23 April 2014

Congo-Kinshasa: How to Tackle the DRC's Complex Anti-Impunity Agenda

Photo: Radio Okapi
MLC office in Kinshasa

analysis

To date, there have been no effective responses to impunity for perpetrators of international crimes in the Democratic Republic of Congo (DRC), which have been on going since the start of violence in 1996.

Despite the publication of the UN's 'Mapping Report', which called for specific measures to address impunity and foster reconciliation, the Congolese government and anti-impunity stakeholders are yet to identify and implement the most strategic ways to respond to the accountability deficit.

Most recently, the Congolese government has proposed the establishment of a specialised chamber within the national justice system to try those responsible for serious crimes since 1993.

With reforms in the justice sector continuing to be slow and hard earned, what kind of mechanisms can realistically respond to impunity for decades-old serious crimes, particularly in light of the governance and peace-building implications for the DRC?

Like the label "the rape capital of the world," it has now become cliché to refer to the "fight against impunity" for serious crimes in the DRC.

Beyond generalities, the identification and evaluation of viable accountability mechanisms requires a detailed understanding of what is encompassed by the anti-impunity agenda.

Dating back to the start of the rebellion to overthrow former President Mobuto in 1993, the number, type and range of international crimes that have been committed in the DRC, as well as a myriad of local, national and regional perpetrators is staggering.

Debates around specific accountability mechanisms in the DRC must thus clearly identify what mechanisms can best respond to the different kinds of violations and their respective perpetrators. This article explores the viability of actual and potential options for two groups of violations, which fall within the periods of 1993 to 2002, and, 2002 to present.

Given the complex nature of its successive wars, it is difficult and not necessarily desirable to place broad categories on the history of violence in the DRC.

However, for the purposes of determining anti-impunity mechanisms, two clear groupings of violations and perpetrators can be identified.

The first set of international crimes dates from the start of the rebellion in 1993 to the signature of the Pretoria Agreement in December 2002.

Following the 2003 Sun City Accord, a transitional unity government was established alongside Parliament and Senate appointments based on representatives from rebel groups, while, the new national army attempted to integrate members of the former warring factions.

Some of these actors continue to be present in state institutions such as the army (known as the FARDC), police, and the Senate.

Building from reporting by local and international human rights actors, the UN Mapping Report documents many of the crimes committed during this period.

Moreover, the UN Office of the High Commissioner for Human Rights continues to hold a confidential list of suspected perpetrators.

Trying this group of perpetrators will require the establishment of an independent accountability mechanism that possesses some guarantee of international participation to ensure transparency and political non-interference.

The continued presence of known warlords and alleged perpetrators of international crimes in state institutions has had major implications on governance and peace-building in the DRC, particularly those who sit in the FARDC and have continued to be responsible for the commission of serious crimes.

Congolese authorities remain under international and national obligations to provide victims with the right to a remedy, including the investigation and prosecution of known perpetrators.

The second grouping of violations includes international crimes committed since 2003 until the present. Documented by international and Congolese human rights actors, these crimes represent a continuation of past violations such as killings, forced displacement, sexual violence, recruitment and use of child soldiers, destruction of schools and hospitals, as well as economic crimes related to conflict minerals.

The influence of regional actors in the commission of these crimes has continued, though with less direct involvement as during the prior period when foreign armies were actively operating on Congolese soil.

Nonetheless, as reported by the UN Group of Experts, regional support has continued for proxy militias such as the rebel group M23. Perpetrators of this second set of contemporary crimes can be found within the FARDC as well as amongst local armed groups.

Reports by the UN Group of Experts and the Rift Valley Institute's Usalama Project have exposed in detail the links between the FARDC, armed groups, criminal networks, businesses and local authorities.

In recent years, international efforts have been mobilised to provide technical and resource support to military jurisdictions for the investigation and prosecution of crimes that fall within this later contemporary category of violations.

These efforts have started to see viable investigations and prosecutions against members of the security sector, particularly the FARDC.

Though Congolese military jurisdictions have found the government liable for war crimes and crimes against humanity committed by members of FARDC after 2002, not a single reparations payment ordered by these courts has been paid to victims to-date. Much remains to be done in order for these efforts to actually deter the future commission of serious violations.

Representing an existing accountability option for the contemporary commission of serious crimes, judicial assistance efforts should not be ad hoc responses to isolated incidents but rather be coordinated under a cohesive anti-impunity strategy that targets the underlying causes of these crimes.

Beyond direct perpetrators, strategic cases should target more senior actors based on direct and indirect principles of individual criminal responsibility, including command responsibility.

Military magistrates of the rank of General need to be appointed to military jurisdictions to enable the prosecution of the highest-ranking officers in the FARDC.

Civilian jurisdictions should explore the investigation and prosecution of perpetrators responsible for economic crimes, which profit from the illicit activities of armed groups.

The International Force Intervention Brigade should effectuate existing requests from the FARDC to assist them in the arrest of armed actors known to have committed international crimes, but operate in zones that the state does not territorially control.

Finally, diplomatic pressure is needed to ensure that judicial proceedings against military and civilian perpetrators are independent and free from political interference.

A potential accountability tool for post-2002 crimes that is yet to be exploited is legislation domesticating the Rome Statute. Known as the Loi de mise en oeuvre de Statut du Rome, the Congolese Parliament is yet to pass such a law, despite it having been first proposed in 2006.

The bill represents an important opportunity for the Congolese justice system to reform existing procedural and substantive lacunae that continue to hamper existing judicial efforts, further strengthen the judicial capacity, and fulfil the country's international treaty obligations.

If present justice sector reform efforts have focused on this second contemporary set of violations, what is then needed to account for the group of perpetrators of international crimes committed from 1993 - 2002?

In response, the Congolese government proposed the establishment of a specialised chamber within the national justice system to tackle impunity for serious crimes committed in the territory of the DRC prior to 2002 (the year the Rome Statute came into force), specifically from 1993 to present.

Originally defined in 2011 as a stand-alone mixed court, the legislative initiative went through several iterations. A draft bill was eventually put to the Senate, the Political, Administrative and Judicial (PAJ) Committee of which referred the bill back to the national government to address specific legal questions implicating the Constitution of the DRC.

A new legislative text has recently reappeared, which proposes amending the law organising Congolese courts to add a "specialized chamber" with mixed composition of international and national judicial actors to try serious crimes.

The constitutional law concerns raised by the Senate PAJ Committee in 2011 do not appear to have been resolved in this latest 2014 reincarnation of the specialised chamber.

Specifically, article 156 of the Constitution has been interpreted as providing exclusive competence to military courts to try members of the military.

Likewise, articles 153 and 163 of the Constitution provide for procedural immunities and privileges, which prescribe specific judicial bodies as responsible for trying cases brought against public authorities such as members of Parliament, and the President and Prime Minister, respectively.

The 2014 bill appears to equate composition with competence by proposing that military judges be present to try military accused; also, it prescribes that existing provisions on immunities and privileges do not apply to the operation of the specialised chamber.

However, it remains that as an ordinary national law, the proposed bill is unable on its own to overcome the provisions of the Constitution.

Though not impossible to surmount, the complex questions of constitutional law raised by the initiative require careful consideration as well as open debate in a transparent legislative drafting process, which has been lacking to-date on the part of the government.

The "mixed" character of the chamber has been presented as an opportunity to strengthen the capacity of the national legal system. However, lawyers and judges experienced in trying international crimes are not necessarily trained in capacity building.

Ensuring realisation of this goal thus also requires a deliberate capacity-building strategy at the outset. Many local and international justice actors are concerned as to how such an initiative would be coordinated with on-going technical assistance to the justice sector, which risks privileging one set of reforms over another.

Effectively accounting for international crimes committed in the DRC demands strategic use of existing justice sector reform initiatives, as well as considerable finesse in devising an independent mechanism to try perpetrators who have been thus far shielded from investigation and prosecution.

Ultimately, however, realisation of anti-impunity objectives requires a firm showing of political will from the Congolese authorities to effectuate transparent, independent and impartial proceedings.

A genuine commitment to anti-impunity does not appear to be forthcoming, particularly given the recent announcement of beneficiaries of the 2014 Amnesty Law, which includes members of the rebel group M23.

Despite exempting international crimes and applying only to acts of war, insurrection and political offences, the country's recourse to amnesty laws for a third time since 2003 renders somewhat hollow the "fight against impunity."

Sharanjeet Parmar is an international human rights lawyer working in the Democratic Republic of Congo; she is former Head of the DRC Office of the International Center for Transitional Justice.

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