 You went in mechanism in the democratic with Paul Nahimas, did I get that right Paul? Okay, who joins us from Turkey. And by the way, Turkey changed the spelling of its name or took an old spelling. It's now Turkey A, but it's pronounced Turkey on May 22nd, then asked the United Nations to approve that name, and they did. But now Turkey is Turkey A. What's interesting is the reason, and the reason is that they didn't want to be associated with the turkey bird, because turkey bird had taken on a meaning in the English language to mean something silly that fails. So we now have another name for Turkey. And he joins us from Istanbul, which is one of my favorite places. Thank you for coming on the show Paul. Thank you for having me. So, you know, from the point of view of your work as a lawyer, investigator for the Project Expedite Justice and others, I want to talk to you about the UN mechanism in the Democratic Republic of Congo. Democratic may be the wrong word, because it seems like there's another war every time you're looking. I guess the question I put to you is, can you have a Democratic Republic when you're constantly at war? Can you do that? You can have a Democratic Republic when you're anything but Democratic. So I guess, why not? They can call themselves whatever they like. Are they Democratic? Normally, yes. They try to be, I think, for the most part. The country is beset with problems, but it's certainly in the previous election, it's considered a, I think, a very flawed democracy. It's trying to be a democracy. It has, it's not a liberal democracy in human body means, but they are, they're doing their best with what they've got under the circumstances that they find themselves in. Why can't they do better? You know, it's not only Congo's Rwanda, it's all the countries around there, Sudan and so forth. We've covered a number of them. Sub-Saharan Africa, East Africa, it just seems like they're always in violence. Let me go for another truism. If you're in violence, it's hard to build an economy. Am I right? Well, yes. If there's no stability, there's a reluctance on the part of those that might build industries to invest. And that's not just something that you find in the DRC, but in most underdeveloped countries are underdeveloped for a reason. Yes, there are other factors, but if there's no certainty, if there's no rule of law or no belief that there is rule of law, then investors are unwilling to put the big bucks in to build factories or steel mills or pineapple plantations or what have you because they could lose it very, very quickly and not have a return on their investment. And when they do invest, they need a very big return on their investment to compensate for the risk that they could lose everything. And they do lose everything. Well, it's true. A going concern in Congo is really worth a lot less if you sell it up front in terms of its profit, the amount of profit it generates over years. For instance, 20 years of profits might be the full value of an investment in the United States, whereas in Congo, I think it would be considerably less because you could lose it tomorrow. So you take the risk you need to extract as much out of it as you can. What I don't understand is the violence and the genocide I was mentioned before the show. My limited reading on this suggests that the problems in Congo are connected with Rwanda and Rwanda had a genocide back 20 years ago, which people are still talking about and which the United Nations was unable to do very much about. And it's almost like it's connected, it's infection from one country to the other. And then you find that there's a guerrilla group, an opposition group in the east of Congo called M23. That's from March 23rd. And they're very active and they've been active for a long time. And the president of Congo is trying to raise an army of young people somewhere between half a million and a million people to go fight with them. And he's bringing troops in from other countries from Sudan and Kenya and I don't know where else to have a map on the screen. From, yeah, from Zambia, Tanzania and so forth to try to help him do that. It sounds like he's really under threat of some kind of national conflagration. Am I right? To a point, yes. There's a United Nations mission based in Congo for over 20 years now, which has largely, well, has been playing a role in combating M23 for the most part. Certainly they undertook some offensive operations in 2012, late 2012 when M23 got into the city of Goma in the east of Congo, just very close to the Rwandan border. Yeah, so it's, but it's not the only group that's behind instability in that country. There are multiple other ones, especially in the east. The Allied Democratic Forces, which is largely considered to be a Islamist offshoot associated with Al-Shabaab, although the links between those two, again, it's not my field, not exactly as solid as they might be painted out to be. Why are you in Turkey and not in Kinshasa? Oh, time zones. Well, I've actually finished the project that I was working on in Congo a week ago, and I'm taking a bit of a break because it was five years, so I need a bit of a breather before I go back there, but we've been working remotely, but we were working remotely since COVID on the mechanism, and the time zone here is obviously better than the time zones in Australia, which would require me to work at ridiculous hours of the morning. So it was more consistent to be based here. Well, a couple of things we're going to try to connect in this show is one is a few years ago, I want to say 2017, two United Nations workers were killed, murdered in Congo, and so the discussion here today is about the mechanics of the UN in dealing with that, and other atrocities and the like. I mean, it's hard to investigate or deal with atrocities in a given country if they're going to murder your representative. It's not encouraging to your representatives and it's not encouraging to the people who rely on UN representatives, the real problem. So why were they there, why were they killed? So the two experts, as they call them, Zayla Katalan and Michael J. Sharp, Swedish and American respectively, were working on the group of experts for the Democratic Republic of Congo, which is a group of independent investigators that report to the sanctions committee of the Security Council in relation to sanctions that the Security Council enforce on individuals, countries, companies and the like. And the purpose of that group of experts is to inspect various situations in Congo to find evidence of crimes against humanity and atrocities that they would submit in their reports to the sanctions committee in support of sanctions against certain individuals and the like. Kasai was a relatively calm area of Congo, central Congo. And the city in question is Kananga, well it's the closest city to where the incident took place. I don't know if that shows on the map, but why don't we look at the map for a second. Get a handle on that. So this would be right in the center of Congo. Yeah, it's in the center. It's generally marked. It's a city of between half a million and one million people depending on who you ask. No electricity and no running water, which is interesting to say the least. And this region became somewhat unstable in 2016, primarily due to or subsequent to the accession of a new chief, the Kamuna Sapo. His name was a Pandi who who acceded to the throne and such. They call him a king of prince and a chief depending on who you ask and was not recognized by the central government and sought recognition. And that dispute festered up until the point where central authorities deployed a task force to let's say deal with him and he was killed. As a result, his guard scattered and an uprising commenced where elements of the state, police stations, military convoys and the like were being attacked in various parts of central Kasai province and eastern Kasai, Kasai oxinontar. Over the course of late 2016 and early 2017, there were some atrocities committed allegedly on both sides and the group of experts who were principally based in the east of Congo took an interest and wanted to get down to determining where this conflict had originated, what was happening and who was doing what. So allegations of mass graves, child soldier, recruitments and massacres committed on the part of state elements of the army and police as well as militia related elements attracted their interest and they deployed to Kananga in very early 2017 in January to make introductions, inform local authorities that the group of experts were going to conduct an inquiry in the region and then returned in March, in early March of 2017. And in the course of a mission to a regional town outside of Kananga, they were ambushed and killed. Subsequent to the killing of video emerged and it appeared to show that elements of the Kaminosapu militia were responsible for the killing, largely based on their accessories being red bandanas and a chief or what appeared to be a chief wearing red cloak who were involved in the operation as they call it. So that was the... This is some great concern to the United Nations when they're... Indeed, they effectively report to the highest deliberative body on the planet. So the killing of two UN investigators who report to what is essentially a little sanctions committee of the Security Council is extremely significant and the Congolese military authorities conducted an investigation because a couple of days prior to the killing an operational zone was declared because of the insurgency which effectively put the crime and the military jurisdiction because in the context of an insurgency. So an investigation was conducted on the basis of the video and on the basis of a star witness whose name was Jean Bosco Mokanda and the investigation continued for some time more than two months prior to being handed over to the court. Now what happens when an investigation... What court is that? It's the military court. In Congo? Yeah, well it's the military court of the province of Kasai, X Eastern Kasai which has been broken up into three provinces but they still work as if the old province existed. It's a little bit complicated. So it's a lower level military court, the North Street Tribunal at that point which then became a court to deal with the militia men responsible, allegedly responsible for the killing. However, the international community as they like to call themselves weren't satisfied by the manner in which the investigation was conducted. There was a lot of scrutiny by some journalists who were basing Congo at the time, rightly so. And this put pressure on the UN to create some form of a capacity development mission to provide technical advice, technical support and monitor the investigation and trial. But the complication was that the investigation had already been handed over to the court which means that the investigation can't continue anymore. They can't continue to investigate once the dossier has gone to the court. But what they hadn't done was, and what I felt to mention, is that along with the two experts were three motorcycle riders and one interpreter who accompanied them, who have since vanished. Now, the bodies of the two experts of Zayla and Michael were recovered about six weeks after the fact. No, actually, no, sorry, several weeks after the fact. And but the bodies of the companions, traveling companions were never recovered. So a new dossier was opened in relation to the deaths of alleged presumed deaths of disappearance of the four Congolese companions of the two experts, which allowed for the reopening of the investigation. What was the presumptive reason for killing them and why was that offensive to the local authorities and also to the UN? Originally, in the initial investigation that the Congolese military authorities conducted, the allegation was that they were robbed and killed and basically robbed. The motive changed as the course of the investigation unfolded. And what's been presented to the court now is that there was a level of conspiracy whereby elements of the militia conducted the killing. At the behest of certain other persons, not necessarily based in militia areas. At the moment, the matter is still before the court. The investigation is still underway. What I can say is that the initial investigation that was conducted by the Congolese military authorities was stopped. The trial was stopped when the mechanism deployed at the end of 2017 to resume the investigation and find leads above those that were on the ground to commit the killing, which resulted in the arrest and charging of the star witness whose name was Jean Bosco-McCunder. I think I mentioned him before. Do you have custody now? Oh, yeah. He's been sentenced to death at the lower court, but now it's before the court of appeal as the orchestrator of the murders. I have to be guarded in terms of what I say in relation to the investigations. Let's go to the policy point about the United Nations. We've seen a lot of the United Nations. It's kind of surfaced. It was not particularly effective in dealing with global COVID, I would say, and global vaccines and the like. I mean, it was a fair amount of criticism on that. And then more recently, the affair in Ukraine with the International Criminal Court, which is, I know it's not a part of the United Nations, but it's close. And I saw a frontline just a couple of days ago, a frontline documentary on it, and they pointed out that the International Court has not issued a single indictment against any Russian involved in Ukraine. And it's been nine months now, and you wonder what's missing. So you wonder about the International Court mechanics. And we're here to talk about the mechanisms, aren't we? The United Nations has not had effective mechanisms at the Security Council that deal with atrocities and aggressions on a large scale. And now we're looking at a multiple murder of United Nations people that is already almost five years old, six years old. Yeah, go ahead. No, you brought up quite a number of issues that really need to be addressed individually. So the UN is the sum of its parts. And what we've got to be careful about when we criticize the UN, which a lot of people like to do, is not to make the good the enemy of the perfect. We're better off with the UN than without it. Despite its flaws, despite its bureaucracies, despite its ineffectiveness in certain cases, it does create a forum for multiple players to be heard. And that's at least something. The presence of the UN and the DRC, I think, having worked there for the last five years, is a positive across the board. Yes, individual blue helmets have been responsible in some cases convicted of crimes against local people, horrible crimes. But on the whole, as far as when you're talking about some 20,000 people who make up the mission, if not more, at various points in time, I think it's been a net benefit for the country. There would have been a lot more suffering, a lot more death, a lot more starvation, a lot more killing, without the presence of Montesquot at the moment, as it's called, since the late 1990s. Well, it's called Montesquot now. It's been through numerous different rebrandings. Tell me how that works. Tell me why the United Nations has been a positive force in Congo. In terms of, right, in terms of... Whatever, whatever. The presence of the presence of the UN, to some degree, inhibits where they are, to some degree. And again, I'll be, you know, I could be attacked left, right and center for saying this. I believe it does inhibit the sorts of crimes that it's there to prevent, to some degree. I believe that there is a positive capacity development aspect to the presence of the UN mission for the most part. Having been part of a UN mechanism, which is not part of Montesquot, it's not part of the UN mission in Congo, but it's there to offer technical support, advice and monitor the conduct of an investigation by the Congolese military authorities. There has been a large improvement in the manner in which certainly those that we've advised conduct their investigations, even when we're not there. So the way that they apply some of the things that we've passed on, just our practices from where we used to work, has been largely beneficial in terms of carrying out judicial investigations and prosecutions in Congo. It is not perfect by any means. And the trial of those responsible, well charged with the killing of the two experts, is flawed in many ways. There are certainly some problems. We've been, well, I was in my previous life, part of trying to address them. There are different ways in which they conduct business, which we don't agree with. And we've worked to address some of those things and they have largely been addressed, well, not largely, but to some extent they've been addressed some of those things. But every institution is stuck in their own way. They have their own culture, they have their own way of doing things. And it's not just going to change to 180. And it's not that our way of doing business is perfect either. It's just a problem with the rule of law. It's no problem with the procedure in the court. What's the problem? I could bring it down to a few examples, which are quite benign. When the mechanism first arrived, the way in which interviews of suspects and witnesses were conducted is all on paper. So it's question and answer. And it doesn't necessarily take the response of the witness or what the witness says, if the witness makes an open declaration, have to constitute it as a question and answer. And sometimes the answer is 180 degrees different to what was actually said. So the first thing that we did was insist on video recording them. And the response we got was, oh no, it's not in our law, so we can't do it. It's like, well, is it prohibited in your law? No, but it's not mentioned, so we can't do it. It's like, well, if it's not prohibited, then we can do it. And it took a little while, but we convinced them that it would be a way to be more accountable and more transparent. But it's been very difficult to convince the court to accept video recorded evidence as opposed to what they used to. Everything has to be on paper. It's an aid if there's a dispute. The idea was that if there's a dispute in relation to a witness or a suspect saying, oh, I never said that. And the answer to a question is, I was not there or I was there and I didn't do whatever is allegedly said and signed. And if they changed their mind, I said, well, we can play the video. And that's actually been a little bit difficult. But we got there in some cases, and I see that as an improvement. You have to accept the little victories. So you're working upstream on this, but it's been five years. How far into the process are you? Is it done? Is it you mentioned? There's an appeal hearing at the moment. There's the investigation is still underway in terms of other persons who we believe were involved. But the appeal hearing is in relation to those that were convicted earlier this year, some 50 people. Many of them are alleged members of the militia. And really, when you live in an area which has been overrun by militia, you either adhere to the militia or you die or you lose whatever you might have. So being a member of a militia, in my mind, doesn't necessarily mean that you're responsible for the killing and doesn't necessarily mean that you should be condemned to death. But what their processes did was sort of bundle the two together, which was quite counterproductive. And I don't necessarily attribute that to anything malign as such. I think it's just the way that they do business and we're trying to get them to distinguish that. So what happens at the end of this trial, so to speak? You mentioned that the one fellow was condemned to death, but that was on appeal? Many, actually many. Many have been sentenced to death. The Democratic Republic of Congo is a moratorium on carrying out of the death penalty. It's in there for almost 20 years. So effectively, those sentences will be commuted to life imprisonment anyway. The appeal in their system is different to our system. It's different to the United States and Australia and the British system. In that, you can introduce new evidence and essentially evidence that has been collected since the original trial at first instance. After this appeal, there is room for another one, but only on the basis of law. Only on errors in law. This doesn't go to the United Nations then. This is all within the country system. That's correct. The reason why is because the UN negotiated with the Congolese to have some kind of input, because it certainly in my mind, I don't think that they would have been able to set up an independent tribunal as such that would give jurisdiction to international investigators to go into Congo and do what they want. We had to get, they had to get the Congolese on side. I think that they did the best that they could with what they had for the most part to have that consensus, have the Congolese side agree, sign a memorandum and then deploy the mechanism. There's no expression of power here by the United Nations. There's no boots on the ground. There's nobody. Well, there are boots on the ground, but that's a different body. The UN mission in Congo is not the mechanism. They provide some support to the mechanism, but they're not the mechanism. It's mostly advice and consultation and an attempt to improve the Congolese criminal justice system, I think. You'd be surprised what happens behind the scenes, but on the surface, yes. On the surface, it's quite collegial. We try to come to agreement on certain points of difference, and I firmly believe that it's been very successful. Everything has its flaws, but I think at the end of this, when the inquiry investigation is over and the mandate of the mechanism comes to an end, I think there'll be a very long list of successes. There'll be some issues that would need to be addressed in case this is done again, and I understand that that's being considered. That's important. To the extent that you have counseled with them and helped them improve their criminal justice system in these trials, will those lessons vary forward? Will those lessons apply to other trials for murder and atrocities and what have you later on, or will it have to be reinventing the wheel later on? You can only have an impact on those that you work with. I believe that the personnel that we have worked with long-term, I think, have adapted new techniques and taken to them like ducks to water. How far that permeates into their military justice system, and again, it is the military justice system as a civil justice system as well, which deals with criminal trials, but in this case, it's being dealt with by military court and military prosecution authority in the military court. I believe that they are applying those in other cases. Well, I know that they are because I've seen them doing it. I think that they've benefited largely. It's certainly been expressed to us, and we've seen the effects of what we've done, but it's a very small team. It's not a massive support force as such to help the Congolese military justice in a country of what is almost 100 million people, and it's vast. Well, if you brought a lot of people there, I think you might get them pushed back anyway. Well, that is true. That's largely true. This is a very pinpointed mission for a specific purpose, and it's to ensure integrity and accountability of the investigation and trial. What's the difference between this process and a truth commission? We've heard from Project Expedite Justice about truth commissions in various places in Africa and Latin America, and what's the difference here? In this case, it's a standard investigation and prosecution of alleged perpetrators of a crime, being the killing of two UN experts and allegedly the killing of, because the bodies weren't recovered, of four Congolese. It's not a truth commission. Nobody confuses it with that. No, no, no. This is not a truth commission. No, no, no. Let me ask you one other thing. You've been running with this now for several years, and you've followed every step of the way, and you've seen it where it is faithful to the recommendations that the UN experts make, and maybe sometimes not quite so much. If you were going to look at the mechanism that the United Nations has in place to deal with these murders, to deal with these trials, to deal with the political environment around these trials, how would you change it? How would you improve it? If you were Guterres, the Secretary General, whatever, of the United Nations, what would you want to change to make this more effective? Oh, is this a wish list? There's many things that I would like to have have different in the mandate and the like, but I have to be realistic, and we have to accept that in an organization which essentially works, which seeks consensus, you have to have an agreement of all parties. You're not going to be able to impose a special tribunal with investigators who have full jurisdiction to run around in Congo and do what they want without a resolution from the Security Council, which would probably be vetoed by one or two powers that have other interests, and maybe not, but you're not going to get there. The first thing you've got to try and do is get parties to agree, and I think that under the circumstances, they did very effectively. With 2020 hindsight, yes, there are some things that might have been done better, but really at the time, and I was there at the time, I think we got what we could, and it was good at the time. Then we realized what was missing after, but you're not going to go and revisit a mandate. It's not that easy. It's a big organization. It's a very long process to try and get UN and the authorities of a state to come to an agreement, to have a group of foreigners to come in and have access to your prosecution authority in an area and a whole investigation, which might be embarrassing. Again, in this case at the beginning, many of the authorities didn't necessarily know what we might find. It's a case of, to quote Donald Rumsfeld, which I have a habit of doing, is that there are known knowns and known unknowns and unknown unknowns. You have to respect that, and that would apply anywhere. It's not just that, oh, in this case, this particular country would see. Let me say that I wish, and I suppose you do too, that the United Nations had more authority, more effect, more influence on these things. Here we have sub-Saharan Africa, especially Eastern Africa, which is fragmented, which is violent, which is politically dynamic, that's the wrong word, blintered. A continual change of politics from hour to hour. What could the United Nations in a more perfect world do to improve life for the citizen on the street or his safety for public health or the development of businesses that have some sustainability? For political stability, what could the United Nations do in sub-Saharan Africa to make a better world, theoretically? Whatever its member states allow it to do and agree for it to do, ultimately. It's very easy to bash the UN as some separate entity to some of its parts. But you mentioned a while ago that some members of the United Nations might oppose taking affirmative action on these things because it was not in their interest to do so. They might veto it. So the question is, what interests would drive them to veto steps that would lead to greatest stability in an area which is not stable? Do they want to see chaos? Hypothetically speaking, they may have economic interests and it's not always the same players. It really all depends if you follow. If you follow the work of the UN or the work of the Security Council over the past however many years, there's always differences in opinion for valid reasons sometimes. Differences in approach, differences in culture. China, for example, always argues a non-interventionist approach not to interfere with other states. They abstain. They've always had this history of abstaining on the Security Council as they carry a veto. Other states have economic interests so when a resolution is put forward, they veto it. They vote against it for whatever their interests might be and those interests might be a payoff and there might be an agreement with other states that if they vote this way on this one, then other state will vote a different way on another one. It's an organization that relies essentially on consensus. It's not this powerful body everybody, well everybody, so many people attack and say, oh the UN isn't doing enough, or the UN's doing too much, they're going to impose a world government on us. The UN is a sum of its parts and it's all on good for individual state players to throw rocks at it. It can only be as good as those individual state players allow it to be. Very interesting. So here you are, you're from Sydney, a very stable city in a stable country of Australia, an admirable country in many, many ways and you're involved among other places in Congo. It must be somewhat frustrating for you to have to work on the minimalist end of things when it's clear that more powerful United Nations could do more. And so my question to you here at the close, well it sounds like you disagree with me. My premise of your question is a problem because more powerful United Nations is essentially relying on greater input from the state. Okay, okay, I'll accept that. But Query, do you have a certain sense of frustration about this and why do you do it? Oh, it can be very frustrating. Why do we do it? I still remember where I was when I first saw the news report about the two experts who were missing at the time. I was working with the Department of Justice in Utah, in Australia and I never even for a minute thought that I'd be asked to work on this as happened some five, six months later. Because it's something that we're driven and my colleagues would say the same thing. I know that they'd be in full agreement with me. It could have been us, it could have been me. I worked in Africa before that in a similar a similar capacity for a different organization. It could just as easily have been me, it could just as easily have been any of my colleagues. Having looked at what Zayda and Michael in this case had done preparing for their mission, we would have made the same decision. We would have done the same thing as them. Therefore, we can identify with them and we want to get to the bottom of it. We want to get to the bottom of what happened to them and why. At the end of the day, there's a motivation there to protect the United Nations, to protect its experts and people. Well, what's the point? If the United Nations can send experts in to conduct an investigation and they can be targeted and killed with no consequence, what's the point? Let's just pack up and go home. Yeah. We've got to go home now, Paul. Thank you for this really, really important and interesting discussion. Thank you. Thank you for having us to discuss in too little time. Yeah. I really appreciate it. And please, please thank you for your service. Thank you so much for watching Think Tech Hawaii. If you like what we do, please like us and click the subscribe button on YouTube and the follow button on Vimeo. You can also follow us on Facebook, Instagram, and LinkedIn, and donate to us at thinktechawaii.com. Mahalo.