The Democratic Republic of Congo(DRC) has been the theatre of grave violations of international human rights and humanitarian law over the past two decades. The International Criminal Court(ICC) opened an investigation in Congo in 2004 and has brought public arrest warrants against six individuals involved in grave crimes in Congo’s Ituri district in the northeast and North and South Kivu provinces in the east. The need for accountability remains tremendous and national authorities retain the primary obligation to bring to justice those responsible for war crimes, crimes against humanity and genocide.

As established by the 2010 United Nations (UN) “Mapping Report[1]”, documenting in 600 detailed pages the most serious violations of international human rights and humanitarian law committed in Congo between 1993 and 2003, the response by the Congolese justice system to grave crimes to date has been inadequate. The report stresses the lack of capacity, resources, expertise and independence of the Congolese judiciary to effectively address grave international crimes such as war crimes, crimes against humanity and genocide.

In recent years, there have been some prosecutions in Congolese military courts of army soldiers and some officers allegedly responsible for crimes of sexual violence and other serious human rights abuses. Yet the vast majority of perpetrators have not been punished; many have instead been promoted or rewarded. When judicial proceedings do happen, basic international standards are often not respected, including with regard to the quality of investigations, the respect of the rights of the accused to a fair and impartial trial, and the protection of victims and witnesses. Interference from the executive or military leadership has made it seemingly impossible to bring to justice senior military officials most responsible for abuses.

Human Rights Watch believes that impunity for war crimes and crimes against humanity committed over the past two decades is an important factor that lies behind repeated cycles of violence in Congo. The absence of investigations and judicial proceedings against those most responsible for atrocities has fostered the constant rise of new armed groups and the perception that these crimes will be tolerated, or even rewarded. Many of those responsible for the worst recent abuses in Congo have long histories of committing abuses over many years, as they moved from one armed group to another or while serving in the Congolese army. Justice for grave international crimes is not only an obligation under international law and a duty towards the victims who have suffered; it will also be an important element in bringing about long term peace and stability in Congo and the Great Lakes Region.

Congo’s international partners have an important responsibility to support measures aimed at increasing accountability for grave human rights violations in Congo. This includes the ongoing work of the ICC as well as steps to enhance the national judicial system’s capacity to tackle impunity. Human Rights Watch believes that one of the best ways to fight impunity for the worst abuses committed in Congo would be through the establishment of specialized mixed chambers, a mechanism aimed at enhancing the capacity of the national judicial system to investigate and prosecute war crimes, crimes against humanity and genocide fairly and effectively. These chambers would be within Congo’s national judicial system, but mixed with Congolese and international judges, prosecutors, and other personnel.

This document provides background on the government’s current proposal to establish specialized mixed chambers and how it relates to other proposed judicial legislative reforms, including adoption of the ICC’s implementing legislation into Congolese law.

1)      Proposal to create Specialized Mixed Chambers within the national judicial system

In 2004, Congolese civil society organizations first proposed the establishment of a specialized mixed jurisdiction to prosecute serious crimes committed in Congo. The UN Mapping Report supported this recommendation as an important transitional justice mechanism to help the Congolese recover from years of horrific violence and widespread abuses.

In October 2010, the Congolese government first proposed the establishment of specialized mixed chambers. After the first draft legislation failed in parliament in August 2011, the current justice minister, Wivine Mumba Matipa, led efforts to draft a new version of a law establishing such specialized mixed chambers. The revised draft legislation is currently under consideration by the government.

On October 23, 2013, in a speech before both chambers of the Congolese parliament, President Joseph Kabila publicly noted the importance of establishing the specialized chambers and his support for the proposal[2].

A)     What are the Specialized Mixed Chambers?

The proposed Specialized Mixed Chambers are neither an international tribunal like the International Criminal Tribunal for Rwanda nor a hybrid court like the Special Court for Sierra Leone.

Instead, the proposed chambers would be part and parcel of the Congolese national judicial system, at the level of the appeals courts in the civilian justice system. The 12 existing appeals courts in Congo have jurisdiction over war crimes, crimes against humanity and genocide since the adoption and promulgation of the “Law on the organization, functioning and competences of the judiciary” in April 2013 (see below for more details on this law).

There are two key components of the proposed Specialized Mixed Chambers:

1.       They will only handle cases involving war crimes, crimes against humanity and genocide committed in Congo since 1990 – as opposed to the wide range of criminal cases that otherwise fall in the jurisdiction of appeals courts (hence “specialized”).

2.      They will include non-Congolese judicial staff, including magistrates, investigators, prosecutors, and registry officials, for a limited period of time (hence “mixed”).

The version of the draft legislation that Human Rights Watch has seen (dated September 2013) proposes the establishment of three specialized and mixed first instance chambers, embedded in the appeals courts of Goma, Lubumbashi and Mbandaka.

Each of these three chambers would be composed of a bench of five magistrates who will hear cases, a dedicated specialized investigative unit and prosecution office, and a dedicated registry. The registry would be responsible for administrative aspects of the chamber’s work and ensuring legal representation of the accused, participation of the victims, and the physical and psychological protection of victims and witnesses.

These various components of the chambers would all include international staff in addition to national staff for an initial period of four years, which can be extended. The chambers would also include a combination of civilian and military Congolese judicial officials.

An appeals level specialized chamber is foreseen in the highest court (Cour de Cassation – which has not yet been set up) in Kinshasa to hear appeals arising from the three specialized chambers.

The draft legislation is only organizational – that is, it creates the chambers but does not deal with the material definition of the crimes over which they would have jurisdiction (war crimes, crimes against humanity and genocide.) The chambers will implement Congolese criminal and procedural law, as well as international law.

B)     Why does Congo need such chambers?

The proposal to establish specialized mixed chambers in Congo is in line with broader developments internationally in the field of justice for the most serious crimes. There is increasing recognition that war crimes, crimes against humanity and genocide are extremely complex to investigate and prosecute. These cases raise challenges that are best addressed when judicial staff have (or are given time to acquire) specific expertise, notably in the field of investigations (including forensic investigations, interviewing vulnerable victims and witnesses, investigating sexual violence, and establishing command responsibility) or in handling protection of victims and witnesses.

An increasing number of countries have established so-called “war crimes units” of police and prosecutors to handle war crimes cases. These include several European countries, as well as the United States, Canada and South Africa. The proposed Specialized Mixed Chambers are most similar to the War Crimes Court[3] established in the Supreme Court in Bosnia and Herzegovina to handle grave crimes committed during the Balkan wars. Specialized chambers have been established in Uganda to handle war crimes and crimes against humanity, and are under consideration in Kenya. In Senegal, a specialized mixed chamber (called the “Extraordinary African Chamber”) has been set up to handle the case of former Chadian president Hissène Habré. It includes non-Senegalese African judges.

This approach is also consistent with the trend, notably among donors, to encourage “complementarity” with the ICC, meaning enabling national justice systems to carry out prosecutions of ICC crimes at the national level.

The establishment of the Specialized Mixed Chambers would greatly benefit the Congolese national judicial system by providing “on the job” training to national staff from international experts (it will of course be crucial to ensure that non-Congolese staff have a demonstrated expertise in the field of war crimes investigation and prosecutions.) The chambers will also ensure increased focus on war crimes cases. This should boost action by the Congolese justice system in this area, increase the number of cases and thus send a strong signal that impunity is being tackled.

The specialized chambers would be better qualified than the national courts on their own to ensure fair, credible, and impartial trials and respect for the rights of the accused. This may contribute to strengthening the extradition requests that the Congolese authorities have made for war crimes suspects, notably the former rebel M23 leaders who are currently in Rwanda and Uganda. The specialized chambers would also, in theory, be able to prosecute individuals of all nationalities who bear responsibility for crimes committed in Congo.

The presence of non-Congolese staff in the Specialized Mixed Chambers is a central requirement for their success. One key impediment to the fight against impunity has been the lack of independence of Congo’s judiciary. The presence of non-Congolese staff will help buffer the chambers from interference from the executive and the military hierarchy.

C)     Where does the government draft legislation stand?

The draft legislation is currently under examination by the government. It has not yet been adopted by the Council of Ministers. Congo’s international partners should publicly and bilaterally express their interest in the proposal to the Congolese authorities and press for it to be presented to parliament at the upcoming session starting in March 2014.

D)     What are some key elements to watch out for in order to ensure that the Specialized Mixed Chambers are credible, independent and impartial?

It will be essential for interested stakeholders, including civil society and development partners, to critically assess the final version of the draft legislation establishing the Specialized Mixed Chambers that will be adopted by the Council of Ministers.

A number of elements are critical to ensure that the Specialized Mixed Chambers are truly competent, impartial and independent. These include: a meaningful degree of involvement of non-Congolese staff in the work of the chambers, jurisdiction for the chambers over grave international crimes irrespective of who committed them (civilians or members of the military), a nomination process for chambers’ staff that will ensure independence, and final review of all decisions by an independent specialized mixed appeals chamber.

2)     Other Congolese legislation relevant for the fight against impunity in Congo

The proposal to establish specialized mixed chambers is not a stand-alone, temporary measure. It is one of a number of important legislative proposals (some led by the government, others by parliamentarians) that seek to create the long-term foundations for the effective prosecution of grave international crimes in Congo. The draft legislation to implement the ICC treaty, known as the Rome Statute, into Congolese law is one such proposal. There is no contradiction between these different proposals, and they should not be pitched against each other.

It is also worth noting that there is no time limit in the current draft legislation on the specialized chambers. Therefore, like other war crimes units and chambers mentioned above, the Specialized Mixed Chambers in Congo could become a lasting feature of the fight against impunity for the most serious crimes there – even once the presence of non-Congolese staff has been phased out after several years.

Other relevant pieces of legislation are briefly discussed below.

A)     Law on the organization, functioning and competences of the judiciary

This law was initiated by the government (and is thus referred to in French as a “projet de loi”). It is a general law about the organization and jurisdiction of the courts in Congo, and it was promulgated by President Kabila in April 2013.

Article 91 of this law grants jurisdiction over war crimes, crimes against humanity and genocide to appeals courts in the civilian justice system. Until then, the definition of these crimes was only included in the military criminal code of 2002.

The relevant portion of article 91 reads: “[Appeal courts are also competent for] genocide, war crimes and crimes against humanity committed by persons falling under their jurisdiction and that of first instance tribunals” (translation from French to English by Human Rights Watch and emphasis added). The last part of the sentence seems aimed at restricting the jurisdiction of appeals courts for these crimes to civilians (who traditionally fall under the jurisdiction of the named courts) and to exclude military personnel (who traditionally fall under the jurisdiction of the military justice system). According to the various versions of the bill seen by Human Rights Watch, it seems that this portion of the sentence was added to the text of the law after its final adoption by parliament and before its promulgation, which makes its legality highly questionable.

This legislation helps pave the way for establishing the Specialized Mixed Chambers within the civilian judicial system’s appeals courts. We are concerned that article 91 might be used to try to block the Specialized Mixed Chambers from having jurisdiction over military personnel. Congo’s international partners and civil society should keep a close watch to ensure that the Specialized Mixed Chambers have clear jurisdiction over crimes committed by members of the military. This is in line with developing international standards as well as principles adopted by the African Union which recommend that grave human rights violations such as war crimes, crimes against humanity and genocide should not be prosecuted by military tribunals, even when perpetrated by soldiers[4]. For example, principle 29 of the updated set of principles for the protection and promotion of human rights through action to combat impunity of the UN Commission on Human Rights of 2005 reads: “The jurisdiction of military tribunals must be restricted solely and specifically to military offences committed by military personnel, to the exclusion of human rights violations, which shall come under the jurisdiction of the ordinary domestic courts, or where appropriate, in the case of serious crimes under international law, of an international or internationalized criminal court[5].”

B)     ICC implementing legislation

Congo ratified the Rome Statute in 2002. Article 86 of the Rome Statute requests that states parties implement its provisions into national law. Implementing legislation is also important to ensure effective cooperation with the court. Various versions of a law implementing the Rome Statute have been under consideration in Congo since at least 2006. The latest draft currently under consideration was initiated by a member of parliament (and is thus referred to in French as a “proposition de loi”). The draft legislation was adopted by the National Assembly’s Commission on Politics, Administration and Justice in December 2013. This is the most advanced stage that the ICC implementing legislation has ever reached in the Congolese parliament.

The draft legislation covers the following topics: definition of the various modes of liability for war crimes, crimes against humanity and genocide for inclusion in the criminal code; definitions of war crimes, crimes against humanity and genocide and applicable penalties for inclusion in the criminal code; provisions regarding cooperation with the ICC for inclusion in the procedural code; and provisions for deletion of the ICC crimes definitions and other duplicative articles in the military codes.

This legislation is important to bring the definitions of war crimes, crimes against humanity and genocide in Congolese law in line with the definitions included in the Rome Statute and to codify provisions on cooperation with the ICC. It serves a different purpose than the draft legislation on the Specialized Mixed Chambers but is complementary and in no way contradictory to it. The inclusion of up-to-date definitions of the crimes and modes of liability would be very important for the functioning of the Specialized Mixed Chambers.

The ICC implementing legislation would ideally be promulgated before or at the same time as the legislation establishing specialized mixed chambers. Yet the ICC implementing legislation is not a necessary precursor for the functioning of the Specialized Mixed Chambers. The chambers could still refer to definitions of crimes in the Rome Statute, without the crimes being codified in Congolese law – in accordance with the monist system of law in Congo (in which international treaties take precedence over national law). Congolese military courts already routinely refer directly to the Rome Statute.  

Congo’s international partners and civil society organizations should support the adoption of the ICC implementing legislation as well as the legislation to establish specialized mixed chambers, with the goal of both laws being adopted as soon as possible. But progress on the adoption of one legislative proposal should not be blocked while waiting for adoption of the other.         

C)     Reform of the criminal code

The government has initiated reform of its criminal code, dating back to 2004, and it has been a work in progress over the past several years. Draft legislation (“projet de loi”) is available but has yet to be presented by the government to parliament. It is not clear when the government intends to move this proposal forward.

Among over 900 articles, this draft legislation also includes up-to-date definitions of the ICC crimes for inclusion in the criminal code. It also modernizes several important criminal law provisions such as an accused’s rights to a fair trial. Given that the Specialized Mixed Chambers will apply Congolese national law, it would be advantageous to have a modernized criminal code, more in line with international standards.

D)     Establishment of the Cour de Cassation, the Cour Constitutionnelle and theConseil d’Etat

In accordance with the latest Congolese Constitution of 2006, the single highest court, the Cour Suprême de Justice, should be replaced with three new courts: the Cour de Cassation, the Cour Constitutionnelle and the Conseil d’Etat[6]. This is in line with the justice systems of other countries of civil law tradition.

The Cour de Cassation would be the highest court in the Congolese judicial system, hearing appeals in last instance from both the civilian and military justice systems[7]. The Cour Constitutionnelle[8] should in theory hear cases of breaches of constitutional law, while the Conseil d’Etat[9] would hear appeals from administrative courts as well as cases regarding the irregularity of decisions, acts and decrees taken by the central administrative authorities.

Despite the fact that these courts are foreseen in the 2006 Constitution and that relevant implementing legislation has been passed, they still have not been established and are not operational.

As mentioned above, the appeals level of the Specialized Mixed Chambers would be a separate specialized mixed chamber within theCour de Cassation. It is therefore essential for this project (but also for the good functioning of justice in Congo) that these important courts be set up as soon as possible. International partners should continue to press the Congolese government to this effect.

E)      The death penalty

As mentioned above, the draft legislation establishing the Specialized Mixed Chambers is a purely organizational law. It includes neither the definition of the crimes over which the chambers will have jurisdiction (war crimes, crimes against humanity and genocide) nor the penalties applicable. But the chambers would implement Congolese law, under which the death penalty is currently available for these crimes.

The draft legislation implementing the Rome Statute specifically includes the death penalty for war crimes, crimes against humanity and genocide.

Human Rights Watch is opposed to the death penalty in all circumstances as it is a fundamentally inhumane, cruel and degrading punishment. We are aware that there has been a moratorium on the death penalty in Congo for the past decade. Congo’s international partners should continue to press Congo to move forward with complete abolition of the death penalty as soon as possible.

 

[1]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 1993 and June 2003,” August 2010, http://www.ohchr.org/Documents/Countries/ZR/DRC_MAPPING_REPORT_FINAL_EN.pdf (accessed February 24, 2014).

[2]President Kabila speech to both chambers of the Congolese Parliament, October 2013, http://afrique.kongotimes.info/rdc/politique/6768-cohesion-nationale-dis... (accessed February 24, 2014).

[3] Human Rights Watch, Looking for Justice: the War Crimes Chambers in Bosnia and Herzegovina, February 2006, https://www.hrw.org/reports/2006/02/07/looking-justice-0.

[4] UN Commission on Human Rights, “Report of the independent expert to update the set of principles to combat impunity, Diane Orentlicher,” E/CN.4/2005/102/Add.1, Addendum, Updated Set of principles for the protection and promotion of human rights through action to combat impunity, February 8, 2005, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G05/109/00/PDF/G0510900.pdf?O...(accessed February 24, 2014), principle 29; African Commission on Human and Peoples’ Rights, “Principles and Guidelines on the right to a fair trial and legal assistance in Africa,” October 24, 2011, http://www1.umn.edu/humanrts/research/ZIM%20Principles_And_G.pdf (accessed February 24, 2014), principle L, p. 10; African Commission on Human and Peoples’ Rights, Media Rights Agenda v. Nigeria, Comm. No. 224/98 (2000), http://www.achpr.org/files/sessions/28th/comunications/224.98/achpr28_22... (accessed February 24, 2014), paras.61-65.

[5] UN Commission on Human Rights, “Report of the independent expert to update the set of principles to combat impunity, Diane Orentlicher,” Addendum, Updated Set of principles for the protection and promotion

of human rights through action to combat impunity, February 8, 2005.

[6]Constitution of the Democratic Republic of Congo, National Assembly, February 18, 2006, http://democratie.francophonie.org/IMG/pdf/Constitution_de_la_RDC.pdf (accessed February 26, 2014), article 223.

[7]Ibid., article 153.

[8]Ibid., article 160.

[9]Ibid., article 155.