Dear Minister Luzolo,
We write to you to in relation to your important statement earlier this month informing the United Nations (UN) Human Rights Council of concrete steps your government has taken at the national level to fight impunity for the most serious crimes. In particular, you noted that on February 25, the Council of Ministers had adopted a draft bill to create specialized chambers within the Congolese justice system with jurisdiction over grave violations of human rights.
At the outset, we wish to commend your government's commitment to ending impunity for war crimes, crimes against humanity and genocide. This commitment is manifest in your government's referral to the International Criminal Court (ICC) of the widespread atrocities against civilians, including murder, torture and rape, and its ongoing cooperation with the ICC in a number of key cases. We also welcome the efforts of the Congolese military courts in applying directly the Rome Statute of the ICC in a number of precedent-setting cases, including in the February 2011 trial and conviction of four military officers for rape and terrorism as crimes against humanity.
At the same time, as you rightly noted in your statement to the UN Human Rights Council, much more is needed to combat the pervasive culture of violence without punishment in Congo. Indeed, the vast scale of abuses in Congo and the need for meaningful accountability were most recently highlighted in last year's United Nations "Report of 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).
Your government's decision to create specialized chambers in response to the findings of the UN mapping report, and also to give them jurisdiction over current crimes, constitutes a positive and courageous step towards facilitating justice for the victims and sending a strong message that atrocities will not be tolerated anymore.
We welcome your government's steadfastness in moving forward quickly with the preparation of the bill. We also strongly commend your openness to receive comments on the draft text, aimed at improving its quality in the face of very complex and technical legal issues.
In line with your government's openness to receiving comments, we have had the opportunity to review the draft bill and have a number of concerns which we believe could undermine the very effectiveness of the specialized chambers, if left unaddressed.
Our organizations have outlined the full extent of our concerns in submissions we sent you in February 2011 (see for example "Commentaires sur l'avant-projet de loi"). We wish to reiterate some of these concerns below.
First, we believe that the draft bill should clarify that the specialized chambers operate under a specialized jurisdiction in accordance with article 149 of the Congolese constitution (with separate sections located in various appeals courts). This is to guarantee the chambers' independence by removing them from the normal hierarchy of the ordinary courts. Creating a specialized jurisdiction would help to insulate the institution from perceived and actual potential political interference. In addition, creating a specialized jurisdiction with one registrar, president and prosecutor will help ensure consistent policies and approaches between the different chambers.
Second, as you correctly noted in your statement before the UN Human Rights Council, the draft bill allows for the participation of international judges and experts in the various aspects of the mandate of the specialized chambers. However, we believe that the temporary presence of international staff should be made automatic, both to build the capacity of Congolese nationals to try complex criminal cases and to help shield the institution from potential political interference. Most notably, we believe the draft legislation should be amended to guarantee the presence of international judges on the bench at first instance and on appeal. International staff members could be phased out over time, as was done in the Bosnian War Crimes Chamber. A nomination process that guarantees the independence and best qualifications of these international staff (which should include experience in investigating and trying international crimes, knowledge of civil law and the French language and commitment to work with national colleagues to pass on their expertise) should also be devised.
Third, we believe the draft legislation should be amended to vest the chambers with primary, rather than exclusive, jurisdiction to try international crimes. As a practical matter, the chambers will not be able to try all allegations of war crimes, crimes against humanity and genocide, which means that the ordinary civilian courts will have to step in so as to avoid an impunity gap for these crimes. The draft legislation implicitly recognizes this reality, but rather than developing a strategy to share cases, it allows for the offences to be reclassified as ordinary crimes to allow civilian courts to assume jurisdiction.
Finally, improvements are needed in the last portion of the draft bill, which deals with procedural aspects, including with regards to the rights of the defense (where representation by a lawyer must be guaranteed in light of the gravity of the crimes), witness and victims protection (where we suggest the creation of a protection unit managed by the registry) and victims' participation in the trials.
Several of these concerns have been raised by other actors who contributed comments on the draft bill in the context of the public consultation and have been summarized in a "synthèse" prepared by a drafting committee assisting with this project. We believe that amending the draft bill on the specialized chambers along the above lines is essential to enable the chambers to function as a truly effective and independent tool in the fight against impunity for grave crimes committed in the DRC.
We understand that you have now asked the independent "Commission Permanente de Réforme du Droit Congolais" to review the bill in order to ensure its conformity with applicable Congolese law and international law, among other factors. This is a very important step in order to improve the draft bill, guarantee its legal accuracy and thus give it more legitimacy before it is sent to parliament.
We urge you to wait until the Commission has finalized its works before transmitting the bill to parliament. This should hopefully happen in time for the draft bill to be submitted in the course of the parliament's upcoming session, which opens on March 15, 2011. We also urge you to support, and if possible integrate into the draft bill before it is transmitted to parliament, the amendments suggested above and any other recommendations of the Commission Permanente aimed at bolstering the independence, impartiality and effectiveness of the specialized chambers.
After decades of impunity, the Congolese people deserve the impartial and effective application of justice for atrocities such as murders, mass rapes and pillage. This can be achieved through the adoption of a legislation setting up independent, effective and credible specialized chambers.
African Association for the Defense of Human Rights (Association africaine de défense des droits de l'homme)
Director, International Justice Program
Human Rights Watch
Congolese Coalition for Transitional Justice (Coalition Congolaise pour la Justice Transitionnelle)
 Kelly Askin, "Fizi mobile court: rape verdicts," Radio Netherlands Worldwide, March 2, 2011, http://www.rnw.nl/international-justice/article/fizi-mobile-court-rape-v... (accessed March 11, 2011).
 United Nations' Office of the High Commissioner for Human Rights, "Democratic Republic of the Congo 1993-2003 - Report of 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 between March 2003 and June 2003" ("UN mapping report"), http://www.ohchr.org/EN/Countries/AfricaRegion/Pages/RDCProjetMapping.aspx (accessed December 20, 2010).