Death Penalty Should Be Removed as Inherently Cruel and Inhuman
August 17, 2011

The mixed court can give victims hope that they will finally see justice for the vicious cycle of unpunished violence that has plagued Congo for decades. The legislation holds great promise, but the death penalty provision should be amended or the court risks becoming an instrument of execution.

Geraldine Mattioli-Zeltner, International Justice advocacy director

(Kinshasa) – The Congolese parliament should adopt draft legislation for a specialized mixed court to try those responsible for the worst human rights violations in the Democratic Republic of Congo, but first it should modify the draft law’s articles prescribing the death penalty as the only applicable punishment, a group of 30 Congolese and international human rights organizations said today. A new version of the draft law was adopted by the Council of Ministers on July 30, later submitted to the senate, and is now being reviewed by the senate’s Political, Administrative, and Judicial Commission.

The draft legislation proposes establishing a mixed court – referring to the inclusion of both national and international staff – within the national judicial system to try war crimes, crimes against humanity, and crimes of genocide committed on Congolese soil since 1990. The mixed court would be charged with trying the most serious crimes committed both before and after the Rome Statute, which created the International Criminal Court (ICC), entered into force in 2002, so long as the crimes are not being prosecuted by the ICC. The Congolese government would therefore meet its obligation to ensure the implementation of the ICC’s complementarity principle, according to which Congolese courts are responsible for prosecuting international crimes after 2002.

The current version of the legislation appears to mandate the death penalty as the only applicable punishment for those convicted of crimes by the mixed court. The death penalty is a sanction that is inherently cruel and inhuman and is universally beset with arbitrariness, prejudice, and error, the organizations said.

“The mixed court can give victims hope that they will finally see justice for the vicious cycle of unpunished violence that has plagued Congo for decades,” said Geraldine Mattioli-Zeltner, international justice advocacy director at Human Rights Watch. “The legislation holds great promise, but the death penalty provision should be amended or the court risks becoming an instrument of execution.”

The presence of international staff alongside Congolese judges and judicial staff is an essential characteristic of the proposed court. Congolese staff will also play a key role in assuring the success of the court, given their deep familiarity with the context and their knowledge of Congolese law. This mix of national and international staff is important to help strengthen the institution’s independence, as well as to bolster the national judicial system’s capacity to try these complex cases, so that the national system can work alongside the court. The current text guarantees the presence of international staff in the court’s chambers, but their presence in the prosecution and registry offices would remain discretionary.  

“Requiring the presence of non-Congolese prosecutors and investigators is essential to the court’s independence,” said Georges Kapiamba, vice president of the African Association for the Defense of Human Rights (ASADHO) in Kinshasa. “Lawmakers have the opportunity to show that they too want a completely credible court by supporting an amendment to ensure a robust international presence.”

International staff recruited for the court should have extensive experience in prosecuting complex crimes, including war crimes and crimes against humanity, and a proven willingness to share this knowledge with their Congolese peers. Non-Congolese Africans who have participated in the work of international courts and tribunals, such as the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, and the International Criminal Court, should be particularly encouraged to participate.

Congolese civil society has expressed strong support for the government’s proposal to establish a specialized mixed court for grave crimes in Congo. Representatives of nongovernmental organizations from each of Congo’s 11 provinces, as well as international organizations, met April 6 through 8, 2011, in Goma, where they adopted a Common Position on the government’s initial draft legislation, recommending a number of important improvements.

“The government’s openness to civil society’s comments to improve the draft legislation has been welcome,” said Raphaël Wakenge, coordinator of the Congolese Coalition for Transitional Justice. “Civil society and the victims of atrocities now have their eyes fixed on lawmakers to make sure the promising improvements in the mixed court legislation to date are not undone by the death penalty’s inclusion as the only punishment available.”  

The Congolese government made the courageous decision to establish a specialized mixed court in response to the October 2010 publication of the United Nations Mapping Report on serious human rights violations committed in Congo between 1993 and 2003. This report documented 617 alleged violent incidents, covering every province in the country, and described the role of all the main Congolese and foreign parties responsible – including military or armed groups from Rwanda, Uganda, Burundi, and Angola, or controlled by the governments of these countries.

The report also noted that the Congolese judicial system does not currently have the capacity or sufficient guarantees of independence to ensure justice for these crimes. The report therefore suggested other possible options, including the creation of a mixed judicial mechanism.

Serious human rights violations continue in Congo, notably in the east of the country. The proposed court would also have jurisdiction over these crimes and would therefore send a strong signal that the fight against impunity had passed a decisive milestone.

“The Congolese government made a courageous decision in proposing the creation of this mixed court,” said Dismas Kitenge, vice president of the International Federation for Human Rights (FIDH). “Our lawmakers should now show that they are equally determined to put an end to impunity by adding the improvements that are still needed, and passing this legislation quickly.”

The following organizations have endorsed this press release:

  1. Action des Chrétiens Activistes des Droits de l’Homme à Shabunda (ACADHOSHA)
  2. Action des Chrétiens pour l’Abolition de la Torture au Nord-Kivu (ACAT/NK)
  3. Action Sociale pour la Paix et le Développement (ASPD)
  4. Arche d’Alliance
  5. Association Africaine de Défense des Droits de l’Homme (ASADHO)
  6. Blessed Aid
  7. Campagne Pour la Paix (CPP)
  8. Campagne pour les Droits de l’Homme au Congo (CDHC)
  9. Centre de Recherche sur l’Environnement, la Démocratie et les Droits de l’Homme (CREDDHO)
  10. Child Protection Consulting Group (CPCG)
  11. Coalition Congolaise pour la Justice Transitionnelle (CCJT)
  12. CODHAS
  13. Encadrement des Femmes Indigènes et des Ménages Vulnérables (EFIM)
  14. Fédération Internationale des Ligues de Droits l’Homme (FIDH)
  15. Fondation Points de Vues des Jeunes Africains pour le Développement (FPJAD)
  16. Groupe d’Associations de Défense des Droits de l’Homme et de la Paix (GADHOP)
  17. Groupe Justice et Libération (GJL)
  18. Human Rights Watch
  19. Initiative Congolaise pour la Justice et la Paix (ICJP)
  20. Initiatives Alpha
  21. Ligue pour la Défense et la Vulgarisation des Droits de l’Homme (LDVDH)
  22. Maniema Libertés (MALI)
  23. Observatoire Congolais des Droits Humains (OCDH)
  24. Promotion et Appui aux Initiatives Féminines (PAIF)
  25. Réseau des Associations de Droits de l’Homme du Sud-Kivu (RADHOSKI)
  26. Réseau d’Initiatives Locales pour un Développement Durable (REID)
  27. Solidarité des Volontaires pour l’Humanité (SVH)
  28. Solidarité Féminine pour la Paix et le Développement Intégral (SOFEPADI)
  29. Solidarité pour la Promotion Sociale et la Paix (SOPROP)
  30. Union de Familles pour la Recherche de la Paix (UFAREP)