III. Prosecuting the most serious crimes

Despite the accomplishments described above, the program has lacked ambition since its conception. Its implementation seems to be connected more with the necessity to quell more minor crime, which was hampering MONUC’s peacekeeping efforts in Ituri, than with the fight against impunity itself. The possibility of prosecuting the perpetrators of serious crimes committed during the conflict in Ituri has been ruled out. The Congolese government did not give the prosecutor any mandate relating specifically to the prosecution of war crimes and crimes against humanity committed in Ituri.

The Minister of Justice recently stated that the prevention of the serious crimes that continue to be committed in Ituri remains one of his priorities.^{^¹⁴} He could demonstrate this in various ways, in particular by speeding up the procedure for the approval of the draft law implementing the statute of the International Criminal Court, or by using his power of injunction to urge the prosecutor to prosecute serious crimes in cases which he has identified as being of special interest.^{^¹⁵} That would represent a significant step forward in comparison with the first six months of the program, when there was no Congolese government policy aimed at the prosecution of perpetrators of serious crimes committed during the conflict in Ituri to support the program.

The draft law implementing the statute of the International Criminal Court has the advantage of defining war crimes and crimes against humanity and introducing them into Congolese law.^{^¹⁶} Such a law would have enabled the prosecutor to prosecute Matthieu Ngunjolo for the crime against humanity of enforced disappearance,^{^¹⁷} for which the court would not have demanded evidence of the victim’s death, as it did in its decision of June 3, 2004.

However, even in the absence of a law to implement the ICC statute, the prosecutor is not entirely without legal instruments to fight against impunity for serious crimes in Ituri. First of all, the majority of these crimes can be qualified as offences that exist in the prevailing penal code. The judges can also apply the ICC statute directly in any case, since it is now part of internal Congolese law under the transitional constitution.^{^¹⁸}

Fifteen major leaders of armed groups are currently under arrest. However, they have not been arrested or prosecuted for the atrocities that the population witnessed them commit, order, or approve. MONUC has not provided the prosecutor with information in its possession regarding serious crimes involving these leaders, for which it had arrested some of them before the arrival of the new judges.^{^¹⁹} These individuals were prosecuted for less serious offences and often were acquitted or given sentences that could have led the local population to doubt the seriousness of the new judicial authorities in Bunia. On June 3, 2004, the court only sentenced Prince Mugabo Taganda to 48 months in prison for “ordinary theft” of a stereo system, although this major leader of an armed group was “commander of the operations of the UPC in Bunia” for all or part of the period from August 2002 to June 6, 2003.^{^²⁰} Sentencing Prince Mugabo for the theft of a stereo system while, under his command in Bunia, the UPC carried out systematic attacks against the Lendu and other groups involving torture, arbitrary arrests, summary executions, and enforced disappearances^{^²¹} does not seem to meet the need for justice of a population traumatized by years of bloody conflicts.

From the conception of the program, the decision was made to focus only on offences classified as more minor crimes, thereby excluding serious crimes of an international nature. This decision is becoming untenable. The judicial system in Ituri is undermining its own credibility and placing its legitimacy at risk by sentencing an individual for the theft of a stereo system when that individual was notorious for supervising torture chambers and presiding over the summary execution and enforced disappearance of numerous victims.

[14] Human Rights Watch telephone interview, July 2, 2004.

[15] Congolese law gives the Minister of Justice the power to issue an “injunction” to the Chief Prosecutor of the DRC to initiate a trial and prosecute certain crimes before any jurisdiction (Article 12 of the Code of Judicial Organization and Competence). The power of injunction is usually exercised by the Minister of Justice to reflect and apply the government’s criminal policy. It has sometimes been used negatively, for example when, under previous regimes, Ministers of Justice issued injunctions to encourage the prosecution of journalists or opposition leaders. The Minister of Justice told Human Rights Watch that he intends to exercise this power in a more positive way, to reflect a firm government policy against impunity in Ituri. Human Rights Watch believes that this power should be used in a way that does not infringe on the rights of the accused nor prejudice the presumption of innocence and other fundamental principles of a fair trial.

[16] This draft law, prepared by the Standing Committee on Reform of Congolese Law in 2002, was submitted to the Minister of Justice in April 2003. It has to be approved by the Cabinet before its adoption by the Parliament, but it seems that this process has not yet been initiated.

[17] Article 17 of the draft law introduces Article 222 into the Congolese Penal Code, under which paragraph 7 defines the crime against humanity of enforced disappearance.

[18] The Minister of Justice has suggested that the argument of the inadequacy of the criminal legislation could be used by judges as a pretext for concealing fear of taking action against the major war criminals in Ituri. (Human Rights Watch telephone interview, July 2, 2004) Nevertheless, Human Rights Watch considers the adoption of this draft law necessary due to its importance for cooperation between the ICC and the Congolese judicial authorities and the fact that it provides for practical procedures and provisions, such as those relating to sentencing, which are not contained in the ICC statute.

[19] Since the beginning of 2003, MONUC has carried out several investigative missions that have enabled it to collect information about serious crimes committed during massacres in Ituri and their perpetrators. See “La MONUC enquête sur les violations des droits de l’Homme en Ituri,” Agence France-Presse (AFP), Kinshasa, January 10, 2003.

[20] Prince Mugabo even admitted this role during a hearing of the court in April 2004.

[21] Human Rights Watch, Ituri: “Covered in Blood.” Ethnically Targeted Violence in Northeastern DR Congo, July 2003, p. 29.

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September 2004