Op-ed : Repression of Core international crimes in the DRC

Capture d’écran 2015-08-12 à 22.08.00

Challenges in the repression of core international crimes in the DRC

By Eloi URWODHI and M. NENGOWE Amundala

Introduction

The Democratic Republic of Congo (DRC) spans ​​2,345,000 km2 and has an estimated population of 60,000,000 inhabitants. Since the creation of the State in 1885, one of its main concerns has been the organisation of the judiciary. Efforts have been undertaken in regards to the legislation and the effective establishment of judicial institutions, but various constraints have hindered the development of an independent, impartial and accessible judiciary. The country has gone through various armed conflicts and political tensions which have resulted in serious and massive violations of human rights some of which constitute core international crimes: war crimes, crimes against humanity, genocide and the crime of aggression. To date, many of these crimes remain unpunished, risking the commission of others and causing the lack of repentance and deterrence of potential perpetrators, which are the goals of the criminal sanction.

Indeed, the prosecution of those most responsible requires “a judicial system entirely independent, able to resist pressure from some senior officers responsible for international crimes committed in the past. It is certainly not the case in the current state of the Congolese judicial system. “[1]

Below, we will try to analyse, without being exhaustive, the challenges that the repression of serious violations of human rights is facing, by grouping them into three categories: the material and financial challenges, the challenges related to the legal framework and the political challenges. We will try, subsequently, to identify some strategies used to circumvent and resolve them.

The challenges

The material and financial challenges

The Court of Appeal and various military courts are competent to try crimes against humanity, war crimes and genocide.

During the establishment of new provinces, 14 additional appellate courts will have to be established and provided with infrastructure and personnel. This judicial decentralization could solve one of the crucial problems in the administration of justice in the DRC: the remoteness of the litigant from their judge. However, knowing the difficulties faced by the appellate and lower courts already in place, there is little hope that new courts will be better off.

The Congolese courts and tribunals are facing constraints that have been long known: “The buildings housing courts and offices are generally old and not maintained […] Some institutions are located in unsuitable buildings, such as private residences and/or do not meet acceptable conditions of work […] The furniture already dilapidated […] has been damaged or disappeared and has not been replaced. Judges and clerks often have to provide themselves the furniture they will use throughout their careers. Sometimes office equipment (typewriters, computers) is rented to private individuals […] no court has a vehicle. The courts do not have sufficient documentation nor libraries that are equipped and regularly updated […] The wages paid to the various agents of the justice system by the state are very low […] The Congolese justice functions mainly thanks to funds raised illegally by Judges and other officials from the defendant, who ultimately supports the operating costs of the judiciary. “[2]

This diagnosis, made 11 years ago, is still valid and it originates mainly in the poor endowment of the justice sector in the state budget.

In any case, the fight against impunity and the application of positive complementarity between the Congolese courts and the ICC will remain wishful thinking, without strengthening the logistical and technical capacity of judicial staff and their consequent remuneration in order to ensure their independence vis-à-vis the litigants and political power. The Bar Associations should not be forgotten either in the process of strengthening the justice sector, as they offer free legal and judicial assistance to those in need, which can only be as good as the means in their disposal allow.

In short, without material and financial means to live up to the task, the judiciary will struggle to fulfil its role as the guarantor of individual freedoms and fundamental rights of citizens, and will be exposed to corruption, the greatest ally of impunity.

The challenges to the legal framework

The DRC deposited with the Secretary General of the United Nations its instrument of ratification of the Rome Statute on 11 April 2002. Since then, several legislative initiatives have been taken, either as a draft or a proposed bill of law, without success, in order to integrate into national law international principles of repression of serious violations of human rights: the irrelevance of official capacity, the protection of victims and witnesses, the effective reparation to victims, etc.

One of the obstacles to the adoption of a law called “implementation of the Rome Statute” remains, to this date, the existence of constitutional immunities and impeachment proceedings that must be respected by the prosecutor and the national judges. To this end, a constitutional amendment is necessary so that domestic courts are able to take into account the principle of the irrelevance of official capacity for serious violations of human rights. Immunities established by an ordinary or organic law do not present a problem, since duly concluded treaties and international agreements shall, upon publication, have an authority superior to that of laws. In this case the Rome Statute has a priority. However, the Constitution of 18 February 2006, has primacy over international treaties etc. whose development, adoption and enactment had not taken into account any potential clashes, including in this case the Rome Statute ratification of the 11th April 2002.

Assuming that one day the law on the implementation of the Rome Statute in the DRC is adopted without constitutional revision, the consequence will be that in some cases only the ICC will be able to try certain Congolese persons accused of international crimes. Indeed, in that case, there would be a situation of manifest unwillingness of the State, whose internal procedures are inconsistent with an intent to bring the person to justice as understood in paragraph 2 of Article 17 of the Rome Statute.

The political challenges

Serious violations of human rights are generally committed with the active or passive support of people who hold a high place in the political, military or administrative hierarchy. These people are often linked by communities of various interests to the point that they constitute a network of power and influence. A cartel is quickly created between them in order to ensure protection and implement lobbying mechanisms to thwart any initiative of accountability for their wrongdoings.

In such a context, the adoption of certain laws is delayed, show trials are organized, doctored reports with biased conclusions are produced, intimidation and targeted killings of victims and witnesses are organized, extraditions or transfers of the accused are blocked.

All sorts of legal and/or political justifications are invoked, with the unspoken intention to ensure impunity. This was the case in the case of Bosco Ntaganda whom the Congolese Government had refused to arrest in execution of the warrant issued against him by the ICC and transfer him to The Hague, on the grounds that it was necessary to maintain peace.[3]

The failure of certain reforms that are necessary for the repression of serious violations of human rights is rooted in the not openly recognised strong emphasis on political considerations that do not prioritise justice. Thus sovereignty is used as a ground for refusing the establishment of a judicial body having foreign judges.

“In the international order, reasons of State and sovereignty are intimately linked, and even sometimes become confused when a state disguises under the more presentable and legal concept of sovereignty , acts done in the name of State in order to often, if not always, legitimise them or at least shield them from international control, or even control by its national courts […] sovereignty allows the State, in the international order, to oppose to any accountability demanded by the international community, other States or individuals or groups of individuals, for its internal and even international conduct, the principle of non-intervention and non-interference”.[4]

In fact, as sovereignty is exercised through the expression of the willingness and unwillingness of the State, it is only a matter of lack of political will, not an insurmountable legal obstacle. If a State is for whatever reasons unwilling, either because it is not in its interest or has interests to protect, sometimes including those of persons in power, sovereignty is always brandished; and when the State is willing, it will always be in the name of the same sovereignty. At times, we face conflicting situations where in a given State during a specific time period we agree to fight insurgents jointly with foreign troops and denied at the same time to award justice with foreign judges, all in the name of the same sovereignty.

This sort of situation is common in post-conflict States where, due either to a reconciliation process or to a victory over the other party, control of political institutions and the army are in the hands of people who have an interest in that an independent judiciary does not stir the past to dig up the bodies on which they have marched to conquer or maintain power.

This is the current situation in the DRC which since the 1990s has experienced several political crises, rebellions and invasions of all kinds accompanied by serious violations of human rights. Several rounds of negotiations, the sharing of power between the various belligerents during the transition, the integration in the national army of groups of former belligerents, the promotions and appointments in political institutions and the army, the disintegration of political alliances and political vagrancy, have created an increasingly complex political landscape, to the point that in the political majority, as well as in the opposition and in various institutions of the Republic, there are people who do not have any interest in the establishment of an independent judiciary in the DRC and who can, on some levels, maintain the status quo of impunity for serious violations of human rights.

Strategies

Civil society organizations (CSOs) for human rights play an important role in circumventing and resolving the challenges identified above. Their actions are not crowned with immediate success, but eventually, in the long term, they reach their assigned goals.

Lobbying is the weapon that allows them to win battles in the fight against impunity.

CSOs call for an increase of the budget for justice and for strengthening logistical and technical capacities of institutions in the justice sector. They argue for the adoption of important laws that ensure that the law is applied as it should, and the affected communities and victims receive reparations for the damage they have suffered.

They monitor violations of human rights which they document, denounce and mediate in order to draw attention to the abandoned victims on the one hand and the alleged perpetrators on the other, whose impunity shock the human conscience. The hype that surrounded the arrival of the President of the Republic of Sudan Omar Al Bashir in Kinshasa from 26 to 27 February 2014 is in this context not allowing alleged criminals to rest on their laurels.

They unite with each other to achieve together what they cannot do alone. Thus, structures such as the Working Group for the Rights of Victims (VRWG), the National Humanitarian Development Organizations Forum (FONAHD), the Synergy of Congolese NGOs in the Fight against Sexual Violence (SYCOVIS), the Synergy of Congolese NGOs for Victims (SYCOVI) and the Network of Associations of Human Rights in Ituri (RADHIT) were established.

The League for Peace, Human Rights and Justice (LIPADHOJ)[5] is a member of all these platforms. The organisation has been actively involved, particularly in the fight against impunity for international crimes in Congo for almost 15 years. In this field, it focuses its activities on the documentation of facts which constituted serious violations of human rights, advocacy and victim support, psychosocial support for victims and legal and/or judicial assistance to ensure an effective and efficient participation in the proceedings.

It is a key player in the work of the International Criminal Court (ICC) in the DRC, whose work supports by accompanying victims and participating in the proceedings from the stage of the investigation to that of reparations.

For a positive and effective complementarity of the ICC with national jurisdictions, LIPADHOJ has been campaigning since 2003 for the adoption of a law called “implementation of the Rome Statute”, which is today at the Senate after its adoption by the National Assembly last May.

Conclusions

Justice has always been a long-term quest. Following the determination of each other, it ends up being delivered to the victims in one way or another. It’s more than twenty years after the facts, that the Tribunal for Cambodia was painfully established. The “[…] process was long and arduous, so much so that this project was for a period abandoned”.[6]

The Congolese justice system is recovering little-by-little with individual and joint efforts by the Government, the Parliament, the national courts and tribunals, international organisations and organisations of international and Congolese civil society. Nevertheless, the road ahead is still long and therefore the solutions to the challenges mentioned above does not always fit in the short or medium terms.

At the opening ceremony of the “General States of Justice”, organized from April 27 to May 2, 2015, the President of the Republic Joseph Kabila said in his address that: “I have a deep conviction that despite the advances that we have observed in the field of institutional reforms in the justice sector, the process is far from representing the interests the litigant […] I encourage you to persevere in efforts that you all undertake daily to improve the image of our Justice whose primary mission is to ensure the equality of citizens before the law, ensure respect for individual liberties and promote human rights. “

May this act of faith of the guarantor of national independence, territorial integrity, national sovereignty and respect for international treaties and agreements guide all those who support the DRC in strengthening its judicial institutions.

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Eloi URWODHI is an Expert in the Senate of the Democratic Republic of Congo, a DRC Consultant of Parliamentarians for Global Action (PGA) and a Coordinator of the Congolese NGO “League for Peace, Human Rights and Justice” (LIPADHOJ).

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NENGOWE Amundala is a lawyer at the Bar of the Court of Appeal of Kinshasa / Gombe and League Deputy Coordinator for Peace, the Human Rights and Justice (LIPADHOJ).

 

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[1] Office of the High Commissioner for Human Rights (“OHCHR”), “Report of the Mapping Exercise documenting the most serious violations of human rights and international humanitarian law committed within the territory of the Democratic Republic of the Congo between March 1993 and June 2003”, August 2010, para. 1014.

[2]  Mission conjointe multibailleurs, « Audit organisationnel du secteur de la justice en République démocratique du Congo, Rapport d’Etat des lieux, Synthèse », mai 2004, p. 26.

[3] ICC, Prosecutor v. Bosco Ntaganda, Pre-Trial Chamber I, Warrant of Arrest, Case No. ICC-01/04/02/06, 22 August 2006; ICC, Prosecutor v. Bosco Ntaganda, Pre-Trial Chamber II, Decision on the Prosecutor’s Application under Article 58, Case No. ICC-01/04-02/06, 13 July 2012.

[4] Jean-François LACHAUME, « Raison d’Etat et ordre pénal international », dans Simone GABORIAU et Hélène PAULIAT (Sous la direction de), La justice pénale internationale, Pulim, Limoges, 2001, pp. 58-59.

[5] LIPADHOJ is a nongovernmental organization of Congolese law with headquarters in Bunia in Ituri. Its field of work covers all the provinces of the eastern Democratic Republic of Congo, where it has an office in Goma in North Kivu. Its representative office in Kinshasa serves as a focal point for its activities in the capital and in the west of the country.

[6]  Jean-Marc SOREL, « Introduction », dans Hervé ASCENSIO, Elisabeth LAMBERT-ABDELGAWAD et Jean SOREL (Sous la direction de), Les juridictions pénales internationalisées, Paris, Société de législation comparée, 2006, p. 15.

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