Democratic Republic of Congo

Background: Ongoing Carnage

After gaining independence from Belgium in 1960, the Democratic Republic of Congo (DRC) – then known as Zaire – underwent a brutal 32-year dictatorship under President Mobutu Sese Seko from 1965 to 1997. Politics under his rule were largely characterized by clientelism and neopatrimonialism; Mobutu was notorious for trading public resources in political ends, thereby depleting precious state resources. Severely weakened by years of institutionalized patronage, state institutions remain ineffective in the DRC to this day.

Mobutu was eventually toppled during what later became known as “Africa’s World War.” This continental war from 1996-2003 embroiled nine countries and a myriad of more than forty national and international rebel groups. Laurent Kabila’s 1996–1997 campaign to depose Mobutu set off a violent civil war and the extended presence of the Rwandan and Ugandan armies in eastern DRC. The conflict is notorious for serious violations of human rights and international humanitarian law, the conscription of child soldiers and the scourge of sexual violence. While the conflict officially ended with a peace agreement signed by Uganda and the DRC in 2003, by 2007 the conflict had exacted a death toll of approximately 5.4 million people. The war left behind a dilapidated infrastructure and halted the country’s development.

Challenges to Peace in the DRC

To date, peace remains elusive in the DRC. This is in the face of the largest and most expensive United Nations’ peacekeeping mission in the world (Mission de l’Organisation des Nations Unies pour la stabilisation en RDC – MONUSCO), with more than 20,000 personnel and costing US $1.4 billion. The Eastern Congo in particular remains beset by instability, as militias continue to wreak havoc on the population, causing one humanitarian fallout after another in a region with an abundance of small arms. While the security situation recently improved after it had deteriorated dramatically in 2012 and 2013, the situation remains tense.

The absence of state authority and low levels of state legitimacy is in large parts a result of the very dysfunctional national army. Underfunded and ill equipped, the Congolese army is unable to effectively provide security and often commits the gravest violations of human rights. Security sector reform is underway, albeit progressing very slowly. Members of government forces, foreign and national armed groups and armies have all targeted civilians in flagrant violations of international humanitarian and human rights law. The military in cooperation or competition with a range of other actors including rebels, politicians and business elites from across the Great Lakes Region of Africa continue to exploit DRC’s natural resources. The DRC is considered a ‘geological scandal’ with an estimated US $24 trillion of mineral wealth.

Complicating matters, the military and political administration across the country is heavily corrupted and the justice system is too weak and inefficient to fight against the prevailing impunity. In 2006, a new constitution was adopted and the country held its first free Presidential elections in 40 years. Nonetheless, successive Congolese governments have made limited progress with transitional justice efforts. A flawed Truth and Reconciliation Commission (TRC) — which failed to investigate atrocities or hold public hearings to establish the truth about the conflict and the mass killings — operated during the transition from July 2003 to February 2007.

DRC Cases at the International Criminal Court

In 2004, the Congolese government referred the International Criminal Court (ICC) to investigate and prosecute international crimes that had occurred since July 2002. Two months later, the Office of the Prosecutor decided to open its first investigation after closely analyzing the situation in the DRC since July 2003, initially with a focus on crimes committed in the Ituri region.

Thomas Lubanga Dyilo, founding member and President of the Union des Patriotes Congolais (UPC) was found guilty by the ICC Trial Chamber I of the war crimes of enlisting and conscripting of children under the age of 15 years and using them to participate actively in hostilities. He was subsequently sentenced to 14 years imprisonment in March 2012 and July 2012 respectively. The Appeals Chamber confirmed the verdict and sentence in December 2014. In August 2012, the Trial Chamber I issued a decision on reparations to victims.

Bosco Ntaganda, former Deputy Chief of the Staff and commander of operations of the Forces Patriotiques pour la Libération du Congo (FPLC), voluntarily surrendered to the ICC’s custody in March 2013. In June 2014, the Pre-Trial Chamber II confirmed thirteen counts of war crimes and five counts of crimes against humanity that he allegedly committed in 2002-2003 in the Ituri Province. Ntaganda’s trial is scheduled for June 2015. The ICC Trial Chamber II also found Germain Katanga, commander of the Force de résistance patriotique en Ituri (FRPI) guilty of one count of crime against humanity and four counts of war crimes committed on 24 February 2003 during the attack on the village of Bogoro in the Ituri district. Both the Defence for Germain Katanga and the Office of the Prosecutor discontinued their appeals in June 2014; the judgment is final. On 23 May 2014, Trial Chamber II sentenced Germain Katanga to 12 years' imprisonment.

Although Callixte Mbarushimana, alleged Executive Secretary of the Forces Démocratiques pour la Libération du Rwanda - Forces Combattantes Abacunguzi (FDLR-FCA, FDLR) was originally charged with five counts of crimes against humanity and eight counts of war crimes, he was released by the ICC in December 2011 when the Pre-Trial Chamber declined to confirm the charges. In December 2012, Trial Chamber II acquitted Mathieu Ngudjolo Chui of charges of war crimes and crimes against humanity and ordered his immediate release. The verdict was confirmed by the Appeals Chamber in February 2015. An arrest warrant was issued against Sylvestre Mudacumura, alleged supreme commander of FDLR in July 2012 for nine counts of war crimes, which he allegedly committed between January 2009 and September 2010 in the Kivu provinces. Mudacumura is still at large.

Meanwhile, the political landscape in the DRC remains polarized, particularly after the rigged elections in 2011, which secured President Kabila another term until 2016.

ICTJ's Role

At the national level, ICTJ has compiled 39 cases against serious crimes committed in Eastern DRC (i.e. North Kivu Province, South Kivu Province, and Ituri District) that have been initiated by the national jurisdiction over the period of 2009-2014.

While ICTJ’s current work focuses on criminal justice and the national response to international crimes, it has previously been involved on several different transitional justice fronts in the DRC including truth-seeking and memorialization, reparations and gender:

• Criminal prosecutions: ICTJ closely monitors the debates related to the development of the draft laws on the specialized chambers and on the implementation of the Rome Statute. We organize high-level seminars and engage with members of the Ministry of Justice and Human Rights as well as with parliamentarians and high judicial authorities to inform the debates, improve the understanding of the principle of complementarity and facilitate the identification of the legislative frameworks relevant to the prosecution of serious crimes. ICTJ engages with judicial actors to enhance technical knowledge of national institutions on a prosecutorial strategy informing the criminal investigation of international crimes. We support the media and civil society to accurately advocate and report on issues of national prosecution of international crimes.
• Truth-seeking and memorialization: ICTJ has supported local initiatives of truth-seeking and truth telling processes as well as local memorialisation initiatives. Our actions focused on the capacity- building of civil society and groups of victims with the aim of increasing their coordination and impact in the dialogue with local and national authorities. This included the organisation of a national-level conference and roundtables with civil society, judicial actors, national authorities, international organizations and donors to share lessons learned and facilitate skills and information-sharing on truth-seeking and memorialization.
• Reparations: ICTJ promoted the realization of the State’s responsibility to deliver reparations to groups of victims. We monitored and supported local, national and international reparations efforts, and have published a report on judicial reparations Judgment Denied which explains the implications of the State’s failure to pay compensations ordered by the courts. ICTJ welcomed the decision of the International Criminal Court (ICC) affirming the victims’ fundamental right to reparations in the case of Thomas Lubanga but was cautious about celebrating the decision before victims are fully compensated through an inclusive and participatory process. ICTJ has also promoted the decision of the International Court of Justice (ICJ) requiring Uganda to pay reparations for human rights violations committed by Ugandan forces in the DRC.
• Gender: ICTJ supported initiatives to address the underlying causes of the full range of sexual and gender based violence (SGBV). We partnered with civil society in order to strengthen their capacities related to SGBV and, in particular, sexual violence amounting to international crimes. This includes training and a pilot project on the mapping of such international crimes. We also advocate for the gender component and expertise on SGBV to be included in draft laws related to the prosecution of international crimes. Together with civil society we planned advocacy campaigns to end the ongoing commission of sexual violence by armed forces.