The trials of Thomas Lubanga, Germain Katanga and Mathieu Ngudjolo are coming to a close before the ICC. But what about justice for the millions of other victims of the DRC’s conflict that have not been the subject of ICC charges? In this guest commentary, Patryk Labuda[i] critiques the DRC’s attempts to create domestic justice mechanisms to provide justice for victims of war crimes, crimes against humanity, and possibly of genocide. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.

On August 19, 2011, a parliamentary committee of the Congolese Senate convened in a room in the back of the Parliament’s premises in Kinshasa. The only item on the agenda that day was the most recent in a long line of legislative proposals seeking to address a glaring gap in the country’s reform process––the continued impunity for murder of as many as five million people in a genocidal conflict spanning almost a decade.[ii] After a two hour meeting, the committee’s members concluded that the government’s proposal to set up a Special Court for prosecuting international crimes was inadequate, and recommended that it be revised. Though nobody would say it openly at the time, in practice the decision meant that the Senate would not be able to deal effectively with this issue before the November 2011 elections. Put more bluntly, it meant that in the course of its five year mandate, the Congolese Parliament – the country’s first democratically elected legislature in history – had failed to make any progress on one of its citizens’ most pressing demands and one of the biggest challenges of democracy-building in a post-conflict country: bringing to justice perpetrators of war crimes, crimes against humanity and – in the case of the DRC – possibly of genocide.

The decision three days later of the Senate’s plenary assembly to endorse the committee’s recommendation marked the end of a year of exceptional activity in the field of international justice in the DRC. For months national and international NGOs and organizations – including major players, such as the Open Society Institute for Southern Africa, Human Rights Watch, Amnesty International, the European Union, and the US Ambassador-at-Large for War Crimes – had worked with the Congolese authorities to establish a hybrid tribunal for trying international crimes. This post retraces these developments, and analyzes the major legislative, political and legal debates of the last year. Its larger point is that, if the outcome of this year’s efforts was failure, it was in no way foreordained. There is room for cautious optimism regarding the future of international justice in the DRC.

To be sure, before 2010 the DRC had already had a long history of failed legislative and half-hearted executive proposals aimed at ending impunity for international crimes.[iii] The International Criminal Court, present in the country since 2004, had kick-started the process of trying a few high-ranking perpetrators, but it was never intended – as the DRC government has acknowledged on many occasions – to deliver justice to millions of Congolese victims. That task falls first and foremost to the domestic criminal justice system, in line with the Rome Statute’s principle of complementarity. Ten years after the DRC’s accession to the Rome Statute, the sad but harsh reality is that domestic courts in Congo have proved ineffective, with only a handful of trials taking place for war crimes and crimes against humanity.

This regrettable situation could have started changing in 2011. A combination of international and domestic events gave renewed hope to the quest for international justice. The highly publicized release in October 2010 of the United Nation’s Mapping Report “documenting the most serious violations of human rights and international humanitarian law committed within the territory of the DRC between March 1993 and June 2003” almost sparked a diplomatic feud, when it was revealed that Rwanda had lobbied the UN in the hope of removing the word ‘genocide’ from the document. The report’s contents were leaked to the press in an effort to forestall – successfully, as it turned out – any dilution of its impact through backdoor politics. In retrospect, the tentative legal classification of crimes as potentially constituting ‘genocide,’ “…if proven before a competent court”,[iv] seems less important than the sustained impetus it gave to the struggle against impunity in the DRC. In response to the report’s official release, the Congolese government, instead of dwelling on the term ‘genocide’ or other disputable findings and classifications, welcomed its conclusions and pledged to continue the struggle against impunity.

Domestic developments after the UN report’s publication seemed to confirm a renewed drive to implement long overdue justice reform, especially in the area of international crimes. In early November 2010, much to the surprise of international observers and national NGOs, domestic Rome Statute implementation legislation (la proposition de loi de mise en oeuvre du Statut de Rome) finally found its way onto the National Assembly’s agenda. The draft law had been proposed by two members of the National Assembly (the lower house of Parliament), the Honorable Mutumbe and Nyabirungu, in March 2008, but no legislative debate ensued – for reasons that remain obscure – over the next two and a half years. The draft law’s main goals were to amend the definitions of international crimes in Congolese criminal law, and to reform the justice system by shifting jurisdiction over international crimes from military tribunals to civilian courts. These two changes, coupled with a number of mainly procedural improvements, were intended to revive prosecution of war crimes and crimes against humanity in the DRC, in line with international fair trial standards.

The debates on the implementing law held in the National Assembly on November 3 and 4, 2010 revealed deep-seated distrust of the international community and misunderstandings as to the role of the Rome Statute. Many MPs argued against the legislation based on a false understanding of its aims, and, in truth, the proposal came close to collapsing on a completely unrelated matter: abolition of the death penalty. In the end, after intense debate, the draft law was declared admissible (recevable), subject to a number of amendments, and transferred for further consideration to a technical parliamentary committee (the Political, Administrative and Judicial (PAJ) Committee of the National Assembly). Though the Congolese press reacted very positively to news of the admissibility vote, in reality, this largely symbolic act had little practical significance. It was just the first step in a long legislative process, which would still require several parliamentary committees in both the lower and upper houses of Parliament to assess and approve the draft legislation. At the same time, the sometimes vehement critiques voiced against the draft law urged caution – transposing Rome Statute standards into domestic law was not a foregone conclusion at this point.

A series of developments in the following months suggested, however, that a more comprehensive shift in attitudes toward impunity was afoot. In November 2010, barely a month after the publication of the UN report, the Congolese Ministry of Justice circulated a draft law (projet de loi) on establishing specialized chambers for prosecuting international crimes within the Congolese justice system.[v] This was an endorsement of the hybrid court model – along the lines of similar experiments in Cambodia, Bosnia and Herzegovina and Sierra Leone – which the UN had already recommended in its Mapping Report. Informal discussions on such a project in the DRC had actually begun well before the UN report’s release. The draft law was clearly an unfinished product when it came out, but the Ministry of Justice, seemingly acknowledging its many shortcomings, immediately convened a multi-sector conference in late November 2010 to address unresolved problems and discuss possible improvements.

The Ministry’s proposed draft law on specialized chambers heralded the beginning of a flurry of activity in the realm of international justice in the following months. In response to the Ministry’s call for comments, over ten national and international NGOs and organizations submitted detailed recommendations on how best to create an effective hybrid judicial body tasked with addressing impunity in the highly politicized context of justice in the DRC. A synthesis of these recommendations is available online.[vi] For the purposes of this post, it should suffice to highlight only several issues, since they remain as applicable today as they were several months ago.

First, Congolese authorities were exhorted to guarantee – as opposed to making it optional – participation of international staff within the hybrid court structure.[vii] This would, it was argued, ensure greater impartiality and independence from external influence in the carrying out of investigations. Nonetheless, international staff were to remain a minority relative to Congolese officials, similar to the ECCC structure in Cambodia (Extraordinary Chambers in the Courts of Cambodia).[viii] Second, rights of the accused should be secured more effectively than under Congolese criminal procedure. Third, a completely new victim and witness protection and participation system – non-existent in Congolese law – would have to be created and enforced. Fourth, minors under the age of 18 should not be prosecuted by the hybrid chambers. Fifth, the chambers should have primary but not exclusive jurisdiction over international crimes; in other words, crimes of lesser gravity could be remanded to an ordinary Congolese court for trial. Sixth, and following on the previous point, secondary jurisdiction over such crimes would no longer be administered by military courts – civilian courts were to be responsible, as required by international fair trial standards. Last but not least – this was and remains by far the most controversial issue – the specialized chambers should have jurisdiction over all crimes committed after 1990 until the present. The UN Mapping Report had initially covered only crimes between 1993 and 2003, but the government and most national and international observers decided that the specialized chambers should also deal with atrocities committed after the instauration of democratic reforms in the DRC, i.e. after 2002/2003.

The list above is a simplified and tidy expression of an extremely complex set of legal and political problems. Some of these issues defy easy resolution. Other solutions – most notably, the last point regarding temporal jurisdiction – create more problems than they purport to resolve. This post is not the place to discuss such legal technicalities, and anyway there would also be important longer- and shorter-term policy decisions to account for.[ix] What should be noted, however, is that the Congolese Ministry of Justice seemed to recognize the importance of addressing these technicalities. A second multi-sector conference took place in April 2011 in Goma, and though it was co-organized by the Congolese Coalition for Transitional Justice and Human Rights Watch, the Minister of Justice, Luzolo Bambi Lessa, and other government officials attended. Moreover, in the meantime, the Permanent Committee for the Reform of Congolese Law (Commission Permanente de Reforme du Droit Congolais) had been officially tasked by the Ministry of Justice with proposing technical legal amendments to the draft legislation.

Politics soon compounded the complex legal and policy debates alluded to above. One of the main challenges awaiting the Ministry of Justice, as well as its national and international partners, were time constraints related to the country’s second democratic elections in history slated for late 2011. In January 2011, the government pushed a series of constitutional amendments through Parliament (though at least one of these amendments was itself unconstitutional). The most widely reported modification instituted a one-tour presidential election, which Parliament then had to make logistically possible by approving a number of election-related laws. Against this backdrop of highly volatile and politically charged electoral debates, the Ministry of Justice moved forward with its plan to gain parliamentary approval for specialized chambers. The Council of Ministers, an executive body, endorsed the idea of specialized chambers in February, and the draft law was formally submitted for deliberation before the National Assembly in April.

Severe delays in preparing the elections – which, even today, are still reportedly at risk of a last-minute postponement – meant that the draft law on instituting specialized chambers did not come up for discussion until June 13, two days before the end of the spring legislative session. The Minister of Justice presented the project in person in Parliament that day. After a brief summary of the project’s main goals and strengths, large numbers of MPs declined to vote on the draft law’s admissibility. There was a general sense that the legislation was being railroaded through Parliament, without adequate time for debate. The MPs would have none of it and a substantive debate on the project’s merits had to be adjourned until June 15, the last day of the spring legislative session. The June 15 debate will be discussed later, but it should be noted here that, due to this year’s elections, all legislative proposals had to be approved either in the spring session or in the rump fall session (lasting just one month) or else they risked falling by the wayside with the end of Parliament’s five-year mandate.

In light of these time constraints, the MPs unwillingness to endorse specialized chambers as a way of ending impunity may seem counterintuitive, or even downright sinister. Why would representatives of the people not want accountability for international crimes committed in their country? In reality, deeper resentments and misunderstandings lay at the heart of the National Assembly’s decision. As a matter of parliamentary procedure, lawmakers were entitled to a two day break in order to apprise themselves of the law on which they were going to vote. More importantly, many MPs were confused by the suddenness of the proposal, and by the fact that no explanation had been provided by the Minister of Justice as to the specialized chambers’ relationship to the Rome Statute implementation legislation that had already been declared admissible just several months earlier.

The relationship between the two draft laws – Rome Statute implementing legislation and specialized chambers legislation – had been a source of tension for some time, and it would turn out to be the proverbial straw that broke the camel’s back. The tension stemmed from the two laws’ similar objectives, yet different means of enforcement. Both laws sought to reform the law and procedure applicable to international crimes. Under the implementing law, existing Congolese civilian Courts of Appeal would be granted jurisdiction, while specialized chambers would draw on the expertise of both Congolese experts and their international counterparts. The international component – and herein lies the fundamental difference – was intended to provide the specialized chambers with a clear mandate and resources to also pursue crimes committed before 2002 (in addition to crimes committed after that date). In short, the implementing law was a more modest version of the specialized chambers – less ambitious in many respects (especially with respect to past crimes), but probably easier, cheaper and quicker to act on.[x] Yet, despite the urgent nature of the legislative process described earlier, the National Assembly’s PAJ committee declined to work on the Rome Statute implementing law between November 2010 and June 2011. Not until June did a special sub-committee of the PAJ convene, under significant pressure from international actors. Only days before the Minister of Justice’s intervention before the National Assembly, a week-long workshop had finally succeeded in developing a revised draft of the implementing law for the Assembly’s (presumably) approval.

This is the context in which the Minister of Justice presented the specialized chambers legislation on June 13. Having witnessed strong opposition from many Congolese MPs that day, he made the fateful, as it turned out, decision to not return to the National Assembly two days later to defend the proposal; instead, he presented a wholly unrelated and unusual authorization law (loi de habilitation) to the Senate. The law’s sole purpose was to grant the Executive extraordinary powers to legislate in a number of areas of heightened importance ahead of the elections, including the specialized chambers proposal. In reality, the authorization law amounted to a not so discrete attempt at circumventing the constitutionally enshrined legislative process; in other words, something of a coup d’état transferring vast amounts of legislative powers to the executive just months before the elections. The Senate would have none of it. The Minister of Justice, who again personally defended on the floor of the Senate the authorization law’s aims as well as the rationale behind the institution of specialized chambers, was rebuffed by the Senators in barely concealed derisive language.

All was not lost, however. A special summer session of Parliament was called for August, and once again the specialized chambers legislation was on the agenda, presumably due to intense lobbying on the part of the Ministry of Justice. In marked contrast, the Rome Statute implementing law – a parliamentary proposal without government backing – was absent from the agenda of the summer session. The Minister of Justice returned to the Senate to present a revised proposal in mid-August – among other legal tweaks, the hybrid jurisdiction was now reclassified as a ‘Special Court’ – but he was met with widespread hostility yet again. A number of Senators assailed the Special Court as an illegitimate and unnecessary infringement on the country’s sovereignty, and a sign of international meddling in the DRC’s internal affairs. The project was viewed by some Senators as an avowal of political impotence by the government to effect meaningful justice reform. Much criticism was also expressed regarding the financial feasibility and sustainability of a hybrid court, and in particular the issue of staff remuneration. Several Senators decried what they viewed as an unavoidable and unfair discrepancy in pay between Congolese court personnel and their international counterparts, which would only serve to perpetuate resentment and hostility between Congolese and foreigners. These and other more minor criticisms suggested that the draft law may be in danger of outright rejection (though this was hardly foreordained), when, in a rather unanticipated turn of events, the President of the Senate, Leon Kengo wa Dondo, did not even allow a vote on the draft law’s admissibility, as was procedurally required of him. This departure from parliamentary procedure seemed worryingly reminiscent of Mobutu-era power politics. Despite violent protests, Kengo refused to budge on the matter – arguing, inter alia, that ‘if you don’t approve it now, the UN will force you to do so anyway’ – and the draft law was in the end forced through the Senate and sent directly to its PAJ committee for further consideration (the Congolese Senate has a separate PAJ committee).

This temporary lifeline proved illusory. The Senators in the PAJ committee rebelled, mindful of how in June the Minister of Justice had attempted to circumvent the legislative process, and how, in this case, the Senate’s President had used ethically and procedurally controversial means to keep the draft legislation afloat. As I noted in this post’s first paragraph, the committee’s members declined to endorse the Special Court on August 19, 2011. Instead, they recommended that the Special Court legislation be merged with the Rome Statute implementing law, with a view to effecting wholesale and coherent justice reform in the area of international crimes. Their proposal was as wise in the abstract as it was unrealistic in practice. Due to time constraints, as well as the complexity and political sensitivity of the task they were calling for, the committee’s decision meant that there would be no tangible progress on the struggle against impunity until after elections, and that the Parliament’s five year mandate will have expired with no new legislation on international crimes. Justice for millions of victims of the country’s wars was once again put on hold, with no guarantee as to when the country’s impunity gap could or would be addressed.

It was an anticlimactic finale to a busy year. There is no denying that the Senate’s rejection of the idea of a Special Court and Parliament’s failure to enact Rome Statute implementation legislation were both serious setbacks for the pursuit of international justice. The Congolese government, through its Ministry of Justice, committed a series of tactical blunders in addressing what is, at the end of the day, a highly politicized and volatile question. It is no coincidence that the first Senator to rail against the Special Court during the summer legislative session was a representative of the former RCD-Goma faction, whose members have long been suspected of serious violations of international humanitarian law in eastern Congo. Indeed, for some Congolese public officials and state agents (especially in the military), accountability for international crimes is hardly an abstract quest for justice. It means choosing between freedom and potential incarceration.

But it would be a mistake to attribute this setback to power politics only. Deeper forces, both of an ideological and institutional nature, were at play, and there are lessons to be learned from these experiences. Thus, it would seem that greater outreach has to be undertaken to explain the ideas behind international criminal justice. Congolese parliamentarians must be apprised of what is at stake in order to avoid perpetuating false dichotomies, such as choosing between justice for victims and international meddling, enacting the Rome Statute or abolishing the death penalty, improving the domestic justice system or abdicating national sovereignty. Domestic civil society and the international community must better coordinate their activities to make this outreach effort possible. The United Nations, conspicuously absent from most negotiations this year and last (following the Mapping Report’s publication), should be more involved. More attention should also be paid to old repositories of power, such as the military justice system, which is clearly trying to maintain its sway over international criminal justice. Neutralizing the military’s political clout and judicial influence is not an easily attainable goal, and a lot will depend on the government’s resolve to confront entrenched power structures.

This year’s elections, the second democratic vote in the nation’s history, harbor both promise and risk. The inauguration of a new group of parliamentarians and, potentially, of a new government (this is less likely as President Joseph Kabila is expected to win re-election) could mark the beginning of a new era for justice efforts in the DRC. But implementing reform will depend, as ever, on learning from in-country experience and avoiding past mistakes. Despite Parliament’s inability to implement reforms this term, this year’s debates surrounding accountability for international crimes have increased awareness of the issue among the Congolese, and given rise to renewed hope and expectations among victims. The government has responded by taking concrete steps – not enough, to be sure – to bring to justice perpetrators of serious human rights violations. This is reassuring. Ultimately, ending impunity can only happen with the support of the Congolese people. But, until that happens, the international community must continue to remain engaged with Congolese stakeholders toward this end by advancing domestic reforms that meet international standards.