get an idea of this relationship by looking at levels of violence and combining it with qualitative reports from actors who investigate levels of violence. However, it should be clear that this approach has its limitations which makes it hard to draw causal inferences.

Besides difficulties inherent to the topic, the measuring of levels of violence also poses several problems. The level of insecurity in eastern Congo makes it hard for objective observers to access the area and report the number of deaths. Furthermore, armed groups have attempted to hide their victims, or children in their ranks. The inferences that were made have been based on the observations of NGOs and databases that are available on the internet, but many cases go unreported and the number of deaths varies among these sources. In addition, the short time span in which the ICC has been active precludes the long-term effects of the ICC’s presence.

Given the early stage in which the research on effects of the ICC is and the fact that it is a relatively young organization, this thesis proposes the following implications for further research on this topic. The debate on effects of the ICC would benefit from more quantitative studies on its impact on non- state actors. A viable way forward could be the analysis of comparing two similar armed groups, of which one is under ICC investigation and one is not. Further research would entail access to local sources, such as members and leaders of the armed group as well as the local population. In terms of theoretical implications, it might be interesting to see whether the ICC’s jurisprudence emphasizes the normative effect of the ICC’s presence, although it might be too soon to determine.

In conclusion, the existence of a deterrent effect of the ICC remains hard to establish. Nonetheless, the findings presented here do not support the argument that the ICC’s presence has a dampening effect on levels of violence in DRC. While many factors are at play and the ICC is only one factor in a very complex situation, this does call into question the contention that the ICC does more harm than good.

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Appendix 1: Tables and Figures on Levels of Violence in DRC

Figure 2 Violent Deaths rate per 100,000 population – trend 2004-2012. Source: Geneva Declaration website, available at http://www.genevadeclaration.org/measurability/global-burden-of-armed-violence/gbav-2015/interactive-map- charts.html, accessed 02-09-2015.

Year Estimated Violent Death Rate 2004 44.9 2005 44.1 2006 37.4 2007 37.4 2008 25.6 2009 27.1 2010 18.3 2011 17.0 2012 17.0 Table 2 Violent Deaths rate per 100,000 population – trend 2004-2012. Source: Geneva Declaration website, available at http://www.genevadeclaration.org/fileadmin/docs/GBAV3/GBAV-2015-data-150513.xlsx, accessed 02-09-2015.

Figure 3 Conflict Events by Type, North Kivu, South Kivu and Orientale, January 2001-September 2013. Source: ACLED Country Report on DR-Congo, available at http://www.acleddata.com/wp-content/uploads/2014/10/ACLED-Country- Report_DR-Congo_December-2013_updated.pdf, accessed 09-09-2015.

Figure 4 Conflict Events and Reported Fatalities, DR-Congo, January 2001-September 2013. Source: ACLED Country Report on DR-Congo, available at http://www.acleddata.com/wp-content/uploads/2014/10/ACLED-Country-Report_DR- Congo_December-2013_updated.pdf, accessed 09-09-2015.

Appendix 2: Interview with ICC Official 1. Do you feel like ICC involvement in a situation is something that has an impact on how armed groups in that region behave? 2. Do you think that prosecutions initiated during ongoing conflict will help prevent future atrocities committed by armed groups? a. If so, what do you think causes this behavior? b. If not, why do you think this is? 3. Do you think that in some cases ICC involvement could lead the armed group in question to lose confidence in finding a peaceful solution, because they can no longer escape punishment? a. If so, under what circumstances do you think this will be the case? b. If not, why? 4. Could you give an example of a case in which, from your perspective, ICC involvement has created positive outcomes for that situation? a. What were these positive outcomes? 5. Could you give an example of a case in which, from your perspective, ICC involvement did not work as you would have liked? 6. Could you tell me why, if so, armed groups and militias are concerned about ICC investigations in their case? And why do you think this is so? 7. In which of the following stages of the ICC prosecution do you think the armed group or militia will be most concerned about its survival: a. Preliminary investigations b. Indictment c. Arrest d. Sentence Why do you think this is so?

8. In your experience, how did armed groups react when it became public that the ICC was investigating their case? 9. In what ways do you think the ICC can contribute to increase the prospects of positive effects and reduce or limit the negative ones?