Painting by Cheri Samba

Lokuta eyaka na ascenseur, kasi vérité eyei na escalier mpe ekomi. Lies come up in the elevator; the truth takes the stairs but gets here eventually. - Koffi Olomide

Ésthetique eboma vélo. Aesthetics will kill a bicycle. - Felix Wazekwa

Friday, February 26, 2010

The US Supreme Court and the Congo

The US Supreme Court will soon rule on a case of great importance to the Congo. Well, not really, but it does reveal an interesting loop hole in international diplomacy and law.

In Holder v. Humanitarian Law Project, the court is currently hearing a case about a retired United States administrative law judge who wanted to provide training in peaceful dispute resolution to the Kurdistan Workers’ Party, which has waged a separatist guerrilla campaign against the Turkish government, and to advise the group on how to petition the United Nations and other international organizations for relief. (See the New York Times Op-Ed here.)

It is illegal for people in the US to provide "material support" to groups listed as terrorist organizations by the US government. Support can be financial, but also advice and "service." The issue at stake in the Supreme Court case is what exactly this vague definition of material support means.

The reason that I raise this issue is because the US, as well as governments in Europe, has consistently had a hard time prosecuting leaders and supporters of rebel groups abroad, no matter how violent and abusive those groups are. In Germany, for example, the prosecutors flailed around for a long time before finally prosecuting the FDLR leaders living there based on the International Criminal Court's Rome Statute definition of war crimes and crimes against humanity.

The US, of course, has not signed onto the Rome Statute. It can, however, prosecute people who provide material support to terrorist groups, which are defined as organizations that threaten the security of US nationals or US national interests. Most of the organizations on the current list are linked to extremist Islamist networks. But there are some notable exceptions of groups that do not target US interests per se, but who may target governments allied to the US: the PKK in Turkey, LTTE in Sri Lanka, ETA in Spain. Just to prove that it is more about political will than abiding by legal definitions. (In fact, many have criticized the naming of these groups as cynical realpolitik).

All of this is just to say that the FDLR, CNDP and LRA can be as massively abusive as they want to be and still travel to the United States. In fact, the two leaders of an FDLR splinter faction, RUD-URUNANA, live in New Jersey and Massachusetts. When the CNDP was still officially a rebel group, its leaders regularly traveled throughout Africa and Europe.

We may need to think about some more creative legislating - in the US, you can get people under
  • the Torture Victim Protection Act, which allows for the filing of civil suits in the United States against individuals who, acting in an official capacity for any foreign nation, committed torture and/or extrajudicial killing.
  • the Alien Tort Claims Act, which allows United States courts to hear human rights cases brought by foreign citizens for conduct committed outside the United States, including by corporations.
Unfortunately, you have to prove the "purposeful complicity in human rights violations," which is often difficult. (See here for more detail.)

10 comments:

James said...

Jason,

After reading the answer from one of those RUD-Urunana leaders in the comment posted on TUESDAY, OCTOBER 27, 2009 about your blog article "Are we really serious about getting rid of the FDLR?", one may think your comments are consistently biased against RUD-Urunana. Why? This of course if what the RUD-Urunana leader says is true.

Granted, one's freedom fighter is another's terrorist.
Besides, you usually know more secrets hidden to us. But, I fail to see how the RUD-Urunana's case is related to that of other armed groups you mentioned.

Jason Stearns said...

I should be clear: RUD is much smaller than the FDLR, and apparently much less abusive. However, there is good evidence that RUD soldiers have committed very serious human rights abuses, including burning down the village of Kasiki last year. But more work needs to be done into them.

collins Mbalo said...

lovely blog, love the cartoons

Margot said...

Hello,
I wanted to share this invitation with your followers.

The United States Institute of Peace invites you to participate in a workshop titled “Leveraging International Support to Build Peace in the Democratic Republic of the Congo” on Thursday March 18th 2010 from 9h30 am to 3h30 pm at the USIP headquarters, 1200 17th Street NW, Washington DC.


This workshop builds on USIP’s 17th October 2009 Trans-Atlantic Diaspora Dialogue, which outlined concrete steps diaspora communities could take to help prevent conflict and promote peace in the DRC. These included providing input for US-DRC policy and program development in Washington DC, participating in economic development and capacity building initiatives, and supporting anti-corruption efforts at every level.


The workshop will feature two panels: the first comprising representatives from US government departments (e.g. State, Defense and the Treasury) and the second with representatives from development agencies (e.g. the World Bank, UNDP and USAID). This workshop aims to inform members of the diaspora and other stakeholders of ongoing development assistance programs in the DRC provide a forum for a frank exchange of ideas and identify avenues for more effective diaspora involvement in peacebuilding. Further information for this event is available here.

Space is limited, RSVP now.

French

L’Institut de Paix des Etats-Unis (USIP) vous invite à participer dans un atelier intitulé «Attirer le Soutien International pour Construire la Paix dans la République Démocratique du Congo» le Jeudi 18 Mars 2010 de 9h30 à 15h30 au siège principal de l’USIP (1200 17th NW, Washington DC, USA).

Cet atelier est un suivi du premier forum du 17 Octobre 2009 sur le Dialogue Transatlantique de la Diaspora Congolaise, qui avait esquissé des approches pour que les communautés de diaspora Congolaise puissent prendre part à empêcher le conflit et promouvoir la paix en DRC. Les propositions inclue avaient fournir des recommandations qui seront vitales pour la politique Etats-Unis-DRC et le développement de programme à Washington DC, participer dans le développement économique et les initiatives pour rebâtir la capacité de l’Etat Congolais, et soutenir les efforts anti-corruption à chaque niveau.

L'atelier présentera deux panneaux : dans le premier, des représentants des départements du gouvernement Américain (par exemple Le Département D’Etat, de la Défense et du Trésor Public). Le deuxième sera composé des représentants des agences de développement (par exemple. la Banque Mondiale, le Programme des Nations Unies pour le Développement (PNUD) et l’Agence des États-Unis pour le Développement International (USAID). Ces ateliers visent à informer les membres de la diaspora et d’autres participants des programmes d'assistance de développement continu en DRC; fournir un forum pour un échange franc d'idées et identifier des avenues pour l'engagement de diaspora plus efficace pour bâtir la paix au Congo.

Pour plus amples informations sur cet événement suivez ce lien.
Les places sont limitées. Pour vous inscrire, veuillez contacter Margot Bokanga: mbokanga@usip.org ou suivez ce lien.


Feel free to share this email with other members in the community.

Sincerely,

Margot

Margot Bokanga
Research Assistant
U.S. Institute of Peace

Sasha said...

One closure for this loophole is the US policy provisions on anti-corruption in natural resources. This is a visa denial program, not a tool for prosecution, but it can work. Essentially, anyone that the State Department believes is involved in corruption relating to natural resources can be banned from travel to the US. Surely some FDLR or other leaders might fit that bill...

Presidential Proclamation 7750 and the Leahy amendment that accompanied it 4 years later - the Anti-Kleptocracy provision in the State and Foreign Operations bill - are the legal statutes that back this up. See http://www.legalfish.com/TheDailyTackle/2009/11/24/proclamation-7750-corrupt-officials-the-american-visa/ and S. 1434. Of course, enforcement is a key part of this, with some officials being caught but some still slipping by. State's International Narcotics and Law Enforcement Bureau (INL) is the agency in charge of enforcing these provisions.

From S. 1434 -

Sec. 7085. (a) In furtherance of the National Strategy to Internationalize Efforts Against Kleptocracy and Presidential Proclamation 7750, the Secretary of State shall compile and maintain a list of officials of foreign governments and their immediate family members who the Secretary has credible evidence have been involved in corruption relating to the extraction of natural resources in their countries.

(b) Any individual on the list compiled under subsection (a) shall be ineligible for admission to the United States.

(c) The Secretary may waive the application of subsection (b) if the Secretary determines that admission to the United States is necessary to attend the United Nations or to further United States law enforcement objectives, or that the circumstances which caused the individual to be included on the list have changed sufficiently to justify the removal of the individual from the list.

(d) Not later than 90 days after enactment of this Act and 180 days thereafter, the Secretary of State shall report in writing, in classified form if necessary, to the Committees on Appropriations describing the evidence of corruption concerning individuals listed pursuant to subsection (a).

(e) The Secretary of State should encourage other governments to take similar steps regarding officials of foreign governments and their family members who have been credibly alleged to be involved in corruption relating to the extraction of natural resources.

Jason Stearns said...

Thanks, Sasha -

I think there must be some general rule about blocking visas for corrupt officials, regardless of their involvement in natural resources, as the US barred several allegedly corrupt Kenyan officials from visiting the country.

In general, this is good, but I doubt it will hurt the FDLR or other groups much. It will be difficult to prove that the leaders already in the US (mostly RUD) have any involvement in the minerals trade. And since Obiang seems to be able to get away with on a much more ridiculous scale, I doubt the Congolese vont etre inquiete.

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ladygaga3 said...

In fact, the US Supreme Court should give the rule on a case of great importance to the Congo. This will promoting this country become more stable.
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Anonymous said...

Don't forget the Federal Torture Statute (18 U.S.C. §§ 2340-2340B), which criminalizes acts of torture that occur outside of the United States. It was first passed under P.L. 103-236, later amended, to implement U.S. commitments as a signatory of the U.N. Convention Against Torture and

SEC. 506. TORTURE CONVENTION IMPLEMENTATION.
[...]
`SEC. 2340A. TORTURE.

(a) OFFENSE- Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be imprisoned for any term of years or for life.

(b) JURISDICTION- There is jurisdiction over the activity prohibited in subsection (a) if--

(1) the alleged offender is a national of the United States; or

(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.

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