On October 1, 2010, the United Nations’ Office of the High Commissioner for Human Rights (UNHCHR) released a comprehensive mapping report (“UN mapping report”) documenting grave human rights violation that occurred between 1993 and 2003 in the Democratic Republic of the Congo (DRC). It is the first time that these crimes, perpetrated by a variety of actors, have been comprehensively analyzed, compiled, and systematically organized in an official United Nations (UN) report. The report is a powerful reminder of the gravity of the crimes committed in Congo and of the shocking absence of justice. If followed up by strong action nationally and internationally, the report could make a critical contribution to ending impunity and breaking the cycle of violence in Congo and the wider Great Lakes region.
As documented in the UN mapping report, years of violence in eastern Congo have left a legacy of horrific abuses committed against civilians, including mass killing, torture, sexual violence and the forced recruitment and use of child soldiers. The pervasive culture of impunity has contributed to repeated cycles of violence, characterized by the systematic targeting of civilians by all parties to the successive conflicts, in violation of international human rights and humanitarian law. The recent mass rape of 300 civilians in Walikale, eastern Congo, at the beginning of August 2010, is only the latest horrifying illustration of the ongoing suffering endured by Congolese civilians.
Impunity for grave international crimes has been one of the major obstacles to peace and stability in the DRC and in the Great Lakes region.The lack of investigation and prosecution of grave abuses against civilians has sent the message that these crimes will be tolerated. Rebel group leaders, whose troops have committed atrocities, are often rewarded with senior positions in the Congolese army, thereby encouraging more rebel groups to flourish. Once integrated into the national army, past behavior of committing atrocities often continues unchecked.
The UN mapping report underscores that tackling impunity is crucial to ending the cycle of violence. It analyzes the Congolese justice system’s ability to try the crimes documented and finds that despite recent judicial reforms initiated by the government with international donors’ support, the Congolese justice system lacks the capacity in the short or medium term to meet the challenges of seeking prosecutions of crimes under international law committed in the past. The mapping report therefore sets out a range of possible justice options[2] to address the crimes it documents.
It was not in the UN mapping team’s mandate to make specific accountability recommendations. As such the UN mapping report discusses both the advantages and shortfalls of a variety of options, considering the possible role of the International Criminal Court (ICC), the role of third states through the application of the principle of universal jurisdiction, the establishment of an international tribunal, the creation of a hybrid court independent from the Congolese justice system and finally a special mixed chamber within the Congolese judicial system. The report expresses a strong preference for the creation of a hybrid model-made up of international and national personnel-to bring justice to the victims of the serious violations set out in the report, given the lack of capacity of the domestic justice system in Congo and the numerous factors that impede judicial independence in the country.
Others, including the UN Special Rapporteur on the independence of judges and lawyers, the UN seven special thematic procedures on technical assistance for the Government of the DRC, numerous Congolese civil society organizations, have supported a similar model, proposing the establishment of a “mixed chamber”- a national institution embedded in the Congolese justice system with the temporary participation of international staff -in Congo.
In its initial written comments responding to the UN mapping report, the DRC government partially responds to this option, proposing to create a “specialized chamber” situated in the Congolese judicial system with jurisdiction over the most serious crimes committed in Congo, including those documented in the mapping report.
Creating a dedicated and specialized chamber to investigate and prosecute these complex and highly sensitive crimes is an important step forward. However, in order to give such a chamber the maximum credibility, judicial independence, and expertise, as well as the opportunity to try those most responsible for the crimes, both Congolese and non-Congolese, it is urgent that such a specialized chamber include, on a temporary basis, international staff. This could include, for example, other African judges and prosecutors with relevant experience.