Your Excellency,

 

We are writing to offer several key recommendations with regards to the draft legislation on the creation of specialized mixed chambers within the national judicial system of the Democratic Republic of the Congo (DRC), which would have jurisdiction over grave crimes in violation of international law. You introduced this draft legislation at a seminar held in Kinshasa on November 29-30, 2010.

 

At the outset, we wish to re-state our organisations’ appreciation for most of the Congolese government’s official response to the United Nations Report on the “Mapping Exercise documenting the most serious violations of human rights and international humanitarian law committed within the territory of the Democratic Republic of the Congo” (UN mapping report),[1]articulated in your press release on October 2, 2010.[2]We have noted the government’s renewed emphasis on its policy of “zero tolerance” for grave crimes such as killings, torture, mass sexual violence and pillage. We were also encouraged by the government’s expressed commitment to take action, with the assistance and financial support of the international community, to curb impunity for these crimes. Concretely, the Congolese government proposed to establish specialized mixed chambers within the national judicial system, as well as non-judicial mechanisms of accountability, such as a truth and reconciliation commission and reparations for victims.

 

The prompt preparation of draft national legislation on the proposed specialized mixed chambers is a welcome demonstration of your determination to take steps to facilitate the national prosecution of the most serious crimes.

 

We believe that because the proposed specialized mixed chambers are necessary and justified by objective and serious reasons and that the specific class of individuals and offences to be tried cannot currently be handled in the regular courts,[3] they will meet international requirements for special courts by conducting trials in full conformity with the fair trial provisions of the International Covenant on Civil and Political Rights.[4]

 

The draft legislation is clearly the product of careful thinking. Our organisations wish to acknowledge several positive elements in the bill. These include, among others: not limiting the temporal jurisdiction of the proposed specialized mixed chambers to the period covered by the UN mapping report but extending it to current and future crimes; establishing the proposed specialized mixed chambers in the civilian justice system; creating specialized investigative teams to focus on grave international crimes and the attribution of universal jurisdiction over war crimes, crimes against humanity, and genocide to the specialized mixed chambers, in accordance with international law.

 

At the same time, we believe that the proposed legislation, in its current formulation, still requires a number of clarifications and enhancements in order to ensure that the mixed specialized chambers are able to carry out their mandate efficiently and in accordance with international law, and serve to strengthen the Congolese justice system’s capacity to provide accountability for international crimes more generally. We outline below the benchmark principles which we believe should guide the preparation of the legislation on the specialized mixed chambers, as well as specific recommendations that we urge you to take into consideration when revising the current draft.

 

It is crucial for the success of this initiative that the process of preparing the draft legislation continue to be as transparent and as inclusive as possible. Entities that will play an important role in the establishment, functioning, and future success of the specialized mixed chambers, including judicial personnel, civil society organisations, development partners and the United Nations, should continue to be consulted and have an opportunity to provide comments on the draft legislation. We therefore recommend that another seminar be convened to discuss the revised draft legislation that will be prepared by the drafting committee set up at the first seminar in Kinshasa.

 

Our organisations may wish to individually provide further comments with regards to the draft legislation at a later stage. In the meantime, please find below a number of recommendations on which our various organisations concur.

 

1. Streamlining the proposed number of mixed chambers in order to be most responsive in prosecuting grave international crimes

 

The current draft legislation proposes the establishment of one specialized mixed chamber of first instance, as well as one specialized appeals chamber, both with jurisdiction over grave international crimes, in each of the 11 appeals courts of the country.

We have questions about the feasibility and expediency of this arrangement. First, grave international crimes have not taken place to the same degree in each of the judicial provinces of the DRC, as illustrated in the UN mapping report. In recent years, high numbers of crimes have taken place in the provinces of North and South Kivu. It is therefore likely that the specialized mixed chambers would experience a significant imbalance in their respective caseloads. Second, creating and maintaining a large number of mixed chambers is likely to be very costly and runs the risk of being achieved at the expense of sufficient investment in each. To be effective, each mixed chamber will require specialized investigative units, international staff, victim and witness protection resources, and specific equipment. It may also be difficult to attract donor funding for such a large number of chambers. 

 

Given this, it would seem more efficient to concentrate the necessary personnel, resources and expertise dedicated to the prosecution of grave international crimes in a limited number of jurisdictions located close to where the bulk of the crimes occurred. One could imagine a limited number of “hubs” where such specialized mixed chambers could be established and which would define among themselves their geographical jurisdiction over the various provinces.

 

One possibility, for example, would be to have one specialized mixed chamber located in one appeals court in Kinshasa, with sub-sections located in Goma, Bukavu and Kisangani. The registry of the specialized mixed chamber in Kinshasa could take on some specific responsibilities best performed from the capital, such as ensuring regular contacts with development partners and the UN with regards to administrative or cooperation matters, for example.

 

Each of the “hubs” would also have its own specialized appeals chambers, as anticipated in the current draft legislation. Further elaboration is required in the draft legislation concerning the appeals phase. It will be very important to build in sufficient safeguards in the appeals process to ensure that a lack of independence, impartiality or competence does not result in the overturning of verdicts. It may also be useful to consider the possibility of convening, on an ad hoc basis, a specialized chamber in the Cour de Cassation, as ultimate source of appeal judgment in case of conflicting jurisprudence stemming from the three established appeals chambers.

 

As noted above, our organisations strongly welcome the intention to establish these specialized mixed chambers in the Congolese civilian judicial system. Indeed, this is required under the Congolese constitution and reflects internationally accepted standards.[5]This proposal is also consistent with the draft legislation implementing the Rome Statute of the International Criminal Court (ICC) currently before parliament and which vests the civilian courts with the jurisdiction to try ICC crimes.

 

2. Temporarily bolstering the international staff to enhance the independence and expertise of the specialized mixed chambers

 

The current draft legislation provides that the specialized mixed chambers will have a bench composed of five magistrates, namely a president, two advisers and two ad litem judges. It is explicitly provided that the president and the ad litem judges may be chosen among international candidates.

 

We welcome the proposed inclusion of international judges. Yet, our organisations urge that this proposed international presence, at least temporarily, be significantly bolstered, both on the bench but also in other crucial judicial organs, including the Ministère Public (Office of the Prosecutor) and the registry, including in the specialized investigative teams where the contribution of international staff could be valuable in terms of methodology and results.

 

We believe this is essential for a number of reasons. First, a significant pitfall in current national prosecutions of grave international crimes is the poor quality of investigations and interference at the investigative stage aimed at derailing cases, particularly against high-level suspects. This situation cannot be remedied by the presence of international judicial officers solely at the trial phase. Moreover, a more thorough international presence would promote capacity-building of the Congolese judicial system in the range of areas encompassed in the prosecution of grave international crimes, including complex investigations involving, for instance, mass crimes, sophisticated forensic methods and command responsibility; protection of victims and witnesses; and ensuring criminal suspects are afforded full due process and fair trial rights. Finally, a strengthened international presence would also help insulate – through exchange of experience – the specialized mixed chambers from possible political interference. Moreover, an international presence at all levels could help deter possible intimidation and threats against Congolese magistrates and other judicial staff.

 

In order to enhance the independence and credibility of the specialized mixed chambers, we urge that the draft legislation be revised to provide for a majority of international judges on the bench, at least for an initial period of time. This balance could be modified after a few years when the environment becomes more conducive to these prosecutions. We also recommend that an international Co-Prosecutor be named to work alongside the Congolese Deputy Prosecutor dedicated to each specialized mixed chamber (or that the Deputy Prosecutor initially be an international staff replaced after a few years by a Congolese national). Finally, the possibility of hiring international experts to assist in the investigation and management of cases involving grave international crimes should be explicitly provided for in the draft legislation. For example, international experts with proven experience in the field of sexual violence investigations, expert psychologists, experts in the protection of victims and witnesses, and experts in the field of outreach and communications would make an important contribution to the work of the specialized mixed chambers and the Congolese judicial system more broadly. This possibility is specifically envisaged in the explanatory note on the draft legislation prepared by Professors Akele and Liwerant[6]and should be explicitly mentioned in the legislation creating the specialized mixed chambers.

Congolese staff will obviously be crucial actors in the chambers. They will bring knowledge of the historical roots of the conflicts and incidents, familiarity with the cultural context and expertise of Congolese criminal law and procedure. It would also be useful to specifically consider recruiting Congolese personnel with experience in regional or international courts. Effective collaboration between national and international staff will thus be essential for the mixed chamber to function effectively.

 

We agree that the inclusion of international staff should be temporary. Currently, the draft legislation mandates a term of two years for ad litem judges. This is too short. Experience with specialized mixed chambers elsewhere has shown that it is better not to arbitrarily fix a date at which all international presence will be terminated. It would however be useful for the draft legislation to foresee the preparation by the Ministry of Justice, in consultation with international partners and civil society, of a strategy to progressively “phase out” the international presence in the specialized mixed chambers. This strategy could be regularly reviewed and revised, depending on progress made.

 

3. Harmonizing the draft legislation on the specialized mixed chambers and the International Criminal Court implementing legislation

 

As you know, draft legislation implementing the Rome Statute of the International Criminal Court (ICC) is currently being examined by the Political, Administrative and Legal Committee of the lower house. The text contains many important provisions, including the definition of ICC crimes and provisions on judicial cooperation with the ICC, on offenses against the good administration of justice, on protection of victims and witnesses, and on the effective participation of victims in the proceedings – all of which are absent from the draft legislation on the specialized mixed chambers.

 

The relationship between the two bills is unclear and the possibility for inconsistent changes to Congolese law exists.

 

Our organisations strongly believe that the two bills should be reconciled and shepherded through parliament together. This is not to suggest that the current draft ICC implementing legislation is without flaws, and indeed some of our organisations have suggested or will suggest amendments to be considered by members of parliament. But such harmonization would be logical and efficient, and would demonstrate the DRC’s strong commitment to fighting impunity for grave international crimes both at the national and international levels. The provisions creating the specialized chambers could be presented as amendments tabled by the government in the Political, Administrative and Legal Committee and included as a distinct chapter in the ICC implementing legislation. It will of course be important to retain clearly in the text the legal basis for the specialized mixed chambers to exercise jurisdiction over crimes committed since 1993 and prior to the adoption of the ICC implementing legislation. Alternatively, the government could also consider tabling an amendment providing for the application of the law from 1993 to enable the specialized mixed chambers to apply the ICC definition of crimes, which are largely consistent with customary international law, to incidents having taken place between 1993 and the adoption of the ICC implementing legislation. This has been done in other countries.[7]

 

Substantively, the two bills are intricately linked. It would be very unfortunate if the adoption of the bill for specialized mix chambers had the effect of undercutting the adoption of the ICC implementing legislation. We know your personal commitment, Your Excellency, to the ICC and the fight against impunity for war crimes, crimes against humanity and genocide. We appeal to you to use the current momentum to advance both the adoption of a good ICC implementing legislation and the creation of specialized mixed chambers.

 

 

4. Plan of action to address impunity and meaningful interaction between the proposed mixed specialized chambers and ordinary courts

 

In light of the large number of grave international crimes committed in the DRC over the past two decades, the specialized mixed chambers, on their own, will not be the sole solution to widespread impunity. We are convinced that they can act as an important boost to strengthen the judicial system’s capacity to investigate complex cases and high-level accused persons. But continued broad reform of the national judicial system in the DRC is essential to enable ordinary courts (“tribunaux ordinaires”) to fulfil their role in investigating and prosecuting violations of international human rights and humanitarian law in the long term.

 

As such, it is important that the draft legislation acknowledge that the specialized mixed chambers would have primary, but not exclusive, jurisdiction over grave international crimes. After their establishment, the specialized mixed chambers should prepare a prosecutorial strategy outlining the type of cases for which they will give priority and those which should remain with the ordinary courts. The strategy could include steps to encourage a productive interaction between the specialized chambers and ordinary courts in order to amplify capacity-building and the sharing of expertise within the Congolese judicial system.

 

In order to ensure that the UN mapping report has meaningful follow-up and lasting impact, the Ministry of Justice should also prepare a plan of action to address impunity for grave international crimes in the DRC. This would detail the objectives set forth for the specialized mixed chambers, ordinary courts and proposed non-judicial accountability mechanisms in the wider context of rule of law reforms which contribute to strengthening the capacity of the national judicial system to address these crimes. 

 

5. Ensuring that the draft legislation will be examined by parliament within a reasonable time

 

We urge the Congolese government to take appropriate steps to ensure that the draft legislation on the specialized mixed chambers, after a careful drafting process and approval by the Council of Ministers, will be promptly put on the agenda of the parliament. As mentioned above, our organisations believe that this could be best achieved if the government proposed the provisions creating the specialized mixed chambers as amendments to the ICC implementing legislation currently under examination in the Political, Administrative and Legal Committee of the lower house.

 

6. Facilitating the appropriate involvement and support of the international community

 

Our organisations note with interest article 37 of the draft legislation, which foresees the establishment of an appropriate cooperation framework with international and regional partners, including the United Nations, to ensure the efficient functioning of the specialized mixed chambers. The involvement, cooperation and support of these actors, including the UN Office of the High Commissioner for Human Rights, will be pivotal in ensuring both the effective functioning and legitimacy of the specialized mixed chambers. Our organisations urge that specific memoranda of understanding and agreements be concluded to codify this cooperation, as appropriate. As mentioned above, it is also essential in our view that these actors, particularly when they have relevant expertise in the establishment of similar specialized mixed chambers elsewhere, be properly consulted in the drafting process of the legislation creating the Congolese chambers.

 

The preparation of legislation creating specialized mixed chambers is a momentous development that holds significant promise in bringing justice to the victims of unspeakable atrocities. It is an unprecedented opportunity to turn the corner on past impunity. For this reason, it also comes with the responsibility to present a bill to parliament that sets the stage for efficient, credible and independent specialized mixed chambers that ensure respect for international fair trial standards. Even if there is an urgent need to create effective judicial mechanisms to prosecute grave international crimes, we believe the drafting process should not be rushed and should allow for input by all stakeholders. As mentioned above, our organisations would strongly welcome the organisation of a second seminar in Kinshasa to examine the revised draft legislation.

 

The work regarding the specialized mixed chambers should also be part of a broader discussion on the follow-up to the UN mapping report. Our organisations have noted with interest the Congolese government’s proposal to hold an international conference on the follow-up to the UN Mapping report in Kinshasa.  We strongly welcome this proposal and encourage you to consult with relevant partners in view of organising it before mid-2011.

 

In conclusion, our organisations wish to assure Your Excellency of our support for further work with your office to advance this important initiative. We are determined to actively press the international community to support the establishment of competent, independent, and impartial specialized mixed chambers and the implementation of a plan of action to tackle impunity in the DRC more broadly.

 

Yours sincerely,

 

 

ACAT Nord Kivu

Action contre l'impunité pour les droits de l'homme, ACIDH

Action des Chrétiens Activistes des Droits de l'Homme à Shabunda (ACADHOSHA)

Action Sociale pour la Paix et le Développement (ASPD)

Africa justice peace and development (AJPD)

Agir Ensemble pour les Droits de l'Homme

Amis de Nelson Mandela pour les droits de l'homme, ANMDH

Ange du ciel

APEO

Appui aux Femmes Démunies et Enfants Marginalisés (AFEDEM)

Association africaine de défense des droits de l'homme, ASADHO

Avocats sans frontières de la RDC

Blessed Aid

Campagne Pour la Paix

Carrefour des femmes et familles

Centre d'Appui pour le Développement Rural Communautaire (CADERCO)

Centre de Paix pour la Guérison et la Reconstruction des Bases Communautaires (CPGRBC)

Club des Amis du Droit du Congo

Coalition Congolaise pour la Justice Transitionnelle

Fédération Internationale des Droits de l’Homme

Femmes de medias pour la justice

Héritiers de la Justice

Human Rights Watch

Initiative Congolaise pour la Justice et la Paix

Le Centre de Recherche sur l'Environnement, la Démocratie et les Droits de l'Homme (CREDDH0)

Ligue des électeurs

LIPADHO

Observatoire Congolais pour les droits de l'homme

ODDE - RDC Coordination Afrique

Œuvres sociales pour le développement

PAIF

Réseau des associations des droits de l’Homme du Sud Kivu (Radhoski)

Solidarité des Volontaires pour l'humanité (SVH)

Solidarité pour la Défense des Droits Humains (SDH)

Synergie congolaise pour le développement

Synergie des ONG congolaises pour les Victimes

Toges noires

 

 




[1]United Nations Office of the High Commissioner for Human Rights, “Report on the Mapping Exercise documenting the most serious violations of human rights and international humanitarian law committed within the territory of the Democratic Republic of the Congo,”  http://www.ohchr.org/EN/Countries/AfricaRegion/Pages/RDCProjetMapping.aspx(accessed December 20, 2010).

[2]“Press statement by His Excellency the Minister for Justice and Human Rights,” October 2, 2010, http://www.justice.gov.cd/(accessed December 20, 2010).

[3]See UN Human Rights Committee, General Comment No. 32, “Article 14: Right to equality before courts and tribunals and to a fair trial,” CCPR/C/GC/32, August 23, 2007, Para. 22.

[4]International Covenant on Civil and Political Rights (ICCPR), G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976, art. 14.  The DRC ratified the ICCPR in 1976. 

[5]Constitution of the Democratic Republic of Congo, February 18, 2006, http://www.justice.gov.cd/j/index.php?option= com_docman&task=doc_download&gid=35&Itemid=54 (accessed December 20, 2010), art. 156.  See also, Human Rights Committee, General Comment No. 32, Para. 22. Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, African Commission on Human & Peoples’ Rights, 2001, http://www.achpr.org/english/declarations/Guidelines_Trial_en.html (accessed December 20, 2010); Draft Principles Governing the Administration of Justice Through Military Tribunals, Report submitted by the Special Rapporteur of the Sub-Commission on the Promotion and Protection of Human Rights, Emmanuel Decaux, 13 January 2006, U.N. Doc. E/CN.4/2006/58, http://daccessdds.un.org/doc/UNDOC/GEN/G06/106/77/PDF/G0610677.pdf?OpenE... (accessed December 20, 2010), principle 9. 

[6]«Les chambres spécialisées: contexte de leur création et économie générale de l’avant-projet,»  Professors Pierre Akele Adau and Sara Liwerant, legal advisors to the Minister of Justice, September-November 2010, p. 7.

[7]United Kingdom, “Coroners and Justice Act 2009,” section 70, http://www.legislation.gov.uk/ukpga/2009/25/section/70(accessed December 20, 2010).