Background
The Democratic Republic of the Congo (DRC) has a history of unaddressed mass atrocities. In the 16th and 17th centuries the British, Dutch, and Portuguese built a slave trade in the DRC. Political turmoil kicked off by a mutiny by the Congolese following their independence from Belgium in 1960 led to a coup in 1965, and three decades of oppression and corrupt rule under former army chief President Mobutu Sese Seko. In 1996, an insurgency led by Laurent Kabila and the Alliance of Democratic Forces for the Liberation of Congo (AFDL) overthrew Mobutu, ending the First Congo War. In May 1997, Kabila became president of the DRC while Mobutu fled the country.
President Kabila quickly severed relations with his former allies Rwanda and Uganda. In 1998 he declared that Rwandan and other foreign soldiers had to the leave the country, which initiated the Second Congo War. In response, Rwanda aided the Congolese Rally for Democracy (RDC), which gained control over large areas of the country, and Ugandan troops backed a separate rebel group, the Movement for Liberation of Congo (MLC). By 1999, the war reached a stalemate and the country was divided into three areas: one controlled by the government and the others controlled by two rebel groups. In 1999, the Organization of African Unity (now the African Union) brokered a ceasefire in Lusaka, Zambia, but the fighting continued. After President Kabila was assassinated in 2001 and replaced by his son, Joseph Kabila, peace talks reopened in Sun City, South Africa, in 2002, ending the war. An interim government was established, and leaders of the main rebel groups were sworn in as vice presidents.
However, from 2004 to 2009 the third major armed conflict occurred in the DRC, when the forces of rebel leader Laurent Nkunda launched a campaign of mass killings, rapes, and destruction. During this period a new constitution entered into force, but violence escalated, displacing thousands of Congolese from their homes. Joseph Kabila won the presidential election once again in November 2006. However, the insurgency continued and in October 2008 the rebel forces captured an army base. In the same year, the warring parties were invited to a dialogue in Goma to end the fighting, during which the signatories agreed to form a new truth commission.
In November 2011, Joseph Kabila won the presidency again in a widely disputed election. Political upheaval followed, and in January 2015 dozens were killed in protests against electoral law changes that would have allowed President Kabila to stay in power indefinitely. In December 2017, conflict in the DRC reached new levels, with 1.7 million people forced to flee their homes, making the DRC the worst-affected by conflict displacement in the world that year. In 2019, opposition candidate Felix Tshisekedi was declared president, which was met with protests from rival political groups. Political protests continue in the DRC, recently surrounding the appointment of Ronsard Malonda as the president of the Independent National Electoral Commission.
Transitional Justice Mechanisms
During the regime of President Mobutu, a transitional justice group called the Conférence National Souveraine (CNS) was established to study the DRC’s past and make recommendations for its future. It officially operated between August 1991 and November 1992, and was designed as a forum for institutional reform, regime change, and human rights protection. The human rights commission of the CNS was mandated to investigate violations related to assassinations and other serious abuses committed by state security services between 1965 and 1971, and from 1971 to 1992. The commission detailed the five main cases of human rights violations during this period, and named President Mobutu and his collaborators as the principal perpetrators. It also made a number of specific recommendations to the regime to address human rights violations. However, as President Mobutu refused to recognize the recommendations of the CNS or implicate himself or his collaborators, the implementation of any true reform was limited, and accountability was non-existent. Ultimately, President Mobutu rendered the entire CNS process obsolete when he amended the constitution to consolidate his own power, plunging the DRC into crisis.
In March 1991, the Commission of Ill-Gotten Property was established with a mandate to investigate property cases and recover property that had been unjustly taken from DRC citizens. However, the Commission suffered from underfunding, a lack of collaboration from the state, and minimal access to official documents. The commission made a number of findings and recommendations, including the names of offenders; however, it did not have any judicial capacities and thus there were no criminal prosecutions. In addition to the property commission, other transitional justice mechanisms in DRC included the Barza Inter-Communautaire, which was a community-led conflict resolution mechanism that involved traditional reconciliation procedures between different ethnic groups.
The most recent transitional justice mechanism in the DRC was the Truth and Reconciliation Commission (TRC), established at the Sun City Accords (also known as the Inter-Congolese Dialogue) in 2002. The Sun City Accords created the Congolese transitional government with Kabila as president and four vice presidents selected from rebel groups, as well as the TRC. The commission had a mandate to examine crimes and human rights violations committed between 1960 and 2006 and to identify victims and perpetrators while reestablishing national unity. The TRC was designed to create a historical record of the conflicting versions of the conflict and to promote peace, reparation, and reconciliation. The commission itself was composed of six men and two women commissioners and four units: plenary, bureau, special permanent committee, and provincial and local committee. It also had two special committees: the permanent select truth committee and the permanent select reconciliation committee.
The TRC experienced political, diplomatic, and security obstacles that made it difficult for it to accomplish its mandate. It was also hindered by lack of consultation processes, an overbroad mandate, and a lack of resources, as well as the composition of the TRC itself, which included members from opposing rebel groups. The TRC made a number of recommendations, including the establishment of a program to enact reparations and the creation of a National Commission of Pacification. At the end of the day, the TRC fell far short of its goals, particularly with regards to truth seeking. Namely, it did not hold a single hearing, nor did it conduct investigations or collect complaints, due in part to security concerns. Thus, it was not able to make recommendations on rehabilitation or reparations. The final report of the TRC was presented to parliament in 2007. Among its key recommendations was for the Congolese state to establish another truth commission.
The Inter-Congolese Dialogue also called for the United Nations to establish an International Criminal Court for the DRC, to try cases of “genocide, crimes against humanity, war crimes and mass violations of human rights committed or presumed committed since 1960, as well as during the two wars of 1996 and 1998.” Following intense domestic and international pressure President Kabila referred the situation of the DRC to the International Criminal Court (ICC) in March 2004. A signatory of the Rome Statute, the DRC became the focus of the first investigation of the ICC in 2004.
In March 2006, the ICC unveiled its first arrest warrant against Thomas Lubanga for enlisting and conscripting child soldiers. In 2007, the court released two more arrest warrants for war crimes and crimes against humanity against the alleged leader of the FNI, Mathieu Ngudjolo Chui, and the alleged commander of the FRPI, Germain Katanga, known as “Simba.” The Congolese government arrested and transferred the alleged perpetrators to the ICC. In April 2008, a fourth warrant against Bosco Ntangda, alleged deputy chief of staff and commander of operations for the FPLC, was released. At this time, however, Ntangda had become CNDP chief of staff, and support for his arrest diminished. After Ntaganda took over the CNDP in 2008 and integrated it into the Congolese army, the government insisted that in the interest of peace and security Ntangda could not be arrested. Ntaganda, however, voluntarily surrendered to the ICC’s custody on 22 March 2013.
Justice
Since its establishment in 2004, the ICC has released six arrest warrants relating to the DRC. Of those six cases, only one defendant, Lubanga, has been found guilty and sentenced to 14 years’ imprisonment. A 2003 presidential decree provided a legal framework for amnesties; however, the government refuses to permit immunity for serious international crimes including war crimes, crimes against humanity, and genocide. Although the Congolese government is obligated under international law to investigate and prosecute serious crimes, the government has failed in its efforts.
Despite the establishment of the ICC, most human rights cases in the DRC were tried by military tribunals. In 2002, the enactment of military and criminal codes made it possible to prosecute human rights violations committed after 1996. However, by 2008, only a dozen cases concerning low-level officials had been tried. Corruption and political interference with the military tribunals represent an enormous challenge in prosecuting those responsible for serious crimes. Despite evidence of human rights violations among high-ranking officials, no such officer has been charged. One problem is that sitting military judges are not awarded ex-officio rank to allow them to try senior officials. Even if a high-ranking official were to be charged, there is an inherent risk of interference from those higher up in the chain of command. After being sentenced for serious crimes, numerous perpetrators manage to escape from prison.
Given the difficulties with prosecuting high-ranking officials by military courts, many perpetrators now occupy high-level positions in the army. Prior to 2013, only military tribunals had jurisdiction to try crimes under international law; now, civil courts in DRC have the ability to try these serious crimes. However, the reality is that many perpetrators hold senior government positions, making any progress toward criminal accountability difficult.
Reparations
Congolese law recognizes a victim’s right to reparations. In cases involving genocide, war crimes, and crimes against humanity, victims must bring their claims before military courts. Since 2006, Congolese military courts have awarded damages to victims of war crimes and crimes against humanity in at least four cases; however, no victim has successfully received compensation. The ICC Trust Fund for Victims assists war victims in the DRC through numerous projects, including counseling, education, shelter, reintegration of children, and conflict resolution in Ituri, South Kivu, and North Kivu. Given the instrumental roles local, ethnically based disputes had in starting and perpetuating the violence, providing reparations is politically challenging.
The only major form of reparations that has made progress is directed not at the victims but at the state. In 2005 the International Commission of Jurists found Uganda liable for human rights violations and other crimes and ordered Uganda to pay reparations to the DRC.
Gender
Sexual violence was extremely widespread during the conflicts in the DRC. A United Nations report states that between December 2011 and November 2012, 764 people were victims of sexual violence. The UN Joint Human Rights Office, in collaboration with the Federal Republic of Brazil, set up a project to encourage comprehensive reparation programs by the government. It gave five grants to local organizations to provide survivors with psychosocial therapy, medical insurance, the payment of school fees, and training and supplies for small businesses.
Despite efforts to provide reparations for victims of sexual violence, the judicial system failed to bring those responsible for rape and sexual violence to justice. Although rape and sexual violence are outlawed in the DRC, judges routinely encourage out-of-court settlements to avoid bringing perpetrators to justice and often blame the victim for the rape. Police are not trained to investigate sexual violence and many women fear reporting rape, afraid of being raped again at the police station.
Truth
Although established in 2003, the Truth and Reconciliation Commission has met numerous political and practical obstacles in fulfilling its mandate. The TRC had to investigate a wide range of crimes committed over a 40-year period, and these efforts were undermined by the insecurity of the country and inaccessibility of war-affected communities. Established by members of armed groups responsible for the violence, the TRC became paralyzed. The inability or unwillingness of the TRC caused the institution to lose all credibility and the TRC ended its work in 2006 without investigating a single case.
International Actors
Numerous international actors have been involved in the peace processes of the DRC. The African Union played a significant role in facilitating the Sun City talks and the Lusaka agreement, as did the Southern African Development Community (SADC). The United Nations, however, is the most visible international actor. It established the United Nations Mission in the Democratic Republic of Congo (MONUC) in 1999, which soon became the largest peacekeeping mission in the world. The UN also established numerous investigative teams to probe into human rights violations and explore the massacres in the DRC. In 2008, the Office of the High Commissioner for Human Rights (OHCHR) launched its own investigation into human rights violations committed between 1993 and 2003. A report published in 2010 listed numerous acts of widespread and systematic violence and assessed the judiciary’s ability to handle these crimes.
Sources
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