Introduction

Victims of serious human rights crimes require support, protection, and assistance when seeking justice through the courts. The protection of a victim's well-being in the context of a trial is a legal imperative, though in many countries such protection measures pose serious challenges and are frequently inadequate. In the Democratic Republic of Congo (hereafter Congo), a country plagued by continued armed conflict and a weak judicial system, the task of providing protection and support to victims seeking legal redress is all the more complex. The state does not have the infrastructure, financial means, or functioning mechanisms to provide the full range of support so urgently needed by the victims.  Yet at the same time, the need for justice is crucial. Without victims and witnesses coming forward to testify, the ability to bring justice and demonstrate an end to the culture of impunity is seriously reduced.

This article examines the challenges posed by one particularly vulnerable group of victims: children who are victims of sexual violence crimes. In Congo, this is an unusually large group of victims. The United Nations Population Fund (UNFPA), the agency coordinating work on sexual violence in Congo, estimates that 200,000 women and girls have been the victims of sexual violence since 1998. In 2008 alone, it recorded nearly 16,000 cases of which 65 percent were children, mostly adolescent girls.[1] Enhanced support and protection for these children and their parents wishing to seek legal redress is urgently required. Protection of victims means a strategy and set of measures aimed to ensure the safety, physical and psychological well-being, dignity, and privacy of victims who are appearing as witnesses in criminal proceedings or otherwise seeking legal redress.

Under Congolese law, prosecutors and judges must take special precautions for the protection of sexual violence victims and witnesses.  For example, the law specifically mentions the use of in camera (closed) hearings as possible way of protecting a victim. The victim also has the right to be seen by a doctor and psychologist.[2] International law outlines principles of victims' and witness protection in the Convention on the Rights of the Child, the Rome Statute, and the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. These legal instruments describe a range of measures that should be taken to protect victims[3].

Experiences with Protection Measures in Congo

Challenges in providing physical protection

The physical protection of victims and witnesses of sexual violence in eastern Congo is rendered difficult by a number of factors. First of all, the judiciary and the police are structurally weak, lack resources, and are often corrupt; de facto, the rule of law is often absent, and existing laws on the protection of victims and witnesses are not enforced.

Secondly, many of the perpetrators of sexual violence belong to armed groups, the armed forces, or the police. These groups often protect their members - even when accused of rape - and have threatened or attacked victims of sexual violence who have dared to initiate judicial proceedings. In some cases, victims of sexual violence have even been imprisoned themselves after attempting to seek justice. Revenge attacks or threats against victims are rarely investigated, nor are other actions aimed to obstruct the course of justice.

Thirdly, the prison system is dysfunctional. Prison riots are common and detainees and prisoners frequently escape.[4] In May 2009, a senior officer, Colonel Kipanga, accused of rape in North Kivu province, was able to escape two days after he was detained on charges of sexual violence against four girls. His trial took place in absentia. In another incident, only a few months after a ground breaking conviction of seven government soldiers for crimes against humanity for the rape of at least 119 women and girls in Songo Mboyo in April 2006, the convicted soldiers escaped from prison. They remain at large.

An example of these problems is the case of a nine-year-old girl who was raped in her local neighbourhood in Goma by a captain of the Congolese army in May 2008. The facts are well-documented through witnesses and a medical certificate. The army captain was imprisoned for several months, but never tried, and eventually left prison in early 2009. Since then, he has threatened the girl and her family with violence, saying that he will take revenge for the time spent in prison and that one day they will know he had military training. The girl and her parents live in fear up to now.[5]

Challenges in ensuring the victim's psychological well-being

Victims of sexual violence often suffer from trauma, which may manifest itself in different ways such as for example withdrawal, crying, restlessness, generalized pain and other physical conditions, sleeplessness, and memory loss.[6] Child victims also frequently suffer from post-traumatic stress.[7]

Trials are frequently traumatizing and alienating experiences for a child victim. According to a study carried out in the United States, approximately 95 percent of child victims of sexual violence report being frightened to testify in court, and many children report that the day they testified was the worst day of their lives. The children also said they feared retaliation by the perpetrator, being sent to jail, being punished for making a mistake, having to prove their innocence, crying on the witness stand, describing the details of the offense(s) in front of strangers, and not understanding the questions being asked.[8]

Such traumatic impact on child victims and witnesses is likely to be similar if not greater in a context such as Congo where it is even more difficult to protect victims from renewed violence and where the trauma of family members and communities surrounding the child are also immense. A study in Ituri, a war-affected area of north-eastern Congo, found that almost 40 percent of the population suffered from severe clinical symptoms of post-traumatic stress.[9]

Victims are not only traumatized by sexual violence, but also by the negative attitude of their communities towards them. This affects girls, who are usually dependent on a caregiver, particularly. Families sometimes reject their own daughters after rape. When girls are rejected by their families and leave their home, they become vulnerable to further abuse. Girls are also often rejected by their fiancés and have difficulties finding a husband. The situation is particularly difficult for girls who had babies after the rape, and whose story is often known to the community. These girls have the challenging task of raising a child born from rape while still being a child themselves. Many girls also drop out of school after rape, due to ill-health, trauma, displacement, or stigma. Psychosocial support for girls who have experienced sexual violence requires special expertise, of which there is little available in war-torn Congo.

The limited role of courts in victim protection

At present, medical care, psychological support and physical protection measures such as relocation are rarely provided by the courts which lack the financial means and the mechanisms to do so. In some instances, judicial officials have shown creativity and willingness to protect victims and witnesses. In Ituri, a judge organized protection and lodging for a key witness in a war crimes trial through soliciting the support of MONUC officials. In a few other cases, judges and prosecutors have used their own personal funds to pay for the lodging or safe transport of victims to the court. But such support is ad hoc and court officials have no structured funds to draw on.

Usually the limited protection measures that exist are implemented by Congolese civil society groups and international organizations who attempt to fill the gap. But without a formal contract requesting such groups to provide such services, and training, funding and coordination - including putting in place best practices and other measures to minimize risk to civil society actors - such initiatives will always be ad hoc and unlikely to be systematically applied at all trials.

Lack of medical care and counselling

At present, all victims of sexual violence are asked to provide a medical certificate in court, stating what can be medically confirmed about the rape. These certificates should be free, but sometimes victims have to pay for them. Despite the provision in the law, courts rarely - if ever - pay for the medical treatment of the victims whose cases are on trial. Some victims of sexual violence benefit from the free health services offered by various health facilities to victims of sexual violence, usually with support from international donors. Others have to pay for their treatment.

Courts do not offer psychological support to victims of sexual violence, despite the legal requirement of the sexual violence law. If victims do get any such support, they often receive it through Congolese NGOs, international NGOs or other such agencies. There is a general need to increase capacity in the area of counselling; Congo has few psychologists and even fewer child psychologists.

Accompaniment

At present, courts do not provide a regular case worker to the child and her family to accompany them during the pre-trial, trial, and post-trial period. While this is not a legal requirement, such accompaniment would provide children and their families with moral support and with practical assistance and information. Children rarely receive explanations from court officials about the judicial process in a child-appropriate way, nor are their parents helped to understand the judicial process. Some parents may start judicial proceedings because they hope to obtain assistance with medical bills or receive compensation payments.[10] Without realistic expectations of what a trial can bring, victims and their parents are bound to feel disappointed and the process may further re-traumatize the victims. Lawyers ought to ensure that the best interests of the child are taken into account when deciding to proceed with a case.

The traumatizing effects of going to trial were very apparent during one of the first rape trials against a soldier in June 2003 in Bukavu, eastern Congo. The defendant belonged to a rebel group, the Congolese Rally for Democracy-Goma (RCD-Goma), and the victim was an eight-year-old girl, Lisette (her name has been changed in this article to protect her identity).[11] The trial was public and attracted a lot of attention locally; one NGO even filmed the trial. Lisette was already traumatized by the rape and had difficulty coping with the trial. There was no counselor to inform her or her parents about the judicial process or to help the girl cope with her trauma. As Lisette faced a crowded and noisy courtroom and many cameras, her father recalled:

She was frightened.... Each time she was asked a question, she looked to [me]. I told her to speak up. But the child did not want to speak.... When she saw the soldier, she was afraid of saying anything. She is still traumatized. Even if she sees a soldier around she wants to escape.[12]

Lisette did not understand the judgment and was unhappy that the soldier was only imprisoned. She said she wished he would be executed. No one from the judicial system made any effort to understand her psychological situation or to provide support to her and her family. Several months after the trial, Lisette still appeared shaken.

In camera hearings

Since the adoption of the 2006 sexual violence law, in camera hearings are held as a matter of course when the victim is a child. In camera hearings protect a child to a certain degree, as the public is excluded from such hearings. A situation like the one experienced by the child victim in Bukavu in 2003 is unlikely to reoccur. Congolese lawyers have noted this as an important step forward.

However, the judgments of in camera hearings are still made public and mention the victim's name, thereby diminishing the effect of the measure. In addition, victims are required to give testimony and face the accused, and these moments are often particularly difficult for the child.

Relocation and other physical protection measures

Courts also rarely, if ever, have the means to relocate victims for protection purposes and there is no national requirement or framework to do so. To help with protection measures for human rights defenders, MONUC created a Protection Unit in 2007. While this does not assist the vast majority of victims who need protection, the unit's mandate includes the protection of victims of sexual violence. It has relocated some victims of sexual violence who needed physical protection, including a case where victims received threats from persons close to the defendant during a trial.[13] In some serious cases, MONUC assists victims with short-term or permanent relocation within the country.

There is a strong human rights movement in Congo, and information about attacks on civilians reaches organizations that can help out through these networks. Victims also often receive informal, practical support through such networks. While the use of networks potentially contradicts the principle of confidentiality that inspires many victim protection measures, protection can only be achieved with the involvement of others. This, however, also means that members of such networks are incurring risks.

Lessons Learned from the Sierra Leone Special Court

The Sierra Leone Special Court was created in 2002 as a national-international court by agreement between the Sierra Leone government and the United Nations to prosecute serious crimes committed during the Sierra Leone war. The Court established a Victims and Witness Support Unit that led a range of measures for the physical and emotional protection of victims and witnesses, as part of the overall judicial process. The court's victim and witness protection scheme has been found to be relatively successful, despite a number of shortcomings. Its experience may prove to be useful for Congo.[14] At the same time, one has to bear in mind that the Special Court was far better equipped and funded than ordinary Congolese courts.

At the Sierra Leone Special Court, many witnesses and victims had their identity withheld from the public and testified behind a screen unless they requested otherwise. Some witnesses addressed the court through voice distortion equipment, but others did not and might have been recognizable by their voices. Most witnesses were provided care and security at safe houses in Freetown from the moment their identity was disclosed to the defense, or earlier where a witness expressed concern for his or her safety. At any given time, several dozen witnesses and their dependents were receiving such care and assistance. In order to house such witnesses and ensure appropriate separation of particular groups, the Victims and Witness Support Unit maintained a number of different facilities that had constant security protection. Witnesses who were deemed to face security threats and were expected to provide particularly important testimony received longer-term care and security throughout the course of the trial. Some witnesses were also relocated in country, to other states within the region, and, to a lesser extent, further afield.[15]

Despite the protection and support efforts of the court, instances of threats against witnesses did occur. Human Rights Watch was told that particular witnesses were singled out and subjected to verbal intimidation, searched for in their villages, or subject to more serious threats. In one instance, a protected witness was verbally threatened on the grounds of the Special Court complex. Relatives of two accused yelled the name of the witness and a threatening phrase concerning her testimony at a court vehicle with tinted windows in which the witness was being transported. Additionally, there were instances of witnesses who had been relocated out of the country being telephoned directly by indictees.

Human Rights Watch was told that the court worked with local police to try to curtail generalized threats against individuals who testified at the Special Court. Where witnesses were individually targeted, Witness and Victim Support Unit staff worked to assure the person's immediate safety by involving the local police, sending court staff to the witness, or advising the witness to leave the area as appropriate. The unit then investigated the incident, assessed the security situation, and relocated the witness when necessary. The court reportedly responded to threats where appropriate by suspending privileges of detainees.[16]

While in Freetown, witnesses received a variety of other important services that helped to ensure their well-being, in particular medical assistance and access to psycho-social counselling. They also received a briefing on courtroom procedure in which witnesses had the opportunity to see the courtroom, and examination was simulated. Staff of the Witness and Victim Support Unit also assessed the state of witnesses and, where necessary, advised the Prosecutor against calling a witness if it appeared that doing so would too adversely affect the individual.[17] Interviews with 200 victims and witnesses (among them 16 adult victims of sexual violence) at the Sierra Leone Special Court indicate that victims and witnesses appreciated the friendly and supportive attitude of judicial, medical, counselling and support staff towards them. Such a positive attitude was described by the victims as one of the crucial experiences during the trial. Most victims interviewed felt that a trusted, supportive person was present during the trial and that this helped them cope with the situation. In particular, they appreciated the practical assistance and guidance received from lawyers. This included reviewing their statement with them, clear explanation of the legal process and what will happen in the courtroom, and explanation of the questioning process and how to respond. Victims were less satisfied in the post-trial phase when there was irregular communication and little follow-up from the court with them.[18]

The Experience of the International Criminal Court in Congo

The International Criminal Court (ICC), based in The Hague, is currently conducting three investigations in Congo and started its first trial stemming from these investigations in January 2009. The ICC has put in place protection and support systems, though they require further development and expansion, particularly as they are tested by its first trials. As with the Special Court for Sierra Leone, there are significant differences between the ICC and Congolese justice system, including the level of resources and facilities available, the scope of prosecutions, and the form of proceedings. At the same time, and in addition to general lessons that can be drawn from the court's programs and practices in The Hague, the ICC's direct experience in Congo may offer some important insights.

Outside of the courtroom, measures implemented by the court's Victims and Witnesses Unit (VWU) include a relocation program and an immediate response system to address urgent threats. The VWU also provides counselling and other assistance to individuals, particularly for those within the court's relocation program or appearing at trial. In the courtroom, the trial chamber may take a range of measures, including authorizing in camera sessions, permitting a psychologist, family member, or other individual to attend the testimony of a witness, and controlling the manner of questioning. The VWU has also developed a program to familiarize witnesses with the ICC process prior to their giving testimony.[19]

In establishing a relocation program and immediate response system, the ICC has worked directly with local partners in Congo. These include partners with the capacity to intervene and extract an individual to a safe location in case of urgent threat. Similarly, the ICC has sought to work through networks of local partners to provide assistance to individuals within its relocation programs.[20] The ICC's experience of setting up and running these programs could benefit the efforts of Congolese authorities to do the same. In addition, protection professionals from the ICC have experience in assessing threat levels in areas of Congo where the ICC is conducting investigations.[21] While these assessments are specific to threats connected to the ICC's work, ICC protection personnel may be able to model risk assessments for their Congolese counterparts.

There are other areas where the ICC's experience in Congo may be relevant to Congolese authorities seeking to improve the protection and support of crime victims. The ICC prosecutor's office has adopted a number of strategies for minimizing the risks posed by investigations and prosecutions, including by limiting the number of witnesses required to make out a case and by conducting mandatory psychosocial assessments of child witnesses and victims of sex crimes through its Gender and Children Unit prior to carrying out interviews.[22]While these strategies span the court's work in a number of country situations, there may be specific lessons learned from implementing these strategies in Congo. Feedback in turn from Congolese authorities could also improve the ICC's programs.

Recommendations

To the Congolese National Assembly:

  • Adopt the implementing legislation for the International Criminal Court which contains strong provisions for the protection of victims and witnesses.

To the Congolese Ministry of Justice:

  • Develop a victim-centered approach to criminal justice that focuses on the needs of the victims and witnesses in all judicial proceedings.
  • Launch a witness and victim protection program with staff and funds to assist courts with the implementation, headed by a senior official in the Ministry of Justice. This program would include the protection measures outlined below.

To the Congolese Courts (civilian and military):

  • Provide a case worker for each child whose rape case is being investigated or prosecuted. Case workers should inform the child in an age-appropriate way about the trial, support the child and listen to her concerns. The case worker should also inform the child's parents or guardians about the judicial process and intervene if they believe a trial is not in the best interest of the child. Case workers would be appointed and employed by the courts and funded through the victim and witness protection program.
  • Offer child victims of sexual violence with free, comprehensive medical care and psychological counselling. If the court does not pay for this, as a minimum, a case worker needs to ensure that each child gets medical care and psychological counselling.
  • Take adequate protection measures before, during, and after the trial for all child victims whose physical safety cannot be guaranteed. This should include, but not be limited to, relocation measures, preferably within Congo. Strengthen in camera proceedings by withholding the name of the victim in the judgement, which is being made public.
  • Use video footage instead of a live interview in the court room when a child victim is severely traumatized. This avoids a direct confrontation between the victim and the accused and minimizes strain on the victim.
  • Use trustworthy contacts to monitor the well-being of victims, including after a trial.
  • Take measures to protect human rights defenders and other individuals who provide protection to victims.
  • Formalize and coordinate relations with Congolese NGOs who play an essential role in providing witness and victim protection measures. Ensure measures are taken so as to minimize the risk to NGOs and their representatives taking on this role.
  • Develop a long-term, comprehensive strategy for the protection of child victims. While MONUC, NGOs and other actors can implement elements of this strategy, the judicial branch of government needs to have a coordinating role and a plan for what will happen once MONUC leaves the country.
  • Ensure that child victims can obtain a medical certificate, issued by a competent physician, regarding the crime easily and free of charge.
  • Carry out their initial interview during investigations, as well as subsequent interviews, in a child-friendly, sensitive way. Questioning by the judge or the defence in the court room also needs to be done in a child-friendly manner. Judicial staff should avoid doing multiple interviews with the victim.
  • Avoid lengthy trials that erode the victim's resilience and patience, where possible.
  • Enforce current legal protections for victims and witnesses. In particular, defendants or persons close to them should face legal action if they threaten or attack victims or obstruct the course of justice.
  • Develop special protection measures for highly sensitive cases, such as cases involving (former) senior army officials or rebels leaders. If a mixed chamber was established for the prosecution of war crimes and crimes against humanity in Congo, such a mechanism would need a strong victims and witness protection policy.

To international donors and agencies, including REJUSCO, EU member states initiatives and the United States:

  • Provide technical expertise and financial assistance for witness and victim protection, such as the measures indicated above.

To the UN Mission in Congo (MONUC):

  • Expand the protection program and provide technical and practical assistance to the courts to implement protection measures.

To the International Criminal Court (ICC):

  • Share expertise and best practices on victim and witness protection with Congolese courts and provide technical and practical assistance to the courts to implement protection measures.

[1] Under international law, anyone under the age of 18 is a child.

[2] Law number 06/019 modifying and completing the Congolese criminal procedure code, July 20, 2006.

[3] Convention on the Rights of the Child, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No.49) at 167, U.N. Doc. A/44/49 (1989), entered into force Sept.2, 1990, ratified by Congo in 1990; Rome Statute of the International Criminal Court (Rome Statute), U.N.Doc. A/CONF.183/9, July 17, 1998, entered into force July 1, 2002, ratified by Congo in 2002; UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, G.A. Res. 40/34, U.N. Doc. A/RES/40/34, November 29, 1985.  In addition, the UN Office on Drugs and Crime (UNODC) in partnership with UNICEF has developed a model law addressed to the protection and support of child victims of crime, drawing on the 2005 UN Economic and Social Counsel Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime. See UNODC and UNICEF, Justice in Matters involving Child Victims and Witnesses of Crime: Model Law and Related Commentary, 2009, http://www.unodc.org/documents/justice-and-prison-reform/UNODC_UNICEF_Mo... (accessed September 22, 2009).

[4] Human Rights Watch, Seeking Justice: The Prosecution of Sexual Violence in the Congo War, vol. 17, no. 1(A), March 2005, https://www.hrw.org/sites/default/files/reports/drc0305.pdf; Human Rights Watch, Soldiers Who Rape, Commanders Who Condone. Sexual violence and Military Reform in the Democratic Republic of Congo, ISBN 1-56432-510-5, July 2009, https://www.hrw.org/sites/default/files/reports/drc0709web.pdf.

[5] Human Rights Watch interview with the father of the victim (in the presence of the victim), Goma, September 25, 2009; Human Rights Watch interview with local NGO worker, Goma, September 25, 2009.

[6] A brief summary of the rape trauma syndrome can be found in Rights and Democracy, Documenting Human Rights Violations by States Agents: Sexual Violence (Montreal: Rights and Democracy 1999), pp. 23-26, http://www.dd-rd.ca/site/_PDF/publications/women/StatesAgents.pdf (accessed September 14, 2009).

[7] Renee Z. Dominguez, Connie F. Nelke, and Bruce D. Perry, "Child Sexual Abuse," in David Levinson, ed., Encyclopedia of Crime and Punishment (Thousand Oaks: Sage Publications, 2002), vol. 1, http://www.childtrauma.org/CTAMATERIALS/sexual_abuse.asp (accessed September 14, 2009), pp. 202-207.

[8] Renee Z. Dominguez, Connie F. Nelke, and Bruce D. Perry, "Child Sexual Abuse," in David Levinson, ed., Encyclopedia of Crime and Punishment.

[9] Petra Joosse, "Prevalence of severe clinical symptoms of posttraumatic stress in a war-affected population," Medair, Bunia, 2006, (Document on file at Human Rights Watch).

[10] Human Rights Watch interview with father of victim, Bukavu, October 16, 2003.

[11] Human Rights Watch, Seeking Justice.

[12] Human Rights Watch interview with father of victim, Bukavu, October 16, 2003.

[13]  Human Rights Watch telephone interview with UN official, September 11, 2009.

[14] Human Rights Watch, Justice in Motion. The Trial Phase of the Special Court for Sierra Leone, vol. 17, no. 14(A), November 2005, https://www.hrw.org/sites/default/files/reports/sierraleone1105wcover.pdf; Special Court for Sierra Leone, "Best Practice Recommendations for the Protection & Support of Witnesses: An Evaluation of the Victim and Witness Section," 2008, http://www.sc-sl.org/LinkClick.aspx?fileticket=0LBKqqzcrMc%3d&tabid=176 (accessed September 14, 2009).

[15] Human Rights Watch, Justice in Motion.

[16] Human Rights Watch, Justice in Motion.

[17] Human Rights Watch, Justice in Motion.

[18] Special Court for Sierra Leone, "Best Practice Recommendations".

[19] See Human Rights Watch, Courting History: The Landmark International Criminal Court's First Years, ISBN 1-56432-358-7, July 2008, https://www.hrw.org/sites/default/files/reports/icc0708_1.pdf, pp. 149-76.

[20]  Ibid., pp. 152-53, 156.   

[21]  Ibid., pp. 159-60.

[22]  Ibid., p. 154.