Background Briefing

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Lack of Progress on Justice

 

At the end of November the Congolese parliament passed a long awaited amnesty law providing amnesty for crimes and political offences committed between August 1996 and July 2003, but excluding war crimes and crimes against humanity.  The transitional government often professes its’ commitment to justice but it has made little progress on holding accountable those accused of war crimes and crimes against humanity, nor has it made progress on these and other crimes committed after July 2003. The poorly functioning judicial system fails even to deal with common petty crime or with civil cases, leaving citizens essentially with no recourse to legal action. In November 2004, judicial officials, legal experts, and foreign donors planned to create a committee to deal with reforming the judicial system, but delays within the ministry of justice meant that the committee was not even created until October 2005, making any plans for reform unlikely before the elections.47

 

High profile cases in which authorities allow human rights abusers to escape punishment, or, even worse, cases where authorities actually promote perpetrators, foster the culture of impunity. It took the government until September 2005 to issue international arrest warrants for former General Laurent Nkunda and former Major Jules Mutebutsi, accused of responsibility for crimes committed by their troops in Bukavu in May and June 2004 when soldiers killed civilians and raped dozens of women and girls.48 At the same time, the government stripped them of their ranks. It acted against these two former officers only after Nkunda once again threatened to disrupt the transitional process by launching a rebellion against the government. Despite Nkunda’s frequent appearances in Goma, neither MONUC nor the FARDC troops have taken any steps to arrest him. Mutebutsi remains in Rwanda where he retreated with hundreds of his troops; to date Rwandan authorities have not handed him over.

 

The government has also failed to act against high-ranking officers still serving in the FARDC, including General Budja Mabe, the former regional military commander in South Kivu, whose troops killed fourteen Banyamulenge or Tutsi in Bukavu in May 2004, all of them apparently targeted on the basis of their ethnicity.49 Armed group leaders from Ituri such as Jerome Kakwavu and Kisembo Bahumeka, accused of ethnic massacres, summary executions, torture and rape, have been promoted to the rank of general in the FARDC. The case of General Kakwavu is supposedly under investigation but no arrest has yet been made.

 

In some of the few cases where justice has been pursued, authorities have failed to observe international standards of due process. In February and March a number of influential armed group leaders from Ituri were arrested in Kinshasa following the killings of nine U.N. peacekeepers. Several of those arrested, including Thomas Lubanga, Floribert Njabu and Germain Katanga, were accused by Human Rights Watch and others of war crimes and crimes against humanity.50 Authorities arrested several of them without charge and held them for weeks before bringing any charges against them, in clear violation of Congolese legal procedures. By early December, they had been in detention for ten months but there has been no effort to bring them to trial. In another case in North Kivu some thirty FARDC troops accused of war crimes committed in Beni during fighting in December 2004, were condemned to death in trials that failed to conform to international standards of fairness and due process.51

 

In the absence of a functioning judicial system, persons guilty of past crimes, even extremely grave violations of international humanitarian law, can present themselves as worthy citizens deserving to be elected to office. Should such persons stand for elections and win important government posts, they will be well positioned to continue their abuses and to protect themselves from any punishment for past crimes.

 

The absence of an independent and effective judiciary will also make it futile for dissatisfied citizens to challenge any flawed elections in the courts.

 



[47] Human Rights Watch interview, representative of European donor, Kinshasa, October 3, 2005.

[48] For more information see Human Rights Watch, “War Crimes in Bukavu”, A Human Rights Watch Briefing Paper, June 12, 2004.

[49] Ibid.

[50] For more information see Human Rights Watch, “Ituri: Covered in Blood”, A Human Rights Watch Report, July 8, 2003 and also Human Rights Watch, “The Curse of Gold”, A Human Rights Watch Report, June 2, 2005.

[51] The trial took place on December 28 and 29, 2004 in Lubero and was observed by MONUC human rights staff. For more information see Human Rights Watch, “Civilians Attacked in North Kivu,” A Human Rights Watch short report, Vol 17 No. 9(A), July 13, 2005.


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