Chapter 4: The ICC‟s contribution to war crimes trials in the DRC
5.2 Impunity for war crimes in the DRC
The issue of transitional justice has been critical during the rule of the Government of National Unity or the Transition Government, 2003-2006. Different options provided in those accords for a transitional justice were difficult to apply during that period.
Considering that war crimes had been committed on both sides during the conflict, it was difficult to envisage a judicial solution.508 There was a high risk that the political reunification process would be weakened as a result.509
Hence, only extra-judicial mechanisms were applied to deal with certain crimes perpetrated during the armed conflict. Amnesty was granted and the Commission for Truth and Reconciliation was established.510
The results of those transitional options are not satisfactory, and national reconciliation remains a pipedream. The amnesty did not put an end to criminal barbarity, which is going on in some locations in the eastern part of the DRC.511 The Truth and Reconciliation Commission did not work as well as it did in countries such as South Africa.512 Created in 2003, it never got round to hearing cases of gross violations of human rights and international humanitarian law and there is no hope that it will do so, as the Commission ended its work in 2007. This means that the truth about the crimes committed will never be known, and victims have not granted forgiveness.
plan to bring peace to the DRC? An analysis of the Pretoria agreement of 30 July 2002‟(2002) (ISS paper) (61) availablehttp://www.iss.co.za/uploads/PAPER61.PDF, accessed on 19 June 2011; M Malan „Renaissance peacekeeping: a Southern African solution to conflict in the DRC‟ (1999) (37) available athttp://www.iss.co.za/uploads/paper37.pdf, accessed on 19 June 2011.
508 According to Chapter 9 (9) 1 of the Lusaka Agreement, the different parties agreed to surrender war criminals to the Tribunal for Prosecution. Resolutions of the Inter Congolese Dialogue annexed to the Global and all Inclusive Accord on Transition in DRC (2003) provided for the creation of an
International Tribunal for Congo, whose jurisdiction should be extended to cover crimes committed in 1960. However, so far none of these provisions have been implemented.
509 Read R G Teifel Transitional Justice (2000) 213; N Roht-Arriaza „Combating Impunity‟(1995) In:
N Roht-Arriaza: Impunity and human rights in International law and practice 281.
510 However, the amnesty provided in Law number 05-023 of 19 December 2005 was limited to war facts, political infringements and opinion infringements. War crimes, crimes of genocide and crimes against humanity were not included. See article 1 and 2 of the law above. Read also N M Songa (note 32 above; 424).
511 Amnesty International (Note 414 above;123-126).
512 Truth and Reconciliation Commission of South Africa (note 28 above)17-19, 106-134.
Furthermore, the victims have not received reparations and are now living in fear of fresh crimes. The situation is complicated by the fact that, due to the lack of justice, victims have become perpetrators of crime.513
5.2.2 Judicial factors
The corruption of the political system in DRC did not spare the judiciary, which is amongst the most corrupted institutions in the country.514 As noted above, although war crimes can be traced back to before 1996 in the DRC, none of these crimes have been prosecuted in the past few decades.515 Several factors account for this crisis.
The years of dictatorship and war affected the justice system, which is in an almost total state of collapse.516 There is a lot of interference in the decisions of magistrates, who are theoretically independent, but completely dominated by the executive power in practice.517 Hierarchical structures limit the independence of military magistrates, in particular.518
Inadequate budgets,519 a lack of personnel in some areas of the country, and low salaries, which expose magistrates to corruption, exacerbate the problems.520 In some places magistrates struggle to get to work due to the lack of transportation. The physical and material conditions at the courts are poor and are a serious challenge in certain areas of the country.521
513 Note 27 above.
514 M Kodi (note 501 above; 32).
515 See Chapter 3 above.
516 Matadi Nenga Gamanda, La Question du pouvoir judiciaire en R.D.C.contribution à une théorie de réforme, (2001) 164; M Wrong (note 12 above).
517 E Boshab „Le Conseil national pour l‟unité nationale et la réconciliation, une institution à
promouvoir dans les institutions africaines pour la prévention des conflits ethniques et la protection des minorités: cas du Burundi‟ 2006 in Liber amicorum Marcel Antoine Lihau, 115 ,116; M Wetsh‟okonda Koso (note 211 above; 67-72), UNOHCRH (note 3 above; para 955-961).
518 Ibidem.
519 Average of 0,6 % of the national budget between 2004 and 2009. Read UNOHCRH (note 3 above) para 901-904.
520 For instance more recently on 30 August 2011, hundreds of Magistrates demonstrated in Kinshasa demanding an improvement in their professional and social conditions.
521 UNOHCRH (note 3 above: para 910-912).
As result, people have lost confidence in the justice system.522 Very few of the decisions which have been rendered by different Courts can be considered as case law. Magistrates need training in general, as well as training in the investigation and prosecution of international crimes in line with international standards.
5.2.3 The challenges facing the international criminal justice system in dealing with war crimes in the DRC
The crimes that have been committed in the Congo are of international concern and cannot go unpunished. Although the ICC has attempted to prosecute some alleged war criminals, its jurisdiction is limited, as explained above.
Therefore there is a need to explore another judicial solution which could fit with the Congolese context, considering the framework, and the time and nature of the crimes that have been committed.