Executive Summary > IV. Formulation of options in the field of transitional justice mechanisms that could help to combat impunity in the DRC

The transitional justice mandate with which the Mapping Team has been entrusted consists of providing various options in order to help the Government of the DRC to deal with the many serious human rights and international humanitarian law violations committed on its territory, with a view to achieving “truth, justice, reparation and reform”.⁴⁸ This mandate also echoes the demands that Congolese society has made of its leaders, initially at the Inter-Congolese Dialogue which resulted in the global and inclusive Agreement concerning transition in the Democratic Republic of the Congo in Sun City (South Africa) in 2002⁴⁹ and, subsequently, at the Conference on Peace, Security and Development which was held in January 2008 in North Kivu and South Kivu. This mandate has also received firm support from the Security Council, which has asked MONUC “to help [the Government] to create and apply a transitional justice strategy”.⁵⁰

In order to carry out this mission, the Mapping Team has examined recent experience in DRC in terms of transitional justice and has identified existing issues in this area, particularly in the light of the conclusions of the evaluation of the judicial system that are presented in this report. The experience of the Truth and Reconciliation Commission (TRC) that operated in the DRC during the transition, and current reforms of the justice and security sectors have also been reviewed. In addition, there were consultations with Congolese experts, particularly judicial authorities and representatives from the Ministries of Justice and Human Rights, international experts in this field, local and international human rights and criminal law specialists and victims’ associations. As there was a convincing need for national approval of transitional justice measures if these were to be effective, several round-table meetings were also organised, in order to gather views and opinions from civil society on this subject.⁵¹

The options for transitional justice that are put forward in this report broadly take into account the diverse points of view expressed by the Congolese and international stakeholders who were consulted, and these options are also informed by other studies of victim expectations in terms of transitional justice and data from grassroots work, reported by members of the Team. Finally, these transitional justice options are part of current efforts to reform the judicial system, to reform Congolese law and to create new institutions that would promote greater respect in the DRC for its international obligations concerning justice and the fight against impunity.

Because of the many challenges that arise when seeking justice for the crimes committed in the DRC, it is crucial that a holistic policy of transitional justice be adopted, which will depend on the creation of diverse and complementary mechanisms, both judicial and non-judicial. The process requires a strategy based on a global view of known violations, the timeframe in which they occurred, and the main categories into which the victims fall. With this in mind, this report may help to form the basis of a process of reflection for civil society and the Congolese Government as well as their international partners. This strategy must involve complementarity between various mechanisms, both existing and to be created, each serving a specific function in truth-seeking, justice, reparation and rehabilitation of victims, in reform of judicial and security institutions (including methods for vetting security forces and the army) and in reconciliation. These mechanisms complement each other and are not exclusive. Most of the many countries that have looked to a past marked by dictatorship, armed conflict and large-scale serious crime have used several types of transitional justice measures, implemented simultaneously or gradually in order to restore rights and dignity to victims, to ensure that human rights violations are not repeated, to consolidate democracy and sustainable peace and to lay the foundations for national reconciliation.

Judicial mechanisms:

The Government of the DRC must abide by its obligations under international law, namely to prosecute crimes under international law committed on its territory. It must also respond to the many Congolese victims who are seeking justice for the harm they have suffered. The decision as to which judicial mechanism would be most appropriate for dealing with these possible crimes is the exclusive responsibility of the Congolese Government, and this decision should take into account the demands of Congolese civil society. In order to achieve this, a consultation process must be put in place by the Government, with the support of the international community, and this process must be as broad as possible.

The violations that could constitute crimes under international law were committed on a huge scale over more than ten years of conflict and allegedly by various Congolese and foreign armed groups. These violations are potentially so numerous that no judicial system, even functioning at the peak of its abilities, can deal with so many cases. There were tens of thousands of serious crimes and perpetrators, and hundreds of thousands of victims. In such cases, it is important to establish priorities when embarking on criminal prosecutions, and to concentrate efforts on “those who bear the greatest responsibility”. However, prosecution of “those who bear the greatest responsibility” requires an independent justice system which is capable of resisting political and other types of intervention. This is definitely not the case for the current Congolese judicial system, whose independence is seriously undermined and under constant threat.

The apparently generalised and systematic nature of the crimes that have been committed poses a challenge in itself. Such crimes require complex investigations, and these cannot be carried out without significant material and human resources. In some cases, specific expertise may be essential, both for investigators and judicial staff. However, the lack of resources available to Congolese courts means that they are not capable of discharging their functions as pertains to crimes under international law. Reinforcement and restoration of the internal judicial system is also of primary importance.

Based on these observations, the report concludes that a mixed judicial mechanism⁵² – made up of national and international personnel – would be the most appropriate way to provide justice for the victims of serious violations. Whether national or international, the exact form and function of such a jurisdiction should be decided upon in detail jointly by stakeholders involved, particularly concerning their participation in the process, in order to provide credibility and legitimacy for the adopted mechanism. In addition, before international resources and stakeholders are deployed, a rigorous planning process is required, as well a precise assessment of the material and human resources available within the national judicial system.

Adherence to some principles is essential for such a judicial mechanism to be effective, and address the potential problems of lack of technical capacity, independence, and credibility. These principles should include:

• Significant financial involvement and clear commitment from the Government of DRC;

• Guarantees of independence and impartiality. The best way to achieve these objectives is to entrust international stakeholders (judges, magistrates, prosecutors and those in charge of the investigation) with key roles in the various components of the mechanism;

Paying special attention, particularly in terms of procedure, to specific types of violence, notably sexual violence against women and children.

Such a mechanism should also:⁵³

• apply principles of international criminal law, including the responsibility of superiors for acts committed by their subordinates;

• not recognize any amnesty granted for crimes under international law does not apply in the context of this mechanism;

• ensure that military courts do not have jurisdiction over such crimes;

• have jurisdiction over all persons accused of these crimes, whether nationals or foreigners, civilians or military personnel, and who at the time the crimes were committed were aged 18 years or above;

• ensure that all legal guarantees for a fair trial are respected, particularly the fundamental rights of the accused;

• plan to provide legal assistance to the accused and to victims;

• plan for protection measures for witnesses and, if required, legal personnel who risk being threatened or intimidated;

• not include the death penalty among its sentences, in compliance with international principles;

• secure the co-operation of third-party States, the United Nations and NGOs that would be capable of supporting the court’s activities, particularly with the provision of defence.

A hybrid court in itself will not solve the problem of the alleged participation of foreign armies and armed groups in the waves of violence across the country. In many of the recorded incidents, there are multiple allegations that armed forces and groups from countries other than the DRC were involved. However, it is impossible to establish the extent to which foreign military commanders, backers, and those who gave orders are responsible, without the assistance of the Governments of the respective countries. In this respect, since 2001 the Security Council has reminded States in the region that were involved in armed conflict of their obligations under international law “to bring to justice those responsible, and […] ensure accountability for violations of international humanitarian law”.⁵⁴ The alleged perpetrators can thus be prosecuted by third-party

States for crimes committed in the DRC, whether in the same region or not, on the basis of universal jurisdiction. This facility has been used previously, though not often enough.⁵⁵ Such possibilities should be encouraged.

Truth and Reconciliation Commission (TRC):

The scale and the systematic and generalised manner in which the crimes were allegedly committed against vulnerable people, women, children and defenceless refugees requires an investigation into the reasons behind this cycle of violence, and into the existence of deliberate policies or plans to attack certain categories of persons for ethnic, political or nationality reasons. The systematic use of sexual violence, which continues today, must be given special attention. Economic factors, linked to access to land and illegal exploitation of natural resources among other issues, must also be considered. Such questions will not be answered satisfactorily only through a judicial process, whose primary objective will be to determine the individual criminal responsibility of the alleged perpetrators, and not to understand the conflict as a whole, its origins, and its deep-rooted, underlying causes. A judicial mechanism, in and of itself, can only look in a limited and fragmented way at such violence, can only deal with a limited number of cases, and cannot take into account the needs of the majority of victims or their urgent need for the truth.

Despite the fact that victims were very disappointed with the failure of the DRC’s first TRC, there is still a very strong desire for a new truth commission and for truth-seeking. In his closing speech at the Goma Conference in February 2008, President Joseph Kabila positively welcomed calls for the creation of a new TRC.⁵⁶

To this end, and to avoid the errors of the past, a serious and wide-ranging consultation process must be embarked upon, in a non-politicised atmosphere, so that the work of the TRC will be based on a credible foundation and mandate which is necessary for it is to establish the truth, propose reparation measures and institutional reforms. In this regard, it is important that efforts be made to help victims to organise themselves so that they can be better prepared to contribute to the consultation process and the creation of a truth-seeking mechanism.

Although there is no ready-made model or template for a truth-seeking mechanism, it is possible, in the light of the experience of the first TRC in DRC and the Congolese context, to propose some basic principles to help overcome hurdles faced by the previous TRC:

• Need for broad consultation: This was absent in the process for creating the previous TRC, and is also not envisaged in the new proposals submitted to Parliament. A consultative process involving victims and representatives from civil society appears to be indispensable to define the parameters of a future TRC, to ensure good public understanding of its functioning, and to secure its credibility and legitimacy with the Congolese population;

• A realistic and precise mandate: Given the numerous conflicts that have plagued the DRC, the mandate should be limited to the periods in history during which the most serious violations of human rights and of international humanitarian law occurred. Particular attention should be paid to certain groups that have been particularly badly affected by violence in the DRC, namely women, children, ethnic minorities, and persons targeted on account of their belonging to specific ethnic, political, or national groups;

• Circumscription of its mandate: The variety of different mandates entrusted to the previous TRC in DRC contributed to its failure. A TRC cannot act as a substitute for a mediation facility or a reparation mechanism⁵⁷, although it can, of course, provide useful recommendations in these areas;

• Membership of the TRC: The process for selecting members of any new truth-seeking mechanism in the DRC, and their credibility, independence and competence, will to a large extent determine the legitimacy of such a mechanism, the support it will receive and, ultimately, whether it succeeds or fails.⁵⁸ The possibility of appointing international members to the commission should also be explored, given the mistrust that persists in the DRC (among the civilian population, and between various groups in conflict and the authorities);

• Powers of the Commission: It is of primary importance that the truth-seeking mechanism that is created should have the powers, inter alia, to cross-examine witnesses, compel their appearance before the Commission, to protect them, and guarantee that their testimony will not be used against them in judicial proceedings. It should also be able to obtain the full co-operation of Government authorities. Any prerogatives allowing amnesties to be granted to penitent perpetrators must be compatible with principles of international law in this area,and must not be applicable in cases of war crimes, crimes against humanity, genocide and other serious human rights violations.
• Content of final report: A truth-seeking mechanism must be able at least to make recommendations concerning measures for reparation and compensation for victims. It should be able to recommend institutional reforms, particularly in the legal system and security forces, so that such violations may be avoided in future and, if necessary, it should be able to recommend sanctions.

The success of any new truth-seeking mechanism remains highly dependent on a strong commitment from the Government to confront the past and on its being convinced that establishing the truth is essential if there is to be a peaceful transition to a State where the rule of law is respected. Any efforts by civil society and the international community will be in vain without such a commitment from the Government.

Reparation

Many human rights treaties contain references to the rights of victims of serious human rights violations to reparation.⁵⁹ This is linked to the right to remedy that provides all victims with the entitlement to an easily accessible process for obtaining relief including through criminal, civil, administrative or disciplinary processes. Hundreds of thousands of victims have suffered psychological and physical damage as a result of the terrible violence they experienced. They have the right to reparations. The right to reparation must account for all injury suffered by the victim and this can take several possible forms: restitution, compensation, rehabilitation, and guarantees that violence will not be repeated, through the adoption of appropriate measures of reform.

A comprehensive and creative approach to the issue of reparations is clearly required. Although collective reparations may appear easier to implement, individual reparation must be considered in some cases, particularly those in which the consequences of the violations continue to have a major impact on the lives of victims.

The Congolese Government should be the first contributor to a reparations programme. This contribution must be proportional to the State’s budgetary capacity, but a suitable investment will demonstrate that the State recognises this legal and moral obligation, will provide a clear political signal of its willingness to help victims, and will serve as a catalyst for contributions from other international partners in the programme. Foreign countries that bear State responsibility for serious violations of human rights and of international humanitarian law also have the obligation to pay reparations to the State on whose territory these acts were committed and harm suffered, as in the case of Uganda.⁶⁰ This obligation, which arises from customary international law, exists independently of any judgement from the International Court of Justice (ICJ). This obligation must be respected. Any assets seized from perpetrators of crimes under international law committed in the DRC, whatever their nationality and regardless of which judicial authority effected the seizure, could also be directed towards such reparation mechanisms. It may even be possible to consider prosecution of some private or State-owned companies, both Congolese and foreign, which may have benefited illegally from natural resources and may have contributed to violations in the DRC, with a view to obtaining compensation that would be channelled to the reparation mechanism.

The most important issue to resolve when creating any reparation mechanism is that of how to determine the beneficiaries of such a programme. Several criteria can be used to delimit the scope of a programme in order to reach those who suffered most and have the greatest need of assistance, without minimizing the suffering of other victims. The seriousness of the violation, its consequences for the physical or mental health of the victims, stigmas attached, any repetition of violations over time, and the current socio-economic situation of victims are all valid criteria that could be used to target the reparations program.

An exclusively judicial approach that is focussed on establishing the responsibility of alleged perpetrators will never give full satisfaction to victims. Given the limitations of the judicial system vis-à-vis the number of crimes committed and the number of victims, alternatives to judicial proceedings must be explored, such as the Victims’ Fund run by the ICC, which is active in the DRC and which has developed new ways to approach reparation.

The report concludes that a national agency, a reparations commission or a compensation fund, which would have as its exclusive task the creation and implementation of a programme of compensation for the victims of conflict in the DRC, would be the most appropriate mechanism to address the issue of reparations. This body must have sufficient independence and prerogatives in order to define and identify the categories of victims entitled to different forms of reparation of an individual or collective nature. It should establish relatively simple administrative procedures that are free of charge to access and appropriate for victims, in order to facilitate access and provide effective solutions, which is often lacking in purely judicial settings.

Reforms

One of the objectives of a transitional justice policy is to establish guarantees that serious human rights and international law violations committed in the past will not be repeated. If this aim is to be achieved, it is often of primary importance to reform institutions that were responsible for such violations and that failed to perform their institutional role. Such reforms are clearly highly relevant in the DRC. This report has highlighted several instances in which the Zaire (later Congolese) security forces were allegedly directly or indirectly responsible for serious violations of international human rights law and international humanitarian law that were committed between 1993 and 2003 and which still persist in the DRC. Although all transitional justice mechanisms are important, it should nonetheless be emphasised that institutional reform is clearly the measure that will have the greatest long-term impact in achieving peace and stability in the country and which will offer citizens the best protection against a repetition of violations.

The most crucial and urgent of the reforms that aim to prevent repetition of these crimes are those pertaining to improvements to the judicial system, adoption of a law to implement the Rome Statute, and the vetting of the security services. Several reforms of the judicial system are underway and deserve support. These aim to improve in the capacity of the judicial system, particularly by reforming criminal legislation, to re-deploy the justice system throughout the country, and to retrain judges and judicial staff.

With a view to preventing and punishing crimes under international law, the DRC has undertaken, by ratifying the Rome Statute, to prosecute the perpetrators of crimes proscribed by the Statute and to provide for all forms of co-operation with the Court in its national legislation. The DRC’s draft legislation on the Rome Statute, which is fully compliant with the DRC’s international obligations, is of paramount importance and should be enacted by the Parliament without further delay.

Vetting

The process of reforming the security forces, particularly the police and the army, was begun at the start of the transition period, along with the reform of the justice sector. However, it is to be regretted that transitional justice imperatives were not taken into account during this process. Vetting is a significant transitional justice mechanism in the area of institutional reform, which ensures that “government workers who are personally responsible for flagrant human rights violations, particularly personnel in the army, the security services, the police, the intelligence services and the judicial system, must be prevented from working in government institutions”.⁶¹ Vetting is particularly important and relevant in the DRC, as many persons who were allegedly responsible for serious human rights violations were granted positions in Government institutions following the signing of peace agreements to end the conflict. The presence of such persons within State institutions, and especially in the army, could give them the ability to block or hold back any transitional justice measures by threatening or simply discouraging potential witnesses and victims. In view of this, a vetting process is not just essential in itself, but would seem to be a prerequisite for any other credible transitional justice measures.

The Security Council has noted that such a measure is necessary in order to break the cycle of impunity that has always surrounded the DRC’s security forces, and that true reform of the security sector will only achieve sustainable results if vetting takes place.⁶²

International Criminal Court

The contribution of the ICC to criminal justice in the DRC is very important. For the time being it is the only judicial mechanism that has the capacity, the integrity and the independence required to prosecute those who bear the greatest responsibility for the crimes under international law committed on DRC territory. Three ICC cases concerning the situation in Ituri have been opened by the Prosecutor.⁶³ In doing so, the ICC has served and continues to serve a very important function in combating impunity in the DRC, and is likely to bolster the work of Congolese courts, tribunals and other mechanisms to be set up in future. The Court has also inspired some within the Congolese judicial system, who have drawn from the provisions of the ICC Rome Statute to supplement and clarify Congolese law in this area, as explained in section III of the report.

However, the high expectations raised by the ICC have led to disappointment among the Congolese population and international actors with an interest in victims’ rights, who have complained about the slow pace of proceedings and the limited scope of the charges that were brought. They argue that the charges filed and the proceedings neither do justice to the hundreds or even thousands of victims, nor reflect the true scale of the criminal activities of the accused, documented in numerous prior inquiries.⁶⁴

Given the lack of progress in the fight against impunity in the DRC, it would seem to be of primary importance that the ICC maintain and indeed increase its commitment. The ICC must address in particular the most serious crimes, which could be difficult to prosecute in the DRC because of their complexity, for example networks that fund and arm the groups involved in these crimes. Persons allegedly involved in these activities appear to benefit from political, military and economic support and are sometimes outside the DRC and hence beyond the reach of national justice. It would therefore appear important that the ICC’s Prosecutor pay particular attention to these cases, in order that they be brought to justice.

Conversely, the fact that the ICC has no jurisdiction over the many crimes committed before July 2002, and the fact that it is not able to deal with a large number of cases, limits its direct role in the fight against impunity and confirms the importance and need to create new mechanisms which would enable prosecution of the main alleged perpetrators of the most serious crimes that are covered in this report.