The crimes against civilians described in this reportdeliberate killings, sexual violence and other forms of injury, abductions, looting and destruction of property, and forced displacementall violate international humanitarian law, both treaty based and customary.158 These crimes are also prohibited by the Congolese penal code and the Congolese military penal code.159
The recruitment and use of children under the age of 15 in armed conflict violates Additional Protocol II to the Geneva Conventions, which applies to state and non-state actors during non-international armed conflicts.
Since November 2001 Congo has been a party to the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, which sets 18 as the minimum age for any conscription, forced recruitment, or direct participation in hostilities by government forces, and for any recruitment (whether by force or voluntarily) by non-state armed groups. When ratifying the Optional Protocol, Congo also made a binding legal commitment not to accept voluntary recruits below the age of 18.160
Congo is also party to the Rome Statute of the International Criminal Court, which defines as war crimes both the recruitment of children under the age of 15 into military forces and the use of children to participate actively in hostilities.161
The four Geneva Conventions and their two Additional Protocols implicitly and explicitly condemn rape as well as other forms of sexual violence as serious violations of humanitarian law in both international and internal conflicts, and even a single act of sexual violence can constitute a war crime.162 In July 2006 Congolese law makers passed a new law on sexual violence, which redefines rape to include all forms of sexual penetration and also criminalizes other forms of sexual violence such as sexual slavery, forced prostitution, and forced marriage.163 Despite several donor initiatives to encourage survivors of sexual violence to take judicial action against their abusers, the vast majority of cases of sexual violence go unpunished.
As with most serious crimes in eastern Congo in the past decade, the majority of crimes described in this report have been neither properly investigated nor prosecuted, even those crimes where command responsibility has been clear and appropriate authorities have been notified of the crime.
Both the military and the civilian judicial systems are starved for resources and competent personnel. Magistrates are badly paid and poorly trained. More damaging to justice than material shortages are the political interference and corruption that often determine the outcome of cases.164 The UN special rapporteur on the independence of judges and lawyers, Leandro Despouy, after a visit to Congo in April 2007, concluded that interference by the executive and the army in judicial proceedings was very common and that Congos judicial system was rarely effective with human rights violations generally go[ing] unpunished.165 Many procedures fail to even come close to international standards of fair trial.
Despite hundreds of serious attacks by Congolese army soldiers against civilians documented by MONUC and other sources, the military prosecutor in Goma was handling only 17 cases in May 2007, most of them involving desertion. He was investigating three cases of sexual violence, with the alleged perpetrators in prison awaiting trial. He was also preparing the case against four suspects, guards of Lieut. Col. Wilson Nsengiyumva, accused of killing the four civilians in the Rubaya case described above (see Chapter V).166
Magistrates from Kinshasa and Bunia who investigated the Buramba killings, described above (see Chapter V), concluded that soldiers under the command of Colonel Makenga were responsible. A magistrate who was part of that team expressed the hope that the report would be made public in order to put pressure on the government to act. Commenting on the difficulties of arresting a powerful military officer, he said, I am willing to call for Makenga to be arrested, but it is difficult to execute in practice. Justice is difficult. We have to be realistic; we have to consider what we are able to do and we have to consider the consequences.167
Impunity for grave violations of human rights has long been the usual practice in Congo. Only a handful of perpetrators have been arrested and held to account; dozens of others have been promoted to senior positions in the army or the government. A Congolese lawyer dismayed by such promotions remarked, In Congo we reward those who kill, we dont punish them.168
One case of failure to carry through appropriate legal procedures is the absence of substantive investigations to support the arrest warrants for Nkunda and Jules Mutebutsi, issued in September 2005 for charges of war crimes and other serious human right abuses committed in Bukavu in 2004.169 Without thorough investigations to underpin them, these warrants cannot be meaningfully implemented, notwithstanding the Congolese governments desire to proceed with the warrants as issued. Perpetrators of serious human rights abusesincluding Nkunda, Mutebutsi, and dozens of others currently in senior positions in the Congolese armymust be held to account for the crimes they have committed. As former UN Secretary-General Kofi Annan noted in 2004, entrenched impunity can be a dangerous recipe for sliding back into conflict.170 But for justice to be done, such prosecutions must be based on solid investigations, credible evidence, and fair and impartial trials that meet international standards. Unfair justice marred by political interference is likely to further exacerbate the problems in North Kivu and other parts of eastern Congo.
Congolese authorities speak in favor of ending impunity and of judicial action, but from lack of means or lack of will they rarely act effectively. In some few cases officers even attempt to excuse crimes of their men. When asked by a Human Rights Watch researcher about charges that soldiers under his command had looted the property of civilians, General Ngizo replied,
Congolese military authorities have reason to be seriously concerned about the use of child soldiers. In September 2006 Congo became the first country to be considered by the UN Security Councils new Working Group on Children and Armed Conflict. The Security Council then called on the government to take appropriate legal action against members of the Congolese army accused of grave crimes against children, and reiterated the responsibility of MONUC to aid the government in apprehending and bringing to justice those responsible for recruiting and using child soldiers. This was reinforced again in June when the UN Security Council took up the secretary-generals report on child soldiers in Congo.
General Kisempias order to remove children from the ranks in February 2007, mentioned above, shows welcome attention to the issue, although without implementation the order remains largely ineffective. Kisempias successor as chief of staff of the Congolese army, Lieut. Gen. Kayembe Mbandakulu Tshisuma, and his subordinates need to act decisively to ensure that this and similar orders are obeyed.172
Nkunda, who makes the defense of human rights a central point of many of his speeches, generally insists that men under his command have not committed crimes. On those rare occasions where they have committed crimes, he has held them accountable, or so he told Human Rights Watch researchers. After the discovery of the mass graves near villages in Rutshuru beginning in late August 2007 (see Chapter V, above), Nkunda stated that these graves held the bodies of soldiers who had died in battle, not civilians, and that some of the bodies found may have been FDLR combatants.173 He accused the Congolese government of having exploited the discovery of the mass graves as part of a disinformation campaign against him, without having conducted proper investigations, which Nkunda himself called for.174
Nkunda claimed to have punished soldiers involved in the ambush of a vehicle carrying child soldiers, mentioned above, although they were punished for the ambush, not for attempting to return the children to military service. 175 He told Human Rights Watch researchers that he has no children in his ranks. He also explained that some of the soldiers identified as children in the incident described above involving Colonel Makenga and a child protection worker (see Chapter VI) were in fact adults. Nkunda claimed that he has handed over thousands of children to protection workers affiliated with local NGOs. He said that the recruitment or use of children violates his code of conduct and that reports from child protection agencies are fabricated in order to discredit him.176
Since the start of mixage, soldiers from Nkundas ranks moved under the command structure of the Congolese army and officially took orders from the military hierarchy. When questioned about human rights abuses committed by mixed brigades, including by soldiers formerly in his ranks, Nkunda responded that he no longer commanded these troops and as such was not responsible for their behavior.177 Yet some officers continued to consult with Nkunda, and Nkunda himself appeared to retain a sense of responsibility for the conduct of those who had formerly been his men.
During two interviews with Human Rights Watch researchers Nkunda showed he was aware of allegations about some of the most serious incidents in which his officers were allegedly involved. On the Buramba massacre, for example, Nkunda said that he had asked Colonel Makenga to account for the killings and that he had accepted his explanation that the killings had been legitimate acts of self defense and that the operation had been ordered by the military hierarchy. He invited Human Rights Watch researchers to provide him with information about this and other incidents and said he would take appropriate action, even though Colonel Makenga is no longer officially under his own command.178
Officers who formerly served with Nkunda have on occasion punished men within their own system of ad hoc justice but on at least one occasion they refused to surrender suspects to army judicial authorities. Bravo brigade illegally detained a soldier suspected of murdering a mother and young daughter in Bunagana on July 29, 2007, and ignored pressure from MONUC to hand the suspect over to the competent judicial authorities.179
The FDLR spokesman, contacted in Paris (where he is based) by a Human Rights Watch researcher, denied that any FDLR combatants had been involved in any of the crimes described in this report, but claimed that the organization did punish any combatants who violated its own rules of conduct, which prohibit killings, sexual violence, abductions and looting.180
158 The Democratic Republic of Congo is a party to the four Geneva Conventions of 1949, as well as Protocol II thereof. Article 3 common to the Geneva Conventions and Protocol II both apply to internal armed conflict. The Geneva Conventions were ratified by the DRC on February 24, 1961.
159 See, for example, Republique Democratique du Congo, Code pénal, arts. 167, 168, 170, and 171 concerning sexual violence, and Code pénal militaire, arts. 63, 64, and 65 concerning looting and pillage.
160 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, adopted May 25, 2000, G.A. Res. 54/263, Annex I, 54 U.N. GAOR Supp. (No. 49) at 7, U.N. Doc. A/54/49, Vol. III (2000), entered into force February 12, 2002, ratified by the DRC November 2001.
161 Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, July 17, 1998, entered into force July 1, 2002, arts. 8(2)(b)(xxvi) and 8(2)(e)(vii), ratified by the DRC September 8, 2000.
162 Theodor Meron, Rape as a Crime Under International Humanitarian Law, American Journal of International Law (Washington D.C.: American Society of International Law, 1993), vol. 87, p. 426, citing the International Committee of the Red Cross, Aide Mémoire, December 3, 1992.
163 Law number 06/019 modifying and completing the Congolese penal code, July 20, 2006.
164 Human Rights Watch interview with MONUC human rights official (name withheld), Goma, May 10, 2007.
165 UN General Assembly, Report of the Special Rapporteur on the independence of judges and lawyers: Addendum Preliminary note on the mission to the Democratic Republic of Congo, A/HRC/4/25/Add.3, May 24, 2007.
166 Human Rights Watch interview with Maj. Magistrat Bwa Mulundu Guzola, May 22, 2007.
167 Human Rights Watch interview with Col. Delphin Kahimbi, May 23, 2007.
168 Human Rights Watch interview with Congolese lawyer (name withheld), Kinshasa, November 9, 2006.
169 Human Rights Watch has documented summary executions, torture, and rape committed by soldiers under Nkundas command in Kisangani in 2002 and in Bukavu in 2004. See Human Rights Watch, D. R. Congo War Crimes in Kisangani: The Response of Rwandan-backed Rebels to the May 2002 Mutiny, vol 14, no. 6(A), August 2002, http://hrw.org/reports/2002/drc2/; and D. R. Congo War Crimes in Bukavu, June 2004, http://hrw.org/english/docs/2004/06/11/congo8803.htm.
170 Report of the secretary-general to the U.N. Security Council on the protection of civilians in armed conflicts, S/2004/431, May 28, 2004.
171 Human Rights Watch interview with Gen. Ngizio Siatilo Louis, Goma, February 15, 2007.
172 Lieut. Gen. Kayembe replaced Maj. Gen. Kisempia in June 2007
173 Human Rights Watch telephone interview with Laurent Nkunda, September 30, 2007.
174 Ibid., and Human Rights Watch interview with Laurent Nkunda, October 5, 2007.
175 Human Rights Watch interviews with Laurent Nkunda, Kirolirwe, August 26, 2006, and Nyamitaba, July 31, 2007.
176 Human Rights Watch interview with Laurent Nkunda, Nyamitaba, July 31, 2007.
177 Human Rights Watch interviews with Laurent Nkunda, Nyamitaba, July 31, and by telephone, October 1, 2007.
179 MONUC press briefing, Kinshasa, August 8, 2007.
180 Human Rights Watch interview with Callixte Barushimana, FDLR spokesperson, August 9, 2007.