Many chronic human rights problems in Congo have worsened since the beginning of the conflict. Other problems have emerged as a result of abusive military operations by the Congolese Armed Forces (FAC) and its allies. A lack of accountability, fissures within the government and the military, rule by an increasingly isolated group of leaders, and general administrative disorganization have made prospects for the respect of human rights and the rule of law even more distant. In addition to aggravating the human rights situation, these factors have at times hampered efforts by individual members of the government to protect rights.
Civilians and military are frequently subject to arbitrary arrest and prolonged detention without trial in government-controlled areas of Congo. The Military Court, established in 1997, was in the process of expansion at the end of 1998 with the addition of new chambers at Lubumbashi, Kananga, Mbuji-Mayi, Kamina, Matadi, Likasi, and the establishment of roving courts.1 The jurisdiction of the Military Court was further expanded on January 2, 1999 by Decree Law 171, which declared a state of emergency (Etat de siège, state of siege) in Equateur, Katanga, North Kivu, South Kivu, Maniema, and Province Orientale. The state of siege was justified by the danger constituted by the aggression and invasion of DRC by foreign armies and considering that this barbaric and unfair war places the Congolese nation in danger and disturbs the functioning of the state and the Government of Public Salvation.2 While the decree law has drawn little international attention, it granted the military sweeping powers over civilian administration. Decree No. 172 outlines the provisions of the state of siege, giving the military the authority to replace civilian authorities, appropriate private property, and to forcibly recruit civilians for the benefit, directly or indirectly, of national defense and the safeguarding of public security and interest.3 Following the new decree, the military courts would presumably have jurisdiction over all cases handled by the civilian court system in those provinces declared under siege. Human rights lawyers in Lubumbashi confirmed that the civilian courts were no longer handling criminal cases.4 At the end of the year, the Military Court had jurisdiction over the cases of nearly 800 Congolese military held in the Reeducation and Penitentiary Center of Kinshasa (formerly the Makala Central Prison) and another 1,400 held in Katanga, as well as hundreds of cases of civilians, including common criminal suspects, political prisoners, and suspected rebel collaborators.5
Since its establishment, the functioning of this court has been marked by prolonged delays, a lack of due process, and a propensity to apply and execute the death sentence.6 Many of the military in custody have not been charged. Many civilians who have been politically active are charged with such catchall offenses as endangering the security of the state or association with wrongdoers.7
Public prosecutors often seek the death penalty for civilians and military personnel alike, and over seventy-three death sentences have been carried out since the creation of the court. In violation of international norms, the court lacks an appeal process, even for those sentenced to death.8 In interviews with Human Rights Watch, court officials, including the acting commander president of the court and a military public prosecutor, expressed their strong support for death sentences in order to eliminate suspected rebels, common criminals, ill-disciplined military, and collaborators with the enemy.
Decree Law 019 stipulates that all death sentences must be followed by an automatic plea, to be submitted by the Minister of Justice, for presidential pardon. Despite this regulation, many executions were carried out the same day as sentencing or shortly after, raising doubts that presidential pardon had been sought.9 Since the clemency procedure is secret, it is difficult to know in how many cases pardon was actually requested and denied. President Kabila, who alone is empowered to commute the death sentences, is known to have granted only one pardon: a thirteen-year-old soldier who had been sentenced to death in late March for killing a Red Cross worker in Kinshasa was granted clemency on April 18, 1998. In addition, a convicted pregnant woman in the town of Uvira was granted a stay of execution until she gave birth to her child.
The second president of the Military Court told Human Rights Watch that under the decree law establishing the court those condemned to death could be legally executed immediately following judgment. This violates principles both of the Congolese code of criminal justice and international norms. On November 14, thirteen FAC officers accused of cowardice and fleeing before the enemy were sentenced to death by the Military Court in Lubumbashi. Public prosecutors and defense lawyers for the thirteen were reportedly given only twenty-four hours to prepare the cases. The thirteen were executed later the same day; it is highly improbable that the time between the sentencing and execution permitted time for the administrative procedures to seek presidential clemency as stipulated by regulations.10
In the Military Court, even judges and prosecutors fear retribution by soldiers if they issue orders that displease them. Mukuntu Kiyana, the president of the Military Court, was himself arrested on August 6 and released after four days, only to be rearrested on August 28 reportedly for having ordered the death sentence for a group of twenty-four soldiers. Following their execution, he was accused of intelligence with the enemy, reportedly at the request of military allies of the twenty-four. He remained in detention as of early January. Under sway of the military, prosecutors and judges request and hand down the maximum allowable penalties for those found guilty. According to defense lawyers, judicial personnel also hesitate to give or execute orders to release detainees who might later join the RCD.
Many of the arrests appeared arbitrary, often based on ethnic rivalries, settling scores, or membership in an opposition political party. Those arrested were frequently accused of complicity with rebel forces. Release from detention was uncertain even for those who had been issued release orders, having been acquitted or having no charges against them. According to a court document shown to a Human Rights Watch researcher by a military prosecutor, two well-known political prisoners, Professor Kabila Kalele, a lecturer of sociology at Kinshasa University, and his collaborator Jean-Francois Kabanda, a free lance journalist, both prominent members of the UDPS political party, were ordered to be released in mid-November.11 The two were arrested on October 24, 1997following the publication of an article in which they alleged that President Kabila had sold the country to the Rwandan Tutsis. Despite the written release order dated mid-November 1998, the two remained in detention as of early January 1999.
While the Congolese government has made efforts to reform the penitentiary system, including a renovation of the Reeducation and Penitentiary Center of Kinshasa,12 persons in detention remained subject to harsh and arbitrary treatment. On August 19, following an escape of approximately 180 prisoners from the prison, seventeen prisoners and one prison official were summarily executed by Congolese military inside the prison grounds for having allegedly assisted in the escape. According to one source, one of those executed was an imprisoned television repairman who was actually shot because a soldier was displeased with a repair job on his television.13
In addition to those facing trial by the military courts, another group of persons at risk of execution or other human rights abuse are ethnic Tutsi civilians in government-held territory, including those in detention or interned. As of early January, nearly 140 Tutsi civilians were in detention in Kinshasa at the military Camp Kokolo, headquarters of the 50th brigade of the Congolese Armed Forces (FAC). Others are concentrated with the knowledge of the government in various private locations, including hotels and religious establishments that serve as temporary places of safety, totaling approximately 520 in Katanga and some 450 in Kinshasa by early January. An additional unknown number of Tutsi remained dispersed, often in hiding, in private residences throughout government-held territory, including Kinshasa and Katanga.
Despite some efforts and proclamations from members of the Congolese government, Tutsi in detention or interned in government-held territoryincluding Tutsi purportedly under the protection of the governmentremained easy targets for Congolese military or other state agents well into January 1999. On January 12, a group of around thirty-five individuals, mostly Tutsi women, were rounded up from their lodgings at the Catholic Bethanie Center in Kinshasa by military from the 50th brigade and taken to Camp Kokolo. The military accused those arrested of being rebels or rebel-supporters, threatened to kill one of the Catholic sisters, and looted and destroyed property at the center. The operation was reportedly carried out without the knowledge of the Minister of Human Rights, who, along with other members of the government, had arranged or facilitated protection of the Tutsi sheltered at the center. Those arrested included two Congolese human rights activists lodged at the center and at least one of the centers employees. Following their arrest, the military at Camp Kokolo claimed that the detainees were being held for their protection, but gave only limited access to international humanitarian groups or U.N. agencies attempting to provide humanitarian assistance to the detainees,
This most recent round of persecution of Tutsi began in late July 1998 following President Kabilas expulsion of Rwandan military from Congo.14 Many Tutsi civilians of Congolese and other nationalities fled Kinshasa during this period. As the RCD forces advanced on Kinshasa in August, the Congolese government exploited existingtension between Tutsi in Kinshasa and other ethnic groups as well as a general state of fear to help defend the capital and maintain their hold on power. During this period of widespread panic, members of the Congolese government made dangerous, xenophobic statements, including virulent calls for the population to pick up arms and kill the enemydefined broadly as Rwandans or Tutsisthat created an environment in which civilians could kill with impunity. On August 4, President Kabilas cabinet director Abdoulaye Yerodia made a public declaration on national television in Kikongo, the language of Bas-Congo, addressed to the population of that region that was a thinly veiled call for ethnic attacks on Tutsis. Yerodia instructed his brothers to rise up as one man to kick out he who looks like the common enemy. He further stated that the population should use any weapons available, including hunting guns, machetes, axes, arrows, sticks and rocks to contribute to this effort.15 On August 6, Governor of Kinshasa Théophile Mbemba organized a march of anger against the Rwandan aggression at the Kinshasa central market, attended by Yerodia, Minister of Information Didier Mumengi, and Minister of Transportation and Communications Henry Mova Sakanyi.16 The march featured anti-Tutsi songs and slogans including better to spare a snake than a Rwandan and Kinshasans say no to the presence of Tutsi Banyamulengue in Congo.17 Radio broadcasts on August 8 from a government regional radio in the eastern town of Bunia called on the local population to use "a machete, a spear, an arrow, a hoe, spades, rakes, nails, truncheons, electric irons, barbed wire, stones, and the like, in order, dear listeners, to kill the Rwandan Tutsis." On Wednesday the 12th, a local commander of the Congolese army called on Bunia residents to "be ferocious" with the Rwandans and "massacre them without mercy."18
These calls from the government resulted in the slaughter of a large number of Tutsis in government-held territory by Congolese military and civilians, sometimes following arrest by military. While the number of civilians killed will never be known, the total for Kinshasa alone was probably several hundred.19 Those killed were predominantly Tutsi, although Congolese human rights NGOs noted that those killed included the homeless, mentally ill, and individuals who vaguely resembled ethnic Tutsi, while others took advantage of the environment of impunity to settle old scores.20 Several including former detainees described in detail to Human Rights Watch the killings of dozens of people arrested by Congolese military and detained in Camp Kokolo during the period of ethnic slaughter in August.21 Witnesses, including military personnel from Camp Kokolo, gave testimony and independently drew similar maps for Human Rights Watch which identified the locations of killings and subsequent burning of bodies and burials in mass graves in Camp Kokolo. Some testimonies indicated that other mass grave sites existed in Kinshasa, including in the grounds outside the former parliament building, the present location of the office of the presidency. When looking for her husband at Camp Kokolo on August 5, one spouse of a Tutsi detainee was told by an officer at Camp Kokolo that it was not worth it to go looking for him. Were liquidating them at the presidents office and putting them in a big hole over there.22 While Human Rights Watch received other reports indicating that some of those summarily executed in August had been buried in a mass grave on these grounds, limited access to this heavily-militarized area prevented verification.
The virulent discourse and incitement to violence from state agents, at times broadcast over national radio and television, ended only in mid-August after international pressure led to a moderation of the public position of the government. In mid-August, President Kabila gave a press conference calling for the protection of civilians, although many Congolese listeners claimed that his speech was not as heartfelt as previous speeches from members of his government inciting the population to violence against ethnic Tutsis.23 The calls to violence, however, were replaced by a more subtle discourse from some officials, who continued to portray all Tutsi as evil and the common enemy. The minister of transportation and communications, for example, published a document in October 1998 drawing parallels between a Hima-Tutsi phenomenon in the Great Lakes Region and Nazism in the 1930s and 1940s.24 While killings were greatly reduced following Kabilas August speech, no public actions have been taken to date by the Kinshasa government to punish those responsible for incitement to hatred or violence, and the potential for future violence against ethnic minorities remains.
Tutsi women were also subject to arrest, ill-treatment, and rape in detention. One widow from the Kintambo neighborhood of Kinshasa was arrested on August 7 and held at the office of the Rapid Intervention Police (PIR) known as ex-Circo.25 Upon arrest she was beaten along with her thirteen- and fifteen-year-old children by police who accused them of being Rwandans. The widow was born in Congo, the daughter of a Tutsi and a Bango, an ethnic group unquestionably indigenous to Congo. She stated that during her twenty-four hour detention she was raped by a member of the PIR and that she believed that at least one other women from her cell who was taken away by police and returned in tears was raped.
The absence of prosecution for any killings of Tutsi thus far, the verbal attacks carried out without punishment, and the existence of the model of the genocide in neighboring Rwanda, combined to make an atmosphere highly dangerous to Tutsi. As the war-time scarcities and sufferings due to the war continue to mount on the Congolese population, they become an increasingly vulnerable target to any future hate speech or calls from the government to take public defense into their own hands, including calls to kill. During interviews with Human Rights Watch, Congolese of diverse backgrounds in the east and westincluding members of the Congolese governmentmade allusion to the serious danger that civilian Tutsi could face were the war not to go well for the Congolese government. Rather than acting firmly to protect Tutsi, some government officials suggest that further killings, under the guise of supposedly spontaneous acts by the population may be inevitable. During an interview with Human Rights Watch an official of the Military Court stated that,
If the rebels come here, there may be another genocide, a spontaneous rebellion. They come with a virus. We know who the Rwandans are just by looking at them. In the case that they win, life for them will be impossible. You may see something not at all planned.26
In this explosive environment, future incitement from members of the government or the public could ignite existing anti-Tutsi sentiment into further killings by civilians or military. At the same time, public statements suggesting genocidal violence could emerge in response to battlefield losses for the Congolese government. Thiscould create the preconditions for ethnic slaughter, effectively designating a part of the Congolese population hostage to government fortunes in the conflict.
Some members of the government and military took action to protect the rights of Tutsi and others in Congo, at times at great personal risk, reflecting widely differing points of view among members of the Congolese government regarding human rights. On November 21, Congolese Minster of Human Rights Leonard Okitundu personally escorted a group of approximately nineteen Rwandan nationals to the airport in Kinshasa during their evacuation to Kigali. Mr. Okitundu gave an interview at the airport explaining that this was a voluntary repatriation supported by the Congolese government, which had made provisions for Tutsi of any nationality wishing to leave the country. In an interview with Human Rights Watch, Okitunu said the Congolese government has established a procedure involving the ministries of the interior and human rights to facilitate the departure of any Tutsi wishing to leave the country. Numerous military and civilian officials also housed Tutsi in their own residences or elsewhere in efforts to protect them.
The assistance and protection provided Tutsi by other governments (in the region and elsewhere), international organizations, and embassies was inconsistent, especially as it concerned the needs of evacuation. In the first months of the war, some diplomats, members of local human rights and religious groups, and officials from international organizations took measures to protect and assist with the evacuation of Tutsi from government-held areas. As of early January 1999, however, many Tutsi were still living in fear in Kinshasa, urgently wanting to leave the country, but unable to do so because of visa requirements or a lack of financial means to support themselves abroad. Several diplomats in Kinshasasome of whom had actively protected Tutsi during the period of killings in Auguststated to Human Rights Watch that their inability to grant visas or their slowness in doing so was due to the policies and procedures of their respective governments.
Some members of the diplomatic community in Kinshasa and representatives of international organizations privately expressed fears that they would be participating in ethnic cleansing if their assistance in evacuations was not accompanied by a government guarantee of the right of Congolese Tutsi to return as citizens. This may also have slowed the granting of visas or other assistance to Tutsi seeking to leave. Efforts had been made by several embassies, church representatives, and international organizations, including the United Nations High Commissioner for Human Rights Field Office in Congo, to locally protect Tutsi and/or facilitate their departure, but many Tutsi remained in hiding or in detention without assistance.
One key initiative to protect Tutsi in Kinshasa by this group was an attempt to relocate the nearly 140 Tutsi in Camp Kokolo to a safer, more easily accessible location in Kinshasa. While the plan had been approved by a number of high-level government officials, as of early February, President Kabila had yet to sign an order approving the assignment of security personnel to this site.
While taking no position on why countries go to war, Human Rights Watch has examined the application of international humanitarian law, the rules of war, in numerous conflicts over the past two decades. While there are internal rebellions taking place simultaneously, the hostilities in Congo involve several states from the region, making it an international armed conflict as defined in Article 2 common to the four Geneva Conventions of August 12 1949. As such, the conduct of military operations by all states involved in the conflict are governed by the Geneva Conventions, as well as the customary laws of war.
The Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) contains detailed rules, mostly reaffirmations or clarifications of existingcustomary law, which implement the customary principles that a distinction should be made between combatants and civilians and that civilian objects may not be the object of military attacks.27 In particular, Article 51(2) reaffirms that, The civilian population as such, as well as individual civilians shall not be the object of an attack.
Furthermore, Article 57 (2) of Protocol I provides that those who plan or decide upon an attack shall do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this protocol to attack them. The requirements to do everything feasible to verify that the target selected is a military objective involves, according to Michael Bothes New Rules for Victims of Armed Conflicts, a continuing obligation to assign a high priority to the collection, evaluation, and dissemination of timely target intelligence.28
Articles 51(5)(b) and 57(2)(a)(iii) and (b) contain the first codification of the customary rule of proportionality as it relates to collateral civilian casualties and damage to civilian objects. Article 51(5)(b) formulates this rule as follows:
an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
This rule, according to Bothes authoritative commentary on the protocol:
Clearly requires that those who plan or decide upon an attack must take into account the civilian population in their pre-attack estimate. They must determine whether those effects are excessive in relation to the concrete and direct military advantage anticipated. Obviously this decision will have to be based on a balancing of:
(1) the foreseeable extent of incidental or collateral civilian casualties or damage, and
(2) the relative importance of the military objective as a target.29
Accounts from witnesses in areas of combat of the behavior of the Congo-allied forces30 from August through mid-January 1999 suggest that these standards were often disregarded. While information from areas of fighting or bombing was at times difficult to verify, reports of violations of humanitarian law were regularly received. NGOs, journalists, and missionaries on the ground gave eyewitness accounts to Human Rights Watch of the damage to civilians and humanitarian infrastructure following the bombing of RCD-held areas by the FAC and their allies, Angola, Zimbabwe, Namibia, and Chad. Most reports of violations came from areas of combat during or shortly after fighting.
RCD military and their allies also committed abuses during their offensive in western Congo. During August and September in Bas-Congo, RCD forces were responsible for extensive looting, especially of vehicles and communications equipment, destruction of civilian infrastructure, and reportedly rape and arbitrary killings.31 Laterin August, RCD forces overran the Inga hydroelectric dam in Bas-Congo and repeatedly interrupted the power supply to the capital. This led to the disruption of running water supplies to the population and had serious effect on medical and other essential services in the capital. RCD forces committed further looting as they retreated from Kinshasa, including at hospitals, schools, and the Catholic mission at Kisantu.32
As they began their assault in the Boma area in mid-August and progressively recaptured towns in Bas-Congo, Angolan forces and FAC reportedly committed killings of civilians and rape during house-to-house searches for RCD soldiers in Boma and Moanda.33 Human Rights Watch also received several credible accounts of extensive looting by Angolan forces throughout Bas-Congo, including hospitals at Kangu and Kuimba, where even office furniture of the hospitals was taken.34 Following the recapture of the city of Boma by the Angolans on August 26, Angolan troops took part in widespread looting including theft from private residences, farm animals, and vehicles, many of which were transported to Angola.35
While combat had largely ceased in Bas-Congo by mid-September, the humanitarian situation remained serious at least through late November due to the extensive looting, destruction of infrastructure, and other abuses that had taken place earlier as well as difficulties for humanitarian NGOs to access the region. One local humanitarian worker who visited the Bas-Congo province in November described FAC roadblocks as economic barriers in reference to the blatant and high level of extortion by members of the FAC.36 Government restrictions denied access to the region by international humanitarian agencies until November, when unclear administrative requirements and multiple government interlocutors continued to slow the delivery of aid. Several humanitarian groups in Kinshasa expressed their frustration at not being able to rely on government authorizations as these were often disregarded at FAC barriers.
Some members of the Congolese government suspected members of the international community in Congo, especially international humanitarian workers, of being spies or sympathizers of the RCD, further hampering access to areas of humanitarian need. In one instance, a member of an international humanitarian NGO was arrested and detained for several days for carrying a report which stated, it is not certain that the population of Mbuji-Mayi would be hostile to the rebels were they to take the city.37 True security concerns also prevented access to many areas of humanitarian need, especially those near the front lines. While high-levels of extortion by the FAC and harassment of humanitarian workers were perhaps similar to pre-war levels, Kinshasa residents pointed out the effects could be potentially more severe during the war due to increased socio-economic pressure on the civilian population and an increased need for humanitarian assistance.
Aid workers described the behavior of Namibian and Zimbabwean forces at checkpoints as professional in several regions. Several reports from humanitarian organizations indicated that Zimbabwean forces had respected international norms regarding the treatment of prisoners of war and had on occasion protected them from the FAC. A humanitarian official working in Bas-Congo reported that Zimbabwean soldiers had intervened on their behalf when unruly FAC harassed them at checkpoints.38
Human Rights Watch received reports of civilian casualties and the destruction of medical and other civilian infrastructure due to aerial bombardments by FAC allies from August 1998 through mid-January 1999, raising the concern that bombings may have deliberately targeted civilian objects, or at best failed to take into account the obligation to protect civilians and civilian property. Witnesses in Shabunda stated that in mid-September, bombs from planes assumed to be allied with the FAC hit civilian targets including the Shabunda hospital.39 Reports from journalists and others in Kalemie and other cities under RCD control in Katanga and Maniema stated that dozens of civilians had been killed or wounded as a result of bombings by the Zimbabwean air force.40 Local sources confirmed that on the night of January 10 and 11, FAC-allied forces carried out bombing raids in Kisangani that killed at least sixteen civilians.41 These attacks appeared to be indiscriminate in that they did not distinguish military objectives from civilians and civilian objects.
The Congolese government has reportedly recruited soldiers and militia accused of involvement in the Rwandan genocide of 1994 from refugee camps in Congo-Brazzaville, the Central African Republic and possibly other countries.42 The recruitment of refugees by governments from camps severely undermines the strictly humanitarian, civilian and peaceful character of refugee camps and internationally protected refugee populations.43 The Congolese government has a responsibility to examine the past conduct of all combatants, in particular those known to be Rwandan, that is, those recruited in refugee camps housing only Rwandans, and particularly any who registered with local authorities as former members of the Rwandan Armed Forces. Any such persons against whom there are credible charges of genocide or crimes against humanity must be not only excluded from Congolese forces but also prosecuted or delivered to the custody of the International Criminal Tribunal for Rwanda.
Human Rights Watch also interviewed Ugandans in detention in Goma who claimed to have been recruited from refugee camps in the Juba area of southern Sudan.44 The detainees, who spoke freely and appeared to be free of intimidation, claimed that they had been promised repatriation to Uganda, but were instead flown to Kindu, Maniema province, where they were instructed to join the FAC. They claimed that members of the West Nile Bank Front (WNBF) in the Sudanese camps were also flown voluntarily to Kindu to fight on behalf of the FAC. They were subsequently captured by RCD forces during the battle of Kindu.
Since the beginning of the conflict on August 2, recruitment of children has increased. An official communique aired on national radio on August 7, 1998 called for children and youth between twelve and twenty years old to enlist in the armed forces, in response to the RCD insurgency. In addition to Kinshasa, recruitment reportedly took place at the airport in Mbuji-Mayi in Western Kasai, and Kamina, Kaniema, and Manono in Katanga. A FAC commander in Kinshasa who had done an informal survey of troops stationed there in November, 1998 found that one out of every fourteen FAC soldiers was under the age of thirteen.45
Kabila has used child soldiers to support his military since 1996.46 As the rebel leader of the Alliance of Democratic Forces for the Liberation of Congo (ADFL), he recruited thousands of young child soldiers, known as Kadogo, or the little ones, to support his military campaign against the Mobutu government.47 Despite pledges from the Congolese government to demobilize children from the FAC since the end of the 1996-1997 war and the establishment of several fledgling demobilization programs, the Kabila government has continued to recruit children as young as seven years old for military service.48 While no reliable statistics were available regarding the number of child soldiers, the total number is likely to be at least several thousand.49
Conditions for child soldiers appeared to be deplorable. Aid groups working in the interior of Congo said that they frequently saw Kabilas young volunteers in tattered clothes and in a precarious nutritional state. A doctor of a humanitarian aid agency who had spoken with child soldiers deployed in Bas-Congo, including one only thirteen years old, feared that the child soldiers in this area would fall victim to epidemics.
International law prohibits the recruitment of any children under the age of fifteen, and an optional protocol to the Convention on the Rights of the Child is being drafted that would raise the minimum legal age for soldiers to eighteen.50 Human Rights Watch supports this protocol.
The Democratization Process and Civil Society
President Kabilas declaration of a state of siege on January 2, 1999 gave sweeping powers to the military and again called into question whether the government will carry out its pledges to move towards a more representative government. While this move did not constitute a violation of international law, as Congo is in a state of war, the transfer of powers and other measures taken by the government since the beginning of the war made it clear that any credible transition to democracy was at least temporarily stalled.
Despite the January 29, 1999 decree law that lifted the ban on political activity imposed by Kabila upon taking power in May 1997, party politics remained prohibited for another three months pending the registration of parties with the ministry of interior.51 While recognizing and guaranteeing political pluralism, the decree nevertheless sets forth a series of conditions which must be met first by parties applying for registration, including the payment of a USD $10,000 fee, and the deposition by founding members of seven copies of a range of documents, such as certificates of birth, residence, payment of state dues, and an attestation from a doctor that they are in good physical and mental health.52 Founding members must also prove that they and both their parents are of Congolese nationality.
The ban had by then accomplished the total paralysis of the entire political process in the country, without a credible bid from the ruling party to occupy the political vacuum it so aggressively sought to create. Because of the continuing crackdown on the opposition and other dissenting voices even from within the governments ranks, the decree liberalizing party politics left Congolese politicians skeptical. Spokespersons for the opposition Union for Democracy and Social Progress (UDPS) told Human Rights Watch that their party, which had persistently rejected President Kabilas ban on political activities, had no intention of becoming a state enterprise by registering under the provisions of the new law.53
As was the case before the war, policemen and soldiers conducted unprovoked raids on the headquarters of political parties. The raid in mid-December on the home of veteran politician Antoine Gezenga, which doubles as headquarters of the Parti Lumumbist Unifié (PALU), was typical of these attacks. Agents, with no warrants, seized documents and personal property and rounded up twenty-eight party activists who were briefly detained.54
Criticism of the constitutional review processwhether from inside or outside the governmentwas a sensitive issue. When the minister of health, Jean-Baptiste Sondji, publicly questioned the wisdom of limiting the consultations to hand-picked individuals and groups, he was dismissed and briefly detained without further ado. Asked to explain why he fired Mr. Sondji, President Kabila had this to say: he practically banished himself from the government! He criticized the draft constitution so vehemently (....) that is why he has been dismissed.55 On January 14, elements of the special group for presidential security arrested the director of the central bank and three senior aids, reportedly in retaliation for their opposition to monetary stabilization policies announced by the government.
Arbitrary arrests of opposition politicians and activists and suppression of their rights to free expression and movement continued unabated even when the government prepared to liberalize party politics. On January 16, the national intelligence agency summoned five leading members of prominent opposition parties, sternly reminded them that the ban on political activities was still in force, and detained them without charges for varying periods.56 One of the five, Mukendi wa Mulumba, of the opposition Union for Democracy and Social Progress, was prevented days earlier from boarding a flight to Brussels where he was to represent his party in a conference organized by Congolese civil society groups. In late October, the government placed Etienne Tshisekedi, UDPS leader, under virtual house arrest and denied him an exit visa when he attempted to travel to Brussels to address a session of the European Parliament on his partys peace plan for the Congo.
Since the beginning of the conflict, Kabila has continued to push forward pre-electoral and electoral activities in a superficial fashion that appeared designed to ensure his own grip on power rather than to move the country toward a representative democracy. Despite his own pledges, the most important steps taken thus far to pave the way for a return to multi-party politics have largely excluded the political opposition and organizations of civil society. In November 1998, the government submitted the draft constitution to hand-picked groups of opinion from the civil society in Kinshasa.57 The process was widely criticized by the organizations of the civil society and politicalparties alike: many organizations, including some of those included in the review, claimed that the time allowed for review was insufficient; political parties had been excluded from the process; the review was limited to organizations in Kinshasa only; and there was no guarantee that the government would take into consideration their points of view. With a view to preparing a national referendum on the constitutional draft, the government created a committee to organize a population census despite the fact that almost half the country was inaccessible due to the conflict; the committee invited several NGOs to assist in the process.
President Kabilas government has a long record of harsh treatment of critical nongovernmental organizations, and particularly human rights groups. Although the government had coopted a number of prominent civil society activists and rights advocates in its ranks, and avoided open confrontation with the nongovernmental sector, it found it difficult in many instances to hide its irritation and distrust of the sectors strengths and autonomy.
Most human rights groups stepped up their work on constitutional and electoral issues and civic education in advance of elections promised for 1999. A cluster of organizations came together to provide legal assistance to cases before the military court. Few took on the sensitive issues generated by the war, particularly ethnic persecution, due to a fear of association with the RCD and its allies and a general sense of nationalism. Most civil society organizations made their priority promoting a transition to peace and democracy by publishing proposals for peace and organizing numerous conferences, notably a mid-January meeting in Belgium of organizations of civil society from both government and rebel-held Congo.
46 Persons below the age of eighteen are considered children, (Article 1 of the Convention on the Rights of the Child, September 2, 1990). All states are party to the Convention on the Rights of the Child except for the United States of America and Somalia.
47 Led by then-rebel Kabila, the Alliance des forces démocratique pour la libération du Congo (ADFL) was a coalition of political parties from eastern Congo that, with support from Rwanda, Uganda, Angola, and Burundi, overthrew Zairian President Mobutu in a seven-month war beginning in October 1996. For more details, see the following Human Rights Watch short reports: What Kabila is Hiding: Civilian Killings and Impunity in Congo, vol. 9, no. 5 (A), October, 1997; Uncertain Course: Transition and Human Rights Violations in the Congo, vol. 9, no. 9 (A), (also available in French).
48 Human Rights Watch interview with humanitarian agency, Kinshasa, November 15, 1998. The seven-year-old soldier had been seen by a doctor from the aid agency in the Kapalata demobilization camp near Kisangani early in 1998.
49 In mid-1997, national television featured a parade of what the government claimed were 5,900 FAC child soldiers in Mbuji-Mayi. Organizations involved in demobilization estimated that the total number in November had likely increased by several thousand.
50 Convention on the Rights of the Child, Article 38 (2) and (3).
51 "Décret-Loi No. 194 relatif aux partis et aux groupements politiques, signed on January 29, 1999, Daily Bulletin of the Congolese Press Agency (in French), Monday February 1, 1998.
53 Human Rights Watch telephone interviews with UDPS spokespersons, New York / Brussels & Kinshasa, February 3, 1999.
54 "Congo - Kinshasa: DRCongo--Security forces raid party headquarters, Kinshasa, AFP, Dec. 16.
55 "Congo - Kinshasa: Kabila on Brussels visit, Congo conflict, Le Soir, Brussels, November 19, 1998.
56 The five were: Adrien Phongo, general secretary of the UDPS and Mukendi wa Mulumba, a lawyer and advisor to the partys leader; Kamitatu Masamba, leader of the Democratic and Social Christian Party; Bofassa Djema, leading member of the Popular Movement for the Revolution; and Kisimba Ngoy, a leader of the National Federalist Party.
57 A hand-picked constitutional committee handed a draft constitution to the president in March 1998 for approval. A procedure to create a constituent assembly was nominally established by the government in May to review the draft. Authorities adopted a cumbersome procedure for the selection of assembly members from lists of applicants who, by mid-June, had reportedly reached 10,000. The assembly was never formed. Instead, the task of reviewing the draft constitution was entrustedto a Technical Commission headed by the minister of justice after the war broke out.
58 "RCD military and its allies or RCD forces in this report refers to forces from the Rwandan, Ugandan, and Burundian militaries, and/or members of the FAC (referred to as the RCD army) that have defected to the RCD and are under the command of Congolese officers.
59 Most of the abuses committed by the FAC and their allies in the front line areas are described in the western Congo section of this report.
60 These intertwined conflicts between different ethnic groups in eastern Congo have been exacerbated by the absence of rule of law by the governments of President Kabila and former President Mobutu. People whose ancestors were Rwandan have been subject to a number of changes in Congolese law which could arbitrarily deprive them of their right to nationality. These changes and a threat by the vice-governor of South-Kivu to expel Tutsi in 1996 were among the contributing factors to the 1996-1997 war. Many politicians and others in the Mobutu and Kabila administrations have sought to tailor nationality laws in a fashion that would exclude many ethnic Hutu and ethnic Tutsi from citizenship, thus depriving them of many important rights, including the right to vote and the right to hold office. See Human Rights Watch and FIDH report Forced to Flee.
61 During interviews with Human Rights Watch, RCD authorities repeatedly expressed their adherence to international human rights standards. In a public RCD Political Declaration delivered in Goma, August 12, 1998, they further proclaimed their recognition of the principles contained in the Universal Declaration of Human Rights, the African Charter on Human and Peoples Rights, and the international pacts.
62 Human Rights Watch interview with RCD military commander, December 8, 1998.
63 Details of the church killings were obtained by Human Rights Watch through a telephone interview with church officials in Kinshasa, New York, September 1, 1998. These details were confirmed by several witnesses interviewed by Human Rights Watch in Bukavu who had carried out investigations in Kasika.
64 Estimates vary of the total number of victims in the area of the four villages. One investigation conducted by individuals who participated in burials and spoke with witnesses claimed that the total number killed included sixty-six at Kasika, 618 at Kilongutwe, and approximately twenty in Kalambi. They claimed to have the names of the victims. Another investigation, carried out in part by witnesses of the events at Kasika, found that the total killed included 385 at Kasika, forty-three at Zokwe, ninety-five at Kalama, and 373 at Kilongutwe. This second investigation identified by name forty-two of the dead. Catholic clergy estimate that a total of over 1300 were killed during these incidents.
65 Human Rights Watch interview with official of Catholic church from Kasika area, Panzi, December 9, 1998.
66 "Massacres-Genocides at Kasika-Kilungutwe, territory of Mwenga, South Kivu by Tutsi rebel troops in DRC, report by the NGO CADDHOM, September 9, 1998.
67 Human Rights Watch interview with a relative of one of the victims of Kasika, Bukavu, December 16, 1998.
68 Human Rights Watch interview with official of Catholic church from Kasika area, Panzi, December 9, 1998.
69 Report following field investigation by local NGO, Bukavu, September 9, 1998. In an interview with Human Rights Watch on December 15, 1998, the author of this report explained that in one village he looked inside a round, adobe hut which had been set afire with gasoline and saw a waist-high pile of the remains of bodies. The flesh and clothes of the victims had burned into a substance that looked like tar. Similar circumstances elsewhere made it impossible to tell how many people had been incinerated at this and other sites.
70 In addition to the Department of Justice and Human Rights, the commission was to include representatives from the Department of Territorial Administration, the Department of Foreign Affairs, the Governors Office of South Kivu, and the RCD army.
71 "Les Violations des droits de lHomme commises sur le territoire de la République Démocratique du Congo entre août et septembre 1998, Rapport Bimensuel, Department of Justice and Human Rights, Goma, September, 1998.
72 "Rapport on the massacres of people at Bushaku and Lemera, territory of Kalehe, 21-22 October, 1998, report from NGO in Kalehe, November 3, 1998. The author and researcher of the report, interviewed by Human Rights watch in Bukavu on December 9, provided the family names of the ten people killed, who included six children, one a ten-year-old girl.
74 Human Rights Watch interview, Bukavu, December 10, 1998.
75 One investigator of a Congolese NGO who had interviewed survivors and visited the sites where killings took place stated that the total number of dead was sixty-six.
76 Human Rights Watch interview, Bujumbura, December 11, 1998.
77 Human Rights Watch interview with NGO, Bukavu, December 11, 1998.
78 Human Rights Watch interview with Congolese from Uvira, Bujumbura, December 12, 1998.
80 "500 Civilians Reportedly Massacred by Rebels in DRCongo, Agence France Presse, January 5, 1999.
81 Report from nongovernmental organization from Uvira, January 2, 1999.
82 Jude Webber, "Rebels Deny Congo New Year Massacre of 500, Reuters, January 5, 1999.
83 Human Rights Watch interview with traders in Goma market, December 4, 1998.
84 "Bimonthly Report: Human Rights Violations Committed in Congo between August and September 1998, Department of Justice and Human Rights, RCD, Goma, September, 1998.
85 "UNHCR expresses concern over forced returns to Sudan, UNHCR Press Release, October 8, 1998, Geneva.
86 Human Rights Watch interview, humanitarian NGO, Nairobi, November 25, 1998.
87 On December 18, 1992, in resolution 47/133, the United Nations General Assembly adopted the Declaration on the Protection of All Persons from Enforced Disappearance which states that enforced disappearances occur when persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, thereby placing such persons outside the protection of the law. The governments of Rwanda, Uganda, and Burundi, are subject to this declaration. While the RCD is not recognized as a government, it has publicly adhered to the international bill of human rights and claimed responsibility for protecting human rights in territory under its control.
88 Human Rights Watch interviews, Kigali, November 19, 1998 and Goma, December 1, 1998.
89 Human Rights Watch interview with survivors, Goma, December 11, 1998.
90 Site visit to Goma International Airport by Human Rights Watch, December 5, 1998.
91 During an interview with Human Rights Watch in Goma on December 6, the subject was unable to use his arm.
92 Many RCD commanders, including those from the Rwandan and Ugandan militaries, often used first names only and sometimes changed their names or altered them to Congolese-sounding names. Many did not wear uniforms. These practices, similar to those used by Rwandan forces in Congo during the 1996-1997 war, complicated the identification of these officers.
93 Human Rights Watch interview with former detainee, Nairobi, November 28, 1998.
94 Site visit by Human Rights Watch, Goma, December 5, 1998.
95 Human Rights Watch interview, December 11, 1998. Ngoyi, a Congolese name, was reportedly one of the many officers of the Rwandan Patriotic Army fighting in Congo who had assumed Congolese names to hide their identity.
96 Human Rights Watch interview with lawyer of the wives of the nine victims, Goma, December 5, 1998. One of the military involved in the abduction was a Congolese from Monigi who had joined the RPA.
97 Human Rights Watch interview, Goma, December 1, 1998.
98 Human Rights Watch interviews with human rights NGOs in Goma and Bukavu, December 4 and December 7, 1998.
99 This pressure on rights activists increased dramatically following an incident, in early April 1998, in which the Congolese government arrested an investigator from the U.N. Secretary-Generals Investigative Team (UNSGIT) in Goma and expelled him to Kinshasa, where government officials seized and photocopied sensitive documents, including names of informants and their signatures on their testimonies about the massacres. In the following weeks, the National Intelligence Agency (Agence nationale de renseignements, ANR) questioned leading activists in Goma about their contacts with the United Nations Secretary Generals Investigative Team (UNSGIT) and asked them to submit copies of their monitoring reports and lists of their projects, and names of their international partners and funding agencies. Monitoring groups were particularly targeted, forcing at least a dozen prominent rights defenders from north and south Kivu into exile, some of them after going through horrendous ordeals of arbitrary detention and repeated torture. One member of the Grande Vision for Human Rights NGO in Goma, Gallican Ntirivamunda, was arrested and accused of cooperating with the U.N. investigation. Ntirivamunda was held for several months and repeatedly tortured. He remained in detention under the rebel RCD administration, reportedly at the military lockup knownas Bureau two" in Goma, accused of being a collaborator with Interahamwe. During a Human Rights watch site visit to Bureau two, RCD military commander Sylvain Mbuchi stated that Ntirivamunda had gone missing on November 17 during a military operation which attempted to use him to trap Interahamwe.
100 Human Rights Watch interview with local NGOs, Goma, December 2, 1998.
101 Human Rights Watch interviews, Bukavu, December 8 and December 10, 1998.
102 Human Rights Watch interview with the governor of South Kivu, Bukavu, December 7, 1998. He referred to the November 14, 1998 Plan de Paix a twelve-page document signed by eight members of the Coordination Office of the Civil Society of South Kivu.
103 Human Rights watch interview with womens development and human rights NGO, Panzi, December 10, 1998.
104 Human Rights Watch telephone interview to Brussels, New York, December 14, 1998.
105 "UNICEF condemns recruitment of DRC children by rebels, government, AFP, Geneva, August 14, 1998.
106 Human Rights Watch interview with humanitarian NGO, Bukavu, December 8, 1998.
107 "Congo military intervention is justified - Mandela, Reuters, September 3, 1998.
108 Laide de lUE devrait être refusée aux belligérents, selon Jacques Santer, Agence France-Presse, September 6, 1998.
109 Agence Europe, "E.U./Congo: Mr. Pinheiro specifies conditions under which E.U. could resume cooperation and financial support to Congo," Brussels, November 27, 1998.
110 E.U. warns of aid cutoff to countries with troops in DR Congo, Agence France-Presse, December 9, 1998.
111 United States Concerned about Rwandan Refugee Movements, Statement by James Rubin, Spokesman, U.S. Department of State, November 13, 1998.
112 Ambassador David J. Scheffer Delivers Remarks on Genocide Recognition and Prevention at Genocide Convention at the Holocaust Museum, Washington D.C., December 10, 1998.
113 The Brooke amendment prohibits U.S. assistance to countries in arrears on their debt. Section 575 of the 1999 appropriations bill, known as the Faircloth amendment, states that no funds can be provided to the central government of Congo until the President reports to Congress that the central government is: 1) investigating and prosecuting those responsible for human rights abuses in Congo and 2) implementing a credible democratic transition. Assistance can be provided to promote democracy and the rule of law as part of a transition program.Human Rights Watch