Transitional justice’s uneven path in the DRC

In a country marked by protracted conflicts which are estimated to have caused the death and displacement of millions of civilians, transitional justice efforts have been slow and patchy. Despite some recent advances, in particular on the criminal justice front, a more expanded approach to transitional justice is needed if peace and justice are to be achieved.

This commentary appeared in JusticeInfo on 16th June 2015.

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(Photo credit: DRC mobile Court / Open Society Initiative for Southern Africa, Flickr)

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Transitional justice’s uneven path in the DRC

Dr Valérie Arnould, Postdoctoral Research Fellow, School of Business and Law, University of East London; Senior Research Fellow, Africa Programme, Egmont – Royal Institute for International Relations

Having experienced one of the deadliest conflicts of the past decades, the DRC is saddled with a heavy legacy of widespread and systematic human rights abuses committed by state and non-state actors in successive, interlocking wars since 1996. Sexual violence has been notoriously widespread in this conflict, earning Kinshasa the dubious honour of being dubbed the ‘rape capital of the world’. Fuelled by a combination of local drivers including access to land and ethnic tensions, competition for access to local and national power, and regional security dynamics, the Congolese conflicts have proven particularly intractable. The deployment of a UN peacekeeping mission and the conclusion of various peace agreements with rebel groups have failed to bring an end to violence and human rights violations. This persistent instability has created an acute need for transitional justice measures to end impunity while also posing an important obstacle to their implementation.

Accommodating Justice to Peace

A central challenge to the implementation of transitional justice measures is that Congolese peace processes are based on policies of cooptation and power-sharing. The 2002 comprehensive peace agreement provided for the creation of a government of national unity and the integration of rebel forces in the security forces. Provisions for rebel-military integration similarly formed a cornerstone of later peace deals with Ituri and Kivu-based rebel groups. These have been accompanied by amnesty laws, seen as an essential instrument to facilitate integration processes. Although war crimes, crimes against humanity, and genocide are expressly excluded from these amnesties, the haphazard implementation of the laws has created a situation of de facto impunity for human rights abusers. Numerous perpetrators were allowed to retain positions in the government and the army, on the implicit understanding that their accommodation would guarantee the sustainability of peace processes. The extent to which amnesties have achieved this is disputable, though, as repeated amnesties have instead indirectly encouraged rebel forces to defect from peace deals and integration processes.

In turn, reconciliation measures proposed in peace agreements have largely fallen flat. At the initiative of civil society groups, a truth and reconciliation commission was created under the 2002 peace accord to investigate human rights violations committed since the country’s independence in 1960. However, forced to operate during the political transition and composed of representatives of the various belligerent parties, the commission lacked independence to undertake investigations and was marred by internal divisions. Persistent insecurity in eastern Congo and a lack of support from external donors further hampered the commission’s operations. In the end, the Commission failed to produce any findings and subsequent calls for a new truth commission faced political resistance over concerns that it might undermine stability and threaten powerful individuals. Various peace agreements concluded to end the Kivu conflict (2006-2013) also called for the implementation of reconciliation policies. But no such measures were implemented, as the government and the UN instead prioritised the military provisions of these agreements.

Promoting Criminal Justice

Over time, criminal justice has come to take centre stage in transitional efforts in the DRC. Initial government calls for the establishment of an international criminal tribunal for the DRC failed to garner the support of the international community and were trumped by the logic of accommodation that prevailed during the political transition. Instead, the Congolese authorities opted to seize the International Criminal Court in 2004. To some extent, the ICC’s intervention in the DRC represents an important step forwards. It provided the Court with its first detainees and trials after the Congolese authorities transferred three former rebel leaders into the Court’s custody throughout 2006-2008. The Court issued its first ever verdict in 2012 when it convicted rebel leader Thomas Lubanga on charges of war crimes for enlisting and conscripting child soldiers, sentencing him to 14 years imprisonment. The Court’s investigations provide a strong signal to Congolese armed actors that impunity is not an acquired fact.

However, after a decade of ICC involvement in the DRC, one can only conclude that its overall contribution to justice has been limited. This is primarily due to the selectivity which has characterised its actions. Indictments by the Court have been limited to a very small number of human rights perpetrators and are not representative of the broad spectrum of armed actors involved in the Congolese conflicts. The Court has mostly focused its attention on the Ituri province, to the neglect of armed conflicts in the Kivus and Katanga. Known human rights perpetrators who integrated the government or were appointed to senior army positions have also not been investigated by the Court. In some instances, the Congolese authorities were reluctant to execute ICC arrest warrants targeted at individuals considered to be essential for ongoing peace processes, as was the case with Bosco Ntaganda (until he willingly surrendered to the Court in March 2013).

Trial processes before the Court have also been very slow – it took close to six years to issue its first verdict against Congolese rebel leader Thomas Lubanga – and were marred by procedural problems related to the disclosure of information and the reliability of witnesses and intermediaries. This resulted in the near collapse of the Lubanga trial, the acquittal of Ituri rebel leader Matthieu Ngudjolo, and a decision by the pre-Trial Chamber not to confirm the charges brought against FDLR leader Calixte Mbarushimana.

Increasingly, greater emphasis is placed on domestic criminal justice. Although weak state authority and a dilapidated judicial system pose significant challenges to domestic justice efforts, important progress has been achieved on this front. Foreign NGO and UN investments in rule of law initiatives have led to the implementation of judicial reforms and a progressive increase in war crimes trials before domestic courts. As early as 2004, an EU-UN project for the restoration of the justice system in Ituri resulted in the indictment and trial of rebel leaders. More recently, mobile courts have also increased the scope for justice. Launched in 2009, these itinerant courts offer conflict-affected communities in remote regions access to a previously elusive justice system. The speediness of the trials, the public nature of the hearings, and the court’s primary focus on sexual crimes are all seen to enhance the delivery of justice. Though promising, these mobile courts only represent a first step towards strengthening the domestic judiciary which overall remains marred by a lack of resources, corruption, and politico-military interference. Moreover, while they have tried an impressive number of perpetrators – including a few senior army commanders – these only represent a small number of the overall crimes committed and leave unaddressed the bulk of non-sexual crimes.

Screening the security forces

Currently one of the most acute human rights problems in the DRC is the abysmal behaviour of the security forces. Because it undermines their operational abilities to enforce peace, this problem is increasingly seen as a key policy priority by donors. However, the Congolese authorities’ reluctance means there has been little integration of justice concerns in security sector reforms. The establishment of a vetting mechanism – by which members of the security forces are screened on their human rights behaviour – was included in peace and disarmament agreements in 2004 and 2013 but has not been acted upon.

Following criticism of human rights abuses committed by army units trained and supported by donors, ad hoc screening measures have been introduced. In 2010, MONUSCO introduced a ‘conditionality policy’ under which the provision of UN logistical support to army units is made conditional on the human rights screening of army officers. The logic behind this policy is that even if the UN is unable to enforce accountability, it can at least take measures to prevent the commission of future abuses. However, conditionality has proven difficult to implement as it imposes significant constraints on MONUSO and decisions about the removal of screened officers reside with the Congolese authorities rather than with the UN. It thus remains an open question whether this policy can be successful in improving human rights protections.

Prospects for Transitional Justice

Transitional justice in the DRC has come some way in advancing accountability but progress is slow and fragmentary. A central challenge is the vast scale of abuses: victims number in the millions while perpetrators number in the tens of thousands. Abuses were also committed over an extended period of time, spanning at least three decades, and have a regional dimension due to the involvement of foreign actors in the Congolese conflicts. Moreover, mass human rights abuses continue to this day, placing the DRC in the difficult position of having to provide justice both for the past and the present. In this context, criminal trials can only do so much. While courts are necessary to end the prevalence of impunity and rein in the security forces, they are not sufficient to provide justice. Truth-telling processes linked to reparations as well as local-level reconciliation measures may prove indispensable to address this challenge. If transitional justice is to support peace and justice in the DRC, it will need to be geared towards realising three goals: accountability for perpetrators, redress for victims, and restoring inter-community relations.