Mapping Report > Executive Summary > III. Assessment of the capacity of the national justice system to deal with the serious violations identified
One important aspect of the ToR for the Mapping Exercise was the assessment of the resources available to the Congolese justice system to deal with the numerous crimes committed, particularly during the decade 1993-2003, but also afterwards. This involved analysing the extent to which the national justice system could deal adequately with the serious crimes described in the inventory in order to begin to combat the problem of impunity. To do this, an analysis was carried out of the domestic and international law applicable in this area, as well as the courts with jurisdiction to prosecute and try the alleged perpetrators of the serious violations of human rights and international humanitarian law committed in the DRC. A study of Congolese case law on crimes under international law was also carried out to examine domestic judicial practice in relation to war crimes and crimes against humanity. This study helped to gain a better understanding of the legal, logistical, structural and political challenges and obstacles that characterise criminal proceedings in relation to crimes under international law in the DRC.
Around 200 actors in the judicial system, academics and national experts in criminal and international law were interviewed by the Mapping Team.39 Hundreds of documents from different sources were obtained and analysed, in particular laws, judicial decisions and various reports dealing with the justice system.
The analysis of the legal framework applicable in the DRC to deal with the most serious violations of human rights and international humanitarian law committed between March 1993 and June 2003 shows that there is a significant body of legal norms and provisions both in international law and domestic law, which is sufficient to begin to tackle impunity in respect of the crimes documented in this report. The DRC is bound by the major conventions in respect of human rights and international humanitarian law and has been party to the majority of them since well before the conflicts of the 1990s.40 Whilst the lack of jurisdiction of the civilian courts for crimes under international law may be regrettable, it should be noted that the military courts have jurisdiction to try anyone responsible for crimes under international law committed within the DRC between 1993 and 2003. Finally, the Constitution of February 2006 contains strong provisions that protect human rights and fundamental judicial guarantees, and incorporates the main international standards in this area.
Whilst the legal framework appears adequate, the review of Congolese case law identified only about a dozen cases since 2003 where the Congolese courts had dealt with incidents classified as war crimes or crimes against humanity. Furthermore, only two of these cases concerned incidents covered by this report, namely the Ankoro case,41 a judgment of 20 December 2004 on the incidents that took place in Katanga in 2002, and the Milobs case,42 a judgment of 19 February 2007 on the incidents that occurred in Ituri in May 2003.
It is undeniable that some Judges of the Congolese military justice system, inspired by the DRC’s ratification of the Rome Statute of the ICC in 2002 and supported by the international community, rendered a small number of courageous decisions in relation to crimes under international law.43 Although they braved physical and psychological barriers as well as apparent political pressure to do so, all the cases studied nonetheless illustrate the significant operational limitations of the military justice system. Botched and dubious investigations, poorly drafted or inadequately substantiated court documents, irrational decisions, violations of due process and various instances of interference by the civilian and military authorities in the judicial process, are apparent defects that characterised some of these cases, particularly those pertaining to Ankoro, Kahwa Mandro, Kilwa and Katamisi.
The lack of political will to prosecute serious violations of international humanitarian law committed in the DRC is also confirmed by the fact that the vast majority of decisions handed down came about as the result of constant pressure from MONUC and NGOs.
This apparent lack of dynamism in the Congolese justice system in handling war crimes and crimes against humanity, particularly in respect of those primarily responsible for them, can only encourage the commission of new serious violations of human rights and international humanitarian law, which continue to this day.
Inability of the Congolese justice system to deal adequately with crimes under international law committed on its territory
The problem in the DRC is less one of inadequate provisions in the criminal law than a failure to apply them. Although, as the Report on the current state of the justice sector in the DRC confirms, the Congolese judicial system enjoys “a solid legal tradition inherited from colonisation, as still evidenced by the quality of certain senior judges”,44 it has been widely noted that the Congolese judicial system faces acute and overwhelming problems.45 Having been significantly weakened under the Mobutu regime, it suffered severely as a result of the various conflicts that ravaged the DRC for over ten years.
The research and analyses carried out by the Mapping Team, and the working sessions and consultation with key figures in the Congolese judicial system, both at an institutional level and within civil society, confirmed that there are significant structural and chronic shortcomings in all parts of the Congolese justice system. Even successful criminal prosecutions are inadequate if the State does not take the necessary steps to ensure that prisoners do not escape.46 The fact that the military courts and tribunals have exclusive jurisdiction over crimes under international law also poses a problem with regard to the punishment of serious violations of human rights and international humanitarian law.47 Their lack of capacity and lack of independence are illustrated by the extremely low number of cases they have tried and the way they have handled such cases.
The allegedly high level of involvement of foreign nationals in serious violations of international humanitarian law committed in the DRC also causes a problem for the Congolese courts. Although they have jurisdiction in respect of any person, whether or not they are Congolese, they have limited means of ensuring that suspects residing outside the country appear in court. Cooperation on extradition from certain States remains unlikely, given the limited ability of Congolese military courts to guarantee fair and impartial trials and respect the fundamental rights of defendants, in particular since the death penalty is still in effect in Congolese law.
To sum up, the following elements lead to the conclusion that the capacity of the Congolese justice system to bring an end to impunity for crimes under international law are severely limited: (i) the limited engagement of the Congolese authorities in strengthening the justice sector, (ii) the very limited resources allocated to the judicial system for tackling impunity, (iii) the acceptance and tolerance of multiple incidents of interference by the political and military authorities in court cases that confirm the system’s lack of independence, (iv) the inadequacy of the military justice system, which has sole jurisdiction for dealing with the numerous crimes under international law often committed by the security forces, (v) inadequate judicial practice and jurisprudence in this area, (vi) and non-compliance with international principles in relation to minors and the inadequacy of the judicial system for cases of rape. Given the multitude of possible crimes under international law committed, the effectiveness and independence of the judicial system is crucial in light of the large number of senior figures in the armed groups involved in various alleged violations of human rights and international humanitarian law.
See also:
Inventory of the most serious violations of human rights and international humanitarian law committed on the territory of the DRC between March 1993 and June 2003
Inventory of specific acts of violence committed against women, against children or linked to the exploitation of natural resources during the conflicts in the DRC
Formulation of options in the field of transitional justice mechanisms that could help to combat impunity in the DRC
39 Primarily meetings with the civilian and military judicial authorities in various public prosecutor’s offices, Government representatives and national bodies tasked with the reform of the judicial system.
40 With the exception of Additional Protocol II (1977) to the Geneva Conventions of 1949, ratified in 2002, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, ratified in 1996 (Resolution 39/46 of the General Assembly, appendix), and of course the Rome Statute of the ICC, signed in 2000 and ratified in 2002.
41 In the Ankoro case, the investigations carried out by MONUC revealed that violent confrontations between the FAC and the Mayi-Mayi, in November 2002, had caused the deaths of at least 70 people. Thousands of homes were set on fire and destroyed, and hundreds of public and private buildings including hospitals, schools and churches were pillaged. In December 2002, 28 FAC soldiers were arrested and handed over to the military judicial authorities. Seven of them were charged with crimes against humanity. The trial was delayed for many months to enable the creation of a commission of enquiry of officers able to judge a lieutenant-colonel; in the end, the court acquitted six of the defendants and sentenced the seventh to 20 months’ imprisonment for murder. The Public Prosecutor’s Office, having been satisfied by the arrest, did not lodge an appeal (RMP 004/03/MMV/NMB–RP 01/2003, RMP 0046/04/NMB–RP 02/2004).
42 In the Milobs case, in May 2003, members of the Front nationaliste et intégrationniste (FNI), a militia that was running wild in Ituri, tortured and killed two soldiers on a peace monitoring mission for MONUC. Seven members of the militia were charged with war crimes over three years after the incidents. On 19 February 2007, the court at the military garrison in Bunia sentenced six of the defendants to life imprisonment for war crimes under the Congolese Military Penal Code and article 8 of the Rome Statute of the ICC (RP 103/2006).
43 This applied in the Songo Mboyo (2006), Milobs (2007), Gety and Bavi (2007), Lifumba Waka (2008), Gédéon Kyungu (2009) and Walikale (2009) cases.
44 The mission tasked with analysing the judicial system was the result of an initiative of the European Commission acting jointly with Belgium, France, the United Kingdom of Great Britain and Northern Ireland, MONUC, the United Nations Development Programme (UNDP) and the United Nations High Commissioner for Refugees (UNHCR). See Status report, Organisational audit of the Justice System in the DRC, May 2004, p. 7.
45 See in particular the Report from the Special Rapporteur on the Independence of Judges and Lawyers, Leandro Despouy, addendum, Mission in the DRC, (A/HRC/8/4/Add.2) (hereinafter referred to as the “Despouy report”).
46 ”The disastrous state of the prison system, perhaps the weakest link in the judicial chain, means that it is easy for suspects and convicted prisoners to escape; this includes some very influential figures, who “sometimes “escape” with the connivance of the authorities.” Combined report of seven thematic special procedures on Technical Assistance to the Government of the DRC and urgent examination of the situation in the east of the country (A/HRC/10/59), par. 63. According to figures from MONUC, during the second half of 2006 only, at least 429 prisoners, including some who had been convicted for serious violations of human rights, escaped from prisons throughout the DRC. See Despouy report (A/HRC/8/4/Add.2), par. 55.
47 Military justice should “be restricted solely to specifically military offences committed by military personnel, to the exclusion of human rights violations, which shall come under the jurisdiction of the ordinary domestic courts or, where appropriate, in the case of serious crimes under international law, of an international or internationalised criminal court”. Commission on Human Rights (E/CN.4/2005/102/Add.1), Principle 29.
