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The Democratic Republic of Congo is a vast territory over which state institutions do not have complete control. A pays-continent, it has a complex and diverse social fabric. In addition to decades of oppression and kleptocracy, its recent conflicts have resulted in an estimated 5.4 million dead, according to the International Rescue Committee. Hundreds of thousands have been displaced, there are countless victims of gross human rights violations and international crimes, the economy has been ravaged and social cohesion destroyed.

The Sun City Accords (2002) established a transition based on power-sharing arrangements among the belligerents of the 1998-2002 conflict. Political expediency prevailed as the transitional partners ignored the pressing demands of justice and human rights agendas. The incomplete nature of the settlement is illustrated by the resumption and escalation of fighting in the east in 2007. The Goma Conference for Peace, Security, and Development (2008) in the Kivus brought an (apparent) end to the military standoff in the Kivus and was essentially conducted in an atmosphere similar to Sun City. Despite community and civil society representation, victims' voices were largely absent from both. Neither Sun City nor Goma credibly accounted for the root causes of the conflict or indicated how they might be addressed.

Within a generalized culture of impunity, the key transitional justice issues in the DRC are:

• Impunity within the security forces: The formation of a new national army from the forces of the Sun City signatories and some other militias, along with various disarmament, demobilization, and reintegration (DDR) programs, did not address the legacy of massive and systematic human rights violations committed during the war. (An in-depth study of DDR and transitional justice in the DRC will be published by the ICTJ in mid-2008.) Often demobilize combatants remained in the very "communities they had been terrorizing.

 

The DDR programs remain incomplete, with armed groups still at large. The most notorious groups are the CNDP (le Congrès Nationale pour la Défence du Peuple), led by Laurent Nkunda, and the FDLR (Forces Démocratiques de Libération du Rwanda), composed of suspected genocidaires and others who fled the Rwandan genocide of 1994. These groups and others like them continue to terrorize the population and commit serious human rights violations.

The FARDC (Forces Armées de la République Démocratique du Congo) is now an ill-disciplined and badly paid force. Considerable evidence suggests that in its senior ranks are men who orchestrated international crimes and other serious human rights violations. Not only is retributive justice for past crimes in question, but the opportunity has been missed to prevent ongoing and future crimes. The police and army together are believed to be responsible for 80 percent of ongoing human rights violations against the population-due, no doubt, at least partly to the climate of impunity for the most heinous crimes.

• Weakness of the domestic justice sector: A year after the elections, reform of the justice sector has made less progress than hoped. Despite considerable support for training and rehabilitation of judicial infrastructure, corruption continues to be endemic, including, most insidiously, the protection of higher political interests. Furthermore, all-encompassing military jurisdiction over human rights violations has yet to be reformed. Although the DRC is a signatory to the Rome Statute, the Statute has not yet been adopted into domestic law. Some military tribunals, which have jurisdiction over international crimes, have brought some cases to trial; but so far only low-ranking soldiers have been found guilty. Even when prison sentences have been handed down, the state of the penitentiary system is such that most of those convicted escape almost immediately.

 

The transfer of three Iturian warlords to the International Criminal Court is naturally a welcome development. However, for justice to be done-and to be seen to have been done-the orchestrators of international crimes from provinces other than Ituri, and for crimes predating the ICC's jurisdiction instituted in 2002, must also stand trial, preferably on Congolese soil.

• Victims' voices and the right to truth: The perpetrators of massive and systematic human rights abuse have not been brought to justice, and victims must often live alongside them, without any recourse to redress for-or acknowledgment of-the serious violations they have suffered.

 

The Truth and Reconciliation Commission established in Sun City was not credible for several reasons. Not only did the commissioners include representatives of the belligerent parties; the Commission did not hear a single case. Yet to restore the social fabric of the DRC, some form of truth-telling will be necessary, whether through formal, informal, national, or local initiatives. However, any future initiatives must place the victims and their voices, rather than the perpetrators and their political agendas, at the heart of the process.

• Women and girls: The extent of rape and sexual violence in the DRC has been described as "epidemic" and has spread beyond the military context into the civilian sector. Despite the 2006 Congolese law prohibiting rape, which sets down a broad and sophisticated definition, very few courts and magistrates prosecute it.

 

Women and girls are also victims of other human rights violations, a fact that tends to be overlooked or downplayed, and are usually considered less important than male victims. Finally, the role of women in Congolese society is such that not only are female victims overlooked, but the potential for female leadership in addressing the DRC's legacy tends to be undermined.

The ICTJ has helped promote commitment to an integrated transitional-justice approach in war-ravaged DRC since March 2003. In January 2004 the ICTJ hosted an international workshop in Cape Town, South Africa, to discuss transitional justice options for the DRC. In October 2004 the ICTJ published its report, "A First Few Steps: The Long Road to a Just Peace in the DRC," which formed the basis of the ICTJ's initial programming in the DRC. Because of the significance of the DRC conflict for the Great Lakes region, and thanks to the Swedish government's generous investment in the Center's integrated transitional-justice agenda for the DRC, the ICTJ established a permanent presence in the country in 2006.

The ICTJ's programming in the DRC focuses on the following transitional-justice approaches to help the DRC address its past:

Truth-seeking: The Center provided critical comments on draft legislation to establish a Truth and Reconciliation Commission (TRC) and held workshops and consultations on transitional justice in Kinshasa and in eastern DRC with local civil society groups, the UN Mission in the DRC (MONUC), and international NGOs.. After the creation of the TRC the Center has continued to promote the importance of widespread consultation appointment of independent and credible commissioners. In June 2006 the ICTJ co-organized a seminar that focused on the workings of the TRC. Participants in this seminar recommended the creation of a TRC "steering committee," composed of representatives from the TRC, MONUC, UNDP, OHCHR, the ICTJ, the Norwegian Church, and two local civil-society organizations. For some participants the steering committee's objective would be to advocate for a new TRC before the newly elected members of Parliament, but the ICTJ's participation was based on the undertaking that this committee would investigate future options for truth-seeking in the DRC, based on an assessment of the TRC's work. Because the TRC was partly the product of a political deal between belligerents, it has failed to capture the imagination and serve the aspirations of communities in the DRC. Although many look forward to a more credible truth-seeking process, serious proposals for a truly victim-centred process have yet to be made.

Criminal Prosecutions: The Center has also supported the idea of establishing an international criminal tribunal, as envisaged in the peace accords. In June 2005 in Kinshasa, the ICTJ played an important technical-assistance role in a three-day seminar hosted by MONUC on the establishment, structure, and nature of the specialized chambers of the domestic court system. The seminar generated important debates and strategic discussions among civil society, government, and human rights organizations to facilitate the eventual creation of these courts.

In the meantime the prosecutor of the International Criminal Court (ICC) opened an official investigation into crimes committed in the DRC. So far three Iturian warlords. Thomas Lubanga, Germaine Katanga, and Mathieu Nguojolo, have been transferred to The Hague. The ICTJ supports the ICC's work to prosecute serious violations of human rights and international humanitarian law in the DRC. In March 2007 the Center released a report on the ICC's outreach strategy in the DRC, "Sensibilisation à la CPI en RDC: Sortir de "Profil Bas".

Work with women's associations: Gendered patterns of violence and support for women's participation in transitional justice issues are strong cross-cutting themes of all our programming in the DRC. In June 2007 the ICTJ held a consultative seminar with women's associations from across the country to assess their needs and priorities in addressing transitional justice. Women and girls have experienced massive and systematic abuse of their rights through sexual violence, displacement, and killing. They have been denied access to education and health services, forced into armed groups, sexually enslaved, and exploited economically. Violence against women and abuse of their rights continue even in the "post-conflict" environment, and many of the crimes committed against women and girls are overlooked and downplayed. The ICTJ will continue to work with women's associations at the grassroots level and integrate their specific concerns in all our thematic work.

In 2007 the ICTJ, in partnership with the University of California, Berkeley, and Tulane University and the BBC World Service Trust, conducted the first survey of victims in the DRC. Based on interviews in the Kivus, Province Orientale, and Kinshasa, the survey was designed to determine levels of victimization and to give victims the opportunity to express their hopes and desires for addressing crimes of the past. The survey results and analysis will be published and launched in the DRC during 2008 and should provide a unique insight into how victims articulate their justice needs.

Institutional Reform: During the transition the ICTJ's expert Security Sector Reform (SSR) team conducted an in-depth mission to the DRC to assess the potential of justice-sensitive SSR, particularly of the police. The program continues to advocate for the removal from public office of individuals known to have committed serious human rights violations.

Capacity building: The ICTJ has sought to contribute to capacity building on transitional justice issues. In April and October 2006 and November 2007, the ICTJ organized training for stakeholders in the local peace process in Bunia, Ituri district. The ICTJ regularly supports Congolese participants in international transitional-justice training courses such as the essentials courses and Rabat Fellowship.

Advocacy and Research: The ICTJ continues to advocate in-country and internationally for an end to impunity in the DRC and for national and international support for genuine, victim-centred transitional-justice measures. In September 2007 Roberto Garreton (former UN special rapporteur on human rights in the DRC) led a mission to raise awareness of transitional justice there, with particular focus on reparations for victims.

The Center commissions studies into key transitional justice issues in the DRC. Research into the extent to which Security Sector Reform programs have been justice-sensitive, and into the legacy of impunity in mediation are underway.

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Background

More than 30 years of brutal and corrupt dictatorship under Mobutu Sese Seko ended in May 1997, when rebel forces under the command of Laurent-Désiré Kabila took control of Kinshasa with support from the governments of Burundi, Rwanda, and Uganda. Many of Kabila's former supporters soon abandoned him, however, as he quickly adopted the tendencies and policies of his predecessor.

Rising tensions culminated in Kabila's expulsion of Rwanda and Uganda [be more specific] from the DRC in August 1998. Those countries responded with troop support for forces opposing Kabila, launching the second Congo war. This conflict eventually came to be known as Africa's world war; it has directly involved nine African states and some 20 armed factions. with millions more displaced.

In January 2001 Kabila was assassinated and replaced by his son, Joseph Kabila, who negotiated a partial withdrawal of Rwandan, Ugandan, and rebel forces from DRC territory. Formal peace agreements followed with Rwanda and Uganda in July and September 2002 respectively.

Even after agreement on a transitional constitution was reached in April 2003 and a transitional government was created in July, fighting continued, involving local ethnic groups, proxy militias supported by Uganda and Rwanda, UN forces, and breakaway factions of the national army. Atrocities against civilians and the pillaging of natural resources continue in the volatile regions of Ituri, North Katanaga, and the Kivus. The majority of the population lives in extreme poverty, afflicted by disease and malnutrition.

All actors involved in the conflict continue to voice the need for justice, reconciliation, and an end to impunity. The Congolese government has called several times for the UN to set up an international tribunal. The DRC has ratified the Rome Statute of the International Criminal Court (ICC), which in April 2004 opened an investigation into crimes committed in the country. A truth and reconciliation commission and a national observatory of human rights were also created in accordance with the peace accords; yet neither institution was credible or effective.

The presidential and legislative elections of 2006, culminating in the swearing-in of President Kabila in December 2006 and the establishment of national and provincial parliaments, marked the end of the transition and the birth of the Third Republic. However, a year after the elections and formation of the government, the newly elected leaders face serious challenges as parts of the country, notably the east and Bas-Congo, remain outside state control.

The Goma Conference on Peace, Security, and Development in North and South Kivu (January 2008) sought to end the military standoff between the army and the forces of the dissident leader, Laurent Nkunda. Follow-up institutions are still to be established, and the ceasefire itself, the basis of the Actes d'Engagement, is under threat.

There are still no signs of meaningful reconciliation, and the military is still synonymous with insecurity and instability. The civilian population is still targeted and the death toll continues to rise, as vulnerable people are victimized systematically. Ongoing levels of rape and other forms of sexual violence and torture have been described as "epidemic."

The violence and fragility of democratic institutions are challenges that the DRC government must urgently address with the assistance of its international partners and the UN. The government's commitment to fight impunity and promote justice and reconciliation must be matched by deeds. The elected institutions must fulfill their duty to deal with past human rights abuses by adopting an integrated approach to transitional justice.

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(Updated May 2008)