IV. Limited Impact: International and Government Efforts to End Sexual Violence by the Congolese Army

Action on Sexual Violence by the Congolese Government and Parliament

The protest by Congolese women activists, human rights groups and humanitarian agencies, as well as advocacy by Congolese women lawmakers has helped bring about important action by the Congolese government and parliament including the 2006 adoption of a progressive and far reaching law on sexual violence.

The Ministry of Gender, Family Affairs and Children is the lead Congolese government department dealing with sexual violence. Minister Marie-Ange Lukiana considers the fight against sexual violence a priority and has welcomed the UN's Comprehensive Strategy on Combating Sexual Violence in DRC, to which the government and NGOs contributed. The strategy makes strong, detailed recommendations in four areas: combating impunity; protection and prevention; security sector reform; and multi-sectoral assistance for health, psycho-social support and reintegration of victims.[91] The minister chairs a cabinet task force on the issue as well as a coordinating body on combating sexual violence composed of international and national actors.[92]

The government has launched an awareness-raising campaign, provided some-limited-assistance for victims, and implemented some measures to end impunity. In November 2007, President Kabila's wife, Olive Lemba Kabila, opened a country-wide campaign supported by UN agencies to combat sexual violence, aiming to raise awareness and push for an end to impunity.[93] The first lady's involvement gave the issue of sexual violence a higher profile. More recently, the campaign has been collecting signatures against sexual violence under the motto "I denounce" ("Je dénonce").[94]

In June 2008, the Ministry of Justice adopted a "road map" for fighting sexual violence, outlining a six-point program to advance judicial responses to crimes of sexual violence. Important elements of the road map were efforts to exempt victims of sexual violence from paying court costs; adopting a standardized medical certificate for victims of sexual violence; increasing female judicial personnel; compensating victims of the 2003 mass rape in Songo Mboyo, Equateur province; and establishing a specialized judicial body to investigate and try sexual offences.[95]

More recently, in March 2009, the minister for gender, family affairs and children also announced the creation of a fund for the protection of women and children, and the creation of an agency for the fight against sexual violence; the mandate of this agency has not yet been defined publicly.[96] According to the minister, the agency will be operational, providing victim assistance.[97]

While these are crucial steps in the fight against sexual violence, the government needs to do more to move from words to action. For example, the "road map" by the Ministry of Justice has yet to be implemented, more than a year after its adoption. The UN's Comprehensive Strategy has yet to become official government policy. There needs to be a stronger political will to deal with the underlying causes of sexual violence in the security forces, such as impunity and lack of clear command responsibility, through security sector reform and military justice (see below).

International Action on Sexual Violence

Progress in Assistance to Victims

International donors and NGOs have taken many measures to provide medical, psychological, social, and legal assistance to the victims and to encourage greater Congolese government involvement in ending sexual violence. For example, the Canadian government has provided approximately US$13 million, and the Belgian government approximately US$10 million to various medical, psycho-social and legal assistance projects, implemented by UNFPA, UNICEF and the Office of the High Commissioner for Human Rights (OHCHR).[98] Many bilateral donors fund programs for victims of sexual violence through multi-donor initiatives, such as the Humanitarian Action Plan. In addition, many international NGOs are devoting significant non-state funding to assistance for victims of sexual violence. While assistance for victims is still exceeded by demand and has not always been sufficiently coordinated,[99] it has helped improve the situation of a considerable number of victims.

Insufficient Efforts in Protection of Women and Girls

According to a 2008 inventory on donor funding on sexual violence produced by MONUC, the focus of funding has been on medical treatment, legal assistance, and capacity-building for government and NGOs. In contrast, only 11 percent of funds were destined to protect women and girls from sexual violence, for example through army training.[100] While some international funding, such as support to MONUC troops, might indirectly contribute to the protection of women and girls, the figures point to a need for stronger protection and prevention, as well as the need to mainstream protection against sexual violence issues into other programmatic areas.

UN Action on the Policy Level

The UN has taken important steps to push for a stronger political response to sexual violence against women and girls in armed conflict, both globally and in Congo.

In July 2005, the UN Security Council adopted Resolution 1612 on children and armed conflict. The resolution established a working group on children and armed conflict and a UN monitoring and reporting mechanism to collect information on violations against children in armed conflict, including sexual violence. As part of the monitoring and reporting mechanism, a task force of UN agencies and civil society actors was set up in Congo. Three reports on Congo have since been submitted to the Security Council through the mechanism, each drawing attention to widespread incidents of rape and other sexual violence against children.[101] In response to the Secretary-General's reports, the Security Council working group adopted specific recommendations urging the Congolese government to ensure that persons responsible for crimes committed against children are prosecuted.

The Security Council's work under Resolution 1612 has focused on the recruitment and use of child soldiers. In particular, the resolution made the existence of child soldier recruitment a prerequisite for the establishment of a monitoring and reporting mechanism in a country, and it called for concrete action plans to end the recruitment and use of child soldiers. In recent months, the Security Council has started to give greater attention to sexual violence. A presidential statement issued on behalf of the Security Council in April 2009 expanded the mandate of these action plans to "address all other violations and abuses committed against children."[102] The Security Council is also currently considering whether the occurrence of sexual violence against children alone can serve as a prerequisite for setting up a monitoring and reporting mechanism. However, to date it has not made a commitment to consider sanctions against forces that fail to effectively end sexual violence by their members.

In June 2008, the Security Council adopted the landmark Resolution 1820, condemning the use of rape and other forms of sexual violence during war time, and announced targeted measures against responsible parties to the conflict.[103] The resolution built on previous work, notably Resolution 1325, which pushed for the inclusion of women and gender perspectives into peacekeeping troops and peace negotiations.[104]

While there was little UN action on sexual violence in Congo until about 2001, UN agencies-together with international and Congolese NGOs-have played an increasingly important role in addressing sexual violence, in particular by coordinating the many actors involved. However, UN peacekeepers have also themselves been involved in sexual abuse in Congo, including notably sexual exploitation of minors.[105]

In April 2009, MONUC launched a comprehensive strategy to combat sexual violence. It was swiftly adopted by all UN agencies as a joint platform, and the government has also welcomed it.[106] Regarding impunity and security sector reform, the strategy proposes the strengthening of judicial institutions, improving access to justice, implementing the law on sexual violence, establishing a vetting mechanism in the army to exclude individuals who lack integrity regarding human rights and best practices, and including support for victims of sexual violence into demobilization programs. The strategy also underscores the importance of prosecuting civilian and military high-ranking officials.[107]

Another important element of the UN response is the Mapping Exercise. Under the leadership of the OHCHR, this initiative-which is currently underway-aims at creating an inventory of the most serious human rights and international humanitarian law violations in the Democratic Republic of the Congo between 1993 and 2003. The Mapping Exercise was initiated following a request by the Secretary-General and is mandated by the Security Council to formulate options for transitional justice in Congo. [108]

Security Sector Reform: Lack of Political Will to Break with the Past

The Congolese government and international donors have embarked on a process of security sector reform-that is, the process to reform and rebuild the army, police and judiciary. They have given top priority to the program and to date have heavily invested in it, with more financing due to be allocated in the coming years.[109] The two main international supporters of security sector reform in Congo are the UN and the European Union (EU). In 2007, the Security Council mandated MONUC to undertake training and capacity-building with the army and police and advise the government on efforts to strengthen the judiciary. Several other UN agencies are also involved in security sector reform.[110] In parallel, the EU has established the EU Security Sector Reform Mission in the Democratic Republic of Congo (EUSEC) and the EU Police Mission in the Democratic Republic of Congo (EUPOL) to support reform of the army and police respectively.[111] The EU also runs a program for the restoration of the justice system in eastern Congo. Other bilateral partners include the United States, Belgium, the United Kingdom, the Netherlands, Angola, and South Africa.

Security sector reform-which started with brassage in 2003-has been plagued by serious problems which affect the army's capability to respect and enforce human rights standards. From the beginning, there were serious problems with the brassage process.The main political leaders were reluctant to commit their troops to army integration, preferring to keep their best soldiers and weapons in reserve should the peace process not provide the dividends they were seeking. Many new FARDC soldiers remained loyal to their previous commander and did not accept the new leadership, as illustrated by the case of the 14th brigade. Armed group leaders and other officers responsible for grave abuses were integrated into the FARDC without any vetting, thereby promoting those with known track records of human rights abuses, including rape, into senior command positions.[112]Attempts to prevent and punish sexual violence by members of the Congolese army as part of security sector reform have been insufficient. The government has also lacked the political will to fight corruption. Embezzlement of the vast sums of money set aside for the process has undermined the effort.[113] When corruption has been uncovered-as was the case for General Sungiglanga Kisempia, the former chief of staff of the Congolese army-the government has failed to arrest and prosecute those responsible.[114] Another problem is that there have been competing visions of security sector reform in government, and a lack of coordination among donors.[115]

Disconnected from the Fight against Sexual Violence

On ending sexual violence, the current government policy for army reform lacks a gender and human rights component. In its plan for the army, the government describes "profound weaknesses" in the army with respect to the army's operational capabilities, administration, logistics, and social issues-such as poor living conditions-but it does not mention the army's poor human rights record nor the problem of sexual violence committed by so many of its soldiers.[116] Such a flagrant oversight in the face of mass sexual violence and other atrocities committed by government soldiers illustrates a shocking lack of appreciation of the problem.

Limited Impact of Army Training

Although the army has received extensive training on civilian protection, the impact on preventing sexual and other abuses has been limited. One reason for this might be that commanders avoid the training, sending the signal that the training is unimportant. However, there has not been any comprehensive evaluation of army training that would help draw more detailed conclusions on the effect of training.

During brassage, units sent for integration underwent training on international humanitarian law, including the protection of civilians and command responsibility. Training was carried out by the Congolese army leadership together with various foreign military experts from South Africa, Belgium, France, and other countries. Since this initial training, several army training programs have been established and implemented, including by the UNHCR, MONUC, the ICRC, and international and Congolese actors.[117] For example, UNHCR and the ICRC have regularly implemented trainings on international humanitarian law; protection from sexual violence and pillaging has been a central element. Trainings have taken a few hours or a day, or sometimes longer.[118] MONUC has carried out three months long trainings, including actual military training as well as instruction on international humanitarian law and military justice.[119] In addition, several training programs have been specifically developed for members of the military justice system. Some training programs have also focused on the dissemination of the sexual violence law.[120]

Training programs are usually intended to reach soldiers of all ranks, including officers. But according to agencies carrying out training on human rights, commanders sometimes stay away from training programs and only send foot soldiers. In other instances, commanders have attempted to take complete control of the training.[121] One 14th brigade soldier claimed that none of the senior commanders of the 14th brigade ever participated in training on civilian protection but instead sent low-ranking soldiers.[122]

To date, no comprehensive evaluation of army training has been carried out. Indeed, no single actor, not even the government, knows who all the agencies involved in training are.[123] Some agencies have carried out their own evaluations, for example by asking training participants to fill in forms as a way of assessing their knowledge and getting feedback.[124] But even following the behavior of trained soldiers in order to measure the impact of army training on respect for human rights is a challenging task when soldiers get regularly transferred and deployed into combat zones and the chain of command is not fully functional.[125]

The experience of the 14th brigade illustrates the limited impact that training as it is now has had in fighting sexual violence. Members of the 14th brigade received several training sessions on the protection of civilians, their property and the prohibition on sexual violence. The brigade's commanders reminded soldiers repeatedly of the prohibition on sexual violence during the daily military parade. Several 14th brigade soldiers described to Human Rights Watch what they learned in training.[126] One soldier explained:

For women's rights, they tell us, 'if you meet a woman you cannot take her sexually by force.' If you are caught you will be arrested and punished. They told us this at the brassage centre in Rumangabo... My company chief also says this once or twice each week.[127]

Despite these trainings and instructions, soldiers displayed misapprehensions of the legal prohibition on sexual violence. Some soldiers interviewed by Human Rights Watch understood the current law as a mere prohibition on sex with minors. They also understood payment as legitimizing sex, regardless of consent.[128] A 14th brigade soldier convicted of rape tried to justify his actions by saying that he paid the victim money.[129] Other soldiers attempted to explain sexual relations between soldiers and minors as a consequence of their own poverty. They said that in their view an adult woman would require more money for a sexual relationship than a young girl.

Training is important, but it will only be effective if it is embedded within a wider program of disciplinary action and improved command and control.

 "We Live Like Dogs": Poor Living Conditions of Soldiers

Security sector reform comprises measures to improve the living conditions of soldiers and their families, including through regular, sufficient payments, and the construction of military barracks. The government has tripled salaries since 2005 in integrated brigades, and EUSEC has led efforts to establish a functioning payroll, a major task due to widespread corruption and logistical obstacles.[130]

Despite these steps, many soldiers lack basic necessities, including food, clean water, adequate housing, and medical or psychological care.[131] Salaries are generally low, ranging from 34,776 francs congolais (FC) per month for a simple soldier to 61,956 francs congolais for a Lieutenant General [approximately US$41 and US$73].[132] However, commanders may get extra payment for their responsibility as commander (command bonus, or prime de commandement) of up to over US$1,000.[133] Salaries are also sometimes embezzled by commanders.[134] Soldiers often live apart from their families and might not see them for several years. While the situation of the 14th brigade in Kabare was particularly bad, it was also indicative of larger problems. One soldier of the 14th brigade spoke about living conditions in March 2009:

We live like dogs. We live on civilians, asking them for their bananas. It's been three months without payment or something to eat.... Before, I got 37,000 FC a month [approximately US$44]. The commander would then take 2,000 or 5,000 FC from that. January was the last time we got rations. I got beans and flour and maize. I have two children, but with a military salary it is not enough to support them.[135]

Many soldiers see the solution to their problems in barracks that house soldiers and their families and offer schools for their children. One pointed out that the construction of barracks could also help reduce looting and related abuses:

If we had military camps that are well-equipped, that would limit the vagabondage militaire [soldier's vagrancy].... My biggest concern is that I want to have my wife and children here. But where would they live? I have no place for them. Recently the new commander of the 14th brigade, Heshima, has chased the wives of some soldiers away. They don't know where to go.[136]

Similarly, the brigade's former intelligence officer reflected upon the need for better psychological support to soldiers: "Some soldiers crack up, and there is no psychological support. Some are on drugs and alcohol."[137]

Poor living conditions of soldiers cannot justify any of the sexual crimes committed by the Congolese army. But efforts to improve access to basic necessities and look after soldier's families might ultimately contribute to civilian protection.

The Military Justice System: Prosecuting Foot Soldiers, Not Commanders

Limited Progress in Prosecuting Lower-Ranking Soldiers

The military justice system has made some-limited-progress in bringing ordinary soldiers to account for their sexual crimes. During 2008, 27 soldiers were convicted of crimes of sexual violence in the Kivus. But military justice has entirely failed to address the criminal responsibility of high-ranking officers, including their command responsibility. The most senior officer held to account for crimes of sexual violence in the Kivus has been a captain-no major, lieutenant colonel, colonel, or general has been prosecuted.[138]

In the last few years, the government and international donors have undertaken great efforts to strengthen the Congolese justice system, including the military justice system. Following a multi-year justice audit,[139] the EU established a €15 million ($20.5 million) Program for the Restoration of Justice in Eastern Congo (REJUSCO).[140] REJUSCO renovates court and prison buildings; carries out trainings for judicial staff; helps fund transport of judicial staff and victims for investigations and court sessions; and arranges for mobile courts (chambres foraines) in small cities and rural areas.[141] MONUC and other organizations-including Congolese NGOs-have also carried out training on the military justice system and the protection of civilians under international and Congolese law for commanders, military prosecutors, judges, court clerks, and other judicial staff.[142] Other important international actors active in this domain include Avocats Sans Frontières (ASF) and the American Bar Association.[143]

As a result of the efforts to strengthen the judiciary and the 2006 sexual violence law, the military justice system is now dealing with a higher number of sexual violence cases; the same is true for the civilian courts. Military justice officials know more about the issue and appear more willing to try cases of sexual violence. They are also taking steps to protect children who are victims of rape, and closed sessions are now held as a matter of course when the victim is a child.[144]

Progress in the military justice system has been somewhat slower than in the civilian judiciary, but still noticeable compared to 2003, when one rape conviction of a low-ranking soldier in Bukavu was seen as exceptional.[145] During 2008, agencies registered 88 cases of sexual violence before military courts in South Kivu. Military courts adjudicated 18 cases were during the year; 15 led to convictions and three were acquitted.[146] In North Kivu, 34 cases of sexual violence were heard before the Auditorat de garnison, the military court for lower-ranking soldiers, during 2008, and 10 led to convictions.[147]In the first quarter of 2009 alone, the Auditorat de garnison held 17 rape trials in Goma and four rape trials (as mobile courts) in Walikale, some 135 kilometers from Goma, in which 20 soldiers were convicted of sexual violence.[148] Most rape cases are punished with prison sentences ranging from five to the maximum sentence of twenty years.[149]

Military courts have been proactive in applying the Rome Statute to cases of war crimes and crimes against humanity, including for the crime of sexual violence. In April 2006, a military court in the province of Equateur in western Congo tried and found guilty seven soldiers on crimes against humanity for the collective rape of at least 119 women and girls in the village of Songo Mboyo in 2003.[150] It was the first time in Congo's history that rape was tried as a crime against humanity as defined in the Rome Statute, and it set an important legal precedent.[151] Courts have convicted members of the security forces of crimes against humanity at least twice since. In February 2008, a military tribunal in Equateur province convicted one police officer implicated in mass rape to 20 years imprisonment for crimes against humanity.[152] In April 2009, in one of the above-mentioned trials in Walikale, a military tribunal convicted 12 soldiers of the 85th brigade of crimes against humanity for raping 22 women and 3 men.[153]

The Military Justice System Remains Weak

Despite these important advances, the military justice system remains a weak institution. To date, only a small fraction of the total number of acts of sexual violence committed by soldiers has been prosecuted and nearly all such prosecutions have been of lower-ranking soldiers.[154] No senior military figure has been prosecuted for sexual crimes, and command responsibility is rarely the subject of investigations by military prosecutors. Where prosecutors have brought cases on the basis of command responsibility, they have stopped at lower-ranking officers. For example, in the April 2009 conviction in Walikale of a platoon commander (second lieutenant), there were no investigations into the responsibility of his superior.[155]Current judicial investigations into sexual abuses allegedly ordered by two colonels[156]-one in Rutshuru, North Kivu, and one in the Ruzizi Plain, South Kivu-are a promising sign but it remains to be seen whether the investigations will lead to prosecutions.

Military commanders are powerful figures in Congo, often perceived as being untouchable. Brigade commanders receive minimal supervision leaving them with free reign to themselves commit abuses or to allow their troops to do so. Prosecutions are likely only to be effective as a deterrent to combat sexual violence when high-ranking commanders are held to account.

Congolese law hinders the prosecution of senior officers, as the sitting judge in a court martial must have a higher rank than the defendant. As a result of this law, many judges cannot try higher-ranking officers; they would have to transfer the case to a different court where the judge has a higher rank, which seems only to happen rarely.

In some cases, political or military authorities have directly interfered in trials against higher-ranking soldiers. Prosecutors and judges have been withdrawn or transferred when their work was considered as too sensitive by the minister of defence. A justice official told Human Rights Watch in Kinshasa in 2007 that he was unable to pursue a strong and well-documented case of rape against a top general in the Congolese army because the general in question was "protected" by influential individuals.[157] Although this is against the law, commanders sometimes oblige the judiciary to seek their authorization before investigating a case; this has recently happened in North Kivu.[158] In 2006, General Mbuyamba Nsona, commander of military operations in Ituri, instructed the military prosecutor in writing that any arrest warrant or convocation had to be approved by himself.[159]The UN Special Rapporteur on the independence of judges and lawyers, Leandro Despouy, after a visit to Congo in April 2007, concluded that interference by the executive and the army in judicial proceedings was "very common" and that Congo's judicial system was "rarely effective... with human rights violations generally go[ing] unpunished."[160]

Each brigade has an intelligence officer, the S2, who has the rank of investigating judicial officer (officier de police judiciaire), and staff to investigate disciplinary failures and crimes. The brigade's commander has the duty to request investigation into alleged crimes committed by soldiers under his command to the military prosecutors, but they do not always do so. Commanders often protect their soldiers and may even obstruct the course of justice. As a result, identifying soldiers who are accused of rape can sometimes be more difficult than identifying civilian perpetrators who lack institutional protection. A lawyer involved with training FARDC troops commented that "a commander does not want to cooperate with the military justice system, it is like a reflex."[161] Commanders tend to protect suspects by transferring them to different units, unless they have fallen into disgrace. The lack of cooperation by commanders undermines ongoing efforts to render justice for crimes committed by lower-ranking soldiers.

The military justice system is also plagued by several other problems.[162] Trials sometimes violate due process standards. For example, some defendants do not have access to a lawyer of their choice or trials take place without key witnesses of the defense.[163] Congo's prisons are notoriously dysfunctional, and there have been many cases of convicted criminals escaping. For example, seven FARDC soldiers escaped prison after they were convicted of crimes of sexual violence in 2006 in Songo Mboyo, Equateur province.[164] The above-mentioned colonel in North Kivu, accused of having ordered the rape of four girls, was arrested, but escaped from detention in early May 2009.[165] Courts also order compensation payments to the victim, which are to be paid by the convict. But victims have rarely, if ever, received compensation.

The courts lack staff, and this leads to work overload.[166] For this or other reasons, judges and their staff have failed to investigate cases proactively. A UN official who regularly follows up on judicial investigations with the military prosecutor in North Kivu commented that "it is sometimes as if we are the petitioners," meaning that the judicial authorities often fail to take action without prompting.[167] Investigations into crimes of sexual violence are particularly complex and sometimes require more time, as the victims are often especially afraid to speak out or unable to identify the perpetrator.

Military Justice and the 14th Brigade: An Example of Impunity

The 14th Brigade's Reluctance to Cooperate with Military Justice

The number of investigations and prosecutions for sexual violence by members of the 14th brigade is small compared to the number of allegations. Around 10 rape cases were investigated by the brigade since its inception, according to a former intelligence officer; he did not provide information on how these cases had been decided by the courts.[168] Separately, Human Rights Watch has received information about seven convictions for sexual violence of soldiers of the 14th brigade.[169]

Some victims attempted in vain to identify the perpetrators and to start judicial action, but the commanders of the 14th brigade protected their men. One 15-year-old girl raped by two soldiers near Bitonga, Masisi territory, in June 2008 was able to identify the perpetrators as members of the 14th brigade by their purple epaulettes. She told Human Rights Watch what happened:

I was just coming back from the river to fetch water.... Two soldiers came up to me and told me that if I refuse to sleep with them, they will kill me. They beat me and ripped my clothes. One of the soldiers raped me. When he had finished, he told me that if I followed them, they will kill me. So I stayed there, and then went home... My parents said they will look for the soldiers. We did find the soldiers but they denied it happened. My parents spoke to a commander and he said that his soldiers do not rape, and that I am lying. I recognized the two soldiers, and I know that one of them is called Edouard.[170]

One victim of sexual violence and abduction in Kabare said she tried to lodge a complaint with a higher-ranking officer (a major), as she knew the name of the rapist, a captain, but he did not do anything.[171]

The former S2 intelligence officer, charged with investigating crimes by his brigade, found himself confronted with a very large number of cases. He justified his lack of action this way: "This was an exceptional situation, do you arrest 80 percent of the unit?"[172]            

The situation in Kabare from January to August 2008 was so serious that judicial investigators did not dare go there. According to the president of Bukavu's military court, going to Kabare "meant risking one's life," and "the 10th military region should have protected us, but they said to wait."[173] However, the military justice officials-and the brigade itself-should have done more to ensure that investigations take place.[174] But the commander had lost control over his brigade, or at least parts of it. At a time when 14th brigade soldiers committed serious crimes that remained unpunished, Colonel Tshibangu and a battalion commander pledged to cooperate with the military courts at a training seminar with a local human rights organization; their words did not get translated into action.[175]

Colonel Rugayi himself told Human Rights Watch that the soldiers had committed "violence and rape, the worst possible acts" during his absence, effectively blaming his replacement, Colonel Tshibangu, for the situation.[176] After the brigade returned to Minova and he was restored to power, Colonel Rugayi became stricter and ordered the detention, beatings, and torture of soldiers suspected of disciplinary problems or crimes in the brigade's own lock-up. Human Rights Watch also received information about one extrajudicial execution of a 14th brigade detainee.[177] Colonel Rugayi did not, however, cooperate with the military court, which pressed him to hand over cases to it instead. When the military prosecutor requested information on the arrest of one individual, Colonel Rugayi did not respond.[178] One prosecutorial staff member left Minova as a result of these tensions.[179]

Limited Action by Military Courts Regarding the 14th Brigade

Military prosecutors of North and South Kivu have responded differently to crimes committed by the 14th brigade. In North Kivu, the military prosecutor has opened over 20 files relating to crimes by the 14th brigade in December 2007; six are rape cases. A first lieutenant of the 14th brigade was sentenced to 15 years imprisonment for his rape of an 11-year-old girl.[180] A corporal was convicted of raping a woman in November 2008, and a soldier with the rank of adjudant[181]was convicted of raping a 10-year-old girl in December 2008. Both were convicted by an Operational Military Court, a court established to try crimes committed in combat zones. The Operational Military Court in Goma was established to try crimes committed by the army in the context of its battle against the CNDP in late 2008.[182]

The military prosecutor attributed the 14th brigade's many crimes to its leaders and its foot soldiers being "uneducated." However, Human Rights Watch has no information of any senior officer of the 14th brigade having been investigated for human rights abuses.

By comparison, in South Kivu military prosecutors have pursued far fewer cases. A military court in Bukavu convicted two members of the 14th brigade of raping a woman near Kalehe, South Kivu, in January 2007. According to the two prisoners, they did not have a lawyer, and victims or witnesses were absent from the trial.[183] But during the brigade's stay in Kabare, the military prosecutor of South Kivu did not go there to investigate crimes,[184] despite abundant information provided by local residents and NGOs. The military prosecutor has stated that he did not investigate cases because he did not receive complaints against individuals.[185] But it would have been the task of the judicial authorities to use the leads given-such as complaints by locals-to fully investigate individual criminal responsibility. The inaction on the part of the South Kivu judicial authorities might also be explained by the increased insecurity in Kabare, cited above. But they could have done more, for example by initiating investigations with victims outside Kabare, or by pushing military authorities to provide them with protection.

The Way Forward

Current efforts to strengthen the judiciary in Congo should be intensified. This should include strengthening the expertise of military justice officials to investigate the criminal responsibility of those higher up in the chain of command, both for crimes they personally have committed and crimes for which they bear command responsibility. Donors should also use their leverage to push for concrete, achievable goals, such as a small number of prosecutions of high-ranking military officials for their command responsibility in sexual crimes, carried out in compliance with due process standards.

Lack of political independence is one of the key challenges for the military justice system, and this will likely remain so. To effectively combat impunity in the Congolese army and beyond, one possibility that should be considered by the Congolese government is the creation of a judicial mechanism containing a mix of international and Congolese professionals, as part of the civilian judiciary. Such a "mixed chamber" would prosecute war crimes and crimes against humanity by civilian and military leaders, focusing on those bearing the greatest responsibility for crimes and who will not be tried by the ICC, including high-ranking officers in the army.

The War Crimes Chamber in Bosnia and Herzegovina is an example as to how international involvement in the justice sector can be used to effectively establish a credible national institution to try genocide, war crimes and crimes against humanity.[186] International staff have played an important role in building the capacity of their local counterparts. Investigating and prosecuting cases involving war crimes and crimes against humanity is a complex task, particularly in relation to senior officials who may not have been directly involved in committing these crimes but who bear command responsibility. Including international staff with experience in international humanitarian law for a limited period would be vital in building the capacity and expertise of Congolese professionals to effectively try these cases over the longer term. The Congolese government has itself underlined the limited capacity of the justice system when arguing that the ICC should prosecute Congolese armed group leaders accused of war crimes and crimes against humanity. In a recent statement to the ICC, Congo's General Prosecutor described widespread insecurity, lack of witness protection, and lack of expertise in investigating mass crimes and gathering evidence as obstacles to justice in Ituri, and concluded "the situation has not improved since then."[187]

Moreover, in light of the political interference in cases before the military courts noted above, the creation of a new mechanism within the civilian courts and the presence of international staff heighten the chance for greater political independence and minimize the possibility for a politicized judicial process.[188] In Bosnia and Herzegovina, temporary international involvement in the Bosnian War Crimes Chamber has insulated trials from political interference.

A mixed chamber could also try those most responsible for war crimes and crimes against humanity that the ICC will not be able to prosecute. While the work of the ICC in trying grave crimes in Congo is of great importance, it will be limited to a few defendants who committed crimes after July 2002, when Congo ratified the Rome Statute establishing the ICC. To date, the ICC is conducting proceedings against three warlords in relation to its Congo investigation: Thomas Lubanga, Mathieu Ngudjolo and Germain Katanga, and only the latter two defendants have been charged with sexual violence crimes.[189] In addition, the mixed chamber could also try those cases arising before July 2002, the cut-off date for ICC jurisdiction, as well as a far greater total number of defendants who will never be brought before the ICC. For sexual crimes committed before the new 2006 law on sexual violence, it would rely on the prohibition of rape and indecent assault as stipulated in the 1959 Congolese penal code.

Congolese NGOs and academics have proposed the creation of a mixed chamber. Already in 2005, a conference on transitional justice issues ended with participants calling for such a mechanism. The debate about transitional justice mechanisms is likely to get new impetus from the report of the OHCHR-led Mapping Exercise, due to be published later this year.