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The Accountability Landscape in Eastern DRC Analysis of the National Legislative and Judicial Response to International Crimes (2009–2014)

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The Accountability Landscape in Eastern DRC Analysis of the National Legislative and Judicial Response to International Crimes (2009–2014) International Center for Transitional Justice CRIMINAL JUSTICE The Accountability Landscape in Eastern DRC Analysis of the National Legislative and Judicial Response to International Crimes (2009–2014) July 2015 This project is funded by The European Union Cover Image: Baraka, DRC, February 2011. Defense attorneys for soldiers accused of rape and crimes against humanity listen to victim testimony during the trials (Prime) International Center for Transitional Justice CRIMINAL JUSTICE The Accountability Landscape in Eastern DRC Analysis of the National Legislative and Judicial Response to International Crimes (2009–2014) July 2015 Sofia Candeias, Luc Côté, Elsa Papageorgiou, and Myriam Raymond-Jetté International Center The Accountability Landscape in Eastern DRC for Transitional Justice Acknowledgements ICTJ gratefully acknowledges the generous financial support of the European Union and Humanity United, which made possible the research and writing of this report. The authors extend special thanks to Colonel Toussaint Muntazini, Chief of Staff of the Auditorat Militaire General, for his invaluable support for the investigations and research that led to this report. They also thank the judicial staff and Magistrates of the military jurisdiction of Eastern DRC, in particular the Military Operational Court and Auditorat Militaire Opérationnelle, Military Superior Court and Auditorats Supérieurs of Goma and Bukavu, and Military Garrison Tribunal and Auditorat de Garnison of Bunia, Bukavu, Goma for their collaborations. They also acknowledge the collaboration of UNDP, UNJHRO, MO- NUSCO’s Prosecution Support Cells, and Avocats Sans Frontières. About ICTJ ICTJ assists societies confronting massive human rights abuses to promote accountability, pursue truth, provide reparations, and build trustworthy institutions. Committed to the vindication of victims’ rights and the promotion of gender justice, we provide expert technical advice, policy analysis, and comparative research on transitional justice approaches, including criminal prosecutions, reparations initiatives, truth seeking and memory, and institutional reform. For more information, visit www.ictj.org ©2015 International Center for Transitional Justice. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without full attribution. Disclaimer: The contents of the publication are the sole responsibility of ICTJ and can in no way be taken to reflect the views of the European Union. II www.ictj.org International Center The Accountability Landscape in Eastern DRC for Transitional Justice CONTENTS 1. Introduction .....................................................................................................................................................................................................................................................................................................................................................1 Methodology .............................................................................................................................. 3 2. Normative Framework in the DRC ................................................................................................................................................................................................................................................. 5 Provisions Relating to the Prosecution of Serious Crimes ............................................................5 Applying the Rome Statute to Congolese Criminal Law ............................................................. 7 Military Jurisdiction over Serious Crimes ....................................................................................8 Legislative Bills Relevant to National Judicial Response to Serious Crimes ................................10 3. Judicial Practice ............................................................................................................................................................................................................................................................................................................................... 17 Th e Context ............................................................................................................................. 17 Judicial Response to International Crimes from 2009 to 2014 ..................................................17 Capacity of the Judicial System and Level of Support Required ................................................ 20 Analysis of Open Investigations: External Infl uences and Judicial Response to Atrocities ..........29 4. Conclusions ................................................................................................................................................................................................................................................................................................................................................34 5. Recommendations ..................................................................................................................................................................................................................................................................................................................36 APPENDIX .................................................................................................................................................................................................................................................................................................................................................................................39 www.ictj.org III International Center The Accountability Landscape in Eastern DRC for Transitional Justice ACRONYMS ABA American Bar Association AMS Higher Military Prosecutor’s Office (Auditorat Militaire Supérieur) APCLS Alliance of Patriots for a Free and Sovereign Congo ASF Lawyers without Borders (Avocats Sans Frontières) CICC Coalition for the International Criminal Court CNDP Congrès National du Peuple Commission PAJ Commission Politique, Administrative et Juridique CPRDC Commission Permanente de Réforme du Droit Congolais DRC Democratic Republic of the Congo FARDC Forces Armées de la République Démocratique du Congo FAZ Force armées zaïroises FDLR Forces Démocratique de Libération du Rwanda FIDH Fédération Internationale des Droits de l’Homme FRPI Force de Résistance patriotique de l’Ituri HRW Human Rights Watch HMC High Military Court (Haute Cour Militaire) ICC International Criminal Court ICCN Institut Congolais pour la conservation de la nature JIT Joint Investigation Mission ICGLR International Conference on the Great Lakes Region IPIS International Peace Information Service LOCJ Loi organique portant organisation, fonctionnement et compétences de l’ordre judiciaire LRA Lord’s Resistance Army MC Military Court (Cour Militaire) MGT Military Garrison Tribunal (Tribunal Militaire de Garnison) MJC Military Judicial Code (Code Judiciaire Militaire) MJDH Ministère de la Justice et des Droits Humains MPC Military Penal Code (Code Pénal Militaire) MOC Military Operational Court (Cour Militaire Opérationnelle) MONUSCO Mission des Nations Unies pour la Stabilisation de la RDC OPJ Judicial Police Office OSISA Open Society Initiative of Southern Africa PGA Parliamentarians for Global Action PNC Congolese national police PSC Prosecution Support Cell RCD Rassemblement congolais pour la démocratie UN United Nations UNJHRO United Nations Joint Human Rights Office UNDP United Nations Development Program UPC Union des Patriotes Congolais IV www.ictj.org International Center The Accountability Landscape in Eastern DRC for Transitional Justice 1. Introduction I would like to reassure them [Congolese women and men] that the search for national unity does not mean impunity. Quite the opposite: without justice, reconciliation is a sham! . At the domestic level, it is important to remember that, during the last few decades, the Congolese people have been the victims of the commission of international crimes by many insurgents. They deserve to see justice done.1 The Democratic Republic of the Congo (DRC) is obligated to prosecute those responsible for serious crimes;2 however, over the past two decades of conflict, the Congolese government has failed to fulfill its legal obligation to effectively guarantee the legal and judicial protection of its citizens. The promise to fight impunity in DRC, as well as its urgency, has been affirmed in various peace agreements signed since 1999. The 1999 Lusaka Ceasefire,3 the 2002 Pretoria Accord on transition,4 the 2003 Sun City Agreement,5 and the later 2009 Goma Peace Agreement6 all prohibited amnesty for serious crimes and promised prosecution of those responsible for these crimes.7 Yet, until recently, Congolese policymakers have failed to fulfill these commitments. At the regional level, this promise appears again in the Peace, Security and Cooperation Framework Agreement (“Framework Agreement”) for the DRC and the region. Signed by 11 countries in the Great Lakes region in Addis Ababa on February 24, 2013,8 this agreement aims “to put an end to recurring cycles of violence” that have afflicted the civilian populations 1 President Joseph Kabila, Speech to the National Parliament Convening in Congress (Oct. 23, 2013). 2 See Laura Davis, “Power
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