ICC risks losing the plot in DR Congo
The attack came at night on a road in the east of Congo's North Kivu province.
The country's army, the FARDC, battled Tutsi rebels with machine guns and heavy weapons. By morning, two FARDC soldiers sprawled dead on their backs, bare feet protruding from tattered olive uniforms. One reached upwards, his hand frozen. A rebel soldier said more FARDC bodies lay in the long grass. "If they want they can come again. We are going to beat them as usual," he boasted.
Fifteen minutes along the road is Kibumba, now under the CNDP rebels loyal to Laurent Nkunda. "We are suffering. We are tired. But we are going to fight," shouted one soldier. In the market, a young girl looked for food, saying there was nothing to eat in her own village. She hadn't been to school for more than a year.
Fighting flared between the army and CNDP in late 2006 and intensified in August with the collapse of the latest peace deal, the so-called Goma accord. Nkunda claims to be protecting Congolese Tutsis, and earlier this month came within 20 kilometres of the provincial capital Goma.
Schools in North Kivu are now packed with refugees from the war. A series of grim IDP camps scattered around this beautiful region of volcanic soil and green hills house thousands of others. The United Nations estimates more than 800,000 people have been displaced.
People are fleeing their homes for good reason. Incidents of rape have soared since August, this in a country already described as the worst place in the world to be a girl or woman. In Rutshuru and Masisi, armed groups are reportedly recruiting both children and adults.
In towns like Kibumba, Kiberisi, Kanyabayonga, Kirumba, Kayna and Kiwanja murder, rape, looting and pillage are being committed every day, by all sides, with impunity.
In a plea to the international community for help, a coalition of North Kivu NGOs and community groups described the desperate situation in Kiwanja, "[The] civilian population are being summarily executed by bullets or blows from machetes, knives, hoes and spears. Corpses line the streets of the city and the odour of decomposing bodies greets passers-by.
"We don't know what saint to pray to. We are condemned to death by all this violence and displacement. We have been abandoned. Who will protect us? Who will help us?"
That is a good question.
Politicians including British foreign secretary David Miliband have visited the east, expressing shock and concern at the violence and the scale of the humanitarian crisis. But so far there has been little appetite for the fast deployment of European Union soldiers to protect civilians and drive back the rebels.
At UN headquarters, the Security Council has agreed to send more troops to shore up the huge UN force, known by its French acronym MONUC. But it is still unclear who will provide those troops and when they will arrive.
It is Nkunda who has garnered most of the press attention during the latest incarnation of this long-running conflict. Journalists and international mediators have all trekked to his headquarters in the hills near Goma.
But another man stands at Nkunda's side, invisible to the outside world but no less important. He is International Criminal Court, ICC, indictee Bosco Ntaganda, Nkunda's second-in-command, who is running the devastating campaign that has routed the army and brought the CNDP uncomfortably close to Goma.
But it's not for war crimes in North Kivu that the ICC wants Ntaganda in The Hague.
He is accused of recruiting children to fight in a different - unrelated - war, in the Ituri region of northeastern Congo. The ICC issued an arrest warrant in April but, like others wanted by the court in Uganda and Sudan, Ntaganda remains free and the ICC powerless to bring him in.
One Goma-based human rights advocate worries that with an ICC warrant hanging over his head Ntaganda will show little restraint in his North Kivu campaign. "What does he have to lose?" he said.
It's hard to blame the court for failing to arrest Ntaganda. With no police force of its own, an inadequate Congolese army and little interest from MONUC in helping execute the warrant, the ICC is in a difficult position. What can it do from The Hague with no cooperation?
What is harder to understand is the court's near invisibility in North Kivu during the last 12 months of violence and chaos. With people asking, "Where is the ICC?", a spokeswoman for the office of the prosecutor told IWPR that Luis Moreno-Ocampo was last in Congo in April 2006, and has never been to Goma - although there have been ICC missions to the provincial capital. A mission to Congo planned for the autumn was cancelled for security reasons.
Moreno-Ocampo recently told the Assembly of States Parties - the court's governing body - that an investigation focused "on the Kivus" began in November but offered no specifics. A press release on the ICC's impenetrable website, expressing "concern about the situation in the Kivus", that talks of "closely monitoring converging information about attacks", is unlikely to bring much comfort to Congolese, or instill any fear into those committing war crimes.
The OTP spokeswoman declined to comment on whether investigators are currently on the ground in the east.
What is clear is that any arrests in North Kivu are months - probably longer - away and that the failure to arrest the man leading the violence there, Ntaganda, has made the ICC look desperately weak in Congolese eyes.
A series of high profile mis-steps by prosecutors in the on-off Thomas Lubanga case haven't helped the ICC's image in Congo. Judges blamed prosecutors for jeopardising Lubanga's right to a fair trial and temporarily halted the case. It has been rescheduled for January 26.
Elsewhere, the arrest of former vice-president Jean-Pierre Bemba for crimes in the Central African Republic has also created distrust of the court. Many Congolese are convinced Moreno-Ocampo is working for Joseph Kabila, taking out his main political rival in time for the 2011 presidential elections.
The court insists its Congo outreach campaign, intended to debunk the myths and rumours about the ICC, is robust and effective. But evidence on the ground suggests differently. North Kivu is an opportunity to correct that. All sides in the conflict have committed war crimes and the ICC's long-promised case or cases must reflect that, to refute the commonly held belief that the ICC is biased.
Hutus, Tutsis and others driven into North Kivu's many refugee camps for the second, third, fourth or fifth time aren't much interested in discussions of justice.
Stéphanie has been in the Mugunga II camp outside Goma for more than a year and wonders how she will feed her six children with the meager rations on offer. The plastic that covers her shelter leaks during the frequent downpours, but she has no idea when she can return home.
A male IDP says the residents of Mugunga all want the same thing - and it isn't justice. "Peace is most important. If we have peace, everything works well," he said.
Lisa Clifford is an international justice reporter in The Hague. The views expressed in this article are not necessarily the views of IWPR.