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VII. Justice and Accountability

Applicable Legal Standards

The crimes against civilians described in this report—deliberate killings, sexual violence and other forms of injury, abductions, looting and destruction of property, and forced displacement—all 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.

Impunity

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 Congo’s 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 don’t 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 government’s desire to proceed with the warrants as issued.  Perpetrators of serious human rights abuses—including Nkunda, Mutebutsi, and dozens of others currently in senior positions in the Congolese army—must 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 responses to allegations

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,

You have to be able to understand the behavior. In the Bible, there is a story when Jesus Christ is crossing a field with his disciples. The disciples are hungry, and they take some of the fruit. The owner comes out and claims that his fruit is being stolen. If someone is hungry, what can you expect? Soldiers must be given at least the minimum they need. The state cannot do this: the state is poor, horribly poor.¹⁷¹

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 Council’s 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-general’s report on child soldiers in Congo.

General Kisempia’s 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. Kisempia’s 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’s response to allegations

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 Nkunda’s 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 response to allegations

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