<<previous  |  index  |  next>>

The Obstacles to Prosecution

Most perpetrators of crimes of sexual violence go unpunished, often because victims do not file charges against them. Victims keep silent for many reasons:

• Often the victims are not able to identify the perpetrators or know where to find them. This is especially true when perpetrators are Mai Mai or Rwandan Hutu combatants. 

• They fear retribution or have been specifically threatened with harm if they seek to have the assailant prosecuted.

• They do not know about the possibility of going to court, or they feel justice is for others, not for them.

• They feel ashamed or guilty and fear being stigmatized by others in the community.

• They have been told by authorities—usually men—to stay silent.¹³⁵

Government officials in eastern Congo frequently argue that inaction by victims is an important obstacle to prosecution of crimes of sexual violence. In October 2003, the military prosecutor of North Kivu said that in three-quarters of all cases, victims do not bring charges against those guilty of crimes of sexual violence. He concluded, “When you don’t have the information you can’t send a file to court.”¹³⁶ The prosecutor of the court in Ituri also explained the small number of rape convictions as partly due to the reluctance of victims to report the rape.¹³⁷

Judicial authorities have an obligation to investigate crimes once they learn of them, regardless of whether the victim files a complaint or not. They also have an obligation to create conditions conducive to victims filing charges. This includes ensuring that investigations and prosecutions are executed with due diligence in order to maximize the possibility of the guilty being convicted.

Against all odds: victims want justice

While the majority of victims do not consider taking their case to court, more and more victims are eager to do so. According to a counselor working with victims of sexual violence:

Many women I speak to want to take their case to justice. They say, “I wish he would be punished today.” When you explain to them that they can conceal their identity in court, they say: “I have nothing to lose. I am ready to stand in court and say openly what happened.”¹³⁸

Victims have gathered to learn about seeking justice from women who have done so, from human rights activists, or by a videotape of the trial mentioned above. In many cases they have gone away determined to take action themselves.¹³⁹ After such an occasion in September 2004 in Sange, South Kivu, representatives of a human rights NGO heard from four women the week after seeking help, from thirteen more the week after that, and from twenty-three in the third week. As a representative from the NGO concluded, “There is a will to go to justice.”¹⁴⁰

The statistics bear out the anecdotal information: according to one NGO, twelve cases of sexual violence were brought in Goma courts in 2002 and twenty-six in 2003.¹⁴¹ Another NGO documented thirty cases before the civilian and military courts in Goma in the first half of 2004; another thirty-one cases were being investigated by the prosecutor of the Tribunal de Grande Instance.¹⁴²

In many instances it was easier for parents to file complaints involving crimes against their children than it was for adult victims to do so. Often a woman who has been raped is seen as someone who has brought shame on her community but young children are not subject to the same stigma. Communities often act together in speaking out against sexual violence committed against children.

Officials fail to deliver justice

Women and girls who seek justice must have at least the cooperation, if not the support, of authorities. As the cases below show, some victims who wanted their assailants prosecuted got neither. Although in some of these cases authorities were open to receiving complaints, in every case but one the effort failed because others with power or official position obstructed the effort to bring those responsible to justice.

In April 2003, Simone B., a young woman working with a humanitarian agency in a refugee camp south of Bukavu, was sexually assaulted by two RCD-Goma soldiers. They followed her, grabbed her and forced her to the ground. As they started to pull off her clothes, she screamed. When others came to help her, the two fled. The victim filed a complaint with the military prosecutor. A cooperative local military commander tried to find the men, whose names were known. But the suspects were never arrested and, according to local observers, the victim had to leave the area after being threatened by other RCD-Goma soldiers.¹⁴³   

On June 28, 2003, two RCD-Goma soldiers came to the house of twelve-year-old Rosette T. and her companion Elise K., another twelve-year-old near Kalonge, north of Bukavu. They took chicken and guinea pigs and forced the girls to carry the loot. At a river, where they stopped for water, the soldiers raped the girls. They then forced them to wash their clothes.  Parents of the girls complained to the commander at the Cihimba RCD-Goma military camp. He promptly presented a line-up of his combatants and the girls were able to identify one of the suspects, but did not see the other. The suspect denied everything; the commander ordered him to be beaten but did not arrest him. The girls went to a medical clinic in Bukavu, where a doctor confirmed that they had been raped. While in town, the girls saw the other suspect. The parents, backed by local NGOs, pushed for a prosecution, but the military prosecutor, citing logistical and security reasons, never went to Kalonge to investigate the crime or to arrest the suspects.¹⁴⁴ 

Marianne L. was raped and shot by an RCD-Goma soldier in August 2003, as described above.¹⁴⁵ Local people who had heard of the crime stopped the suspect as he was trying to flee to Bukavu and brought him back to the military camp. The commander interrogated him and the suspect confessed to the crimes.¹⁴⁶ But he was not arrested at that time, apparently because he was protected by his superiors. It took pressure from the military prosecutor – and advocacy by local NGOs – to get the suspect arrested two months later. He escaped with others during the attack on Bukavu in June 2004 and has not been tried.¹⁴⁷

On July 5, 2003, Laure N., on her way home from market, was raped by a local commander of the Local Defense Forces on the outskirts of Goma. Her father complained to a local official and the superior of the suspect had him detained at the communal offices. According to a local NGO that investigated the case, the suspect confessed to the crime. However, the mayor, who has the powers of a judicial investigating officer as well as of senior administrative authority in the commune, released the suspect, ended the investigation, and turned down requests for a meeting with the victim’s family. The family of the victim, threatened by members of Local Defense Force, left the neighborhood.¹⁴⁸ 

The above-mentioned case of Marie T.,¹⁴⁹ the dressmaking student raped by several Local Defense Forces in August 2003, is another example of civilian authorities blocking prosecutions. Although Marie could not identify the perpetrators by face, she had heard the name of one of them. Her family asked local authorities and police to find the LDF posted to the neighborhood on the day of the attack.  But authorities insisted there were no Local Defense Forces assigned to patrol that neighborhood, and so the family felt compelled to let the case drop.¹⁵⁰

On January 27, 2004, Francine G. went to find her fifteen-year-old son who had been jailed for not having done obligatory community labor in Rutshuru, North Kivu. She herself was then arrested and that night she was raped by a police officer in the jail.¹⁵¹  The police officer was arrested and transferred to the custody of the military prosecutor in Goma, where a year later he was still detained without having been tried.¹⁵²

In the single example of a prosecution leading to a conviction among these cases, the readiness of MONUC officers to intervene may have been an important factor. In mid-2004 in Bunia the grandmother of a young girl, four-year-old Nadine L., came back from the field to find her granddaughter being raped by an adult male neighbor. According to local sources, she reported the matter to the chief but nothing happened. A local woman’s group was informed of the incident and through the assistance of MONUC helped the grandmother to report the matter to the police who subsequently arrested the alleged perpetrator.¹⁵³  Shortly after the arrest the grandmother was threatened by armed combatants, reportedly family members of the accused, who arrived at her house with guns. She was forced to flee with Nadine L. to another part of town where she felt safer; no police protection was provided to her.  Despite these difficulties the case was brought before the court on June 17, 2004, and the perpetrator convicted on July 29, 2004, with a sentence of ten years of imprisonment.¹⁵⁴ The young victim was asked to come to the court to identify her rapist. A woman who knows Nadine L. says, “Today she really suffers from trauma. She cannot remember the simplest things and although she is a little girl, she speaks like an adult.”¹⁵⁵

As discussed below, prosecuting soldiers and other combatants implicated for crimes in Congo is extremely difficult.  These difficulties are multiplied in cases involving sexual violence. Commanding officers often arranged for combatants  accused of sexual violence to be quickly transferred elsewhere, making prosecution far more difficult and often impossible. In a meeting with NGOs, international agencies and victims on sexual violence, the military prosecutor of North Kivu said:

There is impunity on the front. When there is a case of rape, it often takes organizations time to respond. It takes time for a case [of rape] to arrive here. We lose track of the soldiers… We know the problem of transfers [of suspects] in Kindu, Kisangani, Bukavu.¹⁵⁶

Reluctance to prosecute accused soldiers also hampers prosecution in areas controlled by the former rebel movements. When RCD-ML fighters committed a series of acts of sexual violence and other crimes against civilians in Musienene in June 2003, for example, RCD-ML leaders did not prosecute anyone, despite complaints by some families of victims.¹⁵⁷ The reluctance to arrest fellow soldiers or to investigate them thoroughly continues into the trial process as well. Few of the cases that reach military court end in conviction, in part because those prosecuting are from the same institution as the accused.

The lack of protection

Persons seeking justice are often threatened and sometimes drop their cases as a result, as illustrated above. In order to increase the number of complaints brought and followed to a successful conclusion, authorities must provide protection for victims and witnesses. According to Article 23 of the interim Constitution currently in force, courts can sit in closed session if necessary to protect public order and good morals (ordre public et bonnes moeurs), but there are no other provisions specifically providing for taking closed-court testimony from witnesses or victims who fear reprisals. Nor are there any regulations or agencies dedicated to providing for the safety of those who are threatened with harm if they testify. According to a representative of one NGO in Bunia, her organization had assisted over 2,000 victims of rape and the vast majority of them would agree to appear in court only if their identity is shielded from the public.¹⁵⁸ One woman in Bunia who was considering seeking justice for crimes against her asked a Human Rights Watch researcher:

Who will protect me if I say who it was who raped me? The men with guns still rule here.  The U.N. only protect a small part of town and they will not help me if these men come to my door.¹⁵⁹ 

General problems with the judicial system

Persons seeking justice for crimes of sexual violence face many of the same problems faced by all citizens seeking to bring complaints for crimes committed.  Corruption is widespread in the justice sector, and it is common practice to bribe judges or other judicial officials to influence the outcome of an investigation or a trial. Because of the years of war and economic stagnation, the judicial system suffers from the logistical and financial problems that trouble other sectors of government.

Lack of qualified staff, logistical support and efficient organization

Most persons staffing military and civilian courts are poorly trained. Investigators often do not know how to gather the facts so they can be used in court, including in cases of crimes of sexual violence. There are no forensic specialists in eastern Congo nor do prosecutorial or judicial staff have training in dealing with severely traumatized victims of sexual violence. Most judicial staff are male. The military prosecutor in Bukavu recently hired some female investigating officers, which might be a step forward; however, the hiring of female staff as such is no guarantee for improved quality of investigations.

Military and civilian prosecutors in eastern Congo lack vehicles and money to pay for travel to outlying areas to conduct proper investigations. Courts and prosecutors also lack basic material such as stationery, let alone computers.

Some recent cases from Walungu, South Kivu, illustrate these problems. Several RCD-Goma soldiers were accused of rape. The victims contacted the military commander in place and urged him to take action. But investigators working on the cases were so poorly trained that they submitted reports lacking some essential information, such as the names of the victims.  The military prosecutor in Bukavu, better able to manage an investigation, had no money to pay for transport to Walungu. When investigators from Bukavu finally reached the scene, they failed to find the original investigators and so could not locate the victims. As a result, several suspects had to be released for lack of evidence against them.

In another case in April 2004, the rape of an eight-year-old girl in Kanyola in Walungu was reported to the military prosecutor. According to the Military Prosecutor, the victim recognized the perpetrator. However, four months later, the Military Prosecutor’s Office had still not begun its investigation, in part because transport to this area is difficult to organize.¹⁶⁰

Obstacles linked to the transition process

Shortly after the transitional government was established in June 2003, it suspended the operations of courts set up under the 1972 Military Justice Code in order to clear the way for courts operating under the code adopted in 2002.However very little has been done to set up the new military courts, install judges, and start the work. A national Military Prosecutor (Auditeur Général) was finally named in late June 2004. By September 2004, more than a year after the start of the transition, judicial staff – magistrates and judges – had been named for the military courts but had not taken up their posts. This delay has blocked investigations and prosecutions of crimes allegedly committed by RCD-Goma fighters and combatants of other armed groups. In some cases, suspects end up in prolonged military detention without trial – a violation of their rights. In North Kivu, for example, the military prosecutor detained at least twelve men on charges of rape between November 2003 and June 2004 but none had been tried, and some remain in detention. In other cases suspects simply went free.¹⁶¹ A lawyer from Bukavu said:

This state of things paralyses and blocks the prosecution of sexual violence... This situation gives the victims the impression of impunity [for the perpetrators] and this traumatizes them even further.¹⁶²

The way forward

An important step towards promoting prosecution of crimes of sexual violence would be the government’s creation of a legal framework for implementing for the Rome Statute of ICC. The draft implementing law prepared by an expert commission in October 2002 contains a comprehensive definition of crimes of sexual violence as war crimes and crimes against humanity. Further legal changes are needed to protect victims and others who agree to testify against possible reprisals, particularly from men with guns—soldiers and members of armed groups. An amendment to Criminal Code should make it possible for a victim to file for specific protective measures with the prosecutor or the president of the tribunal, including having her identity protected and receiving police protection before, during, and after the trial.

In addition to legal changes, authorities must provide training for investigators, including specialized training on investigating crimes of sexual violence and on dealing with traumatized persons. The number of female personnel among judges, magistrates, and investigating officers (Officiers de police judiciaire) should be increased.¹⁶³The police and the courts have a duty to inform victims and their families about the functioning of the criminal justice system, and to accompany them throughout the judicial proceedings, preferably by assigning one contact person who regularly reviews the victim’s judicial progress. If possible they should also employ forensic medical experts and provide trauma counseling for victims who testify about sexual violence.

Finally, the judiciary and prosecution need to be strengthened with sufficient resources to properly carry out their functions. In particular, court officials must be able to travel to remote areas to investigate and prosecute cases, or even hold trials in remote rural locations.