Volume X - Annexes 6.1 - 7.4

Note: This translation has been prepared by the Registry for internal purposes and has no official
character
14690
INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING ARMED ACTIVITIES ON THE TERRITORY OF THE CONGO
(DEMOCRATIC REPUBLIC OF THE CONGO v. UGANDA)
SECOND PHASE
QUESTION OF REPARATION
MEMORIAL
OF THE
DEMOCRATIC REPUBLIC OF THE CONGO
VOLUME 10
(Annexes 6.1 to 7.4)
September 2016
[Translation by the Registry]
LIST OF ANNEXES
Volume 10
Annexes 6.1 to 7.4
Annex Page
Chapter 6
6.1 Paul Collier and Anke Hoeffler, Aid, Policy and Peace: Reducing the Risks of
Civil Conflict, 2002, World Bank, Washington DC
1
6.2 Study by a team of economists from Kinshasa University on the effects of the
conflict on the economy of the DRC
2
Chapter 7
7.1 Basic Principles and Guidelines on the Right to a Remedy and Reparation for
Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law; Annex to resolution 60/147
adopted by the United Nations General Assembly on 16 December 2005
20
7.2 United Nations General Assembly, Sixty-ninth Session, Report of the Special
Rapporteur on the promotion of truth, justice, reparation and guarantees of
non-recurrence, document A/69/518, 14 October 2014
26
7.3 International Centre for Transitional Justice, The Accountability Landscape in
Eastern DRC. Analysis of the National Legislative and Judicial Response to
International Crimes (2009-2014), July 2015
50
7.4 Evaluation of the military damage suffered by the DRC armed forces and caused
by the Ugandan army and its allies, Kinshasa, 31 August 2016
133
ANNEX 6.1
Paul Collier and Anke Hoeffler, Aid, Policy and Peace: Reducing the Risks of
Civil Conflict, 2002, World Bank, Washington DC
[Original English: not reproduced]
___________
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ANNEX 6.2
Study by a team of economists from Kinshasa University on the effects
of the conflict on the economy of the DRC
[Relevant extracts only]
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Study by a team of economists from Kinshasa University on the effects
of the conflict on the economy of the DRC
[Translation]
Evaluation of the macroeconomic injury resulting from Uganda’s
armed aggression against the DRC
Introduction
1. Background
By its Judgment of 19 December 2005 the International Court of Justice (ICJ) established
that Uganda was responsible for having unlawfully occupied the territory of the DRC from 1998
to 2003.
It is now our task to quantify the damage caused to the DRC by the Ugandan army’s military
activities during that period of occupation.
The damage caused to the DRC fell into various categories, including in particular:
(i) breaches of human rights and humanitarian rights;
(ii) the use of force; and
(iii) the looting of natural resources.
However, it is increasingly recognized that war not only leads to breaches of human rights
and humanitarian rights and the looting of natural resources, but also disrupts the operation of the
entire economy of the country attacked and creates problems in every sector (agriculture, tourism,
education, public health, etc.).
It is thus acknowledged that the effects of armed conflict are not time-specific. They persist
long after the events which caused them have faded away. They are what are known as the
“hysteresis effects of armed conflict”, such as post-traumatic stress and psychological disorders,
permanent physical injuries, bullet and shell impacts, displaced persons, refugees and rape victims,
children forcibly recruited as soldiers, etc., (Blanchard, O. and Summers, L. (1986)).
The academic literature currently focuses on the impact of war on economic growth and its
effect on the organization of production activities and on the increase in poverty
(Chauvet, L. (2008); Collier, P. & Hoeffler, A. (2002); Collier, P., Hoeffler, A. & Soderborn, M.,
(2004); Collier, P. & Hoeffler, A. (2006); Collier, P. & Hoeffler, A. (1999); Collier, P. (1999);
(2002); Collier, P., Hegre, H., Hoeffler, A., Reynal-Querol and Sambanis, N. (2003); Elbadawi, I.
& Sambanis, N. (2001); Serneels, P. & Verpoorten, M. (2012); Kathy L. Powers and
Kim Proctor, (2016)).
War not only destroys infrastructure and buildings but also has a very significant impact on
growth in gross domestic product (GDP), production in all sectors, the current account balance
(because of changes in the balance of trade, tourism and services and outflows linked to payments
for imported weapons, military equipment and external services), debt, currency reserves, public
finances and gross investment.
The Ugandan army’s occupation of the DRC caused macroeconomic injury which our report
seeks to evaluate because, as we noted above, war not just affects the conflict zone but also
paralyses the normal operation of the entire national economic system.
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2. Methodology
In order to determine the level of macroeconomic injury caused by the Ugandan army’s
occupation of the DRC, we used the model by Collier and Hoeffler (1999)1, two World Bank
economists who specialize in modelling the impact of war on the performance of the economies
affected, using time-series.
This model, called the “rebellion model” by Robert Solow, is a nonlinear endogenous growth
model (Solow-Swan) which uses gross domestic product (GDP) as a dependent variable, and, as
explanatory variables, other macroeconomic aggregates such as population (POP), exports
(EXPORT), imports (IMPORT) and foreign direct investment (FDI), and it includes a special
variable (WAR) measuring the effects of war.
The data on these variables were obtained from the database at Sherbrooke University in
Canada, which is used in many international studies. The database is impartial, regularly updated
and covers every country in the world. Called “Perspectives Monde”2, this teaching resource
shows the main global trends since 1945. It was itself developed from the World Bank database.
The data on the variables gross domestic product (GDP), population (POP), exports
(EXPORT), imports (IMPORT) and foreign direct investment (FDI) used in our report (1960-2008)
have been taken from this source, updated to 10 July 2015 (see Annex 1).
Before beginning a proper econometric estimate, we will examine the characteristics of the
descriptive statistics for the different variables, including mean, median, standard deviation,
skewness and kurtosis, using a computer program which analyses statistical and econometric data
(Eviews version 9.0), in order to obtain measures of central tendency for each variable and their
distribution rates.
These measures are essential, since they describe the overall movement in a long-term
phenomenon regardless of small-scale variations in the long term (cyclic variable), medium term
(seasonal variable) or short term (random variable).
We will then conduct a correlation analysis in order to identify the binding force or degree of
association between the variables in question, using a correlation matrix provided by the
STATA 13.1 computer program for analysing statistical and econometric data. Where two
phenomena develop in parallel with each other, they are said to be correlated in the sense that one
influences the other; in the opposite case, neither has any influence on the other, which means that
they are not correlated (Greene, W., 2005).
After the correlation analysis, we will conduct an actual econometric study in order to
evaluate the impact on the Congolese economy of the war of aggression waged by Uganda. The
loss of revenue sustained by the Congolese economy will thus be calculated.
Summary work plan
Section 1. Analysis of characteristics of descriptive statistics
Section 2. Correlation analysis
1Collier, P. & Hoeffler, A. (1999), On the economic consequences of civil war, Oxford Economic, Paper, No. 51,
168-183.
2http://perspective.usherbrooke.ca/bilan/servlet/BMTendanceStatPays?code…
P.KD&codePays=COD&optionsPeriodes=Aucune&codeTheme2=2&codeStat2=x&codePays2=COD&optionsDetPeriod
es=avecNomP&langue=fr.
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Section 3. Econometric analysis
Section 4. Evaluation of macroeconomic injury
Section 1. Analysis of characteristics of descriptive statistics
This analysis provides us with measures of central tendency for each variable and the
distribution rate for each one (Table 1).
Table 1. Elements of descriptive statistics
Key:
E+ means Exponent; E+10 = Exponent 10, i.e., 10 thousand million; 1.48E+10 = 10,000,000,000
multiplied by 1.48 = 14,800,000,000 or 14.8 thousand million.
[PIBCONSTA = constant GDP; INVESTISSE = investment; DFLATEUR = deflator; Jarque
Bera = Jarque Bera dispersion statistic.]
Source: calculated using the Eviews 9.0 program
This analysis of the characteristics of the descriptive statistics enables us to identify the
overall movement in each of the variables over the long term regardless of small-scale variations.
 The DRC’s average annual GDP was US$12.8 thousand million between 1960 and 2008,
having reached a peak of US$19 thousand million in 1987. It was narrowly dispersed around
the average;
 the average annual Congolese population (POP) was 36 million; it was narrowly dispersed
around this average during the period under consideration;
 exports of goods and services (EXPORT) represented an annual average of US$1.39 thousand
million; they were very narrowly dispersed around this average during the period under
consideration;
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 imports of goods and services (IMPORT) represented an annual average of US$1.32 thousand
million and were very widely dispersed around the average during the period under
consideration;
 foreign direct investment (INVEST) represented an annual average of US$144 million and was
very widely dispersed around the average.
Section 2. Correlation analysis
A correlation analysis was then conducted in order to identify the binding force or degree of
association between the variables in question, using a correlation matrix provided by a computer
program for analysing statistical and econometric data.
In economics, where two phenomena develop in parallel with each other, they are said to be
correlated. Although a correlation may show that armed conflict has some influence on the pace of
economic development or decline, it does not establish or prove the causality between that impact
and the conflict itself. This is why, in addition to the correlation analysis, an actual econometric
study will be conducted, in order to evaluate the impact on the Congolese economy of the war of
aggression waged by Uganda. The loss of revenue sustained by the Congolese economy will then
be calculated.
The table below shows a negative correlation between production (GDP), population (POP),
foreign direct investment (FDI) and the 1998-2003 Ugandan war (WAR) and vice versa. It also
identifies a positive correlation between GDP and net exports.
The table forms a symmetrical triangular matrix showing each of the variables in columns
and lines. It thus shows the same results twice, in the two triangles above and below the diagonal
line of 1’s where the same variables meet. By way of illustration, where the first column (GDP)
and the second line (POP) intersect, the figure -0.41030 shows a negative correlation between those
two variables. In the next line down, the figure [-0.0034], in other words three in a thousand,
shows the probability of that correlation.
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Table 2. Correlation matrix with significance level
GDP Population Exports Imports Investment War
GDP 1 -0.41030 0.00080 0.00510 -0.19150 -0.54900
Prob. [ . ] [-0.0034] [0.9955] [0.9721] [0.2429] [0.0000]
Population -0.41030 1 0.77250 0.74180 0.53070 0.45080
Prob. [ . ] [-0.0034] [0.0000] [0.0000] [0.0050] [0.0012]
Exports 0.00080 0.77250 1 0.96980 0.69090 0.18130
Prob. [ . ] [0.9955] [0.0000] [0.0000] [0.0000] [0.2124]
Imports 0.00510 0.74180 0.96980 1 0.73950 0.11190
Prob. [ . ] [0.9721] [0.0000] [0.0000] [0.0000] [0.4438]
Investment -0.19150 0.53070 0.69090 0.73950 1 -0.0180
Prob. [ . ] [0.2429] [0.0050] [0.0000] [0.0000] [0.9132]
War -0.54900 0.45080 0.18130 0.11190 -0.0180 1
Prob. [ . ] [0.0000] [0.0012] [0.2124] [0.4438] [0.9132]
Source: from Stata 14.1 program database
This analysis of the six variables used clearly shows that there is a negative correlation
between production (GDP), population (POP), foreign direct investment (FDI) and the 1998-2003
Ugandan war (WAR) and vice versa.
Section 3. Econometric analysis
This analysis will enable us to determine the impact on the Congolese economy of the
Ugandan army’s war of aggression.
The analysis will be divided into four main phases:
1. Specimetrics
2. Estimation
3. Validation
4. Interpretation
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3.1 Specimetrics
We will now present the different variables in question and the relationships between them,
in the form of a mathematical model which will enable us to represent the phenomenon studied.
This will be done in three stages: economic specification, mathematical specification and
econometric specification.
3.1.1 Economic specification
The model initially used is an endogenous growth model. The operational analytical
framework for the interaction between war and economic growth is based on the augmented Solow
model, which involves additional variables to those originally used by Robert Solow. This model
takes account of factors affecting growth through total factor productivity. In order to do so, the
model needs an operational framework, and we use a Cobb-Douglas functional form, as follows:
Y = AKα Hβ L1-α-β (1)
If we consider the intensive function of equation (1) and apply the differential to the
log-linear form, we get:
g y = g A+ αg k + βg h + γg 1 (2a)
where g y represents the growth rate of the variable Y; g A represents the logarithm for technical
progress A; g k represents the growth rate of the physical capital variable (K); g h represents the
growth rate of the additional variables in the augmented Solow model (H), and g 1 represents the
growth rate of the human capital variable (L). The only variable which cannot be directly
determined in ratio (2a) is the growth rate of technical progress. This is obtained indirectly as a
residual known as the “Solow residual” after adjustment:
g A = g y – αg k – βg h – γg 1 (2b)
The total factor productivity (TFP) accounts for the share of the growth rate that cannot be
explained by the growth rate of the factors K and L.
In addition to human capital, other variables also contribute to the process of economic
growth, particularly government action in terms of investment to guarantee the population’s
well-being or security, openness to international trade, and peace (absence of civil unrest or wars).
3.1.2. Mathematical specification
Here we include in the model described above (economic specification) the different
variables taken into consideration in the study of the Congolese economy.
This gives us the following production function:
Q t = A(t)F(K t , LC t , H(EXPORT , IMPORT , WAR)) (3)
where Q t , A(t), K t , LC t and H t represent, respectively, the production vector (GDP), the
measure of technical progress, physical capital (FDI), human capital or workforce (population), and
a composite vector of the additional variables (exports, imports and war).
Q t = AK t
α LC t
β1 H t
βk (4)
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This Cobb-Douglas production function can be linearized through log transformation so that
the coefficients enable us to measure the elasticities of the variables lk, llc and lh.
lq t = Ʌ + α * lk t + β 1 * llc t + β k * lh t (5)
3.1.3. Econometric specification
The final model to estimate will thus be the linearized form, and we will include the error
term (ε t), which will record errors of measurement, specification and sampling.
lq t = Ʌ + α * lk t + β 1 * llc t + β k * lh t + ε t (6)
3.2. Estimation
At this stage in the reasoning, we will produce a model estimation using two statistical
methods (the ordinary least squares (OLS) method3 and the generalized method of moments
(GMM4)), which enable the coefficients of the model to be calculated in the form of elasticities in
order to measure the sensitivity of economic growth to variation in one of the model’s exogenous
variables. The results are shown in the table below.
3In statistics, in econometrics, a linear regression model estimates the relationship between a dependent variable
and one or more explanatory variables, based on the assumption that the parameters of the function connecting the
explanatory variables to the dependent variable are linear. This is therefore known as a linear model or linear
regression model.
The ordinary least squares method (OLS) is the technical name for mathematical regression in statistics, and
particularly linear regression. Multiple linear regression is a statistical analysis which describes the variations in an
endogenous variable associated with the variations in multiple exogenous variables. It involves arranging a scatter
diagram according to a linear ratio in the form of the matrix equation Y=βX+ Et, where Et is an error term. The ordinary
least squares method consists of minimizing the sum of the squared deviations, or weighted deviations in
multidimensional cases, between each point in the scatter diagram and its projected position, parallel with the ordinate
axis, on the regression line (https://fr.wikipedia.org/wiki/R%C3%A9gression_lin%C3%A9aire_multiple),
(https://fr.wikipedia.org/wiki/M%C3%A9thode_des_moindres_carr%C3%A9s_ord…).
4The method of moments is an intuitive estimation tool dating from the early days of statistics. It consists of
estimating the parameters required by equating certain theoretical moments (which depend on those parameters) with
their empirical counterparts. The reason for equating them in this way is that the law of large numbers implies that a
mathematical expectation can be “approximated” by an empirical mean. It is therefore necessary to resolve a system of
equations (https://fr.wikipedia.org/wiki/M%C3%A9thode_des_moments_(statistiques)).
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Table [3.] Impact of the war on the DRC’s economic growth
Explanatory
variable
Gross domestic product (Ln_GDP)
OLS method Generalized method of moments
Coefficient t-stat Coefficient t-stat
Constant 118.9006 3.42** 35.188228 15.02***
Population
(Ln_POP)
-5.763812 -2.74** -1.322793 -6.43***
Exports
(Ln_Export)
0.70795135 2.41**
Imports
(Ln_Import)
-0.1770564 -0.88
Investment
(Ln_FDI)
1.05e – 10 1.90*
Ugandan war
(WAR)
-0.0753868 -1.81* -------------- Var. instrument
Time (Trend) 0.1567149 2.57**
R2=0.5155 F(1 ; 44)=4.03 R2=0.2841 Wald, chi(2)=48
N=48 DW-stat=1.61 SCR=0.13 426 Root MSE = 0.18
Key: ***, **, * = degree of significance at threshold of 1 per cent, 5 per cent and 10 per cent
respectively
OLS: ordinary least squares method
Source: Congolese authorities, using Eviews 9.0 program
In the light of the results of the final model estimation in table [3], we can conclude that
Uganda’s military aggression, population and time all have a negative effect on GDP growth in the
Democratic Republic of the Congo.
We can see that every reduction by a population unit produces a 5.76 per cent reduction in
GDP over the period under consideration.
Similarly, war has a negative effect on GDP growth, resulting in a reduction of around
0.08 per cent of GDP.
Finally, we can see from table [3] that the estimated parameters (columns 2 and 4)
representing the elasticities proved stable over the relevant period. We can therefore draw the
following conclusions:
 the model is sound (the variance explained by the model is R2 = 0.52, which is an average
level; the model appears very sound);
 the variance analysis table and the associated F-test show that the model is actually highly
significant overall; Fcalc = 4.03, with a critical probability (p-value) far below the 5 per cent
threshold currently used in practice;
 the variables Ln_POP, WAR and Time have a very high explanatory power for the variation in
the dependent variable Ln_GDP. In fact, 55.5 per cent of the variability in Ln_GDP is
explained by the variation in Ln_POP, Time and WAR;
 as for the generalized method of moments (GMM) model, its explanatory power is weak at
28 per cent, even though the explanatory variables have again been extended to include exports
of goods (Ln_Export), imports of goods and services (Ln_Import) and foreign direct
investment (Ln_FDI).
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The two outcomes above, produced by the OLS and GMM methods, confirm the negative
impact which the war had on the DRC’s economic growth.
The model was then validated in two main phases: parametric validation and non-parametric
validation. The first involved validating the linear equation resulting from table [3] by comparing
it with the parameters of a theoretical linear equation using the hypothesis testing procedure  the
hypothesis here being that the war had a negative influence on GDP. The second involved
obtaining a small number of statistics providing an overall view of the relationship between the
explanatory (or independent) variable and the explained (or dependent) variable.
These operations, analyses and tests demonstrate that the model is valid and support the
conclusion that the war which affected the DRC between 1998 and 2003 had a negative influence
on its GDP growth (graph 1): the POP, WAR and Time variables broadly account for the negative
impact on the GDP dependent variable.
Table 4. Analysis of relaxing of econometric hypotheses
Tests Gross Domestic Product (Ln_GDP)
1. Box-Pierce Q-stat 11.848
Prob. Q-stat 0.001
Ljung-Box Q-stat 2.6716
Prob. Q-stat 0.102
2. LM (Breush Godfrey) (2 lags)
F* 3.722886
Prob. F (2,43) 0.0323
Obs*R² 7.232376
Prob. Chi-Square (2) 0.0269
3. Breush-Pagan-Godfrey Test (1 lags)
F* 0.634713
Prob. F*-stat (3,45) 0.5965
Obs*R² 1.989223
Prob. LM-stat 0.5746
4. White Test (9 lags)
F* 1.984622
Prob. F*-stat (3,35) 0.0785
Obs*R² 14.86510
Prob. Chi-Square (3) 0.0947
Scaled explained SS 17.45315
Prob. Chi-Square (3) 0.0421
5. Glejer Test (3 lags)
F* 1.625412
Prob. F*-stat (3,35) 0.2011
Obs*R² 4.769086
Prob. Chi-Square (3) 0.1895
Scaled explained SS 4.969203
Prob. Chi-Square(3) 0.1741
6. Normality Test
Jarque-Bera (h=18) 4.635767
Prob. 0.098482
7. Reset Test (lags 1)
t-statistic 1.081458
Prob. t*-stat 0.2871
F*-stat 1.169551
Prob. F*-stat 0.2871
Source: our calculations using Eviews 9.0 software
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3.3 Validation
In this section of the econometric analysis we will assess the validity of the estimations
carried out in point 3.2. Validation is conducted in two main phases: parametric validation, and
non-parametric validation.
3.3.1. Parametric validation
This phase, known as “parametric empirical inference”, is used to validate individual
estimators by comparing them with the parameters in the theoretical linear equation. The most
usual procedure for doing this is hypothesis testing of the parameters.
The significance test for the coefficients is based on Student’s t-statistic. The test hypotheses
are formulated as follows:
 Ho: βi = 0 , the coefficient is significantly equal to zero
 Hl: βi ≠ 0 , the coefficient is significantly different from zero
The critical region is as follows:
 where Student’s t-statistic is ≥ 2 and the value of the probability associated with the test’s
t-statistic (or the lowest value above which the null hypothesis is accepted) is < 0.05, then the
null hypothesis is rejected (RHo).
 where Student’s t-statistic is < 2 and the value of the probability associated with the test’s
t-statistic (or the lowest value above which the null hypothesis is accepted) is ≥ 0.05, then the
null hypothesis is accepted (AHo).
Thus, in the light of the results of table 3, we can conclude as follows:
 the explanatory variable Population (POP) is statistically significant given that its
t-statistic = 2.74 ≥ 2, Ho is rejected at a threshold of 5 per cent.
 The explanatory variable Exports (EXPORT) is statistically significant given that its t-statistic
= 2.41 ≥ 2, Ho is rejected at a threshold of 5 per cent.
 The explanatory variable Foreign Direct Investment (FDI) is statistically significant given that
its t-statistic = 2 ≥ 2, Ho is rejected at a threshold of 10 per cent.
 The explanatory variable War (WAR) is statistically significant given that its t-statistic =
2 >= 2, Ho is rejected at a threshold of 10 per cent.
 The explanatory variable Time is statistically significant given that its t-statistic = 2.57 ≥ 2,
Ho is rejected at a threshold of 5 per cent.
However, the explanatory variable Imports (IMPORT) is statistically insignificant given that
its t-statistic = 0.88 < 2, Ho is accepted at all thresholds of 1 per cent, 5 per cent and 10 per cent.
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3.3.2. Non-parametric validation
Non-parametric inference, which is the method used in this phase, consists of obtaining a
small number of statistics providing an overall view of the relationship between the explanatory (or
independent) variables and the explained (or dependent) variable.
This method is based on two main statistics: the coefficient of determination (R2) and the
Fisher statistic (F-stat):
 the R-squared (R2) coefficient of determination is an overall indicator of regression quality. It
measures how the data fit the model. It is interpreted as the fraction of variance of the
dependent variable, which is explained by the independent variables.
 the Fisher F-stat tests whether the model is sound overall, according to the following
hypotheses:
 Ho: β1 = β2 = … = βi … = βk = 0 , all the coefficients are significantly equal to zero
 Hl: βi ≠ 0 , there is at least one coefficient which is significantly different from zero.
The critical region is as follows:
 where Fisher’s F-stat is ≥ 5 and the value of the probability associated with the test’s F-stat (or
the lowest value above which the null hypothesis is accepted) is < 0.05, then the null
hypothesis is rejected (RHo).
 where Fisher’s F-stat is < 5 and the value of the probability associated with the test’s F-stat (or
the lowest value above which the null hypothesis is accepted) is ≥ 0.05, then the null
hypothesis is accepted (AHo).
From the outcome of these tests, shown in table 4 in terms of the relaxing of the classical
hypotheses, it is clear that the results of the econometric estimation remain valid. The corrected
coefficient of determination is relatively weak. As the Ramsey test shows (a test based on the
Fisher statistic), the model specification is sound. Similarly, the Jarque-Bera test shows that the
residuals are distributed normally, and therefore the application of the inference does not present
any technical problems. Alongside this, the results of the ARCH test rule out any possible
heteroscedasticity5 in the error variance. In order to test the null hypothesis of no error
autocorrelation, the Breusch-Godfrey test was preferred to the Durbin-Watson. Since the critical
probability of the Lagrange multiplier (LM) statistic associated with the Breusch-Godfrey test is
greater than 0.05, we conclude that there is no error autocorrelation in the model.
Finally, as graph 2 shows, the estimated parameters are stable over the period under
examination. The curve (CUSUM) fluctuates only within corridors (confidence intervals). In the
light of the results of table 3, we can draw the following conclusions:
The model is sound, and the variables Ln_POP, WAR and Time have a very high
explanatory power for the variation in the dependent variable Ln_GDP. In fact, 55.5 per cent of the
variability in Ln_GDP is explained by the variation in Ln_POP, Time and WAR.
As for the generalized method of moments (GMM) model, its explanatory power is weak at
28 per cent, even though the explanatory variables have again been extended to include exports of
5The fact that the variance in the variable we want to predict (the error term) is not constant over the area of the
random variable we are using (GDP).
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goods (Ln_Export), imports of goods and services (Ln_Import) and foreign direct investment
(Ln_FDI).
The two outcomes above, produced by the OLS and GMM methods, confirm the significant
negative impact on the DRC’s economic growth.
Starting from the Fisher F-stat >5, with a probability Prob. F-stat=0.000 < 0.05, we can
conclude that the null hypothesis must be rejected, in other words, there is at least one βi ≠ 0
coefficient that is statistically different from zero. The model is therefore sound overall.
Section 4. Calculation of the macroeconomic injury suffered by the DRC as a result of the
Ugandan army’s aggression 1998-2003
In the light of the results of the final model estimation in table 3, we can conclude that
Uganda’s military aggression, population and time have a negative effect on GDP growth in the
Democratic Republic of the Congo.
We can see that every reduction by a population unit produces a 5.76 per cent reduction in
GDP over the period under consideration.
Similarly, war has a negative effect on GDP growth, resulting in a reduction of
around 0.08 per cent of GDP.
The CUSUM test shows that the model is stable, in other words the predicted GDP variable
changes within the corridor of the confidence intervals. The following graph shows that
between 1998 and 2003, the GDP of the Democratic Republic of the Congo suffered an
unprecedented fall, which coincided exactly with the period of the Ugandan army’s aggression.
Graph 1. Test of structural (a) and cyclical (b) stability
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Source: calculated using Eviews 9.0 program
The structural stability test (graph 1a) shows that the model was unstable during the period
between the late 1980s and 2006. Similarly, the cyclical stability test (graph 1b) shows that the
Congolese economy was destabilized during the period from 1998 to 2005 because of the war of
aggression. The graph clearly shows a break in the development of the DRC’s economic growth
from 1998, the year when the war started, to 2005.
This result clearly confirms other studies, particularly those by Collier, P. and Hoeffler, A.
and many others (Serneels, P. & Verporten, M. (2012); Collier, P., Hegre, H., Hoeffler, A.,
Reynal-Querol and Sambanis, N. (2003); Elbadawi, I. and Sambanis, N. (2001);
Collier, P. (1999); Collier, P. and Hoeffler, A. (2002); Collier, P. and Hoeffler, A. (2006);
Collier, P. and Hoeffler (1999); Collier, Hoeffler and Soderborn, M. (2004)), which show that war
has a negative influence on GDP and thereby exacerbates poverty in the country attacked.
Thus, the argument that the Congolese economy was already in difficulties and was not
negatively affected by the war of aggression is fallacious and distorted, and has largely been
disproved by the study.
Finally, the effect of civil war on economic performance is negative. The results of the
estimations show that there is a significant negative relationship (at a threshold of 5 per cent)
between economic performance and the war of aggression by Uganda. This finding may be applied
more widely in the light of the results of the study by Kabwe, F. (2014) evaluating the negative
effect of the war on long-term mining income. That relationship becomes negative and remains
significant (still at a 5 per cent threshold).
- 15 -
4.1. Interpretation of the results of the analyses: calculation of macroeconomic injury
The next stage was to interpret the results of the analyses in order to calculate the
macroeconomic harm caused by the war. The following procedure was used, the results of which
are shown in the table below.
1. Using the Collier and Hoeffler model, the steps described above enabled the estimated GDP to
be calculated, in other words, the GDP reflecting the effect of the war (second column in the
table below).
2. From that estimated GDP we calculated the annual GDP growth rate (third column in the table
below). In particular, the table shows negative growth in 1999 and 2000.
3. The third operation was to evaluate constant GDP at 1998 prices, in other words to eliminate
inflation (fourth column). This reflects the GDP which the DRC would have had if the war had
not taken place. For example, in 1999, GDP was US$4,711,254,228.13 (first column), whereas
it should have been US$6,412,404,422.
4. The difference between constant GDP (fourth column) and GDP at 1998 prices (second
column) gives the deficit, in other words the loss of revenue suffered by the DRC as a result of
the war (fifth column).
5. These deficits were capitalized at a discount rate of 5 per cent (sixth column).
Table 4: Calculation of macroeconomic harm suffered by the DRC as a result of the
1998-2003 war
Year Estimated GDP GDP
growth
rate
Constant GDP
(1998 prices)
Deficit Capitalization at rate
of
at 3.13% deficit 5%
1998 6,217,787,667.74 0.0208 6,217,787,668
1999 4,711,254,228.13 -0.2423 6,412,404,422 1,701,150,193.60 1,786,207,703.28
2000 4,305,805,218.67 -0.0861 6,613,112,680 2,307,307,461.47 2,543,806,476.77
2001 4,691,836,872.61 0.0897 6,820,103,107 2,128,266,234.41 2,463,734,199.61
2002 5,547,704,080.91 0.1824 7,033,572,334 1,485,868,253.37 1,806,082,148.65
2003 5,673,204,712.25 0.0226 7,253,723,148 1,580,518,436.09 2,017,186,539.17
2004 6,570,002,171.76 0.1581 7,480,764,683 910,762,511.12
2005 7,103,546,476.39 0.0812 7,714,912,617 611,366,141.07
2006 8,543,358,205.97 0.2027 7,956,389,382 -586,968,823.58
2007 9,378,915,735.00 0.0978 8,205,424,370 -1,173,491,364.95
2008 10,365,615,877.22 0.1052 8,462,254,153 -1,903,361,724.39
10,725,239,231.13 10,617,017,066.98
Source: calculated on the basis of data from the econometric estimation
It is thus clear from the calculations that the macroeconomic harm between 1999 and
2003 came to US$10,617,017.066.
However, the effects of armed conflict are not time-specific. They persist long after the
events which caused them have faded away. They are what are known as the “hysteresis effects of
armed conflict”, which include, for example, post-traumatic stress and psychological disorders,
permanent physical injuries, bullet and shell impacts, displaced persons, refugees and rape victims,
children forcibly recruited as soldiers, etc.
- 16 -
In fact, the study shows that the effects of the war lasted until 2005. There was a cumulative
increase in the loss of revenue of US$1,220,508,870.80 in 2004, and US$860,253,555.49 in 2005.
This brings the total loss of revenue to US$12,697,779,493.27. This can be seen in table 5 below.
Year Estimated GDP GDP
growth
rate
Constant GDP
(1998 prices)
Loss of revenue
(deficit)
Capitalization at
at 3.13% deficit 5%
1998 6,217,787,667.74 0.0208 6,217,787,668
1999 4,711,254,228.13 -
0.2423
6,412,404,422 1,701,150,193.60, 1,786,207,703.28
2000 4,305,805,218.67 -
0.0861
6,613,112,680 2,307,307,461.47 2,543,806,476.27
2001 4,691,836,872.61 0.0897 6,820,103,107 2,128,266,234.41 2,463,734,199.61
2002 5,547,704,080.91 0.1824 7,033,572,334 1,485,868,253.37 1,806,082,148.65
2003 5,673,204,712.25 0.0226 7,253,723,148 1,580,518,436.09 2,017,186,539.17
2004 6,570,002,171.76 0.1581 7,480,764,683 910,762,511.12 1,220,508,870.80
2005 7,103,546,476.39 0.0812 7,714,912,617 611,366,141.07 860,253,555.49
2006 8,543,358,205.97 0.2027 7,956,389,382
2007 9,378,915,735.00 0.0978 8,205,424,370
2008 10,365,615,877.22 0.1052 8,462,254,153
10,725,239,231.13 12,697,779,493.27
Source: calculated on the basis of data from the econometric estimation
This trend in the loss of revenue can be visualized using graph 2 below, relating to the whole
of the period concerned, from 1998 to 2005. The blue line shows the estimated GDP (including the
effect of the war), while the red line shows constant GDP (that would have existed without the
war).
The graph also shows that from 2006, the effects of the war diminished as peace returned
and was consolidated after the end of the conflict. The deficit or loss of revenue decreased and the
Congolese economy started to recover and increase growth. This once again confirms the direct
link between the war and the harm suffered by the Congolese economy as a whole, in other words
the causality between the harm and the internationally wrongful act.
- 17 -
Graph 2. Visualization of the trend in the loss of revenue recorded by the DRC
Source: calculated on the basis of model data
4.2. Compensation owed by Uganda
On the basis of the foregoing, the total macroeconomic injury suffered by the DRC as a
result of the war is estimated at US$12,697,779,493.27.
Conclusion
Armed conflict causes serious damage to the countries attacked, as many studies have
demonstrated. With regard to the Ugandan army’s aggression against the DRC between 1998
and 2003, we have attempted, in this study, to determine the impact of the macroeconomic harm
sustained by the Congolese economy. In order to do so, we used the “rebellion” model by
Collier, P. and Hoeffler, A. (1999), an endogenous growth model based on the augmented Solow
model, which takes Gross Domestic Product (GDP) as a dependent variable influenced by the
independent variables physical capital (FDI) and human capital (POP) and additional variables
(Imports, Exports, War).
We conducted, in turn, an analysis of the descriptive statistics, a correlation analysis and an
econometric analysis. The results of these various analyses enabled us to evaluate the
macroeconomic injury caused by the Ugandan’s army’s aggression against the DRC.
The loss of revenue to the Congolese economy caused by the war of occupation amounted to
US$12.7 thousand million.
- 18 -
Bibliography
 Azam, J.P., Collier, P. et al., 1994, Some economic consequences of the transition from civil
war to peace, Working Paper, No. WPS1392, The World Bank.
 Barro, R., 1997, Les facteurs de la croissance économique: une analyse transversale par pays,
MIT Press, Cambridge.
 Chauvet, L., 2008, Conflit et développement, Université de Marne la vallée.
 Collier, Hoeffler and Soderborn, M., 2004, On the duration of civil war, Journal of peace
research, World Bank, Working paper.
 Collier, P. and Hoeffler, A., 2002, Greed and grievance in civil war, Forthcoming, Centre for
Economic Policy Research, Working Paper.
 Collier, P. and Hoeffler, A., 2006, Civil War, Oxford University.
 Collier, P. and Hoeffler, 1999, On the economic consequences of civil war, Oxford Economic,
Paper, No. 51, 168-183.
 Collier, P. and Hoeffler, A., 2007, Military Spending and the Risks of Coups d’Etat, Centre for
the Study of African Economies, Oxford University.
 Collier, P., 1999, On economic causes of civil war, Oxford Economic Papers, No 50, 563- 73.
 Collier, P., 2002a, On the incidence of civil war in Africa, The Journal of Conflict Resolution,
The World Bank.
 Collier, P., Hegre, H., Hoeffler, A., Reynal-Querol and Sambanis, N., 2003, Breaking the
conflict trap: civil war and development policy, World Bank policy research report.
 Elbadawi, I. and Sambanis, N., 2001, How much war will we see? Estimating the incidence of
civil war in 161 countries, Development Research Group, The World Bank.
 Sachs, J. and Warner, A., 2001, The curse of natural resources, European Economic Review,
45, 827-838, p. 837.
 Serneels, P. and Verporten, M. (2012), The impact of armed conflict on economic
performance: Evidence from Rwanda, CSAE, Working Paper WPS/2012-10, Oxford,
University of Oxford.
 Solow, R.M., 1956, A Contribution to the Theory of Economic Growth, QJE, Vol. 70, No. 1,
65-94.
 Perspectives Monde, Sherbrooke University, website portal updated to 10 July 2015.
[Annexes not translated]
___________
- 19 -
ANNEX 7.1
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of
Gross Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law; Annex to resolution 60/147 adopted
by the United Nations General Assembly on 16 December 2005
- 20 -
GENERAL ASSEMBLY RESOLUTION 60/147
(BASIC PRINCIPLES AND GUIDELINES ON THE RIGHT TO A REMEDY
AND REPARATION FOR VICTIMS OF GROSS VIOLATIONS OF
INTERNATIONAL HUMAN RIGHTS LAW AND SERIOUS VIOLATIONS OF
INTERNATIONAL HUMANITARIAN LAW)
The issue of basic principles and guidelines on the right to a remedy and
reparation for victims of gross violations of international human rights and
humanitarian law was first raised in 1988 during the fortieth session of the Sub-
Commission on Prevention of Discrimination and Protection of Minorities, in the
context of its basic mandate to make recommendations to the Commission on Human
Rights concerning the prevention of discrimination of any kind relating to human
rights and fundamental freedoms. On 1 September 1988, the Sub-Commission adopted
resolution 1988/11 in which it decided to discuss the matter of compensation at its
forty-first session with a view to considering the possibility of developing some basic
principles and guidelines in this respect (see Report of the Sub-Commission,
E/CN.4/Sub.2/1988/45).
At its forty-first session, the Sub-Commission adopted resolution 1989/13 of
31 August 1989, by which it decided to entrust Mr. Theo van Boven, as Special
Rapporteur, with the task of undertaking a study concerning the right to restitution,
compensation and rehabilitation for victims of gross violations of human rights and
fundamental freedoms, with a view to exploring the possibility of developing some
basic principles and guidelines in this respect, and requested him to submit a
preliminary report on the matter for consideration by the Sub-Commission at its fortysecond
session (see Report of the Sub-Commission, E/CN.4/Sub.2/1989/58
(E/CN.4/1990/2). At its forty-sixth session, upon recommendation of the Subcommission,
the Commission on Human Rights adopted resolution 1990/35 of 2
March 1990, by which it recommended the Economic and Social Council to adopt a
resolution authorizing the Sub-Commission to entrust Mr. van Boven with the
abovementioned task and requesting the Secretary-General to provide him with all the
assistance needed for this task (see report of the Commission on Human Rights,
E/1990/22). The Economic and Social Council adopted resolution 1990/36 of 25 May
1990 to this effect.
At its forty-second session, the Sub-Commission considered the preliminary
report submitted by the Special Rapporteur (E/CN.4/Sub.2/1990/10) and adopted
resolution 1990/6 of 30 August 1990, by which it requested the Special Rapporteur to
prepare a progress report for its forty-third session, taking into account comments
made in the discussion on the preliminary report, as well as the relevant work and
recommendations of the Committee on Crime Prevention and Control and relevant
decisions of the Eighth United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, and to undertake the necessary consultations with the United
Nations Centre for Social Development and Humanitarian Affairs (see Report of the
Sub-Commission, E/CN.4/Sub.2/1990/59 (E/CN.4/1991/2)).
The Special Rapporteur accordingly submitted his first progress report to the
Sub-Commission on 25 July 1991, for its forty-third session (E/CN.4/Sub.2/1991/7).
On 29 August 1991, the Sub-Commission adopted resolution 1991/25, by which it
requested the Special Rapporteur to continue his study and to submit a second progress
report containing additional information on and an analysis of relevant decisions and
views of international human rights organs, as well as of national law and practice to
the Sub-Commission, at its forty-fourth session, and a final report at its forty-fifth
session (see Report of the Sub-Commission, E/CN.4/Sub.2/1991/65 (E/CN.4/1992/2)).
- 21 -
The Special Rapporteur submitted his second progress report to the Sub-
Commission on 29 July 1992, for its forty-fourth session (E/CN.4/Sub.2/1992/8). On
27 August 1992, the Sub-Commission adopted resolution 1992/32, by which it
requested the Special Rapporteur to continue his study and to submit to the Sub-
Commission, at its forty-fifth session, a final report which should include a set of
conclusions and recommendations aimed at developing basic principles and guidelines
with respect to restitution, compensation and rehabilitation for victims of gross
violations of human rights and fundamental freedoms (see Report of the Sub-
Commission, E/CN.4/Sub.2/1992/58 (E/CN.4/1993/2)).
The Special Rapporteur submitted his final report on 2 July 1993, at the fortyfifth
session of the Sub-Commission (E/CN.4/Sub.2/1993/8). On 25 August 1993, the
Sub-Commission adopted resolution 1993/29, by which it decided to transmit the
study of the Special Rapporteur to the Commission on Human Rights. By the same
resolution, the Sub-Commission decided to examine further, at its forty-sixth session,
the proposed basic principles and guidelines included in the study and, for that
purpose, to establish, if necessary, a sessional working group at that session with a
view to adopting a body of such principles and guidelines, and it further requested the
Secretary-General to invite governments and competent intergovernmental and nongovernmental
organizations to submit their comments on the proposed basic principles
and guidelines (see Report of the Sub-Commission, E/CN.4/Sub.2/1993/45
(E/CN.4/1994/2) and Corr.1). At its fiftieth session, the Commission on Human Rights
adopted resolution 1994/35 of 4 March 1994, in which it expressed its appreciation for
the work of the Special Rapporteur and regarded the proposed basic principles and
guidelines as a useful basis for addressing the question of restitution, compensation
and rehabilitation for victims of gross violations of human rights. It therefore
recommended that the Sub-Commission take measures to examine the proposed basic
principles and guidelines with a view to making proposals thereon and report to the
Commission (see Report of the Commission on Human Rights, E/CN.4/1994/132
(E/1994/24)).
At the forty-sixth session of the Sub-Commission, held from 1 to 26 August
1994 in Geneva, a Sessional Working Group on the Administration of Justice and the
Question of Compensation was established to examine further the proposed basic
principles and guidelines in accordance with resolution 1993/29 of the Sub-
Commission. On 26 August 1994, the Sub-Commission adopted resolution 1994/33,
by which, after noting the report of the Secretary-General prepared pursuant to Sub-
Commission resolution 1993/29 (E/CN.4/Sub.2/1994/7 and Add.1) and the report of
the sessional working group (E/CN.4/Sub.2/1994/22), it decided to continue the
consideration of the proposed basic principles and guidelines at its forty-seventh
session (see Report of the Sub-Commission, E/CN.4/Sub.2/1994/56). On 3 March
1995, the Commission on Human Rights, at its fifty-first session, adopted resolution
1995/34, in which it encouraged the Sub-Commission to continue to give
consideration to the proposed basic principles and guidelines, requested States to
provide information about relevant national legislation to the Secretary-General and
requested the Secretary-General to submit a report to the Commission on this subject
at its fifty-second session (Report of the Commission on Human Rights,
E/CN.4/1995/176 (E/1995/23)).
The Working Group continued its consideration of the proposed basic
principles and guidelines at the forty-seventh session of the Sub-Commission, which
was held in Geneva from 31 July to 25 August 1995. On 24 August 1995, the Sub-
Commission adopted decision 1995/117 (see Report of the Sub-Commission,
E/CN.4/Sub.2/1995/51 (E/CN.4/1996/2)), by which it decided to request the Working
Group to continue the consideration of the proposed basic principles and guidelines,
with priority, at the next session and requested the former Special Rapporteur to
submit a revised set of proposed basic principles and guidelines, taking into account
the new comments received from States and intergovernmental and non-governmental
- 22 -
organizations (see Report of the Secretary-General E/CN.4/Sub.2/1995/17 Add.1 and
Add.2) and the discussions on the matter in the Working Group (see Report of the
Working Group, E/CN.4/Sub.2/1995/16). On 19 April 1996, the Commission on
Human Rights, at its fifty-second session, adopted resolution 1996/35, by which,
taking note of the report of the Secretary-General submitted to the Commission in
compliance with its resolution 1995/34 (E/CN.4/1996/29), it requested States that had
not yet done so to submit information in accordance with that resolution, and requested
the Secretary-General to prepare an additional report, taking into account the
information provided by States (see Report of the Commission on Human Rights,
E/CN.4/1996/177 (E/1996/23)).
As requested by the Sub-Commission in its decision 1995/117 of 24 August
1995, the former Special Rapporteur submitted a revised text of the basic principles
and guidelines to the Sub-Commission at its forty-eighth session
(E/CN.4/Sub.2/1996/17). On 29 August 1996, the Sub-Commission adopted resolution
1996/28, by which it expressed its appreciation to the former Special Rapporteur and
decided to transmit the revised draft to the Commission on Human Rights, together
with its comments and the comments of the Working Group (E/CN.4/Sub.2/1996/16).
By the same resolution, the Sub-Commission requested the former Special Rapporteur
to prepare a note taking into account the comments and observations of the Working
Group and the Sub-Commission in order to facilitate the examination by the
Commission on Human Rights of the revised draft basic principles and guidelines (see
Report of the Sub-Commission, E/CN.4/Sub.2/1996/41 (E/CN.4/1997/2)).
On 13 January 1997, the former Special Rapporteur accordingly submitted a
note to the Sub-Commission, together with an adapted version of the draft revised
basic principles and guidelines (E/CN.4/1997/104, annex). On 11 April 1997, at its
fifty-third session, the Commission on Human Rights adopted resolution 1997/29, by
which it invited the Secretary-General to request all States to submit their views and
comments on the note and revised draft basic principles and guidelines and to prepare
a report setting out such views and comments (see Report of the Commission on
Human Rights, E/1997/23).
At its fifty-fourth session, the Commission on Human Rights adopted
resolution 1998/43 of 17 April 1998 by which it took note of the report of the
Secretary-General (E/CN.4/1998/34) submitted pursuant to the abovementioned
resolution and, with the approval of the Economic and Social Council (see Economic
and Social Council resolution 1998/256 of 30 July 1998), requested the Chairman of
the Commission to appoint an independent expert to prepare a revised version of the
basic principles and guidelines, taking into account the views of and comments
provided by States and intergovernmental and non-governmental organizations, and to
submit it to the Commission at its fifty-fifth session, with a view to its adoption by the
General Assembly. By the same resolution, the Commission continued to request the
Secretary-General to invite States that had not yet done so, as well as
intergovernmental and non-governmental organizations, to submit their views and
comments as soon as possible, and by no later than 31 October 1989, and to make that
information available to the independent expert (see Report of the Commission on
Human Rights, E/1998/23).
The independent expert appointed by the Commission on Human Rights, Mr.
M. Cherif Bassiouni, submitted his first report to the Commission in February 1999, at
its fifty-fifth session (E/CN.4./1999/65). On 26 April 1999, the Commission on
Human Rights adopted resolution 1999/33, by which it requested him to complete his
work and to submit to the Commission at its fifty-sixth session, in accordance with its
resolution 1998/43, a revised version of the basic principles and guidelines (see Report
of the Commission on Human Rights, E/1999/23).
- 23 -
The independent expert submitted his final report to the Commission on
Human Rights (E/CN.4/2000/62) in January 2000, at its fifty-sixth session. On 20
April 2000, the Commission adopted resolution 2000/41, by which it requested the
Secretary-General to circulate to all Member States the draft text of the “Basic
principles and guidelines on the right to a remedy and reparation for victims of
violations of international human rights and humanitarian law”, annexed to the final
report of the independent expert, and to request that they send their comments thereon
to the Office of the United Nations High Commissioner for Human Rights. The
Commission further requested the High Commissioner for Human Rights to hold a
consultative meeting for all interested States, intergovernmental organizations and
non-governmental organizations in consultative status with the Economic and Social
Council, in order to finalize the basic principles and guidelines on the basis of the
comments submitted, and to transmit to the Commission, at its fifty-seventh session,
the final outcome of this meeting (see Report of the Commission on Human Rights,
E/2000/23).
By note verbale of 31 August 2000, the Secretary-General invited all Member
States to submit their comments on the basic principles and guidelines. However, as at
20 November 2000, replies had been received from only six Member States (see
E/CN.4/2001/61). At its fifty-seventh session, the Commission on Human Rights
therefore adopted decision 2001/105 of 23 April 2001, by which it requested again the
High Commissioner for Human Rights to hold a consultative meeting in order to
finalize the basic principles and guidelines and to transmit the final outcome of the
consultative meeting to the Commission for consideration at its fifty-eighth session
(see Report of the Commission on Human Rights, E/2001/23). On 24 July 2001, the
Economic and Social Council adopted decision 2001/279, by which it endorsed the
decision of the Commission on Human Rights.
At its fifty-eighth session, the Commission on Human Rights adopted
resolution 2002/44 of 23 April 2002 by which it made an identical request (see Report
of the Commission on Human Rights, E/2002/23).
The requested consultative meeting on the draft Basic principles and
guidelines on the right to a remedy and reparation for victims of violations of
international human rights and humanitarian law took place on 30 September and 1
October 2002 in Geneva, and the report of the Chairperson-Rapporteur, Mr. Alejandro
Salinas, was transmitted by the High Commissioner to the Commission on Human
Rights on 27 December 2002 (E/CN.4/2003/63). On 23 April 2003, at its fifty-ninth
session, the Commission on Human Rights adopted resolution 2003/34, by which it
requested the Chairman-Rapporteur of the consultative meeting, in consultation with
the independent experts, Messrs. van Boven and Bassiouni, to prepare a revised
version of the “Basic principles and guidelines on the right to a remedy and reparation
for victims of violations of international human rights and humanitarian law”, taking
into account the opinions and comments of States and of intergovernmental and nongovernmental
organizations and the results of the consultative meeting. The
Commission further requested the High Commissioner for Human Rights to hold a
second consultative meeting, with a view to finalizing the basic principles and
guidelines, encouraged the Chairman-Rapporteur of the first consultative meeting to
conduct informal consultations with all interested parties, and requested the High
Commissioner for Human Rights to transmit to the Commission at its sixtieth session
the final outcome of the second consultative meeting (see Report of the Commission
on Human Rights, E/2003/23).
The second consultative meeting took place on 20, 21 and 23 October 2003 in
Geneva and the report of the Chairperson-Rapporteur of the consultative meeting
(E/CN.4/2004/57, annex) was transmitted by the High Commissioner for Human
Rights to the Commission on Human Rights, at its sixtieth session. On 19 April 2004,
the Commission on Human Rights adopted resolution 2004/34, by which it requested
- 24 -
United Nations Audiovisual Library of International Law
Copyright © United Nations, 2008. All rights reserved
www.un.org/law/avl
5
the Chairman-Rapporteur, in consultation with the independent experts, to prepare a
further revised version of the basic principles and guidelines. It further requested the
High Commissioner for Human Rights to hold a third consultative meeting and to
transmit to the Commission on Human Rights, at its sixty-first session, the outcome of
the consultative process (see Report of the Commission on Human Rights, E/2004/23).
On 22 July 2004, the Economic and Social Council adopted decision 2004/257, by
which it approved the request by the Commission on Human Rights to hold a third
consultative meeting.
At its sixty-first session, the Commission on Human Rights adopted
resolution 2005/35 of 19 April 2005 by which, welcoming the report of the Chairman-
Rapporteur of the third consultative meeting (E/CN.4/2005/59), it adopted the Basic
Principles and Guidelines on the Right to a Remedy and Reparation for Victims of
Gross Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law (see Report of the Commission on Human Rights,
E/2005/23). Upon recommendation of the Commission, the Economic and Social
Council adopted resolution 2005/30, by which it adopted the Basic Principles and
Guidelines and recommended their adoption to the General Assembly.
At the sixtieth session of the General Assembly, the Third Committee
discussed the text adopted by the Commission on Human Rights at four separate
meetings (see A/C.3/60/SR.22, 29, 37 and 39). On 28 October 2005, a joint draft
resolution (A/C.3/60/L.24) was submitted by Chile on behalf of forty-five delegations
to the Third Committee entitled “Basic Principles and Guidelines on the Right to a
Remedy and Reparation for Victims of Gross Violations of International Human
Rights Law and Serious Violations of International Humanitarian Law” which was
adopted by the Committee on the same day. On 16 December 2005, upon
recommendation of the Third Committee (see Report of the Third Committee
A/60/509/Add.1), the General Assembly adopted resolution 60/147 (Basic Principles
and Guidelines on the Right to a Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law and Serious Violations of International
Humanitarian Law) without a vote.
- 25 -
ANNEX 7.2
United Nations General Assembly, Sixty-ninth Session, Report of the Special Rapporteur
on the promotion of truth, justice, reparation and guarantees of non-recurrence,
document A/69/518, 14 October 2014
- 26 -
United Nations A/69/518
General Assembly Distr.: General
14 October 2014
Original: English
14-62404 (E) 171014
*1462404*
Sixty-ninth session
Agenda item 68 (b)
Promotion and protection of human rights:
human rights questions, including alternative approaches
for improving the effective enjoyment of human rights
and fundamental freedoms
Promotion of truth, justice, reparation and guarantees of
non-recurrence*
Note by the Secretary-General
The Secretary-General has the honour to transmit to the General Assembly the
report of the Special Rapporteur on the promotion of truth, justice, reparation and
guarantees of non-recurrence, Pablo de Greiff, in accordance with Human Rights
Council resolution 18/7.
* The present report was submitted late in order to reflect the most recent developments.
- 27 -
A/69/518
2/23 14-62404
Report of the Special Rapporteur on the promotion of truth,
justice, reparation and guarantees of non-recurrence
Summary
In the present report, the Special Rapporteur on the promotion of truth, justice,
reparation and guarantees of non-recurrence addresses the topic of reparation for
victims in the aftermath of gross violations of human rights and serious violations of
international humanitarian law.
While highlighting progress in law and practice, the Special Rapporteur points
to a gap in implementation, which reaches scandalous proportions.
The report focuses on addressing current challenges in implementation, which
include States’ political unwillingness to implement existing obligations using
questionable economic arguments, the inadmissible exclusion of entire categories of
victims on the basis of political considerations leading to the perception of biased
reparation favouring only one side and the gender insensitivity of a majority of
reparation programmes, which results in too few victims of gender-related violations
receiving any reparation. The Special Rapporteur urges States to address these
challenges and calls on the implementation of a human rights-based approach in the
implementation of reparation programmes.
The Special Rapporteur emphasizes the importance of the participation of
victims in reparation processes, including in relation to the design of programmes,
stressing that active and engaged participation may improve a dismal record in the
implementation of reparations.
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I. Introduction
1. This report is submitted by the Special Rapporteur on the promotion of truth,
justice, reparation and guarantees of non-recurrence to the General Assembly in
accordance with resolution 18/7 of the Human Rights Council. The activities
undertaken by the Special Rapporteur from August 2013 to June 2014 are l isted in
his most recent report to the Human Rights Council (A/HRC/27/56).
II. General considerations
2. Having insisted in his first report to the Human Rights Council on the
importance of designing and implementing programmes on truth, justice, reparation
and guarantees of non-recurrence in a comprehensive fashion as part of a general
policy to redress gross violations of human rights and serious violations of
international humanitarian law, the Special Rapporteur devotes the present report to
the element of reparation.
3. Here the focus is on large-scale administrative programmes intended to
respond to a large universe of cases and not on the sort of reparations that stem from
the judicial resolution of individual, isolated cases. Judicial reparations for
violations of international crimes are important for many reasons and, in many
jurisdictions, a matter of rights stipulated in both domestic and international law.
Judicial cases can provide a powerful incentive to Governments to establish massive
out-of-court programmes. But courts are unlikely to be the main avenue of redress
in cases involving a large and complex universe of victims.
4. At their best, reparation programmes are administrative procedures that,
among other things, obviate some of the difficulties and costs associated with
litigation. For the claimants, administrative reparation programmes compare more
than favourably to judicial procedures in circumstances of mass violations, offering
faster results, lower costs, relaxed standards of evidence, non-adversarial procedures
and a higher likelihood of receiving benefits. This is not a reason to deny access to
the courts for purposes of reparation but, it is a reason to establish administrative
programmes.
5. Given the existing literature on the topic of reparation programmes, including
their design and implementation and lessons learned from them, 1 the present report
will concentrate on some of the challenges faced by such programmes and shed
some light on how those challenges can be met.
6. Despite significant progress at the normative level in establishing the rights of
victims to reparations and some important experiences at the level of practice, most
victims of gross violations of human rights and serious violations of international
humanitarian law still do not receive any reparation. Normative progress and even
solid practice in some cases should not obscure the implementation gap, which can
rightly be said to be of scandalous proportions.
__________________
1 Pablo de Greiff, ed., The Handbook of Reparations (Oxford, Oxford University Press, 2008) and
Rule of Law Tools for Post-Conflict States: National Consultations on Transitional Justice
(United Nations publication, Sales No. 09.XIV.2).
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7. The violation of fundamental rights can be shattering for victims and have
long-lasting effects with ripples felt by many persons and even across generations.
The non-implementation of measures that can mitigate (they can never fully
neutralize) the legacies of the violations, in addition to being a breach of a legal
obligation, has severe consequences for both individuals and collectivities.
8. The present report deals not only with the legal grounds and concerns about
what is owed to victims, but also with practical considerations. It is not uncommon,
for example, to find support for the proposition that in post-conflict settings each
and every ex-combatant should become the recipient of benefits through
demobilization, disarmament and reintegration programmes. No similarly ambitious
commitments are expressed even rhetorically concerning the reparation of the
victims of such conflicts.2 This is not only unfair, it has detrimental consequences.
To the extent that demobilization, disarmament and reintegration programmes aim at
the reintegration of ex-combatants, not attending to the claims of receiving
communities and the victims therein does not facilitate that process. In post -conflict
situations, providing benefits to ex-combatants without making any effort to provide
reparations to victims can send the message that bearing arms, in the end, is the only
way to get the attention of the State.3
9. Making the case in positive terms, reparation programmes can play a
significant role in the aftermath of massive violations, both in and out of conflict.
Like other transitional justice measures, reparations provide recognition to victims
not only as victims but, importantly, also as rights holders. Moreover, they can
promote trust in institutions, contribute to strengthening the rule of law and
encourage social integration or reconciliation. The fact that reparation shares these
goals with efforts to achieve truth, justice and guaranteeing non-recurrence is one of
the arguments for adopting a comprehensive approach to redress.
10. The claim that reparations are part of a comprehensive policy, however, should
not obscure their distinctive role: reparations are the only measure designed to
benefit victims directly. While prosecutions and, to some extent, vetting are i n the
end a struggle against perpetrators, and truth-seeking and institutional reform have
as their immediate constituency society as a whole, reparations constitute an effort
that is explicitly and primarily carried out on behalf of victims.
11. Against this background, three caveats are in order. First, reparations are not
simply an exchange mechanism, something akin to either a crime insurance policy
or an indemnification system that provides benefits to victims in the wake of a
violation of their rights. In order for something to count as reparation, as a justice
measure, it has to be accompanied by an acknowledgment of responsibility and it
has to be linked, precisely, to truth, justice and guarantees of non-recurrence.
Second, recognizing the distinctive contribution that reparations can make to
victims does not justify, either legally or morally, asking them — or anyone else —
__________________
2 Jonah Shulhofer-Wohl and Nicholas Sambanis, Disarmament, Demobilization and Reintegration
Programs: An Assessment (Folke Bernadotte Academy Publications, 2010). Of the 46 countries
listed as having had externally assisted demobilization, disarmament and reintegration
programmes from 1979 to 2006, the Special Rapporteur counts that only eight had established
any kind of reparation programme and that none had completed one.
3 Pablo de Greiff, “Demobilization, disarmament and reintegration and reparations: establishing
links between peace and justice instruments”, in Building a Future on Peace and Justice, Kai
Ambos, Judith Large and Marieke Wierda, eds. (Springer, 2009).
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to make trade-offs among the different justice initiatives. The effort, say, to make
impunity for perpetrators more acceptable by offering to victims “generous”
reparations, is therefore unacceptable. Third, the observation that reparations are
designed to benefit victims directly does not mean that the positive consequences of
a well-designed reparation programme are restricted to victims alone. To the extent
that reparations are justice measures, they rest on general norms and their benefits
have important positive spillover effects, one of which is to exemplify the fulfilment
of legal obligation to take the violation of rights seriously.
12. A very varied set of countries facing diverse challenges have implemented
reparation programmes of the sort at issue in this report and from which valuable
lessons can be learned. Among the countries that have implemented some form of
massive reparation programmes are Argentina, Belgium, Brazil, Canada, Chile,
Colombia, Ecuador, El Salvador, Germany, Ghana, Guatemala, Haiti, Iraq, Morocco,
Nepal, Paraguay, Peru, the Philippines, Sierra Leone, South Africa, Spain, Tunisia,
Turkey, the United States of America and Uruguay. These countries vary in terms of
legal tradition, type of conflict (or origin of violations), historical context, region
and degree of socioeconomic development.
13. Given how strongly Governments are inclined to claim that reparation
programmes are unaffordable — suspiciously, even before any effort to quantify
their costs has been undertaken — the record shows that, beyond a certain threshold,
political will seems to be a stronger factor than socioeconomic considerations in
determining not just whether a reparation programme is implemented but also the
basic characteristics of such a programme, including the magnitude and the type of
benefits it distributes.4
III. Legal background
14. In traditional international law, where States are the major subjects, wrongful
acts and ensuing reparations are a matter of inter-State responsibility.5 International
human rights law progressively recognized the right of victims of human rights
violations to pursue their claims for redress and reparation before national justice
mechanisms and, subsidiarily, before international forums.
15. As a result of the international normative process, the international legal basis
for the right to a remedy and reparation became firmly enshrined in the elaborate
corpus of international human rights instruments now widely accepted by States.
Among the numerous international instruments are the Universal Declaration of
Human Rights (article 8), the International Covenant on Civil and Political Rights
(article 2), the International Convention on the Elimination of All Forms of Racial
Discrimination (article 6), the Convention against Torture and other Cruel, Inhuman
or Degrading Treatment or Punishment (article 14) and the Convention on the
Rights of the Child (article 39). Equally, the relevance of instruments of
international humanitarian law and international criminal law must be recalled in
this regard: the Regulations concerning the Laws and Customs of War on Land
__________________
4 See, for example, Alexander Segovia, “Financing reparations programs: reflections from
international experience”, in The Handbook of Reparations.
5 Permanent Court of International Justice, Case Concerning the Factory at Chorzów
(Indemnities): Germany v. Poland (21 November 1927).
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(article 3), the Protocol additional to the Geneva Conventions of 12 August 1949,
and relating to the protection of victims of international armed conflicts (article 91)
and the Rome Statute of the International Criminal Court (articles 68 and 75).
16. As stated by the Human Rights Committee in its general comment No. 31, the
duty of States to make reparations to individuals whose rights under the
International Covenant on Civil and Political Rights have been violated is a
component of effective domestic remedies: “Without reparation to individua ls
whose Covenant rights have been violated, the obligation to provide effective
remedy … is not discharged.” This statement affirms that jurisprudence of many
human rights bodies, which increasingly attaches importance to the view that
effective remedies imply a right of the victims and not only a duty for States.
17. The growing body of jurisprudence on both the substantive and procedural
dimensions of the right to reparation demonstrates the firm consolidation of the
right to reparation in international law. Treaty bodies and national, regional and
international courts, including the International Court of Justice, the Inter-American
Court of Human Rights and the European Court of Human Rights, have considered a
large number of both individual cases and group claims arising from periods of mass
violations, and have developed a rich jurisprudence. That jurisprudence has
confirmed that the State obligation to provide reparation extends far beyond
monetary compensation to encompass such additional requirements as: public
investigation and prosecution; legal reform; restitution of liberty, employment or
property; medical care; and expressions of public apology and official recognition
of the State’s responsibility for violations.
18. The adoption by the General Assembly of the Basic Principles and Guidelines
on the Right to a Remedy and Reparation for Victims of Gross Violations of
International Human Rights Law and Serious Violations of International
Humanitarian Law by consensus in 2005 is a milestone, not because it is an effort to
introduce new rights but, precisely, because it compiles what the international
community, through the Commission on Human Rights first and the General
Assembly second, recognized as already existing rights (see Assembly resolution
60/147, annex). There is no question, however, that the Basic Principles have had a
role in catalysing a better understanding of the right to reparation and in guiding
action in this domain, as shown by the fact that reference is increasingly being made
to this document in the jurisprudence of various courts.
IV. Reparation programmes
19. Valuable lessons can be derived from the experience of various countries with
massive administrative programmes. In the context of such programmes, the
understanding of the term “reparation” is slightly narrower than in international law,
where the term is used to refer to all measures that may be employed to redress the
various types of harms that victims may have suffered as a consequence of certain
crimes. This broader scope can be seen in the diversity of forms reparations can take
under international law. The Basic Principles sets out five forms: restitution,
compensation, rehabilitation, satisfaction and guarantees of non-repetition.
20. The very broad understanding of the term “reparation” that underlies these five
categories — an understanding that is closely tied to the more general category of
“legal remedies” — is perfectly consistent with the trend of looking for relations of
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complementarity between different justice measures. This trend is arguably the main
contribution made to the struggle for the realization of human rights by transitional
justice. Indeed, the five categories in the Basic Principles overlap with the holistic
notion of transitional justice that has been adopted by the United Nations system. 6
21. Operationally, however, the five categories go well beyond the mandate of any
reparation programme to date: no reparation programme has been thought to be
responsible for distributing the whole set of benefits grouped under the categories of
satisfaction and guarantees of non-repetition in the Basic Principles. In practice, those
who design reparation programmes are not responsible for policies dealing with, for
example, truth-telling or institutional reform. Rather than understanding reparation in
terms of the whole range of measures that can provide legal redress for violations, the
term is used to refer to the set of measures that can be implemented in order to
provide benefits to victims directly. Implicit in this difference is a useful distinction
between measures that may have reparative effects and may be both obligatory and
important (such as the punishment of perpetrators or institutional reforms) but that do
not distribute a direct benefit to the victims themselves and those measures that do and
are therefore to be considered reparations in the strict sense.
22. In the domain of practice concerning massive reparation programmes then,
work is organized mainly around the distinction between programmes with material
or symbolic measures and those that distribute benefits to individuals or
collectivities.
23. For analytical purposes, it is helpful to conceptualize reparation as a three -
term relationship in which the crucial concepts are “victims”, “beneficiaries” and
“benefits”. The ideal behind a reparation programme, then, is to distribute a set of
benefits in such a way as to turn every victim into a beneficiary. This simple model
allows for a neat organization of some of the challenges faced by reparation
programmes, bearing in mind that reparation is not just a mechanism for the transfer
of goods but part of an effort to achieve justice.
A. Which violations should be the object of reparation benefits?
24. Perhaps the most fundamental question in the design of a reparation
programme — Which kinds of violations will trigger access to benefits? — cannot
be answered through the adoption of a general definition of “victims”. 7
25. Such a definition should, however, frame the design of reparation programmes.
Of particular importance to framing considerations are: whether the harms to be
repaired are of one type only; whether relevant violations include both acts and
omissions; whether the victims include both those persons who are directly targeted
by an action and those who suffer the consequences of an omission directly; and the
fact that whether the perpetrator is identified, prosecuted or convicted is irrelevant
in determining whether a person is a victim of a gross violation of international
human rights law or of a serious violation of international humanitarian law. Even
__________________
6 See, for example, section IX of the report of the Secretary-General on the rule of law and
transitional justice in conflict and post-conflict societies (S/2004/616), the guidance note of the
Secretary-General on the United Nations approach to transitional justice (2010) and Human
Rights Council resolution 18/7.
7 See the definition of “victim” contained in the Basic Principles.
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after these points have been integrated in the general framework, however, crucial
questions remain unanswered. During oppressive regimes and in times of conflict, a
huge variety of rights are violated.
26. For a reparation programme to turn every victim into a beneficiary, its benefits
would have to be extended to the victims of all the violations that may have taken
place during a given conflict or repression. If it did that, the programme would be
comprehensive. To date, no programme has achieved total comprehensiveness. For
instance, no massive reparation programme has extended benefits to the victims of
human rights violations common during periods of authoritarianism, such as
violations of the rights to freedom of speech, association or political participation.
Most programmes have concentrated heavily on a few civil and political rights,
those most closely related to basic freedoms and physical integrity, leaving the
violations of other rights largely unrepaired. This concentration is not entirely
unjustified. When the resources available for reparations are scarce, choices have to
be made and, arguably, it makes sense to concentrate on the most serious crimes.
The alternative, namely drawing up an exhaustive list of rights the violation of
which leads to reparation benefits, could lead to an unacceptable dilution of
benefits.
27. That said, no programme has explained why certain violations trigger
reparation benefits and not others. Not surprisingly, most programmes have ignored
types of violations that perhaps could and should have been included. These
exclusions have disproportionately affected women and marginalized groups. So the
mere requirement to articulate the principles or at least the grounds for selecting the
violation of some rights and not others is likely to remedy at least the gratuitous
exclusions.8 Strengthening avenues for the participation of victims, a topic to which
the report will return, will be useful in this respect.
28. In the effort to prevent the excessive dilution of benefits by linking benefits to
a narrow list of violations, it is important to bear in mind that there are exclusions
that contravene not only specific legal obligations but also general principles,
including equal treatment, which would weaken the legitimacy of the overall effort.
Beyond that, such exclusions merely guarantee that the struggle for reparation will
remain on the political agenda, which may threaten the stability of the ini tiative as a
whole.9
B. What types of benefits should a reparation programme provide?
29. Fashioning a programme that distributes a variety of benefits (not all of them
material or monetary) helps increase its coverage, without necessarily increasing its
cost to the same degree.
30. The combination of different kinds of benefits is what the term “complexity”
seeks to capture. A reparation programme is more complex if it distributes benefits
of more distinct types and in more distinct ways than its alternatives. Material and
symbolic reparations can take different forms and be combined in different ways.
__________________
8 See Ruth Rubio-Marín, “The gender of reparations in transitional democracies”, in The Gender
of Reparations, Ruth Rubio-Marín, ed. (New York, Cambridge University Press, 2009).
9 For example, in Chile the exclusion of victims of torture and political detainees from most
reparation programmes led the largest group of victims to struggle until the mid-2000s.
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Material reparations may assume the form of compensation, i.e. payments in cash,
or of service packages, which may in turn include provisions for educat ion, health,
housing etc. Symbolic reparations may include official apologies, the change of
names of public spaces, the establishment of days of commemoration, the creation
of museums and parks dedicated to the memory of victims, or rehabilitation
measures such as restoring the good name of victims.
31. There are at least two fundamental reasons for crafting complex reparation
programmes. The first is that doing so will maximize resources. Programmes that
combine a variety of benefits ranging from the material to the symbolic and that
distribute each benefit both to individuals and collectivities may cover a larger
portion of the universe of victims. Since victims who have been subjected to
different categories of violations need not receive exactly the same kinds of
benefits, having a broader variety of benefits means reaching more victims. This
broader variety of benefits allows for a better response to the different types of harm
that a particular violation can generate, making it more likely that the harm caused
can, to some degree, be redressed.
32. Reparation programmes can range from the very simple (i.e. merely handing
out cash) to the highly complex (i.e. distributing not only money but also health
care, educational and housing support etc.) and include both individual and
collective symbolic measures. In general, since there are certain things that money
cannot buy, complexity brings with it the possibility of providing benefits to a larger
number of victims — as well as to non-victims, particularly in the case of collective
symbolic measures — and of targeting benefits flexibly so as to respond to a variety
of victims’ needs.
33. Material compensation to individuals has received more attention than any
other form of reparation, but other benefits, including symbolic measures, are
increasingly a part of reparation programmes or are receiving more attention as
possible elements of such programmes. As do other reparation measures, symbolic
benefits aim, at least in part, to foster recognition. In contrast to other kinds of
benefits, symbolic measures derive their great potential from the fact that they are
carriers of meaning and can, therefore, help victims in particular and society in
general make sense of the painful events of the past.10 The following individual
symbolic measures have been tried with positive effects: sending individualized
letters of apology signed by the highest authority in Government, sending each
victim a copy of a truth commission report and supporting families in efforts to give
proper burial to their loved ones. Collective symbolic measures such as renaming
public spaces, constructing museums and memorials, turning places of detention and
torture into memorial sites, establishing days of commemoration and engaging in
public acts of atonement have also been tried. Symbolic measures usually turn out to
be significant because, in making the memory of the victims a public matter, they
disburden the family members of victims from their sense of obligation to keep
alive the memory of those who perished and allows them to move on to other things.
This is part of what it means to say that reparations can provide recognition to
victims not only as victims but also as rights holders more generally.
__________________
10 See, for example, Brandon Hamber, “Narrowing the macro and the micro: a psychological
perspective on reparations in societies in transition”, in The Handbook of Reparations.
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34. The trend in favour of including symbolic benefits (both individual and
collective) deserves to be encouraged and promoted, but as one type of benefit
among others, not as a substitute for the benefits that victims are owed and, in most
cases, need. Furthermore, the participation of civil society representatives in the
design and implementation of symbolic reparation projects is perhaps more
significant than for any other reparation measure, given their semantic and
representational function.
Medical services
35. According to the Basic Principles, the notion of “rehabilitation” owed to
victims includes medical and psychological rehabilitation.11 Generally speaking,
there are good reasons for reparation programmes to be concerned with health
issues, not least because of the very high incidence of trauma induced by
experiences of violence and because there seem to be patterns of increased disease
and morbidity among the victim population. Thus, the provision of medical services,
including psychiatric treatment and psychological counselling, const itutes a very
effective way of improving the quality of life of survivors and their families.
36. The provision of medical services as a reparation benefit should not, however,
be conceived simply in terms of making pre-existing medical services available to
victims. Victims of serious human rights violations often need specialized services
that may not be readily available. For instance, in most countries emerging from
conflict and repression, the number of mental health specialists experienced with
torture victims is minimal. Quite aside from the need for specialized services, the
victims’ prior experiences affect the way services of all kinds need to be delivered
and great efforts are then required to make providers at all levels aware of these
special needs.
Other forms of rehabilitation
37. A good number of reparation programmes have established specific measures
to rehabilitate not just the health of victims but what may be called their “civic
status”. These include measures to restore the good name of victims by making
public declarations of their innocence, expunging criminal records and restoring
passports, voting cards and other documents. The importance of these measures
goes well beyond reasons of expedience and should be part and parcel of any
programme that seeks to provide recognition of victims as rights holders. Some
reparation programmes have learned from the traumatic experience of the widows of
the disappeared, in particular in Argentina, who on the one hand clearly needed to
resolve custody, matrimonial and succession issues but who on the other hand were
reluctant to ask for the death certificates of their disappeared spouses. In
programmes of this sort, certificates declaring a person to be “absent by forced
disappearance” have started to be issued, allowing surviving spouses to recover or
sell property, remarry and solve custody disputes, for example, without generating
__________________
11 Since 1992, Chile has been providing medical services to the victims of the dictatorship. The
reparation programme proposed by the Peruvian truth and reconciliation commission included
recommendations concerning health care, both physical and mental. Interestingly, both the
Peruvian commission and the Moroccan Equity and Reconciliation Commission included
in-house medical units.
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in them the feeling of betrayal they so frequently reported to be part of a request for
a death certificate.12
Collective reparation
38. The notion of collective reparation has recently garnered interest and
support.13 The term “collective reparation” is ambiguous, as “collective” refers to
both the nature of the reparation (i.e. the types of goods distributed or the mode of
distributing them) and the kind of recipient of such reparation (i.e. collectivities).
39. A public apology, for example, is a collective reparation measure. The aims of
such measures include giving recognition to victims, but also reaffirming the
validity of the general norms that were transgressed (and, in this way, indirectly
reaffirming the significance of rights in general, including, of course, the rights of
victims, thereby strengthening the status of victims not just as victims but as rights
holders).14
40. Collective reparations are not only symbolic: some are material as well, as
when a school or a hospital is built in the name of reparation and for the sake of a
particular group.15 Collective reparations of the material kind are constantly at risk
of not being seen as a form of reparation at all, and as having minimal reparative
capacity. Part of the problem is that such measures do not target victims specifically.
Collective programmes that distribute material goods concentrate frequently on
non-excludable goods (i.e. goods that, once made available, are difficult to keep
others from consuming). If a collective reparation programme constructs a hospital,
for example, it is clear that both victims and non-victims alike will use it.
41. The problem is compounded by the fact that collective programmes of this sort
tend to distribute basic goods, in other words goods to which all citizens, not only
victims, have a right. It is argued by some that the benefits provided by these
development “reparation” programmes are not accessible in contexts of deprivation
and that making them available, therefore, constitutes a positive benefit. While
prioritizing investment in these areas would result in victims having access to basic
services before other citizens, that benefit dissipates once the basic good has
become generally available. Strictly speaking, development programmes are not
reparation programmes, for they do not target victims specifically and their aim is to
satisfy basic and urgent needs to which beneficiaries have a right as citizens, not
necessarily as victims.
42. Consequently, in order for reparation programmes to retain their
distinctiveness, collective reparation programmes should be organized around
__________________
12 See Law No. 24,321 (1991).
13 See the Basic Principles and the updated set of principles for the protection and promotion of
human rights through action to combat impunity (E/CN.4/2005/102/Add.1).
14 See Pablo de Greiff, “The role of apologies in national reconciliation processes: on making
trustworthy institutions trusted”, in The Age of Apology: Facing up to the Past, Mark Gibney,
Rhoda E. Howard-Hassmann, Jean-Marc Coicaud and Niklaus Steiner, eds. (Philadelphia,
University of Pennsylvania Press, 2008).
15 Inter-American Court of Human Rights, Aloeboetoe et al. case (10 September 1993). See also
Cristián Correa, “Reparations in Peru: from recommendations to implementation” (International
Center for Transitional Justice, June 2013), and “The Rabat report: the concept and challenges
of collective reparations” (Advisory Council on Human Rights of Morocco and International
Center for Transitional Justice, 2009).
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non-basic services. How this is to be done in contexts where basic services are not
available is not so easy to fathom. Educational, cultural, artistic, vocational and
specialized medical services targeting the special needs of the victim population are
possibilities that deserve further exploration.
C. Magnitude of economic benefits
43. One of the greatest challenges faced by reparation programmes is where to set
the level of monetary compensation. International practice in the area of reparations
varies significantly from country to country. For instance, although the South
African Truth and Reconciliation Commission proposed giving victims a yearly
grant of around $2,700 for six years, the Government ended up making a one-off
payment of less than $4,000 to the victims identified by the Commission. The
United States provided $20,000 to the Japanese-Americans who were interned
during the Second World War. Brazil gave a minimum of $100,000 to the family
members of those who died in police custody. Argentina gave the family members
of victims of disappearance bonds with a face value of $224,000, while Chile
offered a monthly pension that amounted originally to $537 and that was distributed
in set percentages among family members. A recent law for victims in Colombia
provides that family members of victims of killings or enforced disappearance
receive around $13,000. A similar figure was proposed by the interministerial
commission in charge of implementing reparations in Peru.
44. The rationale offered for selecting a given figure, if one is offere d at all, also
varies. The South African Truth and Reconciliation Commission had originally
recommended using the national mean household income for a family of five as the
benchmark figure. The Government’s selected figure of $4,000 was never justified
in independent terms, and the figure does not correspond to anything in particular.
The same thing can be said about the choice made by the Government of the
United States to give $20,000 to the Japanese-Americans interned during the Second
World War and about the decision by Brazil to provide at least $100,000. In
Argentina, after it was suggested that the reparation plan be based on the existing
plan for compensating victims of accidents, the President at the time, Carlos
Menem, dismissed the suggestion, arguing that there was nothing accidental about
the experiences of the victims and chose instead the salary level of the most highly
paid officials in the Government as the basis for calculating reparation benefits. The
one-time payment made by the Government of Colombia to family members of
victims of enforced disappearance corresponds to 40 minimum monthly salaries. In
such political contexts, the choices are made more with an eye to meeting the
criterion of feasibility than to questions of principle. This, and not only the
generally low levels of compensation offered by most programmes, makes such
practices of questionable value as precedents and as guides for future practice.
Indeed, simply requiring future programmes to justify their decisions concerning
compensation levels may in itself produce positive results.
45. Judicial approaches to reparations have settled on a compelling criterion to
decide on the magnitude of reparations, namely that of restitutio in integrum, which
is an unimpeachable criterion for individual cases, for it tries to neutralize the
effects of the violation on the victim and to prevent the perpetrator from enjoying
the spoils of wrongdoing. Actual experience with massive reparation programmes
suggests, however, that satisfying this criterion is rarely even attempted.
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46. While international law arguably provides some latitude for the settlement of
the large volume of reparations that are addressed in massive cases, it still calls, as
summarized in the Basic Principles, for “adequate, effective and prompt reparation
for harm suffered”. The Special Rapporteur expresses alarm at the failure of some
programmes to satisfy any defensible interpretation of these criteria.
47. In the context of transitional justice, understood as a comprehens ive policy to
redress massive violations, the aims of reparation programmes are to provide
recognition to victims not only as victims but primarily as rights holders and to
foster trust in institutions that have either abused victims or failed to protect t hem.
These aims can be achieved only if victims are given reason to believe that the
benefits they receive are a manifestation of the seriousness with which institutions
take violations of their rights. Because reparation programmes are not mere
mechanisms to distribute indemnities, the magnitude of the reparation needs to be
commensurate with the gravity of the violations, the consequences that the
violations had for the victims, the vulnerability of victims and the intent to signal a
commitment to upholding the principle of equal rights for all.
V. Selected problems
48. The fundamental challenge that reparation still faces today is the great
reluctance of Governments to establish such programmes. This lack of
implementation leads to a situation that can be appropriately characterized as a
scandal: most victims of gross human rights violations and serious violations of
international law receive, in fact, little to no reparation, despite progress at the
normative level.
49. The reluctance of Governments to implement reparation programmes rests
upon many factors, including the not infrequent marginalization of most victims,
which makes them, relatively speaking, politically weak agents. This
marginalization makes the victims and their plight largely invisible to decision
makers. The Special Rapporteur takes the opportunity to insist that taking rights
seriously involves satisfying them independently of political considerations, even if
the political views of victims are deemed unattractive.
50. Similarly, in many countries there are those who hold the view that, regarding
past violations, it is better to “turn the page” and “let bygones be bygones”. Not
surprisingly, this is a view that is often expressed by elites, who either have not
borne the brunt of the violations or have the wherewithal to neutralize some of their
impact, and not by victims, on whose tireless efforts, progress on reparation usually
depends. The Special Rapporteur insists that countries cannot pretend to secure
stability at the expense of the rights of victims.
A. Reparation programmes are unaffordable
51. Many Governments react to demands for reparation by offering one of two
arguments related to resources. The first is that reparations are unaffordable. The
second is that reparations are not only expensive but that they compete for resources
with other priorities such as development. Both claims warrant close scrutiny.
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52. There is no question that a massive reparation programme for a large universe
of victims involves the mobilization of significant resources. There is the tendency
to think that there is, consequently, a straightforward correlation between a
country’s socioeconomic development and its ability to implement a reparation
programme at all, and to the magnitude of the benefits it can distribute.
53. The record suggests, however, a more complex picture, in which political
factors play a large role. There is no obvious direct correlation between the degree
of socioeconomic development of a country and the magnitude of the reparation
programmes it establishes to redress massive violations. Some countries with
relatively wealthy economies have established programmes that are not particularly
munificent, while some countries with comparatively smaller economies have
established programmes that distribute relatively large benefits. Nor do economic
factors alone explain either the existence of a reparation programme or the
magnitude of the benefits distributed through it. Countries in comparable economic
circumstances often take quite different paths on this issue.
54. Consequently, it appears that non-economic constraints play at least as large a
role as purely economic factors. Whatever feasibility the claim that reparations are
unaffordable for a given country may have depends on the seriousness of the effort
to quantify these costs. Suspiciously, most Governments that make this claim do so
before any such effort has been undertaken, laying bare their unwillingness to take
seriously what is in fact a matter of legal obligation.
55. Furthermore, judgements about the feasibility of paying certain costs are
usually of the ceteris paribus type, and in transitional or post-conflict situations it
makes little sense for all other things to remain equal; absent an unexpected budget
surplus, it will be impossible to engage in meaningful reparations for victims
leaving all other State expenditures untouched.16 As the lack of obvious correlations
between macroeconomic factors and reparations suggest, the crucial variable has
more to do with commitment to satisfying legal and moral obligations.
56. Broadly speaking, there are two main models for financing reparations:
creating special trust funds or introducing a dedicated line in the yearly national
budget for reparations. Countries that have experimented with the first model have,
to date, fared significantly worse than countries that have used the second. Part of
the reason may have to do with a question of political commitment. Nothing
illustrates commitment more clearly than the willingness to create a dedicated
budget line. The expectation that it will be possible to find alternative sources of
funding for purposes of reparations underlying the creation of trust funds may either
demonstrate, or actually give rise to, weak political commitments, emphasizing yet
again that although socioeconomic development is important, it should not cloud the
crucial significance of political factors.4
57. Having said this, there is no reason, in principle, why all creative funding
efforts should fail. Some explanations include:
__________________
16 Thus, for example, some countries were expanding their navies while refusing to establish
reparations in line with the recommendations of truth commissions, arguing that reparations
would be too burdensome economically. See also Brandon Hamber and Kamilla Rasmussen,
“Financing a reparations scheme for victims of political violence”, in From Rhetoric to
Responsibility: Making Reparations to the Survivors of Past Political Violence in South Africa
(Johannesburg, Centre for the Study of Violence and Reconciliation, 2000).
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(a) Special taxes targeting those who may have benefited from the conflict
or the violations, like those that were proposed by the Truth and Reconciliation
Commission in South Africa (but were never adopted);
(b) Especially in cases in which a State has accepted to provide reparations
for victims of third parties, nothing should prevent the State from attempting to
recover illegal assets from those parties. Peru has devoted a portion of the assets it
recovered from corruption to victim-related issues, as did the Philippines, with
monies recovered from the Marcos estate. Colombia is attempting to do the same
with assets held by paramilitaries and, presumably, so will Tunisia, whose Truth and
Dignity Commission is empowered to settle, through arbitration, cases of
corruption. Reparation programmes should not, however, be held hostage to or made
conditional upon the recovery of such assets in cases where the State bears clear
responsibility for the violations, either through action or omis sion.
58. The international community’s traditionally weak support for reparation
initiatives stems from the belief that the assumption by the national Governments of
the financial burden of reparation is part of what is involved in recognizing
responsibility, and that carrying the burden has, in itself, a reparative dimension.
This is not unjustified. The international community can, however, play a
significantly larger role in the financing of reparations, including by: rethinking, at
least in some cases, particularly in those in which international actors themselves
have played an important role in a conflict, their reluctance to provide direct
material support to reparation efforts; making sure that multilateral institutions,
which play an important and influential role in setting economic conditions in the
aftermath of transitions in general and of conflict in particular, do so in a way that is
at least compatible with attending relevant obligations towards victims; and
considering creative approaches to supporting reparations, including debt swaps
whereby international lenders cancel a portion of the host country’s debt on the
condition that the same amount be spent on reparations and other forms of support
for victims.17 The Special Rapporteur calls on the international community to be
more responsive in supporting reparation programmes for victims.
59. The second resource-related argument that Governments are wont to offer
against reparations is that they compete with other priorities, including
development. There are, indeed, two versions of this argument, one mild and one
extreme: the milder form consists of pretending that development programmes are
reparation programmes18 and the extreme form is based on the assertion that justice
can be reduced to development and that violations do not really call for justice but
for development. Both forms constitute a failure to satisfy the abiding obligation to
provide both justice and development initiatives.
60. Even when the attempt to pass a development project as a reparation
programme is not a transparent ploy, in effect, the tendency to not spend resources
on reparation should be resisted. Indeed, it is important to distinguish between
development interests in general or the duty to satisfy social and economic rights in
particular and the obligation to provide assistance under international humanitarian
__________________
17 In the guidance note of the Secretary􀇦General on reparations for conflict-related sexual violence
several relevant examples are given of international financial support for reparation
programmes.
18 See Rule of Law Tools for Post-Conflict States: National Consultations on Transitional Justice
for some illustrative examples of this tendency.
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law. It is also important to distinguish these two from the obligation to provide
reparations for human rights violations. Although there is much to be said abo ut the
advantages of trying to establish links between programmes that satisfy each of
these obligations so as to enhance their impact, it is important to keep firmly in
mind that these are distinct sources of obligation and that programmes will be
successful if they integrate and respond to the nature of the distinct obligation on
which they are grounded.19
61. Thus, while neither development initiatives nor humanitarian assistance need
to be accompanied by an acknowledgment of responsibility, nothing can count as
reparation, sensu stricto, without such acknowledgment. Furthermore, for an act to
count as reparation, it is not just the intention that matters (that is, the willingness to
acknowledge responsibility, as a retrospective expression of a commitment to rights,
by trying to redress past violations but as a prospective expression also, by
signalling through the very existence of the programme itself that rights are taken
seriously); the type of goods distributed matters as well. Goods and services that all
citizens get by virtue of being citizens can hardly count as reparations for victims.
B. Reluctance to admit responsibility
62. In some cases, a reluctance to admit responsibility is manifest independently
of considerations related to costs. Indeed, there are countries that establish
“reparation” programmes that provide benefits to victims but, at the same time, try,
by different means, to deny or limit responsibility. Thus, in the legislation
establishing some programmes it is argued that the benefits are given not as a way
of satisfying the legal obligations of the State and the rights of the victims but as an
expression of “solidarity” with them.20 In other legal frameworks, the acts that are
the subject of redress are declared to be “unjust” but such a declaration is also said
to have no legal consequences (see Historical Memory Act of Spain, in
A/HRC/27/56/Add.1).
63. Reparation programmes that fail to acknowledge responsibility in effect
attempt to do the impossible. Just as an apology is ineffective unless it involves an
acknowledgment of responsibility for wrongdoing (an apology depends on such
recognition, everything else being an excuse or an expression of regret) reparation
programmes that fail to acknowledge responsibility do not provide reparation and
are more akin to mechanisms for the distribution of indemnification benefits.
Experience confirms that victims, quite correctly, do not see the transfers performed
through such programmes as reparations, and therefore continue to struggle to have
that right satisfied. The Special Rapporteur emphasizes that reparation, properly
speaking, involves an acknowledgment of responsibility.
__________________
19 Inter-American Court of Human Rights, Gonzalez et al. (“Cotton Field”) v. Mexico (judgement
of 16 November 2009).
20 See, for example, Law No. 975 of Colombia. This is a view that has unfortunately been
endorsed by the Constitutional Court. For years, victims of State agents could not gain access to
administrative programmes because the State claimed that it could accept responsibility only on
the basis of judicial sentences.
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C. Exclusions and selectivity
64. As mentioned above, all reparation programmes face the challenge of
achieving comprehensiveness, in other words of making sure that the broadest
possible categories of violations are the subject of redress (without diluting benefits
to the point of becoming irrelevant). There are however, two ways of getting this
wrong. One way is to exclude from the purview of the programme whole categories
of victims that are significant because of either the nature or the prevalence of the
violations. Part of the reason why this happens is that a significant number of
reparation programmes nowadays stem from the recommendations of truth
commissions, whose mandates predefine the types of violations to be focused on
and because those mandates are not designed with an eye to reparations. Thus, for
example, it took Chile (a country that has plenty of lessons to teach about successful
reparations) years to establish reparation programmes for victims of torture and
arbitrary detention, despite the fact that there were many more victims of these
kinds of violations that there were of violations leading to death. The difficulty here
was related to mandate of the National Commission on Truth and Reconciliation of
Chile, which was limited to the latter kind of violations. 21 Similarly, even before the
Government of South Africa decided not to follow the recommendations of its Truth
and Reconciliation Commission concerning the magnitude of the benefits that
victims should receive, the recommendations had become the subject of criticism
for leaving out important categories of victims, an omission that was grounded in
the mandate of the Commission. The argument that almost every non-white person
in South Africa was the victim of apartheid and therefore deserved reparation
aside,22 the Truth and Reconciliation Commission’s mandate defined victims in such
a way as to exclude categories of victims that arguably should have been considered
as beneficiaries. Among those individuals were the victims of the kind of routine
violence that accompanied the social engineering aspects of apartheid, such as
people who died, not in political demonstrations, but, for example, in forced
removals and people who were detained under state-of-emergency provisions.
65. That said, whole categories of violations have also been disregarded in
countries that have established reparation initiatives independently of truth
commissions. In Uruguay, for example, the victims of arbitrary detention and torture
have not received sufficient attention, despite the fact that the types of violations
they suffered were inflicted systematically, as part of the modus operandi of a
regime that came to have the largest population of illegal detainees per capita in
Latin America (see A/HRC/27/56/Add.2). In Spain, where programmes were also
established over the years to benefit various types of victims of both the civil war
and the Franco dictatorship, many categories of victims, including those sentenced
by some special tribunals, are still not considered even though they should be. The
benefits that victims of the civil war and the dictatorship receive also differ
significantly from the benefits offered by existing programmes (and from those that
__________________
21 Law No. 19,123 (1992) established the framework for reparations for victims of deadly political
violence, political executions and disappearance while in detention. It was only after the
establishment of the Truth Commission for Torture and Political Detention in 2004 that
deliberations leading to the establishment of reparations for these victims started.
22 See, for example, Mahmood Mamdani, “Reconciliation without justice”, in Southern African
Review of Books, No. 46 (November/December 1996).
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would be offered by legislation under consideration) to the victims of recent acts of
terrorism, a politically laden issue (see A/HRC/27/56/Add.1).
66. No exclusion undermines the contribution that a reparation programme can
make to the idea of the value of human rights more than those exclusions that give
the impression that they are grounded on the political affiliation of either the victim
or the perpetrator. Just as nothing undermines the credibility of a prosecutorial
strategy more than its appearance of being one-sided, the same applies when
reparation programmes appear to be opportunities to benefit one side of a conflict
(see A/HRC/27/56 and A/HRC/24/42/Add.1, on Tunisia).
67. A truly human rights-based approach to reparations would take as the only
relevant criterion for providing access to benefits the violation of rights. Several
programmes, however, implicitly target supporters of some causes. 23 Worse still,
some explicitly define access in terms of political considerations. Thus, there are
laws creating reparation programmes that, for example, bar access to benefits for
members of former or existing subversive groups, even if those individuals have
been captured and tortured.24 The Special Rapporteur insists that human rights
should be placed at the centre of the design and implementation of reparation
programmes and that introducing political considerations of any kind in defining
criteria for access to benefits poses a fundamental threat to the nature and function
of such programmes.
D. Gender and reparations
68. Cases of exclusions to reparations for gender-related reasons have received
increasing attention of late and, because they have been the subject of significant
normative progress and of some improvements in practice, in the present report it is
stressed that it is important to further that progress and improve consistency in
design and implementation.
69. In spite of significant conceptual progress (see A/HRC/14/22 and
A/HRC/27/21)25 and some positive practices at the domestic level, in far too few
instances have individuals received reparation for serious gender-related violations
through programmes with an inherent gender-sensitivity aspect. In the face of this
__________________
23 See, for example, the use of the term “martyr” in discussions about reparations. On the issue of
reparation for “martyrs” and their families in Tunisia, see A/HRC/24/42/Add.1, paragraphs 19-21.
24 See, for example, Law No. 19,979 (2012) and article 4 of Law No. 28,592 (2005) of Peru, by
which members of subversive organizations are not considered victims (a limitation that
explicitly contravenes the recommendations made by the Truth and Reconciliation Commission).
See also article 11 of Law 1,449 (2011) of Colombia. In Chile and South Africa, reparations
have been granted to victims even though they belonged to repressive organizations or
subversive groups. In Brazil, reparations have been granted to those benefiting from the 1979
amnesty law, which covers political crimes and crimes with a political nexus. It could be argued,
however, that the Brazilian laws (Nos. 9,140 and 10,559) are in fact exclusionary, given that
they refer only to types of violations committed by State agents; this is also true of the laws on
reparation of Argentina (Nos. 24,043, 24,441 and 25,914). In the former Yugoslavia, legislation
for victims is partial in yet another sense, for it provides benefits for victims of enemy forces
but not for victims of national forces.
25 See the Nairobi Declaration on Women’s and Girls’ Rights to a Remedy and Reparation and the
guidance note of the Secretary􀇦General on reparations for conflict-related sexual violence.
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shortcoming, the Special Rapporteur would like to recall the main elements and
challenges set out below.
70. The participation of victims, in particular women and girls, in the early stages
of debates on the design of reparation programmes contributes to ensuring that
serious gender-related violations are not excluded from the range of rights that, if
violated, will trigger reparation benefits. The intersection of gender with other
aspects of identity (e.g. ethnicity and religion) and more structural positions
(e.g. level of education) needs to be taken into account. In addition, focusing on
overly narrow ranges of forms of sexual violence must be avoided so as to capture
other, although still gender-related, serious violations (see A/HRC/14/22).26
71. Procedural and evidentiary rules often constitute sources of exclusion.
Consequently, in instances of serious violations, some entities have applied a
presumption of related gender-specific violations27 or a lowered or differentiated
evidentiary test.28 Confidentiality and the provision of a safe environment will assist
in minimizing re-victimization, stigma or exposure to reprisals. Other dimensions of
procedure, such as the requirement of being a bank-account holder, strict application
deadlines and closed-list systems beyond well-known limitations of lack of
proximity and linguistic or literacy barriers, often constitute insurmountable
hurdles.
72. The Special Rapporteur emphasizes that the main objective of reparation
programmes is to tackle and, to the extent possible, subvert pre-existing patterns of
structural discrimination against and inequalities experienced by women (see
A/HRC/14/22).26 Reparations must therefore not contribute to the entrenchment of
these factors, which, indeed, provide a breeding ground for gender-related violations
to occur in the first place. The Equity and Reconciliation Commission of Morocco,
for example, departed from traditional law of inheritance when apportioning
benefits among family members of deceased victims in order to benefit women. In
some instances, such a transformative approach has shown to have an instigating
spillover effect in relation to the reform of personal status and related legislation
and practices.
73. In terms of distribution, providing periodic benefits or the undertaking of
autonomy-enhancing projects, such as the provision of shares in microcredit
programmes to women beneficiaries in combination with specific training, have
shown to have a more sustainable effect than lump-sum or one-off benefits. Thus,
beyond the necessary benefits in the areas of health and housing, for example,
reparation programmes should aim to empower their beneficiaries, instead of
drawing them into another form of dependency.
__________________
26 Ruth Rubio-Marín and Pablo de Greiff, “Women and reparations”, International Journal of
Transitional Justice, vol. 1, No. 3 (2007).
27 See, for example, the Equity and Reconciliation Commission of Morocco: International Center
for Transitional Justice and Foundation for the Future, Morocco: Gender and the Transitional
Justice Process (2011).
28 Intentional Criminal Court, Prosecutor v. Lubanga Dyilo, decision establishing the principles
and procedures to be applied to reparations.
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E. Victim participation
74. There are many reasons for including participatory processes in the design and
implementation of reparation programmes. For example, these processes may make
a positive contribution to the programme’s completeness and to its ability to turn
every victim into a beneficiary; in situations of gross and systematic abuse, it is
frequently the case that many victims are not registered anywhere, or that there is no
single place where all of them are registered. Civil society organizations may have
closer links with and a deeper reach into victims’ communities than official
institutions, which is why completeness can hardly be achieved without their active
efforts.
75. The aim of securing the participation of victims and their representatives
requires guaranteeing their safety. The case of Colombia, where in 2013 the Office
of the United Nations High Commissioner for Human Rights confirmed the murder
of 39 human rights defenders (see A/HRC/25/19/Add.3, paras. 70 and 72), including
those raising claims for reparations, in particular land restitution, is an especially
worrisome case, but Colombia is nowhere close to being the only country where
people involved in the struggle for reparation are physically threatened. The Special
Rapporteur emphatically calls on Member States to abide by their obligations to
protect the life and well-being of those who are trying to make effective their rights,
including those to reparation.
76. Victim participation in reparation programmes is not possible without effective
outreach, information and access. Strategies need to be designed in order to
overcome cleavages related to differences between urban and rural populations,
indigenous and other cultural and ethnic groups, linguistic factors and literacy rates.
No matter how neat a blue print for reparation might be, it is unlikely that a
reparation programme can fulfil its fundamental aim of providing recognition and
fostering civic trust if it is simply foisted on victims.
77. Victim participation can help increase the “fit” between the benefits on offer
and the expectations of victims. Regarding symbolic reparations, both individual
and collective, the benefits cannot fail to speak to their intended targets, among
others, on pain of the message floundering completely.
78. This is true not just regarding symbolic reparations: rarely is the distribution of
material reparations through massive programmes capable of satisfying the principle
of restitutio in integrum. Their acceptability also depends on a complicated
judgement about the appropriateness of the whole complex of benefits and of the
relationship between them and other justice measures, including criminal justice,
truth and guarantees of non-recurrence, a judgement that is also for victims to make.
79. One important contribution that victims can make, a contribution that is
analogous to that made by victims to the definition of a prosecutorial strategy,
which they can improve by helping to define the charges to be pursued, relates to
the fundamental question of the types of violations that need to be redres sed (see
A/HRC/27/56). “Gravity” and “seriousness” are not merely technical terms.
Whether a reparation programme is sufficiently comprehensive is not just an
abstract issue but a function of whether the programme responds to violations that
victims perceive to be especially significant.
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80. In the face of the scandalously poor level of compliance with national and
international obligations concerning reparations, and of the relatively poor record of
implementation of the recommendations of truth commissions and other bodies,
there is no better way to improve the degree of compliance with the relevant
obligations than through an active, well organized and involved civil society. The
Special Rapporteur calls on Governments to establish meaningful victim
participation mechanisms regarding reparations, where success is measured not
merely in terms of token measures but also in terms of satisfactory outcomes.
VI. Conclusions and recommendations
81. Despite significant progress at the normative level establishing the rights
of victims to reparations, as well as some important experiences at the level of
practice, most victims of gross violations of human rights and serious violations
of international humanitarian law still do not receive any reparation. This
implementation gap is of scandalous proportions. It not only affects victims
directly, but has a ripple effect that can be felt across generations and entire
societies and that is laden with legacies of mistrust, institutional weaknesses
and failed notions and practices of citizenship.
82. While well-designed reparation programmes should primarily be directed
at victims of massive violations, they can have positive spillover effects for
whole societies. In addition to making a positive contribution to the lives of
beneficiaries and to exemplifying the observance of legal obligations,
reparation programmes can help promote trust in institutions and the social
reintegration of people whose rights counted for little before.
83. For a benefit to count as reparation and to be understood as a justice
measure, it has to be accompanied by an acknowledgment of responsibility and
needs to be linked with other justice initiatives such as efforts aimed at
achieving truth, criminal prosecutions and guarantees of non-recurrence. The
Special Rapporteur insists that each of these kinds of measures is a matter of
legal obligation and warns against the tendency to trade one measure off
against the others. Offering reparations to victims should not be part of an
effort, for example, to make impunity more acceptable.
84. A distinction can be made between reparation programmes with material
or symbolic measures and those that distribute benefits to individuals or
collectivities. The Special Rapporteur calls on those responsible for designing
reparation programmes to consider the great advantages of distributing
benefits of different kinds and to not reduce reparation to a single dimension,
be it material or symbolic. The great harms that reparation is supposed to
redress require a broad array of coherently organized measures.
85. Symbolic measures are increasingly and successfully being used because
they make the memory of the victims a public matter. They can disburden
victims’ relatives from a sense of obligation to keep the memory of the victims
alive, thus allowing them, and hence society, to move on to other things. Yet,
symbolic measures cannot bear the whole burden of redress.
86. Collective reparation programmes may offer, among other things, services
that victim populations clearly need, including health care, education and
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housing, and thereby overlap with development programmes. The Special
Rapporteur insists on the importance of linking reparations and development,
but also on their distinct grounding, functions and purpose. He cautions against
trying to pass development programmes as reparations. In addition to the right
to basic services that everyone has, victims have, individually, a right to distinct
forms of reparation.
87. The Special Rapporteur expresses alarm at the failure of a number of
programmes, which fall significantly short of providing adequate, effective and
prompt reparation, as enshrined in the Basic Principles. While reiterating that
reparations are not mere mechanisms to distribute indemnities, the magnitude
of reparations needs to be commensurate with the gravity of the violations, the
consequences they had for the victims, the vulnerability of victims and the
intent to signal a commitment to upholding the principle of equal rights for all.
88. The argument that reparations are unaffordable cannot be taken at face
value, especially if this claim is made prior to any effort to quantify the real
costs and benefits of such programmes and to an analysis of other expenditures.
The evidence suggests that there is no obvious correlation between economic
factors and a willingness to implement reparation programmes. Political
factors seem to be strong determinants. A commitment to satisfying rights is a
stronger factor than affluence.
89. Human rights should be placed at the centre of the design and
implementation of reparation programmes. Introducing political considerations
of all kinds in defining criteria of access poses a fundamental threat to the
nature and function of such programmes. Reparations should not be used as an
opportunity to even scores or to benefit the supporters of the current regime.
Neither the identity nor the political views of the victim and the perpetrator
should be used as the defining criterion of reparation. The violation of rights,
independently of other considerations, is the necessary and sufficient condition
for gaining access to benefits. The Special Rapporteur calls on those responsible
for establishing reparation programmes to be mindful of the possible
unjustified exclusion of entire categories of victims.
90. Despite some progress in law and in some particular cases, there is ample
room for reparation programmes to improve in terms of gender sensitivity. Too
few victims of gender-related violations receive any reparation. Most
programmes, to the extent that they even consider women, concentrate on
sexually based violations and, to the extent that these address sexually based
violations, they concentrate on rape. The Special Rapporteur calls for more
comprehensive programmes that redress violations that typically and
predominantly affect women. Practical and procedural obstacles should be
removed so that women can benefit from the programmes. Requiring the
explicit articulation of the principles that define the selection of violations that
trigger access to reparation is a useful exercise. To the extent possible,
reparation programmes should subvert pre-existing patterns of structural
inequalities and discrimination against women. More work should be
undertaken on empowering and autonomy-enhancing programmes.
91. The Special Rapporteur calls on Governments to establish mechanisms for
the meaningful participation of victims and their representatives. This requires
guaranteeing their safety. The Special Rapporteur urges Member States to
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abide by their obligations to protect the life and well-being of those who are
trying to make effective their rights, including to reparation.
92. Victim participation can help improve the reach and completeness of
programmes, enhance comprehensiveness, better determine the types of
violations that need to be redressed, improve the fit between benefits and
expectations and, in general, secure the meaningfulness of symbolic and
material benefits alike. Moreover, active and engaged participation may offer
some relief in the light of the dismal record in the implementation of
reparations.
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ANNEX 7.3
International Centre for Transitional Justice, The Accountability Landscape
in Eastern DRC. Analysis of the National Legislative and Judicial
Response to International Crimes (2009-2014), July 2015
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International Center for Transitional Justice
CRIMINAL JUSTICE
The Accountability
Landscape in Eastern DRC
Analysis of the National Legislative and
Judicial Response to International Crimes
(2009–2014)
July 2015
This project is funded by
The European Union
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Cover Image: Baraka, DRC, February 2011.
Defense attorneys for soldiers accused of rape
and crimes against humanity listen to victim
testimony during the trials (Prime)
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International Center for Transitional Justice
CRIMINAL JUSTICE
The Accountability
Landscape in Eastern DRC
Analysis of the National Legislative and
Judicial Response to International Crimes
(2009–2014)
July 2015 Sofia Candeias, Luc Côté, Elsa Papageorgiou, and Myriam Raymond-Jetté
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II www.ictj.org
The Accountability Landscape in Eastern DRC
©2015 International Center for Transitional Justice. All rights reserved. No part of this publication may be
reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical,
photocopying, recording or otherwise, without full attribution. Disclaimer: The contents of the publication are
the sole responsibility of ICTJ and can in no way be taken to reflect the views of the European Union.
Acknowledgements
ICTJ gratefully acknowledges the generous financial support of the European Union and
Humanity United, which made possible the research and writing of this report.
The authors extend special thanks to Colonel Toussaint Muntazini, Chief of Staff of the
Auditorat Militaire General, for his invaluable support for the investigations and research
that led to this report. They also thank the judicial staff and Magistrates of the military
jurisdiction of Eastern DRC, in particular the Military Operational Court and Auditorat
Militaire Opérationnelle, Military Superior Court and Auditorats Supérieurs of Goma and
Bukavu, and Military Garrison Tribunal and Auditorat de Garnison of Bunia, Bukavu, Goma
for their collaborations. They also acknowledge the collaboration of UNDP, UNJHRO, MONUSCO’s
Prosecution Support Cells, and Avocats Sans Frontières.
About ICTJ
ICTJ assists societies confronting massive human rights abuses to promote accountability,
pursue truth, provide reparations, and build trustworthy institutions. Committed to the
vindication of victims’ rights and the promotion of gender justice, we provide expert
technical advice, policy analysis, and comparative research on transitional justice
approaches, including criminal prosecutions, reparations initiatives, truth seeking and
memory, and institutional reform. For more information, visit www.ictj.org
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International Center
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The Accountability Landscape in Eastern DRC
www.ictj.org
CONTENTS
1. Introduction .....................................................................................................................................................................................................................................................................................................................................................1
Methodology .............................................................................................................................. 3
2. Normative Framework in the DRC .................................................................................................................................................................................................................................................5
Provisions Relating to the Prosecution of Serious Crimes ............................................................ 5
Applying the Rome Statute to Congolese Criminal Law ............................................................. 7
Military Jurisdiction over Serious Crimes .................................................................................... 8
Legislative Bills Relevant to National Judicial Response to Serious Crimes ................................ 10
3. Judicial Practice ...............................................................................................................................................................................................................................................................................................................................17
Th e Context ............................................................................................................................. 17
Judicial Response to International Crimes from 2009 to 2014 .................................................. 17
Capacity of the Judicial System and Level of Support Required ................................................ 20
Analysis of Open Investigations: External Infl uences and Judicial Response to Atrocities .......... 29
4. Conclusions ................................................................................................................................................................................................................................................................................................................................................34
5. Recommendations ..................................................................................................................................................................................................................................................................................................................36
APPENDIX .................................................................................................................................................................................................................................................................................................................................................................................39
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ACRONYMS
ABA American Bar Association
AMS Higher Military Prosecutor’s Office (Auditorat Militaire Supérieur)
APCLS Alliance of Patriots for a Free and Sovereign Congo
ASF Lawyers without Borders (Avocats Sans Frontières)
CICC Coalition for the International Criminal Court
CNDP Congrès National du Peuple
Commission PAJ Commission Politique, Administrative et Juridique
CPRDC Commission Permanente de Réforme du Droit Congolais
DRC Democratic Republic of the Congo
FARDC Forces Armées de la République Démocratique du Congo
FAZ Force armées zaïroises
FDLR Forces Démocratique de Libération du Rwanda
FIDH Fédération Internationale des Droits de l’Homme
FRPI Force de Résistance patriotique de l’Ituri
HRW Human Rights Watch
HMC High Military Court (Haute Cour Militaire)
ICC International Criminal Court
ICCN Institut Congolais pour la conservation de la nature
JIT Joint Investigation Mission
ICGLR International Conference on the Great Lakes Region
IPIS International Peace Information Service
LOCJ Loi organique portant organisation, fonctionnement et compétences de
l’ordre judiciaire
LRA Lord’s Resistance Army
MC Military Court (Cour Militaire)
MGT Military Garrison Tribunal (Tribunal Militaire de Garnison)
MJC Military Judicial Code (Code Judiciaire Militaire)
MJDH Ministère de la Justice et des Droits Humains
MPC Military Penal Code (Code Pénal Militaire)
MOC Military Operational Court (Cour Militaire Opérationnelle)
MONUSCO Mission des Nations Unies pour la Stabilisation de la RDC
OPJ Judicial Police Office
OSISA Open Society Initiative of Southern Africa
PGA Parliamentarians for Global Action
PNC Congolese national police
PSC Prosecution Support Cell
RCD Rassemblement congolais pour la démocratie
UN United Nations
UNJHRO United Nations Joint Human Rights Office
UNDP United Nations Development Program
UPC Union des Patriotes Congolais
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International Center The Accountability Landscape in Eastern DRC
for Transitional Justice
1. Introduction
I would like to reassure them [Congolese women and men] that the search for national
unity does not mean impunity. Quite the opposite: without justice, reconciliation
is a sham! . . . At the domestic level, it is important to remember that, during the
last few decades, the Congolese people have been the victims of the commission of
international crimes by many insurgents. They deserve to see justice done.1
The Democratic Republic of the Congo (DRC) is obligated to prosecute those responsible for
serious crimes;2 however, over the past two decades of conflict, the Congolese government has
failed to fulfill its legal obligation to effectively guarantee the legal and judicial protection of
its citizens.
The promise to fight impunity in DRC, as well as its urgency, has been affirmed in various
peace agreements signed since 1999. The 1999 Lusaka Ceasefire,3 the 2002 Pretoria Accord
on transition,4 the 2003 Sun City Agreement,5 and the later 2009 Goma Peace Agreement6 all
prohibited amnesty for serious crimes and promised prosecution of those responsible for these
crimes.7 Yet, until recently, Congolese policymakers have failed to fulfill these commitments.
At the regional level, this promise appears again in the Peace, Security and Cooperation
Framework Agreement (“Framework Agreement”) for the DRC and the region. Signed by 11
countries in the Great Lakes region in Addis Ababa on February 24, 2013,8 this agreement
aims “to put an end to recurring cycles of violence” that have afflicted the civilian populations
1 President Joseph Kabila, Speech to the National Parliament Convening in Congress (Oct. 23, 2013).
2 See Laura Davis, “Power Shared and Justice Shelved: the Democratic Republic of Congo”, International Journal of
Human Rights 17 (2013): 289-306.
3 U.N. Security Council, “Letter Dated 23 July 1999 from the Permanent Representative of Zambia to the United
Nations Addressed to the President of the Security Council,” U.N. Doc. S/1999/815 ( July 23, 1999), www.un.org/
Docs/s815_25.pdf [“Lusaka Agreement”]. Art. 22 and appendix A, art. 9.2 prohibits the granting of amnesty for
genocide; appendix A, art. 8.2.2(b) and (c) notes that the “mandate of the UN force shall include […][s]creening mass
killers, perpetrators of crimes against humanity and other war criminal; [and] [h]anding over “génocidaires” to the
International Criminal Tribunal for Rwanda.”
4 Global and Inclusive Agreement on Transition in the Democratic Republic of the Congo (Dec. 16, 2002), www.
ucdp.uu.se/gpdatabase/peace/DRC%2020021216.pdf [“Pretoria Agreement”]. Part III, art. 8 prohibits the granting of
amnesty for war crimes, crimes against humanity, and genocide.
5 Inter-Congolese Political Negotiations: The Final Act (Apr. 2, 2003), annex 1(35), www.ucdp.uu.se/gpdatabase/
peace/DRC%2020030402.pdf [“Sun City Agreement”], citing Resolution No DIC/CPR/05: On the Establishment of
an International Criminal Court (March 2002), which requests that an international criminal court be established
for the DRC.
6 Peace Agreement Between the Government and le Congrès National de Défense du Peuple (CNDP), Democratic
Republic of the Congo-CNDP, Mar. 23, 2009, http://peacemaker.un.org/sites/peacemaker.un.org/files/CD_090323_
Peace%20Agreement%20between%20the%20Government%20and%20the%20CNDP.pdf. See art. 3.1 on amnesty.
7 See Loi No 14/006 of DRC on the Amnesty for Acts of Insurrection, Acts of War and Political Offenses (Loi portant
amnistie pour faits insurrectionnels, faits de guerre et infractions politiques), February 11, 2014, www.leganet.cd/
Legislation/DroitPenal/divers/Loi.11.02.2014.htm [“Amnesty Law”]. Art. 1 provides an amnesty for acts of insurrection,
acts of war, and political offenses committed in the DRC between February 18, 2006 and December 20, 2013. However,
art. 4 excludes amnesty for, among other things, genocide, crimes against humanity, and war crimes.
8 Angola, Burundi, DRC, Central African Republic, Republic of Congo, Rwanda, South Africa, South Sudan, Tanzania,
Uganda, and Zambia
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in eastern DRC.9 To give effect to this agreement, the signatories committed not to protect
individuals accused of international crimes and facilitate the administration of justice.10
In September 2013, the member states also adopted benchmarks and indicators to measure
the implementation of the Framework Agreement following a set timeframe to be achieved
by September 2014. Among the indicators is the “number of suspects of war crimes, crimes
against humanity, genocide and crime of aggression arrested and prosecuted.”11 Therefore,
it follows that the number of arrests and prosecutions of persons suspected of perpetrating
international crimes, before September 2014, should be indicative of actual implementation
of this regional undertaking.
At the national level, the Congolese government also reaffirmed its determination to end
impunity and ensure prosecution of international crimes with the conclusion of the Kampala
Dialogue and the signature of the 2013 Nairobi Declaration.12 The 2014 Amnesty Law was
adopted in consideration of both the Framework Agreement and the Nairobi Declaration.13
It excludes amnesty for international crimes and grave and massive human rights violations.14
Importantly, the president recently favored adopting the law to implement the Rome Statute
of the International Criminal Court and the law to create specialized chambers, with the
aim of providing justice to victims of international crimes. If passed by parliament, these
legal developments would signal progress towards implementing the Framework Agreement.
They would also help to make the DRC a rights-respecting state committed to ending
systemic impunity.
The commitments made in the Framework Agreement represent a unique opportunity to
seriously engage in the fight against impunity, building on limited previous progress and
lessons learned from past attempts. As a result, a door to transitional justice
is slowly opening in the DRC.
Strengthening the state’s capacity and ability to respond to international
crimes and serious violations of human rights is an essential and
fundamental step toward restoring victims’ rights, entrenching the rule
of law, and guaranteeing the non-repetition of abuses. To succeed, the
DRC must be equipped with an adequate legal framework and a capable,
independent, and accountable judiciary. This report seeks to provide an
objective overview of the state’s response—at both the legislative and
judicial levels—to international crimes in the DRC between 2009 and 2014
and offers recommendations addressed to the DRC’s executive, judiciary,
and legislature as well as international partners on how to improve it.
Based on research and interviews with key national and international stakeholders,
the first part of this report identifies and analyzes the status of the implementation of
current legislation, the changes being pursued, and the challenges. The lack of clarity
and gaps in Congolese legislation identified in this report must be addressed in order to
9 Peace, Security and Cooperation Framework for the Democratic Republic of the Congo and the Region [Addis Ababa
Agreement], Feb. 24, 2013, www.un.org/wcm/webdav/site/undpa/shared/undpa/pdf/PSC%20Framework%20-%20
Signed.pdf Angola, Burundi, Central African Republic, Congo, the Republic of Congo, Rwanda, South Africa, South
Sudan, Tanzania, and Uganda.
10 Addis Ababa Agreement, art. 5 (“For the region”).
11 See U.N., “Regional Commitments under the Peace, Security and Cooperation Framework Agreement for the DRC
and the Region: Benchmarks and Indicators of Progress, September 2013 - September 2014” 2013, 6–7 , http://www.
un.org/wcm/webdav/site/undpa/shared/undpa/pdf/Benchmarks%20and%20Indicators%20of%20Progress.pdf
12 Declaration of the Government of the Democratic Republic of the Congo at the End of the Kampala Talks [Nairobi
Declaration], art. 8.4, Dec. 12, 2013, www.sadc.int/files/6813/8718/4209/GOVT_DECLARATION_ENGLISH0001.pdf
13 See Ibid.; Joint ICGLR-SADC Final Communiqué on the Kampala Dialogue (Dec. 12, 2013), www.sadc.int/
files/8813/8718/4199/COMMUQUE_ENGLISH0001.pdf
14 Amnesty Law, art. 4.
“Strengthening the state’s
capacity and ability to respond
to international crimes and
serious violations of human
rights is an essential and
fundamental step toward
restoring victims’ rights,
entrenching the rule of law, and
guaranteeing the non-repetition
of abuses..”
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ensure an effective judicial response to serious crimes, in conformity with international
legal standards.
Analysis of the legal framework is conducted in light of the adoption of the 2013 Law
on the Organization, Functioning and Jurisdiction of the Courts.15 This law confers, for
the first time, subject-matter jurisdiction over serious crimes on Courts of Appeal, rather
than military courts. In practice, this law also lays the ground for the draft law creating
specialized chambers in the ordinary courts, which has long been on the parliamentary
agenda. The draft law has, indeed, faced significant political objections from members of
the Congolese National Assembly who oppose specific aspects of the project, including
provisions for the presence of foreign judges, jurisdiction by a civilian court over members
of the military and police services, the absence of privileges of jurisdiction, and the absence
of the death penalty.
This report also analyzes the proposed law to implement the Rome Statute, which, if
passed, will constitute another significant piece of legislative reform. This law should allow
Congolese criminal law to align its substantive and procedural laws with international
criminal law standards. Not only would the passage of this law enable the state to comply
with its international legal obligations,16 it would also bring coherency to the legislative and
institutional framework.
The second part of this report describes the judicial response between 2009 and 2014 to
international crimes committed in the eastern DRC and analyzes the challenges. Legislative
and institutional reforms will only be effective if they acknowledge and respond to the
strengths and weaknesses of the current legislative and judicial settings.
Methodology
This report is the result of research conducted by ICTJ between February 2013 and January
2015. It integrates a preliminary review of available information on the fight against
impunity, including academic research and reports of nongovernmental organizations
(NGOs) and United Nations (UN) agencies. It also integrates an analysis of DRC laws and
draft laws relevant to the prosecution of serious crimes. Further, ICTJ collected additional
information during three field missions carried out in April, August, and November 2013 in
Kinshasa, Bukavu, Goma, and Kisangani, and one field mission in Bukavu, Goma, and Bunia
in January 2015.
The ICTJ team conducted 53 interviews with individuals involved in the justice sector,
including investigators, prosecutors, judges, lawyers, members of national and international
15 Loi organique No 13/011-B of DRC on the Organization, Functioning and Jurisdiction of the Courts (Loi portant
organisation, fonctionnement et compétences des juridictions de l’ordre judiciaire), April 11, 2013, www.leganet.cd/
Legislation/Droit%20Judiciaire/LOI.13.011.11.04.2013.htm [“LOJC”].
16 The obligation to prosecute is provided in several international instruments that have been ratified by the DRC.
See Convention on the Prevention and Punishment of the Crime of Genocide (78 U.N.T.S. 277, Dec. 9, 1948), art. 6;
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1465 U.N.T.S. 85, Dec.
10, 1984), art. 4; Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces
in the Field (75 U.N.T.S. 31, Aug. 12, 1949), art. 49 (for grave breaches) [“Geneva Convention I”]; Geneva Convention
for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (75 U.N.T.S.
85, Aug. 12, 1949), art. 50 (for grave breaches) [“Geneva Convention II”]; Geneva Convention relative to the Treatment
of Prisoners of War (75 U.N.T.S. 135, Aug. 12, 1949), art. 129 (for grave breaches) [“Geneva Convention III”]; Geneva
Convention relative to the Protection of Civilian Persons in Time of War (75 U.N.T.S. 287, Aug. 12, 1949), art. 146 (for
graves breaches) [“Geneva Convention IV”]. See, inter alia, Diane Orentlicher, U.N. Economic and Social Council,
“Promotion and Protection of Human Rights: Report of the independent expert to update the Set of principles to
combat impunity, Updated Set of principles for the protection and promotion of human rights through action to
combat impunity,” U.N. Doc. E/CN.4/2005/102/Add.1 (61st session, Feb. 8, 2005), principle 1 and 19; U.N. General
Assembly, “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of
International Human Rights Law and Serious Violations of International Humanitarian Law,” Resolution 60/147, U.N.
Doc. A/RES/60/147 (60th session, Dec. 16, 2005), preamble, art. 4.
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NGOs, and personnel of MONUSCO (United Nations Organization Stabilization Mission
in the Democratic Republic of the Congo) and other UN agencies working directly with
the justice sector. The interviews were conducted in French and English. For reasons of
security and confidentiality, ICTJ does not disclose the identity of individuals interviewed
who requested confidentiality. The information gathered during interviews was analyzed and
compared with information and data from other sources.
The report focuses exclusively on the period of 2009 to 2014. The “DRC Mapping Report,”
published in 2010 by the UN Office of the High Commissioner for Human Rights, already
provides an extensive assessment of the legislative framework and the judicial response
until 2009.17
17 U.N. Office of the High Commissioner for Human Rights (OHCHR), “Report of the Mapping Exercise documenting
the most serious violations of human rights and international humanitarian law committed within the territory of the
Democratic Republic of the Congo between March 1993 and June 2003,” (2010) [“UN Mapping Report”].
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2. Normative Framework in the DRC
In the DRC, the applicable law on serious crimes has been inconsistently applied by
Congolese military courts. While applying existing national law on serious crimes, military
courts have also made extensive yet inconsistent direct use of the Rome Statute. This
normative framework and its application are analyzed in detail in section one of this part
of the report. It is followed, in section two, by an overview and discussion of the main
initiatives introduced by Congolese legislators to improve and address the shortcomings of
the current legal framework.
Provisions Relating to the Prosecution of Serious Crimes
The Congolese Constitution provides for the primacy of international treaty law over
domestic law.18 As a result, a legal framework comprising international and domestic law
informs the legal and judicial response to serious crimes. The DRC is party to numerous
treaties that provide for the prosecution of serious crimes.19 It ratified the Geneva
Conventions of 1949 and the two Additional Protocols of 1977, the Hague Convention of
1954, and the Convention on the Prevention and Punishment of the Crime of Genocide of
1948.20 Significantly, the DRC signed the Rome Statute on September 8, 2000, and ratified
it on April 11, 2002.21
Since the adoption of the Military Justice Code in 1972, military law has defined genocide,
crimes against humanity, and war crimes.22 The ordinary Congolese Penal Code does not
contain provisions relating to serious crimes. In response to the DRC’s ratification of the
Rome Statute,23 parliament sought to amend the definitions of genocide, crimes against
humanity, and war crimes in military law through legislative reform. The new Military
18 Article 215 of the Constitution states: “Les traités et accords internationaux régulièrement conclus ont, dès leur
publication, une autorité supérieure à celle des lois, sous réserve pour chaque traité ou accord, de son application par
l’autre partie” (“International treaties and agreements duly concluded have, upon publication, a superior authority
than that of laws, subject for each treaty or agreement, to its application by the other party”). Moreover, art. 153
provides that: “Les Cours et Tribunaux, civils et militaires, appliquent les traités internationaux dûment ratifiés”
(“Courts and tribunals, civil and military, apply international treaties duly ratified”). Constitution de la République
Démocratique du Congo, February 18, 2006, as modified by Loi No 11/002 of DRC on Revising Some Articles of the
Constitution (Loi portant révision de certains articles de la Constitution de la République Démocratique du Congo du
18 février 2006), January 20, 2011, www.senat.cd/images/Constitution_de_la_RDC.pdf [“Constitution”].
19 For the list of treaties ratified by the DRC, see Marcel Wetsh’okonda Koso, AfriMAP, Open Society Initiative for
Southern Africa, “République démocratique du Congo: La justice militaire et le respect des droits de l’homme –
L’urgence du parachèvement de la réforme” (2009), 27.
20 UN Mapping Report, 391–393.
21 Rome Statute of the International Criminal Court (2187 U.N.T.S. 90, Jul. 17, 1998) [“Rome Statute”].
22 Ordonnance-loi No 72/060 of Zaire (DRC) on Establishing a Code of Military Justice (Ordonnance-loi Portant
Institution d’un Code de Justice Militaire), September 25, 1972 [“MJC (1972)”]
23 After the ratification of the Rome Statute, the DRC opted to revise the military law rather than adopt a law
implementing the Rome Statute. See Exposé des motifs de la Loi n° 023/2002 du 18 novembre 2002 portant Code
judiciaire militaire et loi n° 024/2002 du 18 novembre 2002 portant Code pénal militaire (entered into force on 25
March 2003).
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Penal Code (MPC) was enacted in 2002. However, the amended definitions do not exactly
correspond to the Rome Statute definitions.24
First, the MPC conflates the definitions of war crime and crime against humanity. It
reaffirms that crimes against humanity are defined as grave violations of international
law against civilian populations that do not require the existence of a state of armed
conflict.25
However, in subsequent provisions, the MPC confusingly defines crimes against humanity
as grave breaches against persons and objects protected by the Geneva Conventions and the
additional Protocols, when the conventions only address situations of international and noninternational
armed conflict.26
Second, the MPC’s list of criminal acts that comprise a crime against humanity is not as
comprehensive as the one provided in the Rome Statute.27 The MPC failed to include
certain acts, notably, enforced disappearance, apartheid, and “other inhumane acts of a
similar character.”28 In terms of war crimes, the MPC defines them very expansively as “all
offences of the law of the Republic committed during war and that are not justified by the
laws or customs of war.”29
The MPC neither enumerates the prohibited acts nor distinguishes between international
and national conflicts.30 Thus any act that is an offense under domestic law can constitute a
war crime if committed during a time of war. Such lack of detail and imprecision does not
accurately reflect international law and does not provide adequate guidance to judges who
are required to interpret and apply the MPC. For genocide, the MPC seemingly replicates
the definition of genocide in the Genocide Convention, but includes “political group”
among the protected categories, which does not follow the Genocide Convention or the
Rome Statute.31
24 For a detailed comparison of the differences between the definitions of crimes in Congolese domestic law and
the Rome Statute, see Avocats Sans Frontières, “Etude de jurisprudence: L’Application du Statut de Rome de la Cour
Pénale Internationale par les Juridictions de la République Démocratique du Congo” (2009), 25–71.
25 MPC, art. 165 (crimes against humanity): “Les crimes contre l’humanité sont des violations graves du droit
international humanitaire commises contre toutes populations civiles avant ou pendant la guerre. Les crimes contre
l’humanité ne sont pas nécessairement liés à l’état de guerre” [“Crimes against humanity are grave violations of
international humanitarian law committed against civilian populations before or during war. Crimes against humanity
are not necessarily related to a state of war”].
26 Ibid., art. 166 states: “Constituent des crimes contre l’humanité et réprimées conformément aux dispositions du
présent Code, les infractions graves énumérées ci-après portant atteinte, par action ou par omission, aux personnes
et aux biens protégés par les Conventions de Genève du 12 août 1949 et les Protocoles Additionnels du 8 juin 1977,
sans préjudice des dispositions pénales plus graves prévues par le Code Pénal ordinaire” [“Constituting crimes
against humanity and punished in accordance with the provisions of this Code, the grave breaches listed below, by
the commission or omission, against individuals and properties protected by the Geneva Conventions of 12 August
1949 and the Additional Protocols of 8 June 1977, without prejudice to any more severe penalty provided by the
ordinary Penal Code”]. Article 166 then itemizes 18 offences that constitute a crime against humanity, followed by
a further 10 offences in art. 169. In the Mutins de Mbandaka case, the court has noted that the MPC “entretient
une confusion entre le crime contre l’humanité et le crime de guerre qui du reste est clairement défini par le
Statut de Rome de la Cour Pénale Internationale” [“creates confusion between crimes against humanity and war
crimes that are for the rest clearly defined by the Rome Statute of the International Criminal Court”]; see “Avocats
Sans Frontières, “Etude de jurisprudence: L’Application du Statut de Rome de la Cour Pénale Internationale par les
Juridictions de la République Démocratique du Congo” (2009), 21.
27 Article 7, Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal
Court, First session, New York, 3–10 September 2002 (United Nations publication, Sales No. E.03.V.2 and corrigendum),
part II.B; Official Records of the Review Conference of the Rome Statute of the International Criminal Court, Kampala,
31 May -11 June 2010 (International Criminal Court publication, RC/11), www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-
40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf
28 MPC, art. 166 and 169. See Antonietta Trapani, DOMAC, “Complementarity in the Congo: The Direct Application of
the Rome Statute in the Military Courts of the DRC” (2011), 23–24
29 MPC, art. 173: “Par crime de guerre, il faut entendre toutes infractions aux lois de la République commises
pendant la guerre et qui ne sont pas justifiées par les lois et coutumes de la guerre” [“War crimes mean all offenses
against the laws of the Republic committed during war and which are not justified by the laws and customs of
war”].
30 Ibid.
31 Ibid. art. 164: “Le génocide est puni de mort. Par génocide, il faut entendre l’un des actes ci-après commis dans
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Third, the MPC takes an inconsistent approach to sentencing. Contrary to the principle of nulla
poena sine lege (“no penalty without a law”), the MPC does not provide applicable sentencing
for war crimes. Yet, it provides for the death penalty for perpetrators of genocide and crimes
against humanity, although a moratorium is currently in place against the death penalty.32
Finally, the MPC does not provide for a mode of liability equivalent to
the definition of command responsibility under article 28 of the Rome
Statute. Under Congolese law, command responsibility provides that the
superior will be considered a co-perpetrator or accomplice for having
tolerated the actions of his or her subordinates, but only to the extent that
those subordinates are also prosecuted.33 This implies that the military
commander will only be prosecuted if his or her subordinate is prosecuted,
and only as a co-perpetrator or accomplice—not as a principal perpetrator.
In light of these inconsistencies and shortcomings, the military judges have had to decide,
sometimes creatively, whether to apply domestic or international law to prosecute perpetrators
of serious crimes.
Applying the Rome Statute to Congolese Criminal Law
Parliament has yet to pass a law implementing the Rome Statute that would harmonize
domestic law with international law definitions. In the absence of such a law, Congolese
military judges have, on various occasions directly applied the Rome Statute.34 Yet, on the
whole, judges have failed to identify clear criteria to explain their decision to use domestic
law over international law, and vice versa.
The rationale given by military judges to directly apply the Rome Statute has been
inconsistent. Judges do not always refer to the provision of the Constitution that establishes
the primacy of international law vis-à-vis domestic law; judges have, instead, mentioned
the Constitution merely as a secondary justification to use international law over domestic
law. A primary reason cited by some judges is the “higher quality” of the Rome Statute
in comparison to domestic law, as the former contains more favorable provisions to the
accused, victims, and witnesses.35 For example, regarding sentencing, military courts have
l’intention de détruire, en tout ou en partie, un groupe national, politique, racial, ethnique, ou religieux notamment:
1. meurtre des membres du groupe; 2. atteinte grave à l’intégrité physique ou mentale des membres du groupe; 3.
soumission intentionnelle du groupe à des conditions d’existence devant entraîner sa destruction physique totale ou
partielle; 4. mesures visant à entraver les naissances au sein du groupe; 5. transert forcé d’enfants d’un groupe à un autre
groupe.” Compare with Genocide Convention, art. 2: “In the present Convention, genocide means any of the following
acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing
members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on
the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures
intended to prevent births within the group; (e) Forcibly transferring children of the group to another group; Article 6
of the Rome Statute: For the purpose of this Statute, ‘genocide’ means any of the following acts committed with intent
to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions
of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent
births within the group; (e) Forcibly transferring children of the group to another group. (For the definition of the crime
of genocide in the DRC before 2002, see MJC (1972), art. 530; and Antonietta Trapani, DOMAC, “Complementarity in the
Congo: The Direct Application of the Rome Statute in the Military Courts of the DRC” (2011), 23.)
32 Ibid. art. 164 (genocide) and 167 (crimes against humanity).
33 MPC, art 175: “Lorsqu’un subordonné est poursuivi comme auteur principal d’un crime de guerre et que ses
supérieurs hiérarchiques ne peuvent être recherchés comme co-auteurs, ils sont considérés comme complices dans
la mesure où ils ont toléré les agissements criminels de leur subordonné” [“When a subordinate is prosecuted as the
main perpetrator of a war crime and his or her hierarchical superiors cannot be investigated as co-perpetrators, they
are considered accomplices if they tolerated the criminal actions of their subordinate”].
34 Elena Baylis, “Reassessing the Role of International Criminal Law: Rebuilding National Courts through Transnational
Networks”, Boston College Law Review 50(1) (2009): 4.
35 See the following cases: MC SK, Lt. Col. Balumisa Manasse at al. (Mar 9, 2011), RP 038/RMP 1427/NGG/2009
RMP 1280/MTL/09 [“Balumisa case”] (which includes a general reference to the “greater quality” afforded to victims
and defendants’ rights; the absence of the death penalty; and a clearer definition of crimes against humanity); MC
SK, Lt. Col. Daniel Kibibi Mutware et al. (Feb. 21, 2011), RP 043/11 RMP 1337/MTL/2011 [“Kibibi case”] (which rejects
“Military judges have had to
decide, sometimes creatively,
whether to apply domestic or
international law to prosecute
perpetrators of serious crimes.”
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most often opted for the Rome Statute to justify ignoring the requirement in domestic law
to impose the death penalty.36
Military courts, however, have not set aside domestic law provisions altogether. Instead,
they have made use of a variety of sources to inform their decisions: the domestic military
penal code, the Rome Statute, and the jurisprudence of international tribunals. Accordingly,
military judges have intermittently used the provisions of the Rome Statute to fill gaps
in domestic law.As mentioned, military judges have primarily used the Rome Statute
to increase protections for victims and witnesses, who are inadequately protected under
domestic law.37 They have also borrowed key concepts that remain absent from the
MPC, notably individual and subsidiary liability for commanders and other superiors.38
Despite the efforts of military judges to remedy the shortcomings of domestic law and
increase protections for parties, the existing jurisprudence remains fragmented, inconsistent
and, in turn, unpredictable for those brought before Congolese courts.
Military Jurisdiction over Serious Crimes
The adoption of the Law on the Organization, Functioning and Jurisdiction of the Courts in
April 2013 achieved an important breakthrough.39 For the first time, it assigned jurisdiction
over serious crimes to civilian courts, making the Courts of Appeal competent for war
crimes, crimes against humanity, and genocide.40 Previously, the 1972 Military Justice Code
had provided military courts with exclusive jurisdiction over crimes against humanity, war
crimes, and genocide.41 Under article 207 of the MPC, military courts have subject-matter
jurisdiction over all infractions of the MPC.42 Further, article 161 provides that any crime
“related” to, or “indivisible” from, a serious crime falls under the subject-matter jurisdiction
of military courts, regardless of whether it is civilian in nature.43
According to article 156 of the Constitution, military courts and tribunals hold personal
jurisdiction over members of the army and national police.44 However, several provisions
the application of the death penalty as not being provided for under international law); MGT Bukavu, Jean Bosco
Maniraguha et al. (Aug. 19, 2011), RP 275/09 and 521/10 [“Kazungu case”] (which refers to art. 68 of the Rome Statute
and protective measures that are not provided for under military law).
36 See Ibid.
37 In Kazungu case, 34, the MGT of Bukavu relied upon art. 68 of the Rome Statute that gives numerical codes to civil
parties, especially those who are witnesses, as they are exposed to reprisals. MGT Bukavu, Jean Bosco Maniraguha
et al. (Aug. 19, 2011), RP 275/09 and 521/10 [“Kazungu (Trial) case”]; MC SK, Maniraguha et al. (Oct. 29, 2011), RPA
0177 (Appeal) RP 275/09 521/10 RMP 581/TBK/07 1673/KMC/10 (Trial) RP 275/09 [“Kazungu (Appeal) case”] The same
reasoning can be found in the decision of MC SK, Lt. Col. Daniel Kibibi Mutware et al. (Feb. 21, 2011), RP 043/11 RMP
1337/MTL/2011 [“Kibibi case”]. See Rome Statute, art. 68.
38 For example, in MGT Bunia, Kakado Barnaba Yonga Tshopena ( Jul. 9, 2010), RP 071/09, 009/010 074/010 RMP
885/EAM/08 RMP 1141/LZA/010 RMP 1219/LZA/010 RMP 1238/LZA/010 [“Kakado case”], the tribunal invoked article
28 of the Rome Statute to establish the superior liability of the accused; Rome Statute, art. 28.
39 LOJC. art. 91.
40 Id. art. 91.
41 Ordonnance-loi Portant Institution d’un Code de Justice Militaire [MJC], Ordonnance-loi N° 72/060 du 25 septembre
1972 (Zaire) (Dem. Rep. Congo).
42 See MPC, Title V. The MPC includes both military and mixed infractions (common law offenses aggravated by the
circumstances of their commission and punished both by the ordinary Penal Code and the MPC). See also MJC (2002),
art. 76, 79.
43 MPC, art. 161: “En cas d’indivisibilité ou de connexité d’infractions avec des crimes de génocide, des crimes de
guerre ou des crimes contre l’humanité, les juridictions militaires sont seules compétentes” [“Should crimes be
indivisible from or related to crimes of genocide, war crimes or crimes against humanity, the military courts shall have
sole jurisdiction”].
44 Article 156 of the Constitution limits the competence of military courts to infractions by members of the armed
forces and the police: “Les juridictions militaires connaissent des infractions commises par les membres des Forces
armées et de la Police nationale. En temps de guerre ou lorsque l’état de siège ou d’urgence est proclamé, le Président
de la République, par une décision délibérée en Conseil des ministres, peut suspendre sur tout ou partie de la
République et pour la durée et les infractions qu’il fixe, l’action répressive des Cours et Tribunaux de droit commun
au profit de celle des juridictions militaires. Cependant, le droit d’appel ne peut être suspendu” [“Military jurisdictions
are aware of offences committed by members of the armed forces and the police. In times of war or when a state of
siege or emergency is declared, the President of the Republic, by way of a decision made in the Council of Ministers,
may suspend, in all or part of the Republic and for a period of time and over a set of offences that the President shall
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The Accountability Landscape in Eastern DRC
Photo: Participants at the conference included Auditeur Opérationnel of North Kivu (NK) and General
Major Bivegete of the High Military Court of the DRC (ICTJ Photo)
extend this personal jurisdiction over persons who are not linked to the army or the national
police. During a war,45 military jurisdiction expands to include civilians involved in fighting.46
In peacetime, military jurisdiction also covers any civilians “who, although unrelated to the
military, cause, engage in or assist one or more soldiers or similar, to commit an infraction
under military law or regulation;”47 “who, even if not part of the army, commit infractions
against the Army, National Police, National Service, their equipment, their premises or
within the army, the National Police or the National Service;”48 and “who, without being
soldiers commit crimes using weapons of war.”49 These jurisdictional exceptions give military
courts competency over crimes that would otherwise be adjudicated by civilian courts.
The expansive jurisdiction of military courts, which was exclusive until April 2013, has stirred
considerable controversy. First, military justice is a “justice of exception” that exists to address
military offenses committed by military personnel in the exercise of their functions. Serious
crimes, by their very nature, can never be legitimately considered as offenses committed in
the course of military duty.50
determine, action to suppress civilian courts and tribunals in favour of military jurisdictions. However, the right to
appeal shall not be suspended”]. The MJC has not yet been amended to reflect this limitation, and includes many
provisions establishing the jurisdiction of military courts over civilians.
45 Constitution, art.156.
46 MJC (2002), art. 115: “Les juridictions de droit commun sont compétentes dès lors que l’un des coauteurs ou
complices n’est pas justiciable des juridictions militaires, sauf pendant la guerre ou dans la zone opérationnelle,
sous l’état de siège ou d’urgence, ou lorsque le justiciable civil concerné est poursuivi comme coauteur ou complice
d’infraction militaire.”
47 Marcel Wetsh’okonda Koso, AfriMAP, Open Society Initiative for Southern Africa, “République démocratique du Congo:
La justice militaire et le respect des droits de l’homme – L’urgence du parachèvement de la réforme” (2009), 47: “Thus, the
military courts have jurisdiction in respect of any person connected with the army by any link whatsoever, including for
belonging to the armed forces or having been in their service by some other link, or for having infringed their property.”
48 MJC (2002), art. 112(7).
49 Ibid.
50 The African Commission on Human and Peoples’ Rights has not yet made a determination on the jurisdiction of
military courts over war crimes and crimes against humanity. Its decisions have already noted, however, that military
courts do not have personal jurisdiction over civilians, otherwise it would constitute a violation of the right to a fair trial
under the African Charter on Human and Peoples’ Rights (OAU Doc. CAB/LEG/67/3 rev. 5, Jun. 27, 1981), art. 7 [“African
Charter”]. Military jurisdiction is based on the discretion of the executive power, which compromises the impartiality
of the tribunal as guaranteed by art. 7. The African Commission, therefore, concluded that “special military courts . . .
constitute a violation of art. 7(1)(d) of the African Charter, by the mere fact of their composition, which is subject to the
discretion of the Executive.” See African Commission on Human and Peoples’ Rights, “137/94-139/94-154/96-161/97:
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Second, military justice, as a disciplinary instrument, is designed to be implemented in a swift
manner, despite the prejudice this may cause to the basic rights of the defendant, including the
right to a fair trial.51 This is particularly true given that serious crimes are often very complex and
require ample time, resources, and fair-trial guarantees to ensure that they are dealt with justly.
Finally, military courts do not offer guarantees of independence and impartiality. As part of
the military structure, they are “an instrument of the Judiciary at the service of the
command,” according to the preamble to the law amending the Military
Judicial Code (Code Judiciaire Militaire – MJC).52 Cases have been
documented in which military courts were pressured or influenced during
trials by the military hierarchy.53 This weakness, also discussed later in this
report, reinforces the need for corrective legislative reform.
Ultimately, there is a strong argument to completely transfer jurisdiction to
civilian courts, as provided by the Law on the Organization, Functioning
and Jurisdiction of the Courts. However, military judicial officials have built
significant experience in the investigation and trial of international crimes.
Hence, Congolese legislators and decision makers should first ensure an
adequate transfer of the expertise progressively developed by the military
justice sector in the investigation and prosecution of serious crimes to the civilian justice sector.
Legislative Bills Relevant to National Judicial Response to Serious Crimes
For the past several years, reforms have been discussed to align DRC’s legal framework
with the international law regime, particularly that of the Rome Statute and international
principles of due process. Two such legislative proposals of note are: 1) the bill implementing
the Rome Statute of the ICC under Congolese law and 2) the bill for the creation of a Court
or specialized Chambers in the judicial system of the DRC. As of early 2015, neither bill
had been adopted. Despite the enactment of the Law on the Organization, Functioning and
Jurisdiction of the Courts, it is critical for the DRC to adopt these two bills to correct flaws in
the legal framework governing the prosecution of serious crimes.
Rome Statute Implementation Bill
Since it was first introduced in 2012, the proposed Rome Statute implementation law
has been subject to considerable controversy and disagreement. It contains two objectives
that have met with controversy and disagreement on certain points: 1) to harmonize the
substantive and procedural provisions of domestic criminal law with the Rome Statute
(Harmonization of procedural, jurisdictional and substantive rules); and 2) to facilitate and
International PEN, Constitutional Rights Project, Civil Liberties Organisation and Interights (on behalf of Ken Saro-
Wiwa Jnr.)/Nigeria” (1998), para. 86, www.achpr.org/files/sessions/24th/comunications/137.94-139.94-154.96-16…
achpr24_137.94_139.94_154.96_161.97_eng.pdf. See also African Commission on Human and Peoples’ Rights, “Principles
and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa,” Doc/OS(XXX)247 (2003), part. L, www.achpr.
org/instruments/principles-guidelines-right-fair-trial/
51 Claire Callejon, “Les principes des Nations Unies sur l’administration de la justice par les tribunaux militaires: pour
une justice militaire conforme au droit international”, Droits Fondamentaux 6 (2006): 4; Marcel Wetsh’okonda Koso,
AfriMAP, Open Society Initiative for Southern Africa, “République démocratique du Congo: La justice militaire et le
respect des droits de l’homme – L’urgence du parachèvement de la réforme” (2009), 78–87; Nyabirungu Mwene Songa,
“Crime Against Humanity under the ICC Statute in Congolese Law,” Presentation at a Capacity-Building Exercise under the
Strengthening the Military Justice System Project: (YEAR) (citing the Bongi Massamba decision, in which the reasoning
gives primacy to speed over due process, and does not uphold the rights of the defendant or fair trial requirements).
52 MJC, Preamble, : “La justice militaire apparaît ainsi désormais comme un instrument du pouvoir judiciaire au
service de commandement, la garantie de l’action légale et régulatrice du pouvoir judiciaire dans les forces armées; si
sa flexibilité est de structure pour mieux faire corps autant que possible avec les réalités militaires, sa permanence et
son professionnalisme la mettent à l’abri de la conjoncture et du ‘sur-mesure.”
53 UN Mapping Report, 436, 442; U.S. Department of State, Bureau of Democracy, Human Rights and Labor, “Country Reports
on Human Rights Practices for 2012: Democratic Republic of the Congo” (2013), 9; Open Society Foundations, “Putting
Complementarity into Practice: Domestic Justice for International Crimes in DRC, Uganda, and Kenya” (2011), 40; Amnesty
International, “The Time for Justice is Now: New Strategy Needed in the Democratic Republic of the Congo” (2011), 38–39
“Military courts do not off er
guarantees of independence
and impartiality . . . Cases have
been documented in which
military courts
were pressured or infl uenced
during trials by the military
hierarchy.”
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regulate judicial cooperation between the DRC and the ICC (Cooperation).
The most recent 2012 draft bill seeks to introduce three essential changes: 1) a complete
transfer of jurisdiction for serious crimes to ordinary courts; 2) new rules on temporal and
territorial competences over international crimes; and 3) a redefinition of substantive and
procedural law applicable to international crimes.
In September 2012,54 the latest version of the draft law implementing the Rome Statute was
submitted to the National Assembly.55 The draft bill ends the military courts’ jurisdiction
over serious crimes,56 assigns the competence for these crimes to the Courts of Appeal, and
includes the transfer of current cases involving serious crimes from military courts to Courts
of Appeal.57 Under the draft law, the right to appeal is to be exercised before the Court of
Cassation, rather than the High Military Court.58 To harmonize relevant domestic laws, the
proposed legislation also amends the Military Judicial Code to ensure that the Courts of
Appeal have exclusive jurisdiction over serious crimes.59
This proposal has met with considerable resistance. Some have argued that a complete
transfer of jurisdiction would violate the constitution, which, according to some
interpretations, gives military courts exclusive jurisdiction over military and police personnel.60
It is unclear whether the constitution provides for relative or exclusive competence of the
military jurisdiction; the wording of article 156 does not clarify this.61 Moreover, some
experts contend that it would be possible to derogate from article 156 on the basis that article
19(1) of the Constitution provides that competence is determined by law and there are
already other exceptions to article 156.62
Another argument is that a full transfer of jurisdiction would undermine the nature and
authority of military justice, which, as the guarantor of military order, is founded on
principles of exemplarity and expeditiousness. Additionally, as previously mentioned,
military courts already have experience in the prosecution of international crimes.63 Finally,
as a large portion of these crimes are committed by people in uniform, it is unrealistic
to expect that civilian judges will be able to effectively prosecute these individuals when
military justice itself faces obstacles in obtaining the cooperation of its peers.64 Further,
some military justice officials have criticized the transfer of jurisdiction as being counterproductive
in the context of the DRC. Ultimately, Congolese legislators and policy makers
54 The first draft bill implementing the Rome Statute was drafted by the government in 2003. Afterwards, two new draft bills
were submitted by the Ministry of Justice and Human Rights to parliament in 2005 and 2008, but none have been adopted.
55 Coalition nationale pour la Cour pénale internationale. “Proposition de loi modifiant et complétant le code pénal, le
code de procédure pénal, le code judiciaire militaire et le code pénal militaire en vue de la mise en oeuvre du Statut de
Rome de la Cour Pénale Internationale,” September 6, 2012. (Rome Statute Bill (2012)).
56 Rome Statute Bill (2012), art. 15 modifies MJC (2002), art. 76 and art. 16 modifies MJC (2002), art. 117
57 Rome Statute Bill (2012), art. 17: “Les affaires portant sur les crimes contre la paix et sécurité de l’humanité pendant
es devant les juridictions militaires régies par les dispositions modifiées par la présente loi sont transférées en l’état
aux cours d’appel du même ressort.”
58 Rome Statute Bill (2012), art. 17.
59 As an exception to MJC (2002), art. 117 of the draft law provides for the application of ordinary law, rather than
military law, and adds two military career magistrates with a rank higher than the defendant to the bench of the Court
of Appeal and the Court of Cassation. The inclusion of military judges on the bench is justified because the defendant
with a military rank must be judged by his “natural” judge, who must have a grade at least equivalent to that of the
defendant (as provided for in MJC (2002), art. 34).
60 See Marcel Wetsh’okonda Koso, AfriMAP, Open Society Initiative for Southern Africa, “République démocratique du
Congo: La justice militaire et le respect des droits de l’homme – L’urgence du parachèvement de la réforme” (2009),
28, 41, 45, 55.
61 Article 156 of the Constitution provides that “The military jurisdictions rule on the offenses committed by the
members of the Armed Forces and the National Police,” without explicitly making the jurisdiction exclusive.
62 Article 19(1) of the Constitution provides that: “Nul ne peut être ni soustrait ni distrait contre son gré du juge que la
loi lui assigne” [“None shall be excluded from nor removed against his or her will from the judge assigned by law”); see
International Center for Transitional Justice, “Report on the Discussions of the Experts Workshop Organized by ICTJ on the
Legal Analysis of Texts on the Implementation and Specialized Court in September 2012” (2012) [on file with the author].
63 Ibid.; Amnesty International, “The Time for Justice is Now: New Strategy Needed in the Democratic Republic of the
Congo” (2011), 22.
64 For a discussion of challenges faced by military justice, see Amnesty International, “The Time for Justice is Now:
New Strategy Needed in the Democratic Republic of the Congo” (2011), 39.
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need to ensure that they adequately address any apparent comparative advantages of
prosecuting serious crimes in military courts.
Political considerations may also explain the lack of support for the full transfer of
competence. The transfer of jurisdiction to civilian courts would diminish the political
control presently exerted by the highest levels of military justice and some political leaders on
the prosecution of serious crimes.
Photo: Inside the mobile courtroom in Kalehe, where the two men in yellow were standing trial for
alleged atrocities (Physicians for Human Rights)
The preamble of the draft Rome Statute Bill establishes the territorial, personal, and universal
jurisdiction of the ordinary courts.65 However, it is completely silent on temporal jurisdiction.
Consequently, it would seem that it would apply only to crimes committed after the Rome
Statute’s entry into force on July 1, 2002. Indeed, this should be the preferred reading of the
bill, as its purpose is to absorb the offenses of the Rome Statute in their entirety. This would
reasonably include the general principles of criminal law set forth in articles 22 to 24 of the
Rome Statute, namely on legality and non-retroactivity.
The draft bill seeks to align the domestic definitions of serious crimes with those of the
Rome Statute. It introduces into the (civilian) Penal Code a new section on crimes “against
the peace and security of mankind,” which include genocide, war crimes, and crimes against
humanity.66 The proposed definitions match those of the Rome Statute, with only a few
minor differences.67
It also provides for the repeal of all definitions of serious crimes in the MPC and MJC, to
avoid having two sets of definitions, and provides for the responsibility of commanders and
other superiors as direct perpetrators (without making their prosecution conditional to the
65 Universal jurisdiction is only applicable to grave breaches of the Geneva Conventions, thus excluding conflicts not
of an international character. See Geneva Convention I, art. 50; Geneva Convention II, art.51; Geneva Convention III,
art. 130; Geneva Convention IV, art 147; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating
to the Protection of Victims of International Armed Conflicts (1125 U.N.T.S. 3, Jun. 8, 1977), art. 11, 85 [Protocol I].
66 “Les crimes contre la paix et la sécurité de l’humanité” in the French text.
67 Among the differences in the definitions of crimes, there are, for example: 1) the absence of torture as an act
constituting a crime against humanity in the implementation bill, 2) the addition of the tribal group in the definition of
persecution, and 3) the prohibition of attacks against the personnel and property of a UN peacekeeping mission also
extends to missions conducted under the auspices of the African Union.
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prosecution of subordinates, as currently provided by the MPC).68
By introducing into domestic criminal law certain international law principles that are
already codified in the constitution,69 the draft bill contributes to the harmonization of
criminal law with existing constitutional requirements. The legality of offenses and penalties,70
and the individual character of criminal responsibility, are to be integrated into the Penal
Code. The draft bill also introduces certain rights for the accused, such as the presumption
of innocence, the right to be present at all stages of proceedings, and the right not to be
compelled to testify against oneself. It also includes an article on the protection of victims,
witnesses, and intermediaries.
Problematically, however, the draft bill does not explicitly provide for, or exclude, the death
penalty as a sentence for serious crimes. Despite the present moratorium, other states may
refuse to extradite alleged war criminals to the DRC on the basis that the accused could
receive the death penalty.71
The bill proposes introducing into the Code of Criminal Procedure certain procedures
for cooperation with the ICC, including mutual legal assistance, arrest and surrender, and
execution of sentences, as provided for by the Rome Statute.72 This would reinforce the 2004
cooperation agreement between the DRC and the Office of the Prosecutor of the ICC.73 It
would also formalize the commitment by the president of the DRC to cooperate with the ICC.
Draft Bill on Specialized Chambers
President Kabila, in his address to the National Congress on October 23, 2013, called for the
establishment of specialized chambers to try serious crimes, because, as he said, “[the people]
deserve that justice is done.”74 Establishing specialized chambers was also proposed as a benchmark
indicator under the Framework Agreement, as defined by the National Oversight Mechanism.75
While the renewed call for specialized chambers is a positive sign, it is not the first time that the
idea has been suggested.76 In 2010, the Minister of Justice officially announced the government’s
intention to establish a Special Court to try serious crimes committed in the DRC.77 Despite
68 See above; article 4 Rome Statute Bill (2012), referring to article 23 bis of the Penal Code.
69 Constitution, arts.17–18; Rome Statute of the International Criminal Court, arts. 86–127, July 1, 2002, 2187 U.N.T.S. 3.
70 Penal Code, art. 1: “Nulle infraction ne peut être punie des peines qui n’étaient par portées par la loi avant que
l’infraction fût commise” [“No offense may be punished by the penalties that were brought by the law before the
offense was committed”]. The bill seeks to amend it by integrating principles that are more accurate in terms of
legality of offenses.
71 For example, the threat of the death penalty was used by Rwanda to justify refusing DRC’s extradition request
of Nkunda Ntabare in 2012. The Constitution of the Republic of Rwanda, 26 May, 2003, art. 25: “The extradition of
foreigners shall be permitted only so far as it is consistent with the law or international conventions to which Rwanda
is party.” Some individuals wanted for international crimes in the DRC are currently in Rwanda and Uganda. L.
Nkunda, B. Ngaruye, and I. Zimurinda are on the UN sanctions list and are thought to be in Rwanda, and S. Makenga,
also on the sanctions list, is believed to have fled to Uganda after the defeat of M23.
72 Rome Statute, art. 86–111; Rome Statute Bill (2012), Chapitre VII : “De la coopération avec la Cour pénale
internationale” (Section 1: “Des dispositions générales en matière de coopération avec la Cour”; Section 2: “De la
coopération en matière d’entraide judiciaire”; Section 3: “De la coopération en matière d’arrestation et de remise
d’une personne”; Section 4 : “De l’exécution des peines et mesures prises par la Cour pénale internationale”).
73 Through this interim judicial cooperation agreement of October 6, 2004, the DRC pledged to cooperate fully with
the ICC in establishing necessary practical mechanisms of assistance for the effective and expeditious conduct of
investigations and prosecutions conducted by the Office of the Prosecutor. There was also an agreement for judicial
assistance signed on November 8, 2005, to amend the Headquarters Agreement with MONUC. This authorized
MONUC to assist the Congolese authorities in arrest operations, transport, and secured transfer of individuals to the
ICC. See Joseph Kazadi Mpiana, “La Cour Pénale Internationale et la République Démocratique du Congo: 10 ans après.
Étude de l’Impact du Statut de Rome dans le Droit Interne Congolais” [“The International Criminal Court and the
Democratic Republic of Congo: 10 Years Later. Study of the Impact of the Rome Statute on Congolese Domestic Law”],
Revue Québécoise de Droit International 25(1) (2012): 72–73.
74 President Joseph Kabila, Speech to the National Parliament Convening in Congress (October 23, 2013).
75 Mécanisme des critères de suivi et indicateurs de mise en oeuvre des engagements nationaux de l’Accord-cadre,
Ord. N.13/020, 13 May 2013.
76 A workshop was organized in March 2005 in Bukavu and Kinshasa, focused on discussing mixed chambers
77 This announcement was made on October 1, 2010, after the first Review Conference on the Rome Statute in
Kampala in June 2010 and the publication of the UN Mapping Report, which recommended the establishment of a
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numerous consultations with civil society and the expert assistance from several partners,78 the
bill for a Special Court could not overcome political resistance in parliament.79 The Senate sent
the draft bill back to the government for revision, indicating that some elements were already
included in the draft law to implement the Rome Statute (which was also under discussion).80
The Ministry of Justice began work on a new bill modifying the LOCJ adopted in April
2013. Although this new bill was adopted by the Council of Ministers on April 22, 2014, the
National Assembly voted it inadmissible on May 8, 2014. The Ministry of Justice was asked
to review the bill before it could again be added to the parliamentary agenda.
Taking into account previous draft bills, the revised bill, which was presented to the National
Assembly on May 6, 2014, envisaged the creation of specialized structures within the existing
legal order, with the participation of foreign personnel for a limited time period and the
competence of the specialized chambers.
The draft bill provides for the creation of specialized chambers within selected Courts of
Appeal, in Goma, Lubumbashi, and Mbandaka, as well as within the Court of Cassation in
Kinshasa.81 The latter would serve as the final court of appeal. Consequently, the specialized
chambers would form an integral part of the existing Congolese courts. Locating the
chambers within these different Courts of Appeal should adequately reflect the geographic
spread of the caseload. Representing an innovation of the domestic justice system, the bill
will need to take into account important challenges.
The creation of specialized chambers needs to be accompanied by the creation of special units
to investigate and prosecute crimes as well as a section to provide assistance to victims and
witnesses. While the project provides for the creation of such units, their
mandates should be clear and their staff duly qualified. The selection of
magistrates and judicial staff must be transparent and based on a rigorous
selection process that is closely linked to their ability to try serious crimes.
In particular, specific knowledge of issues related to sexual violence and
violence against children constituent of international crimes should be
required.
Considering the problems of corruption and poor performance that have
characterized the Congolese justice system, the specialized chambers will
have to meet high expectations to reestablish faith in the state’s justice
system.
mixed jurisdictional structure to deal with international crimes committed in the DRC between 1993 and 2003.
78 Several versions of the bill have been circulated, and have been the subject of discussions and observations.
79 The main criticisms included that it would create a two-tiered system of justice; the international personnel
component would undermine the sovereignty of the State; temporal jurisdiction from 1990; and compatibility of the
project with certain constitutional provisions. For a summary of the opposition to the project, see Kimberly Howe,
International Center for Transitional Justice, “Decision Makers Survey and Executive Summary of the Baseline Study for
the ICTJ DRC” (2012).
80 The legislative process was marked by confusion, as the Minister of Justice submitted two different texts to the
National Assembly on important points, thus exacerbating the reluctance of Parliament. After this defeat, the Minister
submitted an amended text to the Senate and evoked the expedited process, but this strategy did not work. For a
detailed chronology, see International Federation for Human Rights et al., “République Démocratique du Congo:
Recommandations pour une Cour spécialisée mixte indépendante et efficace” [“Democratic Republic of Congo:
Recommendations for an independent and effective specialized mixed court”] (2011), 4–5
81 The government seemingly opted to use existing structures within the domestic legal order, rather than create a
new, specialized court under article 149 of the Constitution. The option of creating a specialized court was contained
in the draft bill of August 2011. This final option was discussed because it would have the advantage of setting up a
single structure, with its own organizational processes and separate staff, thereby ensuring uniformity of case law
and simplifying the management of funding. For a comparative analysis between the two options, see “Synthèse
des argumentations, propositions et amendements relatifs à l’avant projet de loi relatif aux chambres spécialisées
pour la répression des violations graves du droit international humanitaire” [“Summary of arguments, proposals
and amendments to the draft law on specialized chambers for the prosecution of serious violations of international
humanitarian law”], Kinshasa, February 2011.
“Considering the problems of
corruption and poor performance
that have characterized the
Congolese justice system, the
specialized chambers will have
to meet high expectations to
reestablish faith in the state’s
justice system.”
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International Personnel
Due to the inadequate legislative framework and variations in the application of
international criminal law by domestic courts, the case law indicates a general lack of
international criminal law expertise among local judges.82 Given the urgency to proceed
with cases and the lack of domestic judicial capacity to prosecute serious crimes, the
integration of international experts into the various specialized
bodies (the chambers and investigation and prosecution units) should help to improve both
consistency and quality, and strengthen the technical capacity of national magistrates.83 It is also
intended to improve judicial independence in an area where political interference is rampant.84
To overcome criticism of the previous bill,85 the current draft bill would only provide for
a partial integration of international staff. In the Court of Cassation, three out of seven
members of the appellate specialized chamber would be international. While it states
that international staff must be integrated in the inquiry and prosecution unit, it does
not specify the number.86 In the Courts of Appeal, only two members out of five of the
specialized trial chambers would need to be international.87 According to the draft law, in
the first instance, the presence of international staff would be determined on a case-bycase
basis by the president of the chamber, without relying on identified objective criteria.88
This ad hoc process, however, runs the risk of causing further delays in proceedings. The
procedure and objective criteria for determining whether to integrate international staff into
specialized trial chambers should be specified.
The bill also provides for the gradual withdrawal of international personnel on the basis that
Congolese staff would progressively acquire the required technical skills.89 The bill does not,
however, set objective criteria for how to phase out international staff at each level of the
specialized chambers.
Jurisdiction
The establishment of specialized chambers again raises the issue of jurisdictional
competence to try members of the military and police services. The current draft bill
provides that whenever members of the military and police services are prosecuted for
serious crimes, at least two military magistrates must sit on the judicial panel in the first
instance and at appeal.90
82 Nyabirungu Mwene Songa, “Crime Against Humanity under the ICC Statute in Congolese Law,” Presentation at a
Capacity-Building Exercise under the Strengthening the Military Justice System Project: (YEAR) (highlighting gaps and
inconsistencies in DRC case law).
83 In the August 2011 version of the draft bill, an international presence is no longer required at the prosecution and
defence levels, nor is an international judge required in the appeal before the Court of Cassation
84 UN Mapping Report, at 483–487; Koso, Marcel Wetsh’okonda. “Les chambres spécialisées: une thérapeutique
inappropriée contre l’impunité des crimes internationaux les plus graves en République démocratique du Congo,”
6, www.grotius.fr/wp-content/uploads/2011/07/Les-chambres-sp%C3%A9cialis%C….
pdf. For example, within the war crimes Chambers in Bosnia and Herzegovina, it is now recognized that, after seven
years, the international presence has encouraged the faith of the public in the impartiality and the daily work of the
institution. According to HRW, international prosecutors have played a pivotal role in pursuing important cases which
probably would not have been prosecuted because of their sensitivity. HRW, “Justice for Atrocity Crimes: Lessons of
International Support for Trials before the State Court of Bosnia and Herzegovina,” 1, 2012.
85 During previous discussions of the bill, the international component was perceived by some as undermining state
sovereignty. It was also seen as an admission of the failure of the government’s institutional reforms, which was
problematic in light of upcoming elections.
86 See Projet de loi modifiant et complétant la loi organique No 13/011-B of April 11, 2013 portant organisation,
fonctionnement, et compétences des juridictions de l’ordre judiciaire en matière de répression des crimes de
génocide, des crimes contre l’humanité et des crimes de guerres, April 2014, art. 4 (referring to LOCJ, art. 91.5-91.6).
87 Ibid.
88 Ibid. art. 4 (referring to LOCJ, art. 91.3 al. 2).
89 While the bill presented to the National Assembly on May 6, 2014, did not specify the temporary presence of the
international staff in the specialized chambers, the Exposé des motifs refers to their temporary status.
90 Projet de loi modifiant et complétant la loi organique No 13/011-B of April 11, 2013 portant organisation,
fonctionnement, et compétences des juridictions de l’ordre judiciaire en matière de répression des crimes de
génocide, des crimes contre l’humanité et des crimes de guerres, April 2014, art. 4 (referring to LOCJ, art. 91.7).
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As demonstrated by the limited nature of the jurisdictional changes introduced to the text of
the LOCJ, legislators’ preference has been to maintain the prosecution of security personnel
in military courts. However, once the specialized chambers start to try serious crimes,
their work would be critically impaired if they did not enjoy jurisdiction over all possible
groups of perpetrators. Consequently, the bill on the specialized chambers will need to be
reconciled with the new LOCJ in a manner that will garner sufficient political support.
Finally, the temporal jurisdiction of the specialized chambers must be established. In the
last version discussed, the chambers had jurisdiction over events that had happened as far
back as 1993.
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3. Judicial Practice
As discussed, the DRC’s incomplete and problematic legislative framework has led to
judicial practice that has been unable to fully serve the rights and intere/sts of the Congolese
people. Still, as noted in the 2010 Mapping Report, a few decisions were issued by
Congolese magistrates, despite material and psychological obstacles and political pressure.91
The report provides an extensive compilation of serious human rights and humanitarian
law violations committed in the DRC from 1993 to 2003. It also takes stock of the judicial
response until 2009. At the time of its publication in August 2010, the report indicated that
since the transition in June 2003,92 the Congolese military courts had dealt with 12 cases
involving war crimes or crimes against humanity (only 2 of which involved incidents that
had occurred before June 2003).93
Despite the absence of official data, ICTJ identified that between January
2009 and December 2014, the military courts of eastern DRC opened at
least 39 proceedings involving cases of serious crimes, representing a slight
improvement over the previous period.94 The analysis of available data
around these cases allows us to reflect on prosecutorial trends for serious
crimes in the DRC (see Appendix). Indeed, progress (or lack of it) on the
judicial response to international crimes is influenced by factors that extend
beyond just the legal framework. The analysis of other factors is essential
to developing an appropriate institutional framework for investigating and prosecuting such
crimes in the future.
The Context
To analyze the judicial response to international crimes, it is necessary to briefly contextualize
the eastern DRC during the period under analysis.95 Indeed, despite successive peace
91 UN Mapping Report, 18–20.
92 The transition was accompanied by the adoption of laws reforming military justice (notably the MJC (2002) and
MPC) and the ratification of the Rome Statute on April 11, 2002.
93 Since the publication of the report in August 2010, no further proceedings have been opened on atrocities that
were committed between 1993 and 2003; see UN Mapping Report, 18–19, 396–409
94 For the purpose of this study, ICTJ did not include cases that the Congolese military jurisdiction considered to
involve international crimes but had no link to an armed conflict or did not amount to a widespread or systematic
attack against the civilian population. This explains why the number of cases of international crimes compiled in this
study might appear conservative in comparison with other studies. However, this number of cases does not pretend
to be exhaustive. For a legal analysis on disagreements between Congolese military justice officials and renowned
Congolese experts as to what qualifies as an international crime in DRC, see Avocats Sans Frontières, “Recueil de
Jurisprudence Congolaise en Matière de Crimes Internationaux: Edition Critique” (2013), 25–31, 56–59, 90 (which
considered genocide in the Mputu Muteba et al. case, and crimes against humanity in the Waka Lifumba case and
the Lemera case).
95 On the political, security and regional context, see the reports of the U.N. Group of Experts on the Democratic
Republic of the Congo: U.N. Security Council, “Letter dated 23 November 2009 from the Chairman of the Security
“ICTJ identifi ed that between
January 2009 and December
2014, the military courts of
eastern DRC opened at least 39
proceedings involving cases of
serious crimes.”
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agreements signed in the region, eastern Congo has remained a conflict zone characterized by
the active presence of various domestic and foreign armed groups, including Mai Mai groups,
Democratic Liberation Forces of Rwanda (FDLR), Allied Democratic Forces (ADF), and the
Lord’s Resistance Army (LRA), whose atrocities against civilian and criminal activities have
been widely documented.96
Significant clashes took place in 2008 between the Armed Forces of the Democratic
Republic of the Congo (FARDC) and the National Congress for the Defence of the People
(CNDP) in North Kivu, culminating with Laurent Nkunda and his CNDP troops entering
Goma in October 2008.97 A peace agreement was ultimately signed on March 23, 2009,
an essential component of which was the integration of ex-CNDP members within the
PNC and FARDC. Earlier, in 2008, the Peace, Security and Development Conference
of North and South Kivu had already led to the Commitment Act (Act d’Engagement)
of January 23, 2008.98 While the 2009 agreement was only concluded with the CNDP,
the Commitment Act, signed by Congolese Patriotic Resistance-Patriotic Armed Forces
(PARECO/FAP), Mai-Mai Kifuafua, Mai-Mai Vurongo, Mai-Mai Mongol, Union des
jeunes patriotes solidaires (UJPS), Mai-Mai Rwenzori, and Simba, provided for their
integration into the FARDC.99 As a result, members of other armed groups were also
integrated into the FARDC.
The lack of vetting of members of these former armed groups may help to explain the
indiscipline and human rights violations that have been widely attributed to the Congolese army,
as in Kimia I, Kimia II, and Amani Leo operations. Indeed, integration has not been conditional
on the assessment of former fighters’ integrity or history of gross human rights violations or
serious crimes.100 Lack of basic training for former fighters may also help to explain violations.
Between 2008 and 2010, several military operations were launched to neutralize both
national and foreign armed groups operating in the DRC. In the context of these
Council Committee established pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo
addressed to the President of the Security Council,” U.N. Doc. S/2009/603 (Nov. 23, 2009); U.N. Security Council,
“Letter dated 15 November 2010 from the Chair of the Security Council Committee established pursuant to resolution
1533 (2004) concerning the Democratic Republic of the Congo addressed to the President of the Security Council,”
U.N. Doc. S/2010/596 (Nov. 29, 2010); U.N. Security Council, “Letter dated 29 November 2011 from the Chair of the
Security Council Committee established pursuant to resolution 1533 (2004) concerning the Democratic Republic of the
Congo addressed to the President of the Security Council,” U.N. Doc. S/2011/738 (Dec. 2, 2011); U.N. Security Council,
“Letter dated 12 November 2012 from the Chair of the Security Council Committee established pursuant to resolution
1533 (2004) concerning the Democratic Republic of the Congo addressed to the President of the Security Council,”
U.N. Doc. S/2012/843 (Nov. 15, 2012); U.N. Security Council, “Letter dated 22 January 2014 from the Coordinator of the
Group of Experts on the Democratic Republic of the Congo addressed to the President of the Security Council,” U.N.
Doc. S/2014/42 ( Jan. 23, 2014).
96 See, generally, U.N. Joint Human Rights Office, “Final Report of the Fact-Finding Missions of the United Nations
Joint Human Rights Office into the Mass Rapes and Other Human Rights Violations Committed by a Coalition of
Armed Groups Along the Kbua-Mpofi Axis in Walikale Territory, North Kivu, from 30 July to 2 August 2010,” 2011; U.N.
Joint Human Rights Office, “Report on the Investigation Missions of the United Nations Joint Human Rights Office into
the Mass Rapes and Other Human Rights Violations Committed in the Villages of Bushani and Kalambahiro, in Masisi
Territory, North Kivu, on 31 December 2010 and 1 January 2011” (2011), 15; U.N. Joint Human Rights Office, “Report
of the United Nations Joint Human Rights Office on Human Rights Violations Perpetrated by Armed Groups During
Attacks on Villages in Ufamandu I and II, Nyamaboko I and II and Kibabi Groupements, Masisi Territory, North Kivu
Province, Between April and September 2012” (2012); U.N. Joint Human Rights Office, “Report of the United Nations
Joint Human Rights Office on Human Rights Violations Perpetrated by Soldiers of the Congolese Armed Forces and
Combatants of the M23 in Goma and Sake, North Kivu Province, and In and Around Minova, South Kivu Province, from
15 November to 2 December 2012” (2013); Human Rights Watch, “Soldiers Who Rape, Commanders Who Condone:
Sexual Violence and Military Reform in the Democratic Republic of Congo” (2009), www.hrw.org/reports/2009/07/16/
soldiers-who-rape-commanders-who-condone; Human Rights Watch, “The Christmas Massacres: LRA Attacks on
Civilians in Northern Congo” (2009), www.hrw.org/reports/2009/02/16/christmas-massacres; Human Rights Watch,
“Trail of Death: LRA Atrocities in Northeastern Congo” (2010), www.hrw.org/reports/2010/03/29/trail-death
97 See International Crisis Group, “Congo: Five Priorities for a Peacebuilding Strategy” (2009), 3, www.crisisgroup.org/
en/regions/africa/central-africa/dr-congo/150-congo-five-priorities-for-a-peacebuilding-strategy.aspx
98 Acte d’Engagement, Jan. 23, 2008 [“Commitment Act”], www1.rfi.fr/radiofr/images/097/Actedengagement_
Goma080123.pdf
99 Ibid. art. 2.
100 See, generally, U.N. Office of the High Commissioner for Human Rights, “Rule-of-Law Tools for Post-Conflict
States: Vetting: an operational framework” (2006), www.ohchr.org/Documents/Publications/RuleoflawVettingen.pdf
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operations, particularly in the Kivus101 and Orientale Province,102 serious violations
of human rights and international humanitarian law were allegedly committed by all
parties.103 Documented violations included attacks against civilians resulting from
indiscipline and/or as a deliberate strategy to retaliate or punish local populations accused
of providing support to the enemy; looting, torture, sexual and gender-based violence,
large-scale killings, and other inhumane acts; as well as enlisting and conscripting
children, forced labor, and sexual slavery.104
In April 2012, in light of the government’s perceived unwillingness to implement the March
23, 2009 agreement, members of the ex-CNDP deserted the army to create the M23 rebel
group.105 The landscape of conflict in North Kivu and South Kivu changed dramatically with
the outbreak of this rebellion.
Photo: M23 fighters loyal to Bosco Ntaganda run along the road towards Goma as Peacekeepers observed
gathering of armed people North of the city, the 1st of March 2013. © MONUSCO/Sylvain Liechti
New armed groups were established and dormant groups reemerged to either support
or resist M23. Seven months later, the M23, with the support of neighboring Rwanda
and, to a lesser extent, Uganda, occupied the North Kivu provincial capital of Goma.
To avoid further civilian casualties, MONUSCO surrendered the city to the rebels for
12 days. With international pressure mounting, M23 eventually relinquished control
of Goma, withdrew to the outskirts of the city, and agreed to hold peace negotiations
in Kampala, Uganda.
101 Operation Umoja Wetu (“Our Unity”), jointly launched by the FARDC and the Rwandan army in January 2009,
lasted for almost 40 days and targeted the FDLR. It was followed by Operation Kimia II (“Calm”), jointly launched by
FARDC and MONUC in March 2009, which lasted until January 2010 and also targeted the FDLR.
102 In December 2008, Operation Lightning Thunder was launched jointly by the DRC, Uganda, and South Sudan
against LRA members in Orientale Province. Although the offensive weakened the LRA, it failed in its objective to
apprehend the most senior LRA officials. In response, the LRA committed a series of atrocities against the population.
103 See Human Rights Watch, “You Will Be Punished: Attacks on Civilians in Eastern Congo” (2009), 11, www.hrw.org/
reports/2009/12/14/you-will-be-punished; Oxfam International, “Waking the devil: the impact of forced disarmament
on civilians in the Kivus” (2009), 2-3, www.oxfam.org/sites/www.oxfam.org/files/bn-waking-the-devi-drc-0907.pdf
104 See, generally, U.N. Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO),
“Child Recruitment by Armed Groups in DRC From January 2012 to August 2013” (2013).
105 U.N. Security Council, “Letter dated 12 November 2012 from the Chair of the Security Council Committee
established pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo addressed to the
President of the Security Council,” U.N. Doc. S/2012/843 (Nov. 15, 2012), 6-9; International Peace Information Service,
“Mapping Conflict Motives: M23” (2012), 5–10, ipisresearch.be/publication/mapping-conflict-motives-m23/; Jason
Stearns, Rift Valley Institute, “From CNDP to M23: The Evolution of an Armed Movement in Eastern Congo” (2012),
39-42, www.riftvalley.net/publication/cndp-m23#.VR4iM-FAclA; Jason Stearns, Judith Verweijen and Maria Eriksson
Baaz, Rift Valley Institute, “The National Army and Armed Groups in the Eastern Congo: Untangling the Gordian Knot
of Insecurity” (2013), 28–30, riftvalley.net/publication/national-army-and-armed-groups-eastern-congo#.VR4jd-FAclA
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The international community launched a number of important initiatives to halt the
escalating violence. In late February, 2013, 11 African states and 4 regional and international
intergovernmental bodies signed the Peace, Security and Cooperation Framework for the
DRC and the region. A month later, the UN Security Council authorized the deployment of
a 3,000-person military force, the “Force Intervention Brigade,” to the DRC.106 A few days
before the deployment of the Brigade, M23 suffered a serious internal crisis.
Its two leading military figures, Bosco Ntaganda and Sultani Makenga, had a major
disagreement and took up arms to resolve their differences. Ntaganda fled, and in March
2013 he surrendered to the American embassy in Kigali, which transferred him to the
ICC. He has since been indicted on 13 counts of war crimes and 5 counts of crimes against
humanity.107
Meanwhile, in August 2013, the Brigade arrived in eastern DRC and joined the Congolese
army to neutralize armed groups. The army defeated the M23 rebels three months later,
and on December 12, 2013, the Congolese government and M23 signed three declarations,
officially ending 20 months of rebellion.108 The fate of most of the more than 1,000 ex-M23
rebels who fled to Rwanda and Uganda after the demise of the group remains unknown.
More than 4,000 combatants from numerous other armed groups also surrendered after
the M23’s defeat to join the Congolese government’s demobilization, disarmament, and
reintegration (DDR) program. However, authorities have so far failed to implement a robust
and effective DDR plan.109
Following the end of the M23 rebellion, there was a relative decline in attacks against
civilians in areas formerly under M23’s control. However, crimes continue to be committed
by armed groups in areas outside the control of the FARDC and MONUSCO, including
the FRPI in Ituri, Mai-Mai Cheka in North Kivu, and Mai-Mai Yakutumba in South Kivu.
In 2014, the Congolese army and Force Intervention Brigade confronted a number of other
armed groups, including ADF, APCLS, and Sheka.
It is in the context of instability that we can more accurately assess the DRC’s judicial
response to serious crimes and its limitations.
Judicial Response to International Crimes from 2009 to 2014
Between January 2009 and December 2014, judicial authorities opened 39 cases related
to events that had occurred between 2002 and 2014 in the eastern provinces and
districts of the DRC (Ituri, North Kivu, and South Kivu). This number was obtained
through research and interviews with investigators, prosecutors, judges, lawyers,
members of national and international NGOs, MONUSCO and UN personnel, and
other justice stakeholders.
106 U.N. Security Council, Resolution 2098, U.N. Doc. S/RES/2098 (6943rd meeting, Mar. 13, 2013), 6.
107 ICC, The Prosecutor v. Bosco Ntaganda, www.icc-cpi.int/en_menus/icc/situations%20and%20cases/
situations/situation%20icc%200104/related%20cases/icc%200104%200206/Pages/icc%200104%200206.
aspx
108 See Declaration of the Government of the Democratic Republic of the Congo at the End of the Kampala Talks
(Dec. 12, 2013), www.sadc.int/files/6813/8718/4209/GOVT_DECLARATION_ENGLISH0001.pdf; Declaration of
Commitments by the Movement of March 23 at the Conclusion of the Kampala Dialogue (Dec. 12, 2013), www.sadc.
int/files/7013/8718/4213/M23_DECLARATION_ENGLSH0001.pdf; and Joint ICGLR-SADC Final Communiqué on the
Kampala Dialogue (Dec. 12, 2013), www.sadc.int/files/8813/8718/4199/COMMUQUE_ENGLISH0001.pdf [“Nairobi
Declarations”]. Ugandan President Yoweri Museveni (then chairperson of the International Conference on the
Great Lakes Region) and Malawi President Joyce Banda (then chairperson of the Southern African Development
Community), signed a statement announcing the end of the Kampala talks and called on both parties, in para. 8, to
implement their commitments.
109 Even more seriously, over 100 demobilized men, women, and children died from starvation and disease in a
remote military camp; see Human Rights Watch, “DR Congo: Surrendered Fighters Starve in Camp” (2014), www.hrw.
org/news/2014/10/01/dr-congo-surrendered-fighters-starve-camp
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These cases relate to facts that were qualified by military prosecutors and judges as international
crimes and that were connected to an armed conflict or committed as part of a widespread or
systematic attack against the civilian population.110
Military judicial authorities in South Kivu initiated twenty-two cases:111 fourteen cases were
attributed to FARDC (of which three were adjudicated in the first instance,112 two are in appeal,113
eight are still under investigation,114 and one was interrupted);115 three cases were attributed to
foreign armed groups or FDLR elements (of which one was adjudicated in first instance,116 one
on appeal,117 and one remains under investigation);118 and five cases were attributed to domestic
armed groups (including two cases attributed to former members of RCD, who became members
of FARDC, that remain under investigation,119 two cases against Mai-Mai group members—
including one closed120 [(classé sans suite)121] and one under investigation,122 and one adjudicated
case of acts attributed to an armed group created by Kyat Hend Dittman).123
In North Kivu during the same time period, the military courts initiated ten cases regarding serious
crimes.124 These comprised six cases attributed to FARDC, including three cases adjudicated by
110 Two important cases concerning crimes committed in Eastern DRC were not included in this compilation because
the proceedings were not conducted in the jurisdiction of North Kivu, South Kivu, or Ituri. A delegation of the UN
Security Council brought the case of General Kakwavu to the attention of the DRC President in May 2009, for crimes
committed in Ituri in 2013. He was brought before the High Military Court in Kinshasa. See HMC, General Kakwavu
(Nov. 7, 2014), RP 004 RMP 0343 [“Kakwavu case”]. The Kahwa case was initially brought before the TMG-Bunia
in 2006, but was then appealed before the CMS-Kisangani and then brought before the HCM in 2014 for crimes
committed in Ituri. See HMC, Kahwa (Aug. 13, 2014), RPA 023/06, RP 039/2006, RMP 227/PEN/2006 [“Kahwa case”].
See, also, U.N. Joint Human Rights Office, “Progress and obstacles in the fight against impunity for sexual violence in
the Democratic Republic of the Congo, 9 April 2014, para. 41.
111 Two additional cases of serious crimes initiated before the military jurisdiction of South Kivu were not included
in the Appendix due to a lack of sufficient information on the context and nature of the crimes: AMS-SK, Col. Gwigwi
Busogi et al. ( Jun. 5, 2013), RMP 1473/BKL/13 [“Gwigwi case”]; and AMS-SK, Lt. Col. Maro Ntumwa (Aug. 11, 2014),
RMP 1539/BKL/2014 [“Maro case”].
112 CM-SK, Lt. Col. Bedi Mobuli Engangela, RP 083/14 RMP 1377/MTL/11, 15 December 2014 (Col. 106 case); CM-SK, Lt.
Col. Balumisa Manasse et al., RP 038RMP 1427/NGG/2009 RMP 1280/MTL/09, 9 March 2011 (Balumisa case) ; CM-SK,
Lt. Col. Kibibi Mutuare et al., RP 043/11RMP 1337/MTL/2011, 21 February 2011 (Fizi I/Baraka).
113 CM-SK, 1er sergent Christophe Kamona Manda et al, (7 November 2011) RPA 180 RP 0132/10 RMP 0933/KMC/10
(trial) RMP 0802/BMN/010 (appeal) (Lemera–Mulenge case) ; CM-SK, Slt. Kabala Mandumba, Emmanuel Ndahisaba
et Donat Kasereka, (20 October 2013) RPA 230 RMP1868/KMC/11 (appeal) RP 708/12 RMP 1868/TBK/KMC/10 - 12
(trial) (Mupoke Market case).
114 AMS SK and AMG-Uvira, Lt. Col. Mukerenge ( Jun. 21, 2010), RMP 1298/PEN/10 “[Mukerenge case”]; AMS SK, Commander
Rupongo Rogatien John and Shaka Nyamusaraha (Oct. 25, 2011), RPM 1373/WAV/11 [“Kikozi case”]; AMS SK, Major Safari
Kateyateya et al. (Sept. 30, 2013), RMP 2605/KK/2012 RMP 1486/BKL/13 [“Lwizi–FARDC case”]; AMS SK, Col. Sebimana et
al. ( Jun. 19, 2012), RMP 1421/BKL/12, [“Katalukulu case”]; AMS-SK, Maj. Mabiala (Aug. 26, 2013), RMP 1482/KK/13 [“Mirenzo
case”]; AMS SK, Col. Ilunga Jean Jacques Birungurungu (Feb. 22, 2013), RMP1463/WAV/13/NDM/KK/2013 RMP 2678/KMC/12
[“Birungurungu case”]; AMS SK, Lt. Col Angali Mukumbwa et al. (Sept. 9, 2009), RMP 1245/MTL/09/Bukavu [“Lulingu case”];
AMS SK, Maj. Kayumba Nyenyere Venance et al. ( Jun. 17, 2014), RMP 1526/BKL/2014 [“Mutarule case”].
115 AMS SK, Col. Kulimushi alias Kifaru ( Jun. 24, 2011), RMP 1358/MTL/11 “[Fizi II, Nakiele case”]. While two
investigation missions were led in the area and 121 victims were interviewed, doubts arose about the credibility of
some of the testimonies. Therefore, the binvestigation was suspended. See, also, U.N. Security Council, “Letter dated
29 November 2011 from the Chair of the Security Council Committee established pursuant to resolution 1533 (2004)
concerning the Democratic Republic of the Congo addressed to the President of the Security Council,” U.N. Doc.
S/2011/738 (Dec. 2, 2011), para 641A.
116 TMG-BKV, Sabin Kizima Lenine, RP 702/11 RMP 1901/KMC/2010, 29 December 2014 (Sabin Kizima Lenine case).
117 MC SK, Maniraguha et al. (Oct. 29, 2011), RPA 0177 (Appeal) RP 275/09 521/10RMP 581/TBK/07 1673/KMC/10
(Trial) RP 275/09 [“Kazungu (Appeal) case”].
118 AMG Bukavu, AMG Uvira, Singabanza et al. ( Jan. 23, 2012; Mar. 17, 2012), RMP 2304/KMC/2012 and 2180/
IH/2304/KMC/2012 [“Singabanza Nzovu case”]
119 AMG Uvira, Lulinda and Lusenda, RMP 0940/KMC/2010 [“Lulinda and Lusenda case”]; AMS SK, Commander
Shetani (Sept. 10, 2009), RCD, RMP1248/MTL/09 [“Kasika Carnage case”].
120 AMS SK, Ombeni Matayo (Apr. 5, 2012), RMP 1282/KM/09 [“Ombeni Matayo case”].
121 The legal basis for classé sans suite is art. 199 MJC; itcan be implicitly derived from the interpretation of art. 53 of
Criminal Procedural Code of the DRC, Décret du 6 août 1959 portant Code de procédure pénale, entered into force on April
15, 1960, following the principle of prosecutorial discretion. It can, for instance, be invoked due to a lack of evidence.
122 AMG Uvira, Eben-Ezer, RMP 2128/MPL/12 [“Eben-Ezer case”].
123 MC SK, Kyat Hend Dittman et al. (Oct. 15, 2012), RP 036-039 RMP 1303/MTL/2010 1308/MTL/2010 [“Kyat Hend
Dittman case”].
124 Five additional cases of serious crimes before the military jurisdiction of North Kivu were not included in
Appendix for confidentiality matters, lack of sufficient information on the context and nature of the crimes committed,
or lack of corroborated information on legal proceedings initiated: AMS OPS NK Maj. Bwete Landu et al. (Sept. 6,
2012), RMP 0155/MLS/09 [“Kasuho case”]; AMS OPS NK, Lukopfu-Kaniro, (no RMP available) [“Lukopfu/Kaniro case”];
Confidential case; Kimia II case ( Jurisdiction and RMP not available); AMG Beni NK, Mbau, Kamango, Watalinga, Beni
Territory, RMP1405/HKK/014 “[Mbau, Kamango, Watalinga case”].
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The Accountability Landscape in Eastern DRC
the Military Operational Court (CMO)125 and three cases under the investigation of the Auditorat
Général Opérationnelle (AMO), with one of these cases also concerning members of the APCLS.126
It also included one case before the CMO against elements of CHEKA and FDLR.127 Cases under
investigation comprise one against M23,128 one against elements of Mai-Mai, Raia Mutomboki,
and Nyatura groups,129 and one against APCLS, Mai Mai CHEKA, and FDLR.130 In total, two
cases have been adjudicated, one case is pending before the CMO, and seven cases remain under
investigation by the AMO. Since the CMO was established, all cases concerning international
crimes in the jurisdiction of North Kivu have been directed to AMO and the COM. All cases
involving serious crimes in South Kivu and Ituri have been dealt with by the Auditorat Militaire de
Garnison (AMG), Military Garrison Tribunal (MGT), AM, and CM.
Table: Status of Cases of Serious Crimes Before Courts in Eastern DRC, 2009–2014
LOCATION TOTAL
NUMBER
OF CASES
NUMBER
OF CASES
AGAINST
FARDC
NUMBER
OF CASES
AGAINST
FDLR
NUMBER
OF CASES
AGAINST
FRPI
NUMBER
OF CASES
AGAINST
MAI MAI
NUMBER
OF CASES
AGAINST
OTHER
ARMED
GROUPS
South Kivu 22 14
3 adjudicated
2 in appeal
8 under inv.
1 interrupted
3
1 adjudicated
1 in appeal
1 under inv.
0 2
1 under inv.
1 closed
3
1 adjudicated
2 under inv.
North Kivu 10 6
3 adjudicated
3 under inv.
(including
1 case also
against
APCLS )
1
Also against
Mai Mai
CHEKA
0 3
(3 under inv.: 1 against M23;
1 against elements of Mai
Mai, Raia Mutomboku, and
Nyatura groups; 1 against
elements of APCLS, Mai Mai
CHEKA, and FDLR)
Ituri 7 1
1 under inv.
0 3
2 adjudicated
1 under inv.
3
3 adjudicated
0
In Ituri, seven cases were initiated for international crimes.131 These include one case under
investigation against FARDC;132 three attributed to FRPI, including two adjudicated cases,133
125 MC OPS NK, Minova-Bweremana (May 5, 2014), RP 003/2013 RMP 0372/BBM/01 [“Minova case”]; MC OPS NK, Sub
Lt. Salomon Bangala Urbain and Lubamba Kuyangisa (Aug. 19, 2014), RP 001/013 RMP 0364/BBM/13 [“Salomon case”];
MC OPS NK, Lt. Col. Birotsho Nzanzu Kossi et al. (Nov. 11, 2014), RP 019/014RMP 0412/BBM/014 [“Birotsho case”]
126 AMS OPS NK, Miriki, Bushalingwa and Kishonja, Lubero and Walikale Territories, RMP 026/2009 (Miriki/Lubero
case); AMS OPS NK, Maj. Dario, Maj. Emmanuel Ndungutsi, Maj. Eustache, Col. Jonathan Balumisa Tchumaandall ( Jan.
13, 2011), RMP 0236/MLS/2011 [“Bushani case”]; AMS OPS NK, Col. Mudahunga Safari, Col. Muhire et al. ( Jul. 2, 2013),
RMP 0041/MA/2013RMP 0362/BBM/2013 [“Kitchanga case”]. The Kitchanga case concerns both FARDC and members
of the APCLS.
127 MC OPS NK, Lt. Col. Mayele et al., RP 055/2011 RMP 0223/MLS/10 [“Kibua-Mpofi/Walikale case”]
128 AMS OPS NK, Col Makenga Sultani et al. ( Jun. 27, 2012), RMP 0297/BBM/2012 [“M23 case”].
129 AMS OPS NK, Ufamandu I, Ufamandu II, and Kibiti ( Jul. 12, 2013), RMP 0363/BBM/12 [“Ufamandu/Masisi case”].
130 AMS OPS NK, Janvier Buingo Karairi (APCLS) and Ntabo Ntaberi Sheka (NDC) (Aug. 15, 2011) RMP 0261/MLS/11
[“Mutongo case”].
131 Two additional cases of serious crimes initiated before the military jurisdiction of South Kivu were not included
in the Appendix due to a lack of sufficient information on the context and nature of the crimes committed: AMG Ituri
(Apr. 29, 2014), RMP 2542/YBK/14; AMG Ituri, Salumu Bin Amisi (PNC Officer) and Lunzolo Mayitiki (civil) ( Jun. 14,
2012), RMP 1810/KNG/12.
132 AMG Ituri, Lt. Col. Simon Boande Belinga, Maj. Golf Terengbana Moyanzi, Capt. Foudre Grégoire Batafe et al. ( Jan.
2, 2014), RMP 2456/KNG/013 [“Sud Irumu FARDC case”].
133 MGT Bunia, Kakado Barnaba Yonga Tshopena ( Jul. 9, 2010), RP 071/09, 009/010 074/010 RMP 885/EAM/08 RMP
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The Accountability Landscape in Eastern DRC
and one under investigation;134 and 3 adjudicated cases against Mai-Mai Simba, including 1
at first instance,135 and 2 at the appellate level.136
Although many factors influence prosecutions in eastern DRC, the capacity of the Congolese
judicial system and the support it receives from external partners remain central. An analysis
of open investigations in Congolese jurisdictions illustrates these external influences on the
national judicial response to international crimes.
Capacity of the Judicial System and Level of Support Required
With current limited capacity, the Congolese judicial system greatly relies on partners to
initiate and lead investigations and prosecutions of international crimes. This dependence
stems primarily from reliance on external information, lack of logistical and financial
autonomy, lack of organizational oversight and incentives, and lack of specialized technical
capacities and prosecutorial strategy.
Reliance on External Information
Several interviewees emphasized that investigations of international crimes are consistently
precipitated by initial information and cases brought to the attention of the military justice
by MONUSCO and/or national or international human rights organizations. Information
shared by external partners was repeatedly described by judicial authorities as the main
triggers for judicial investigations.
The lack of accessibility by national authorities to crime scenes and locations—especially in
remote areas controlled by armed groups—partly explains this situation. Consequently, where
partners like MONUSCO are unable to gather information, little information is transmitted
to relevant investigative and prosecutorial authorities and a limited number of proceedings
are initiated. In several cases, lack of accessibility and security were critical impediments to
the continuation of investigations (as in the Cheka,137 Kimia II,138 and Ufamandu cases139),
sometimes this even leading to the closure of cases (as in the Fizi II case140). The difficulty of
arresting alleged perpetrators in remote areas (particularly in areas where Mai-Mai Sheka-
NDC, Raia Mutomboki, ADF Malu, and APCLS groups operate) provides a further obstacle,
as the judiciary has less incentive to investigate crimes committed where there are minimal
chances of actually detaining a defendant.
1141/LZA/010 RMP 1219/LZA/010 RMP 1238/LZA/010 [“Kakado case”]; MGT Ituri, Irizo Muzungu Barakiseni and Baluku
Utugba Bahati, RP 175/12 RMP 1699/MML/012RMP 1699/KNG/12RMP 1703/KNG/12 [“Cobra Matata case”].
134 AMG Ituri, FRPI of Cobra Matata-FARDC (Mar. 9, 2012), RMP 2778/YBK/014 [“FRPI of Cobra Matata”].
135 MC Kisangani, Moussa Oredi, Mumbere Makasi, Gaston Awawungo, Delphin Mumbere Mulimirwa alias Le Blanc,
Kambale Kahese, Mumbere Sumbadede, Sébastien Katembo Mukandirwa (Aug. 11, 2012), RPA 274/013, GMT Ituri,
RP 153/012 RMP 1818/KNG/13, RP 153/012; MGT Ituri, Morgan Sadala (Oct. 18, 2012), RP 155/012 RMP 1915/KNG/12
[“Morgan/Epulu Reserve Carnage case”]; MC Kisangani, Paul Morgan Sadala, Papy Masumbuko, Philipo Tegere,
Munbere Emmanuel, Katembo Mastaki et al. (Apr. 16, 2014), RPA 341/14, MGT Ituri, RP 246/13, RMP 2030/KNG/012
[“Mambasa I (Paul Sadala alias Morgan) case”].
136 MC Kisangani, Moussa Oredi, Mumbere Makasi, Gaston Awawungo, Delphin Mumbere Mulimirwa alias Le Blanc,
Kambale Kahese, Mumbere Sumbadede, Sébastien Katembo Mukandirwa (Aug. 11, 2012), RPA 274/013, GMT Ituri,
RP 153/012 RMP 1818/KNG/13, RP 153/012; MGT Ituri, Morgan Sadala (Oct. 18, 2012), RP 155/012 RMP 1915/KNG/12
[“Morgan/Epulu Reserve Carnage case”]; MC Kisangani, Paul Morgan Sadala, Papy Masumbuko, Philipo Tegere,
Munbere Emmanuel, Katembo Mastaki et al. (Apr. 16, 2014), RPA 341/14, MGT Ituri, RP 246/13, RMP 2030/KNG/012
[“Mambasa II (Paul Sadala alias Morgan) case”].
137 AMS OPS NK, Janvier Buingo Karairi (APCLS) and Ntabo Ntaberi Sheka (NDC) (Aug. 15, 2011), RMP 0261/MLS/11,
[“Mutongo case”]; AMS OPS NK, Col. Janvier (APCLS), Col. Moyo Rabu, FDC’s Chief, Raia Mutomboki’s Chief, and
FARDC members (Nov. 14, 2012), RMP 0337/BBM/12; MC OPS NK, Mai Mai Sheka, Lt. Col. Mayele et al., RP 055/2011
RMP 0223/MLS/10 [“Kibua-Mpofi/Walikale case”].
138 AMS OPS NK, Ufamandu I, Ufamandu II, and Kibiti ( Jul. 12, 2013), RMP 0363/BBM/12 [“Ufamandu/Masisi case”].
139 AMS SK, Col. Kulimushi alias Kifaru ( Jun. 24, 2011), RMP 1358/MTL/11 [“Fizi II, Nakiele case”].
140 MC SK, Maniraguha et al. (Oct. 29, 2011), RPA 0177 (Appeal) RP 275/09 521/10 RMP 581/TBK/07 1673/KMC/10
(Trial) RP 275/09 [“Kazungu (Appeal) case”]; AMS OPS NK, Janvier Buingo Karairi (APCLS) and Ntabo Ntaberi Sheka
(NDC) (Aug. 15, 2011), RMP 0261/MLS/11 [“Mutongo case”]; AMS OPS NK, Col. Janvier (APCLS), Col. Moyo Rabu, FDC’s
Chief, Raia Mutomboki’s Chief, and FARDC members (Nov. 14, 2012), RMP 0337/BBM/12; MC OPS NK, Mai Mai Sheka,
Lt. Col. Mayele et al., RP 055/2011 RMP 0223/MLS/10 [“Kibua-Mpofi/Walikale case”]..
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Investigating crimes allegedly committed by foreign armed groups is immensely difficult.
Judicial authorities indicated that challenges included difficulty accessing the sites where
crimes were committed, poor reporting and recording of evidence, and the inability to
identify perpetrators. As a result, a very low number of proceedings have been initiated
against these groups. For example, there are very few cases against FDLR officials, despite
their well-documented involvement in the commission of many atrocities. Indeed, only
four cases were opened against FDLR members in South Kivu and North Kivu between
2009 and 2014.141 Similarly, the absence of international partners in areas such as the
Uele Districts of Orientale Province, where the LRA has been active, may partially
explain the lack of proceedings, despite the large number of well-documented atrocities
by the LRA.
One should note, however, that information collected during human rights investigations by
MONUSCO and other agencies is not consistently shared with, or disclosed to, domestic
judicial authorities. This failure is often explained as a precaution and blamed on the lack
of an adequate communication and information management system within the military
judiciary. Some partners are unwilling to share reports to protect the confidentiality of their
sources in the absence of such a system.
For instance, interviewees raised concerns about information that would incriminate
perpetrators of child recruitment, where the absence of guarantees of confidentiality or
adequate preparation by the Congolese party prevent any sharing. This situation, however,
has led to missed opportunities to support and positively contribute to investigations of
serious crimes. Judicial actors interviewed indicated a lack of awareness of the investigative
and reporting work carried out by different NGOs and UN agencies. For example, a military
investigator noted that he only became aware of the existence of a UN report documenting
the very criminal acts that he was investigating during a training workshop organized by an
international organization.
In some instances, this situation reflects the lethargy of the Military Prosecutor’s Office.
Instead of relying on partners to bring cases to it, the military prosecutor should play
a proactive role in investigating cases. Consequently, some interviewees noted that the
active work of the international community might have “allowed” domestic authorities to
pass up their natural leadership role. By playing the leading role in the identification and
documentation of cases of serious crimes, international partners have replaced, in some ways,
the Congolese state in its primary functions.
One should note that cases have also been initiated following the arrest of alleged perpetrators
of serious crimes by military commanders (as in the Epulu Reserve142 and Mambasa I cases143)
or by the civilian population (as in the Kuzungu144 and Singabanza145). In these situations,
cases may first be referred to the Military Prosecutor’s Office, which would then inform
external partners of the case. At this stage, as described below, the investigation still depends
on the logistical and financial support of partners. For instance, after the arrests of Colonel
106 and Kazungu, external partners led or facilitated cautious investigations in remote and
insecure areas where violations had been committed.
141 MC Kisangani, Paul Morgan Sadala, Papy Masumbuko, Philipo Tegere, Munbere Emmanuel, Katembo Mastaki et al.
(Apr. 16, 2014), RPA 341/14, GMT Ituri, RP 246/13, RMP 2030/KNG/012 [“Mambasa I (Paul Sadala alias Morgan) case”]..
142 MC Kisangani, Moussa Oredi, Mumbere Makasi, Gaston Awawungo, Delphin Mumbere Mulimirwa alias Le Blanc,
Kambale Kahese, Mumbere Sumbadede, Sébastien Katembo Mukandirwa (Aug. 11, 2012), RPA 274/013, GMT Ituri (Aug.
11, 2012), RP 153/012 RMP 1818/KNG/13 RP 153/012; MGT Ituri, Morgan Sadala (Oct. 18, 2012), RP 155/012 RMP 1915/
KNG/12 [“Morgan/Epulu Reserve Carnage case”]
143 TMG – ITURI, RP 246/13, RMP 2030/KNG/012, 16 April 2014 (Mambasa I (Paul SADALA alias Morgan et al.).
144 MC SK, Maniraguha et al. (Oct. 29, 2011), RPA 0177 (Appeal) RP 275/09 521/10 RMP 581/TBK/07 1673/KMC/10
(Trial) RP 275/09 [“Kazungu (Appeal) case”].
145 AMG Bukavu, AMG Uvira, Singabanza et al. ( Jan. 23, 2012; Mar. 17, 2012), RMP 2304/KMC/2012 2180/IH/2304/
KMC/2012 [“Singabanza Nzovu case”].
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The Accountability Landscape in Eastern DRC
Logistical and Financial Support for Investigations
Beyond sharing preliminary information, the investigative process also benefits from,
and often depends on, logistical and financial support from external partners. When
an investigation is opened or a trial must be conducted outside of the Court’s premises
(audience foraine),146 the Military Prosecutor’s Office typically submits a request for support
to the Prosecution Support Cell, with a copy to relevant stakeholders, notably international
partners [such as United Nations Development Programme (UNDP), Lawyers Without
Borders (ASF), American Bar Association (ABA), and United Nations Joint Human Rights
Office (UNJHRO)] and to provincial authorities.
These requests are examined at stakeholder coordination meetings, where logistical and
financial needs are identified, budgeted, and covered by different partners.
Congolese judicial institutions have extremely limited resources to cover the costs of
investigations and prosecutions. Indeed, the Congolese state has not provided the essential
resources needed by military courts to undertake key actions in the investigation of cases,
including paying for office supplies, transport, and communication.
As a result, UNJHRO and NGOs that represent victims as civil parties during trials (such
as ASF and ABA) have consistently assumed the preliminary identification of victims and
witnesses and logistical arrangements for interviews. Logistics and expenses related to both
investigations and mobile trials (such as transport and per diems for magistrates; per diem
and judicial fees of legal representatives, victims and witness protection measures; and
transport and transfer of accused and convicted persons) are also typically supported and
funded by stakeholders.
Congolese military bodies have received substantial financial and technical support from
various partners to conduct investigations and trials.147 From January 2009 to December
2014, several projects and initiatives were introduced to support Congolese national
judicial authorities. MONUSCO launched two initiatives: the Joint Investigations Teams,
introduced in 2009,148 and the Prosecution Support Cells, introduced in 2010.149 Beyond
146 In the DRC, audience foraine refers to hearings or trials that are held outside the facilities of the courts
or tribunals, generally in remote areas, when deemed necessary. Such sessions require resources to cover the
personnel needs, including travel, for the sessions. Loi No 023/2002 of DRC on the Military Judicial Code (Loi
portant Code judiciaire militaire), November 18, 2002 [“MJC (2002)”] provides the legal basis for these mobile trials
to be held by the military judiciary. Article 7 states: “En temps de guerre, la Haute Cour Militaire tient des chambres
foraines en zones opérationnelles” [“In times of war, the High Military Court (HCM) holds mobile chambers in
operational zones”]; art. 13 provides that “La Cour Militaire peut se réunir en tous lieux de son ressort. Dans les
circonstances exceptionnelles, le siège de la Cour Militaire peut être fixé en un autre lieu du ressort, par arrêté
du Ministre de la Défense” [“The Military Court can sit in all places falling under its jurisdiction. In exceptional
circumstances, it can it sit outside its jurisdiction, by order of the Minister of Defence”]; art. 18 provides that “En
cas de guerre ou dans toutes autres circonstances exceptionnelles de nature à mettre en péril la vie de la Nation,
notamment les menaces de guerre, de rébellion ou d’insurrection armées, il est établi dans les zones d’opération de
guerre, des Cours Militaires opérationnelles qui accompagnent les fractions de l’armée en opération. L’implantation
des Cours Militaires Opérationnelles est décidée par le Président de la République” [“In times of war or other
exceptional circumstances likely to endanger the life of the Nation, including threats of war, rebellion or armed
insurrection, Military Courts are to be established in the war operation zones to accompany fractions of the military
operation.”]. Loi organique No 13/011-B of DRC on the Organization, Functioning and Jurisdiction of the Courts (Loi
portant organisation, fonctionnement et compétences des juridictions de l’ordre judiciaire), April 11, 2013, www.
leganet.cd/Legislation/Droit%20Judiciaire/LOI.13.011.11.04.2013.htm [“LOJC”], art. 45–47 provides for audiences
foraines for the civilian jurisdiction.
147 A large proportion of trials involving international crimes are held in mobile courts, usually located where the
crimes were committed, to bring justice closer to the victims. See art. 67 of Loi No 82-020 of DRC on the Code of the
organization and jurisdiction of courts (Loi portant Code de l’organisation et de la compétence judiciaires), March 31,
1982, www.leganet.cd/Legislation/Droit%20Judiciaire/OL.31.03.82.n.82.020.htm. These mobile courts are financed
exclusively by external support. For a lengthier discussion on mobile courts, see Open Society Initiative for Southern
Africa, “Helping to combat impunity for sexual crimes in DRC: An evaluation of the mobile gender justice courts”
(2012).
148 U.N. Security Council, Resolution 1925, U.N. Doc. S/RES/1925 (6324th meeting, May 28, 2010), para. 12(f).
149 The Prosecution Support Cells were mandated by U.N. Security Council, Resolution 1925, U.N. Doc. S/RES/1925
(6324th meeting, May 28, 2010), para. 12(d). See the text box for more information on PSC. A Memorandum of
Understanding was signed between MONUSCO and the Government of the DRC, represented by MDNAC, on
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The Accountability Landscape in Eastern DRC
providing logistical support, these initiatives aim to improve the technical quality of
investigations and judicial proceedings.
Originally established by the UNJHRO, the Joint Investigation Teams support
investigation missions initiated by national authorities. As explained above, the Prosecution
Support Cells respond to specific support requests from judicial authorities, as regulated
by the Memorandum of Understanding between the Ministry of Defense and Former
Combatants, and MONUSCO (see text box below).
These initiatives were designed to respond to slightly different needs. Joint Investigations
Teams provide technical expertise and support to investigations of serious violations
of human rights, while the Prosecution Support Cells provide international specialized
expertise to judicial investigations and aim to transfer competencies to national judicial
investigative teams. While contributions from both groups are acknowledged by the DRC,
the Joint Investigations Teams are regarded as more effective (see text box below). Through
specific projects, capacity-building support has also been provided by organizations such as
UNJHRO, UNDP, ABA, and ASF.
In reality, as noted by several interviewees, the role of partners goes well beyond providing
financial and logistical support. Since 2010, partners in the DRC have established working
groups that meet regularly to coordinate and support initiatives, discuss pending cases, and
identify actions that need to be taken to advance specific judicial processes.
These are the provincial Coordination Groups (specifically, Task Force Justice International,
in South Kivu; Cadre de Concertation, in North Kivu; and Cluster Rule of Law, in
Oriental Province). They are led by the Prosecution Support Cells that bring together
partners such as UNJHRO, UNDP, ASF, ABA, RCN Justice & Démocratie, Physicians for
Human Rights, ICTJ, and TRIAL, as well as representatives of military magistrates. These
groups not only coordinate financial and logistical support, but also aim to facilitate and
maintain direct exchanges with judicial authorities, working as an oversight mechanism
and attempting to prompt action.
Lack of Organizational Oversight or Incentives and Capacities to Investigate Complex Crimes
The lack of organizational oversight in the national judiciary has undermined professional
competence and the quality of performance at all levels of Congolese judicial institutions.
The absence of a system of organizational incentives and oversight has been detrimental
to professional motivation and morale, and has contributed to the judicial system’s
reliance on support from partners. As stated by several judicial authorities, there are no
compensation or discipline mechanisms that would potentially encourage or reward due
diligence.
Judicial authorities are often intimidated by outside parties, yet they do not benefit from
the support of their military superiors to obtain necessary security for themselves or their
family. (Magistrates are often unable to obtain cooperation from relevant military regions
to detain or arrest individuals or for mere protection.)
These risks are only made more serious by the dysfunctional penitentiary system, where
there are regular riots and prisoner escapes, including of inmates convicted of serious
crimes (such as the escape of Sub-Lt Kabala Mandumba and Kyat Hend Dittman from
Bukavu prison).
December 19, 2011. This provided the legal basis for cooperation with the military justice.
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The Accountability Landscape in Eastern DRC
A Reflection on Technical Support from MONUSCO
MONUSCO’s mandate requires it to “[s]upport national and international efforts to bring
perpetrators to justice, including by establishing Prosecution Support Cells to assist the FARDC
military justice authorities in prosecuting persons arrested by the FARDC.” This is a pioneering
initiative, a peacekeeping mission with the promise and hope of making an effective contribution to
the fight against impunity.
The Prosecution Support Cells were established in 2011 through a Memorandum of Understanding
between the Ministry of Defense and former combatants and MONUSCO. Its aim is “to support
investigations and prosecutions relating to the commission of serious crimes within the jurisdiction of
military courts, including crimes listed in the Rome Statute.” The cells support may encompass logistical
support, specialized training, practical advice, guidance, and technical expertise. Action by the cells
requires a request of support from the national party. According to the memorandum, the cells may offer
direct support; however, the parties have thus far not made use of this option. Eight military jurisdictions
have functional cells: Beni, Bukavu, Bunia, Goma, Kalemie, Kindu, Kisangani, and Lubumbashi.
While implementation was intended to address technical gaps in investigating cases of serious crimes and
support, through active assistance from experts, it is difficult to assess its achievements. In September
2013, an independent evaluation noted that the impact of the project is limited, due to significant
delays and inappropriate recruitment of staff who do not speak French or another local language.
(This problem has since been addressed.) In addition, geographical separation between cell staff and the
Congolese magistrates who require the assistance reduces opportunities for capacity building. It was also
reported that the precise contribution made to capacity building is unclear (see Peace Consolidation
Fund in the DRC - External Evaluation of the implementation of projects, 25-26, 34).
The majority of the experts recruited to serve on the cells came directly from national courts,
where, in most cases, they had no direct experience with international crimes. As stated by several
actors in the field, although these individuals are experts in their respective national laws, they
do not have particular expertise in investigating mass crimes, and they have limited knowledge of
international humanitarian or criminal law. Further, NGOs and partners noted that cell experts are
not particularly knowledgeable about the context of the conflict and demonstrate, in general, little
initiative to familiarize themselves with cases beyond their requested contribution.
When asked about the contribution made by the cells to ongoing investigations, judges referred
exclusively to the logistical support for organizing missions and did not refer at all to any technical
support. From the cells’ perspective, many of their members who were interviewed by ICTJ for this
report noted an initial lack of confidence from Congolese judicial actors.
Under the previous MONUC configuration, the UN Security Council in 2004 had instructed the
mission to cooperate with efforts to ensure that those responsible for serious violations of human rights
and international humanitarian law were brought to justice (S/RES/1565, October 1, 2004). Thus in
2009, the UNJHRO established the Joint Investigations Teams to support the Congolese government to
fight impunity for violations of human rights “by ensuring that investigations of judicial authorities are
carried out in compliance with the protection of victims and witnesses, as well as the sources and human
rights defenders.” Teams were organized with the participation of the office of the military prosecutor
and relevant MONUC/MONUSCO units (such as UNJHRO human rights officers, child protection
officers, and fight against sexual violence officers). The teams were intended to support cases of human
rights violations based on certain criteria: the number of victims; the systematic character of violations;
the targeting of individuals because of their gender, social, ethnic, or religious background; and the
prominence or seniority of the perpetrators involved. UNJHRO is comprised of staff with expertise in
human rights and international humanitarian law and a good understanding of the dynamics of the
conflict (including familiarity with armed groups and their leaders). Therefore, they seem to be in a
unique position to support authorities in investigating and prosecuting serious crimes. By the nature of
its mandate, which includes investigating and documenting serious human rights violations, UNJHRO
is among the first units to access information. The role of Joint Investigations Teams is limited to
assisting auditors during field missions and does not involve accessing prosecution evidence (unlike the
Prosecution Support Cells, which may, under the MoU, request access to case information).
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Dysfunction in the military jurisdiction has contributed to a “culture of lethargy.” Judicial
actors feel allowed to perform the minimum amount of tasks required to secure their
salaries, which discourages them from playing the proactive role that their duty requires.
Lack of Specialized Technical Capacities and Prosecutorial Strategy
While external partners and international donors have made important investments in
training staff and building the capacity of the national judiciary, the ability of national actors
to investigate and prosecute complex crimes remains insufficient. National investigations
have continually focused on isolated events, without linking these to broader, welldocumented
criminal patterns.
Cases are built around specific individuals who participated in or directed a welldefined
event, but there is a failure to look at relevant hierarchies, chains of command,
and networks to which these individuals belong. Although prosecution of a low-level
perpetrator may eventually lead to the punishment of the person most directly responsible
for a specific attack, the true criminal nature of the associated organization is never
exposed, and the accurate context of the violence remains obscured.
Problematically, investigators and military prosecutors are, in fact, not trained to deal
properly with proceedings of this nature. According to one judicial actor:
When you investigate superiors beyond the direct perpetrator, you need to know
how to look beyond people who shoot or rape. You must even look beyond the
commander or highest graded person. You must look for connections that are not
always obvious. We don’t have the resources to discover it.
The current judicial process in the DRC does not follow a comprehensive prosecutorial
strategy; investigations are initiated on an ad hoc basis after information is shared by external
partners or after the arrest of perpetrators of serious crimes.
Bearing in mind the different priorities of funders, international partners, and media that
influence the activities supported by international actors in the DRC, these dynamics
have led to a disproportionate number of cases involving sexual violence (26 out of 39
cases compiled by ICTJ include charges of rape amounting to an international crime, see
Appendix) as compare to other serious crimes reported.
Between 2009 and 2014, no investigations were initiated into other widely documented
serious crimes committed in eastern DRC, such as recruitment of child soldiers and pillaging
of natural resources.150
While the UN Mapping Rreport presents an important record of crimes committed
between 1993 and 2003, information on crimes committed between 2003 and 2014 still
needs to be collected in a systematic way. Indeed, for this period, international crimes
committed in eastern DRC have not been subject to a mapping exercise or a comprehensive
data collection process. Neither the Congolese judiciary nor the executive branch has this
data. The factual record of international crimes is, therefore, unknown. Yet, an effective
prosecutorial strategy that enables an appropriate judicial response to international crimes
cannot be reasonably designed without the results of such a mapping exercise. The national
150 For example, the UN identified 910 children who were recruited and used in 2013 by armed groups, primarily Mai-
Mai groups (297 children) and Nyatura (338 children). See U.N. General Assembly and Security Council, “Children and
armed conflict: Report of the Secretary-General,” U.N. Doc. A/68/878–S/2014/339 (68th session, 69th year, May 15,
2014), para 59. On the pillage of natural resources by armed groups in Eastern DRC, see, for example, U.N. Security
Council, “Letter dated 22 January 2014 from the Coordinator of the Group of Experts on the Democratic Republic of
the Congo addressed to the President of the Security Council,” U.N. Doc. S/2014/42 ( Jan. 23, 2014), para. 165–169.
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judicial response to international crimes can only be properly assessed in comparison with
comprehensive data on the crimes committed throughout the DRC.
The absence of a mapping of international crimes committed from 2003-2014 and the lack
of a prosecutorial strategy, worsened by a lack of specialized technical skills, undermine the
national judicial response to serious crimes.
Being unable to address patterns of violations, tackle chains of command, or make links
between armed actors and groups providing them with financial and political support
prevents the state from making a strategic attempt to dismantle those networks that support
the perpetration of crimes.151 If a strategy were adopted, it would increase the leverage of the
Congolese judiciary to prioritize cases, overcome ad hoc approaches, resist external pressure,
and facilitate national ownership of the initiation of cases.
Analysis of Open Investigations: External Influences and Judicial Response to
Atrocities
In addition to institutional and capacity obstacles, a host of domestic, regional, and
international interfering factors influence whether particular incidents are successfully
investigated and adjudicated. Despite significant international pressure and assistance, the
national judicial response to serious crimes remains very limited when compared to the number
of atrocities documented in eastern DRC. Representatives of NGOs, UN officials, and judicial
actors repeatedly observed that most crimes are left uninvestigated and most perpetrators are
never brought to justice. As explained by an international NGO worker interviewed by ICTJ:
If there is an interest to conclude the investigation and refer the case to the
court—either for internal political reasons or because of the media coverage of
events or international pressure—then the proceedings will go quickly. Otherwise,
the case is opened, the first acts are carried out, and then it falls into oblivion until
another case gains more attention.
Despite the magnitude of crimes allegedly committed by FARDC, only a few cases
concerning FARDC soldiers have been prosecuted. A high number of these cases have
stalled, although the perpetrators were under national command and, thus, easily
identifiable. The non-cooperation of military and/or commanders at the highest levels, who
refuse to surrender soldiers, often explains the failure of these proceedings.152 For instance,
in the case of Lt. Col. Balumisa, an alleged political alliance between the commanders and
the accused persons resulted in the arrest of only 3 out of 11 accused FARDC members.
This was despite repeated requests from the Military Prosector’s Office and the court.153
Eight others were condemned in abstentia. (Again, see the Bushani Case below.) However,
one should note that the discrepancy between cases that are documented and allegedly
committed by rebel armed groups is, as noted above, even more serious.
There have been other challenges in investigating and prosecuting members of foreign
armed groups, such as the CNDP and M23. Notwithstanding the DRC’s apparent political
willingness to prosecute certain individuals and Rwanda’s expressed commitment to
151 U.N. Human Rights Council, “Report of the Special Rapporteur on the promotion of truth, justice, reparation and
guarantees of non-recurrence, Pablo de Greiff,” U.N. Doc. A/HRC/27/56 (27th session, Aug. 27, 2014), para 72.
152 For instance, in the Mupoke case, the MGT of Bukavu underlined the lack of willingness of military hierarchy to
assist the justice system, noting that an accused had been transferred from South to North Kivu: “Le Tribunal denote
que la hiérarchie militaire dans ce cas sous analyse n’a pas collaboré avec la justice de manière transparente” [“The
tribunal notes that the military hierarchy in this case has not collaborated with the judicial institutions in a transparent
way”]. See MC SK, S-Lt. Kabala Mandumba, Emmanuel Ndahisaba and Donat Kasereka (Oct. 20, 2013), RP 708/12 RMP
1868/TBK/KMC/10-12 (Trial), RPA 230 RMP 1868/KMC/11 (Appeal) “[Mupoke Market case”].
153 MC SK, Lt. Col. Balumisa Manasse et al. (Mar. 9, 2011), RP 038/RMP 1427/NGG/2009 RMP 1280/MTL/09 [“Balumisa
case”]. See, also, AMS OPS NK, Maj. Dario, Maj. Emmanuel Ndungutsi, Maj. Eustache, Col. Jonathan Balumisa
Tchumaandall ( Jan. 13, 2011), RMP 0236/MLS/2011 [“Bushani case”].
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Photo: In a Goma courtroom, 39 Congolese soldiers stand trial for rape in the Minova trial (Elaisha Stokes/
GlobalPost)
cooperate, pursuant to the Framework Agreement, Rwanda is yet to provide the necessary judicial
cooperation to promote accountability.154 The DRC has issued four extradition requests (for
Innocent Zimurinda, Baudouin Ngaruye, Eric Badege, and Jean-Marie Runiga) and transmitted
them to the Rwandan government in July 2013. The Congolese military prosecutor, in January
2014, issued a further 13 arrest warrants for former M23 members for crimes committed in
Rutshuru between June and August 2012. None of these alleged perpetrators has been arrested.155
Judicial authorities in DRC, however, have at least recognized that the continued existence of the
death penalty does create one obstacle to extradition. Abolishing the death penalty, even though
there is now a moratorium, would help to remove at least one barrier.156
Progress and Weaknesses of Current Response
Five cases exemplify the progress and weakness of the Congolese judicial response to serious
crimes: 1) the Fizi I Case; 2) the Minova Case; 3) Walikale Case; 4) Bushani Case; and 5)
Cobra Matata Case.
The Fizi I case concerns an attack launched in Baraka (in Fizi, South Kivu) by a group of
dissident FARDC members as part of the Amani Leo Operation in 2011. Civilians were
captured, beaten, stabbed, and detained; dozens of women were raped; and shops were
destroyed and pillaged.
154 Judicial cooperation is an integral part of the Addis Ababa Agreement, which provides, at art. 5, that signatory
states of the region shall act “[t]o facilitate the administration of justice through judicial cooperation within the
region” and shall “neither harbour nor provide protection of any kind to persons accused of war crimes, crimes
against humanity, acts of genocide or crimes of aggression, or persons falling under the United Nations sanctions
regime.” Concerning the implementation of the commitments pledged in this Framework, see U.N. Security Council,
“Report of the Secretary-General on the implementation of the Peace, Security and Cooperation Framework for the
Democratic Republic of the Congo and the region,” U.N. Doc. S/2014/153 (March 5, 2014), para. 44–45, in which
the Secretary-General urges “Heads of State in the region to address the question of judicial cooperation and
accountability as a matter of utmost priority and ensure that people suspected of committing heinous crimes and
serious human rights violations are held accountable” and calls on countries of the region to “take appropriate actions
against persons falling under the United Nations sanctions regime.”
155 AMS OPS NK, Col Makenga Sultani et al. ( Jun. 27, 2012), RMP 0297/BBM/2012 [“M23 Rutshuru case”]; U.N. Joint
Human Rights Office, “Progress and Obstacles in the Fight Against Impunity for Sexual Violence in the Democratic
Republic of the Congo” (2014), para. 30.
156 Also, see Human Rights Watch, “DR Congo: Letter to President Joseph Kabila on Prosecuting M23 Leaders
and Others for Serious Abuses” (2014), www.hrw.org/news/2014/01/29/dr-congo-letter-president-joseph-kabilapros…-
m23-leaders-and-others-serious-a
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Bweremana-Minova Case
In November 2012, following the advance of M23 towards Goma, different units of the FARDC
committed arbitrary executions, abuse, and pillaging along the Bweremana-Minova road, which connects
North and South Kivu. Over 130 women (including 33 minors) were victims of sexual violence. Among
the alleged perpetrators are members of the 391st FARDC unit. After it was learned that one of the
FARDC units that appeared to have been involved in the crimes was trained by the U.S. military, the case
received significant international attention and the national authorities responded quickly.
In early December 2012, the Superior Military Prosecutor of South Kivu, and later the Superior
Military Prosecutor of North Kivu, opened criminal investigations into alleged violations. With the
assistance of the Prosecution Support Cell, UNJHRO, and several NGOs, separate investigation
missions were organized in the two provinces. A commission requested that the FARDC hand
over the accused, but the military hierarchy was slow to respond. The international community
showed great concern over the slowness of the procedure and the lack of action by DRC authorities,
especially against senior officers allegedly involved in the commission of the crimes who continued
to serve in the FARDC (despite the official announcement that 12 soldiers were suspended). UN
Security Council resolutions demanded justice and the punishment of the various officials. The case
was only brought to trial after the direct intervention of the Military General Prosecutor.
On November 11, 2013, 39 members of the FARDC were indicted, including 15 officers, on
charges of war crimes (pillage and rape) and the disobeying of orders. In total, 310 victims and
witnesses were interviewed as part of investigations, including 105 victims in North Kivu and 205
victims in South Kivu, with the assistance of ASF and ABA.
The low quality of the investigations, in the opinion of several respondents, jeopardized the efficiency
of justice in the case. Investigations were conducted by two military prosecution offices in parallel,
without effective coordination. The final investigation file that was transmitted to court contained just
a few short interviews of victims and the accused (not in their entirety). It did not clearly indicate the
place where crimes had been allegedly committed (e.g., no map of the place of the crimes is available)
and the decision referring the cases for trial only labelled the offenses without providing further
details. Further, the prosecution failed to collect forensic evidence of sexual violence assaults.
Congolese judicial authorities decided to try the case in front of the OMC; however, its decisions cannot
be appealed (Ordonnance n° 08/003 portant implantation d’une Cour militaire opérationnelle, January
9, 2008). Because this contradicts the double degree principle, UNJHRO decided not to support the
judicial proceedings, including with witness protection, although it was reported that victims and
lawyers had received threats since the beginning of the trial. While victims were represented by ABA and
ASF, defendants were represented by lawyers designated by the Goma Bar and supported by UNDP.
Despite the fact that lawyers representing the victims were in regular contact with their clients,
the considerable distance between the court and the villages where the events had occurred (more
than an hour and a half by expensive transport) made victims’ participation in the proceedings
difficult. At the opening of the trial, there were only the defendants, judges, lawyers, members of
the press, and a dozen international observers. No victims were present. In an attempt to overcome
these difficulties and collect testimonies directly from victims, the OMC organized mobile hearings
(audience foraines) in Minova from February 11–19, 2014. In total, 42 hearings were held during
the trial. However, while 1,016 victims constituted themselves as civil parties, only 52 civil parties for
the crime of rape and 76 civil parties for the crime of pillage participated in the hearings.
The OMC issued its decision on May 5, 2014. While commanders acknowledged that crimes
had been committed and victims described them during the trial, the judicial officials failed to
investigate, indict, and sentence all of those responsible for the crimes. Indeed, out of 39 individuals
accused, only 16 were found guilty, including only two of rape (both non-officers). The decision was
heavily criticized by national civil society and the international community as well as victims. It led
many to argue that proceedings could only represent preliminary proceedings towards the genuine
investigation and prosecution of all other individuals who were allegedly responsible for committing
these crimes who were not charged, particularly higher-level officials.
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The Minova case involved an attack by the 391st Unit of the FARDC against the population
of Bweremana-Minova. Violations committed included the rape of more than 100 women.
In both cases, Congolese judicial authorities were able to conclude investigations and refer
cases to court in 2 and 12 months, respectively.
Financially, the judicial investigation costs of the Fizi case (per diem and accommodation for the
magistrates) were covered almost exclusively by the Congolese State.157 The Minova investigation
was, instead, fully funded by external partners, without any publicly known financial support
from the Congolese state. Once the case was referred to court, the cost of the mobile trial of Fizi
was mostly borne by external partners,158 whereas the Congolese state covered a more substantial
portion of trial expenses in the Minova Case.159 In both cases, preliminary interviews of victims
during the investigations and the legal representation of the victims and defendants during the
trial were supported by international partners (such as ASF, ABA, and UNDP).
It is clear that the prioritization of these cases by the judicial authorities as well as the
resources allocated to the prosecution were exceptional. The rapid resolution of proceedings
was largely due to substantial international pressure from the media in the Fizi I case and by
media, NGOs, international organizations, and diplomats in the Minova Case.
In contrast, two other cases exemplify the failure of the Congolese justice system to complete
proceedings, despite unprecedented international support and pressure.160
The Walikale case relates to the attack on the Kibua-Mpofi Axis (in Walikale, North Kivu) in
August 2010. More than 300 people were raped, more than 100 houses and shops were looted,
and more than 100 people were abducted and subjected to forced labor by members of Mai
Mai Sheka, FDLR, and ex- FARDC.161 The Bushani case involved an attack on the villages of
Bushani and Kalambiro. Men in uniform, identified as members of FARDC, raped approximately
50 women, inflicted cruel and inhuman treatment on civilians, and looted approximately 100
houses.162
In October 2010, an investigation was opened into the Walikale case and several arrest
warrants were issued, including against the leader of the Mai Mai group Sheka Ntabo Ntaberi.
On October 5, 2010, Lt. Col. Sadoke Mayele, of the Mai-Mai Sheka, was arrested, with
MONUSCO’s support. Two court appearances were held after Mayele’s arrest, but the trial was
then suspended for security reasons.163 He subsequently died in prison in August 2012, after
which all legal proceedings against him were terminated. Maj. Alphonse Karangwa, an ex-
FARDC, was apprehended in September 2012, but escaped from custody a few weeks later.
Insecurity in the Kibua-Mpofi axis due to FDLR and Mai-Mai Sheka activity made it
difficult to arrest the accused. Judicial actors consistently raised this as the main obstacle to
resuming the trial. However, it was reported that Mai-Mai Sheka leader Ntabo Ntaberi Sheka
157 Partners covered transport for magistrates and expenses related to the interview and protection of victims.
158 Partners covered the expenses related to 10 days of the mobile court, including: transport and per diem for
magistrates, victim and witness protection measures, judicial fees and per diems for legal representatives, transport
and transfer of accused and convicted persons, and expenses related to the trial room location. The per diem and the
accommodation for the magistrates for two additional mobile trial days were covered by the provincial authorities;
the rest of the fees were covered by external partners.
159 However, external partners still fully funded 11 days of the mobile trial held in Minova.
160 MONUSCO assisted in the arrest and transfer of Lieutenant Colonel Sadoke Mayele, who was accused of having
played a role in the commission of violations in Walikale
161 U.N. Joint Human Rights Office, “Final Report of the Fact-Finding Missions of the United Nations Joint Human
Rights Office into the Mass Rapes and Other Human Rights Violations Committed by a Coalition of Armed Groups
Along the Kibua-Mpofi Axis in Walikale Territory, North Kivu, from 30 July to 2 August 2010” (2011), 8–9, 13–15.
162 U.N. Joint Human Rights Office, “Report on the Investigation Missions of the United Nations Joint Human
Rights Office into the Mass Rapes and Other Human Rights Violations Committed in the Villages of Bushani and
Kalambahiro, in Masisi Territory, North Kivu, on 31 December 2010 and 1 January 2011” (2011), 5, 11.
163 The first court appearance was held on September 29, 2011, to confirm the identity of the accused; during the
second appearance on December 6, 2011, and with the agreement of the defense, his trial was relocated to Walikale.
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escaped from an arrest attempt in Goma in July 2011. The attempt was led by FARDC with
MONUSCO’s support, but Sheka was allegedly informed beforehand by FARDC members
whom he was close to.164 According to the UN DRC Group of Experts, another opportunity
was missed on November 23, 2011. Sheka surrendered to FARDC Col. Chuma, along with
60 of his men. At the time, he was publicly campaigning and running for office as a National
Deputy.165 By the time the FARDC had received the order to arrest Sheka, he had already left
the bush, leaving his men behind, in order to be reintegrated into FARDC.166 In a promising
sign, however, some efforts have continued, with FARDC launching an operation with the
MONUSCO Force Intervention Brigade on July 2, 2014, against Mai-Mai Sheka-NDC in
localities east of Walikale.167
The Bushani case lost judicial momentum soon after it opened on January 13, 2011.
According to several interviewees, the slow pace of the proceedings and the eventual
disintegration were attributable to the direct involvement of FARDC members who had
financial and personal links to the perpetrators. UNJHRO blamed the lack of progress on a
number of causes, including the lack of cooperation from the FARDC hierarchy.168
In the Cobra Matata case the prosecutor suspended proceedings against the leader of
FRPI on February 3, 2013, for political reasons, citing peace efforts. Matata had expressed
willingness to surrender, along with his troops, and integrate into FARDC on a number of
conditions.169 Matata was finally arrested by the military operational command of Ituri on
January 2, 2014, and was transferred to Kinshasa on January 5, 2014. In other cases where
political motivations are less apparent, the majority of unresolved cases eventually fall into
obsolescence due to a lack of follow-up by judicial authorities.
164 Human Rights Watch, “DR Congo: Arrest Candidate Wanted for Mass Rape” (2011), www.hrw.org/news/2011/11/02/
dr-congo-arrest-candidate-wanted-mass-rape; Timo Mueller, “Four years ago today: The Luvungi rapes began,” Timo
Mueller, July 30, 2014, http://muellertimo.com/2014/07/30/four-years-ago-today-the-luvungi-rape…
165 Ibid.
166 Ibid.
167 U.N., “Conference de Presse des Nations Unies du Mercredi 9 Juillet 2014” (2014), 6, monusco.unmissions.org/
LinkClick.aspx?fileticket=FjUST8ktYDk%3D&tabid=11192&mid=14882&language=fr-FR
168 U.N. Joint Human Rights Office, “Report on the Investigation Missions of the United Nations Joint Human Rights
Office into the Mass Rapes and Other Human Rights Violations Committed in the Villages of Bushani and Kalambahiro,
in Masisi Territory, North Kivu, on 31 December 2010 and 1 January 2011” (2011), 15.
169 MGT Ituri, Irizo Muzungu Barakiseni and Baluku Utugba Bahati, RP 175/12 RMP 1699/MML/012RMP 1699/
KNG/12RMP 1703/KNG/12 [“Cobra Matata case”].
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4. Conclusions
The DRC has not shown significant progress in the prosecution of perpetrators of serious
violations in recent years. The number of cases remains low compared to the scale of the atrocities
committed. Judicial proceedings are often blocked when there is no international pressure
on national jurisdictions or assistance to investigate or prosecute—or when there is political
interference. The vast majority of cases seem to be initiated and pursued due to direct pressure
from partners. Conversely, initiatives from Congolese judicial organs and officials do not appear
to be valued or taken into consideration at the institutional or political level. They are only
appraised at the individual level in order to evaluate performance for further career development.
Investigations in ongoing cases show a lack of prosecutorial strategy and prioritization in case
selection, though they are essential to successful prosecutions when resources are limited, as they
are in the DRC. Until now, investigations conducted by the Congolese judiciary with the support
of the international community are exclusively directed to specific events. In the absence of a
comprehensive mapping of international crimes for the period of 2003-2014, as well as a lack
of resources and expertise, contextual analysis of the facts and hierarchical
group structures is never carried out effectively. Yet, such a mapping
is critical to informing the drafting of a national judicial strategy. A
contextual analysis is also crucial to identifying the highest-ranking
individuals responsible for crimes committed and, thus, contribute to an
effective deterrence policy.
In the context of the DRC, conflict is characterized by a multitude of
groups and alliances. A comprehensive mapping of international crimes
anda clear prosecutorial strategy are necessary if criminal justice is to contribute to a transition.170
Admittedly the DRC context presents incredible complexity, requiring the creation of specialized
investigative teams solely dedicated to this task. Investigators on such teams should be supervised
by experienced judges who are trained in international criminal law. To date, the technical
support provided to national judicial organs seems inadequate to achieve the desired result.
Without a clear prosecutorial strategy, there is no objective basis to enable effective
communication to victims or the public about the prioritization of judicial investigations or
170 The Usalama Project of the Rift Valley Institute intends to provide a better understanding of armed groups in the
DRC, especially for international organizations operating in the country and spending millions of dollars to resolve
the conflict. In Stearns, Jason, Judith Verweijen and Maria Eriksson Baaz, Rift Valley Institute, “The National Army
and Armed Groups in the Eastern Congo: Untangling the Gordian Knot of Insecurity” (2013), 13, http://riftvalley.net/
publication/national-army-and-armed-groups-eastern-congo#.VR4jd-FAclA, the authors refer to a kaleidoscope of
Congolese and foreign armed groups. The authors write, “[t]he diversity within this multitude is remarkable: there are
large-scale military movements with elaborate political structures; rebel groups without political wings; small-scale
local defence and village militias; and factions that amount to little more than bandit gangs. Some of these groups have
significant military capabilities and political influence, and represent a direct threat to the government in Kinshasa.
Others are confined to small, remote areas and are more troubling to the civilian population than to the government.”
“A comprehensive mapping
of international crimes and a
clear prosecutorial strategy are
necessary if criminal justice is to
contribute to a transition.”
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trials, or to explain how cases are selected and justice is effected. Sharing information on the
objective criteria underlying a prosecutorial strategy would be crucial to rebuilding public
confidence in the formal justice system.
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5. Recommendations
To the President of the Democratic Republic of the Congo
1. Appoint a focal person from the judicial sector to ensure an effective contribution
from the DRC at the biannual Heads of State meeting of the Regional Oversight
Mechanism of the Framework Agreement, as well as to conduct regular assessments of
DRC compliance with its commitments. That person should be responsible for collecting
information regarding the fulfillment of Commitments Six and Seven of the Framework
Agreement, in accordance with th appropriate indicators.
2. Provide support and guidance to accelerate and facilitate the adoption of key
legislation in the fight against impunity, in particular, the law implementing the Rome
Statute and the law on the establishment of specialized chambers.
3. Publish regularly the progress achieved in the judicial repression of serious crimes, in
consideration of the national benchmarks and indicators in the National Oversight Mechanism.
To the Executive
4. Designate an independent group of experts to undertake a comprehensive mapping
of international crimes committed between 2003 and 2014. Along with the Mapping
Report conducted by OHCHR of serious violations of human rights committed between
1993 and 2003, the findings should be submitted to Congolese judicial and political
authorities to inform the drafting of a national judicial strategy to respond to crimes
committed during this period.
5. Ensure that the prosecution of international crimes in eastern DRC is clearly
identified as a priority in the implementation of the five-year plan for the justice sector.
6. Increase the judicial budget, ensure its effective management, and strengthen the
operational capacity of relevant jurisdictions to investigate and prosecute serious crimes.
7. Improve recruitment processes to ensure that only qualified and experienced staff who
are specially trained in the field of international crimes are appointed.
8. Ensure that legislative proposals on the repression of international crimes in
accordance with the Rome Statute are presented to Parliament. The Minister should
ensure that the draft law on the implementation of the Rome Statute and the draft law on the
specialized chambers are not in conflict, but instead reinforce each other, and are presented to
Parliament as such.
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9. Ensure that new legislative proposals presented to Parliament on the jurisdiction
of the civil and military courts over international crimes are harmonized, allowing a
gradual, but absolute, transfer of all cases to ordinary (non-military) courts.
10. Ensure that an extraordinary meeting of the Justice Thematic Group is held to
present data and specifically discuss the progress and challenges of the judicial response
to serious crimes.
11. Appoint a focal person to be in charge of reviewing the laws and international agreements
on judicial and criminal cooperation in force in the DRC. That focal point should ensure
implementation of the relevant provisions of the ICGLR Protocol on Judicial Cooperation.
To the Military Prosecutor General
12. Maintain an inventory of ongoing cases related to international crimes and ensure
the development of a strategy for prioritizing cases.
13. Develop a prosecutorial strategy, in coordination with the (civilian) Prosecutor
General, based on transparent and objective criteria to ensure that all efforts to fight
impunity are as complementary and comprehensive as possible. This strategy should be
made public and subject to periodic evaluations.
To the Judiciary
14. Establish an information management system that would enable systematic and
confidential information sharing with international and national partners on the
commission of serious crimes.
15. Specifically assign judicial staff to cases of serious crimes. Staff must receive
sufficient training on international criminal law, particularly regarding the characteristics
of serious crimes, such as the context of their commission, the structure and organization
of perpetrators, and the responsibility of commanders. Such training should be provided
by experienced practitioners in the field of international criminal law who have extensive
knowledge of the Congolese context.
To the Superior Council of Magistracy
16. Promote a series of trainings on the prosecution of international crimes for civil
magistrates. To this end, taking into account the expertise they have acquired in this area,
military judges should be integrated into the teams of trainers.
17. Support the coordination of military prosecutors and military judges with the
General Prosecutor and judges of the Courts of Appeal in their investigation and
prosecution of serious crimes by creating an institutional coordination mechanism.
18. Create a clear, fair, and transparent system of reporting through which the work of
judges is assessed according to results. Internal organizational incentives should promote
a more proactive role by judicial officers in the investigation and prosecution of serious
crimes. Disciplinary action should be introduced for procedural violations, corruption, and
undermining cases of serious crimes.
To the Legislature
19. Prioritize the adoption of the draft law implementing the Rome Statute. Ensure that
provisions of the draft law are integrated into the ordinary Criminal Code and the Code of
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Criminal Procedure, and that they strictly adhere to the Rome Statute, especially regarding
the definition of crimes, modes of liability, sentencing of crimes, criminal procedure, and
cooperation procedures with the ICC. Also ensure that the adopted law is fully in line with
international criminal law standards regarding protecting the rights of the defendant and
protecting victims, witnesses, and intermediaries.
20. Prioritize the adoption of the draft law on the establishment of specialized chambers.
Ensure that the draft law provides criteria for a rigorous selection process for the magistrates
and judicial staff that guarantees that they have sufficient expertise in trying serious crimes.
The law must also effectively integrate international experts within the specialized chambers
at the trial and appellate levels, as well as outline the phasing-out procedure. It should also
provide for a single appellate specialized chamber to ensure judicial consistency, create special
investigation units, and establish a section with the specific objective of providing assistance
to victims and witnesses.
21. Ensure that the draft law on the implementation of the Rome Statute and the draft
law on the establishment of the specialized chambers are consistent and that they
reinforce the complementarity of both laws.
To the International Community
22. Continue to assist the judiciary with logistical, financial, and technical support,
recognizing that their contribution remains critical to the prosecution of serious crimes
in the DRC.
23. Undertake an independent evaluation of the technical support provided by the
initiatives of international partners. Assess the effective contribution of these initiatives to
the quality and number of investigations and prosecutions of serious crimes.
24. Design international assistance with the objective of strengthening judicial capacity
and increasing its role in initiating investigations and prosecuting serious crimes.
25. Initiate and sustain investment in training and build the capacity of civilian and
military judicial actors. Such activities should strongly emphasize investigating and
prosecuting serious crimes in consideration of the particular elements of these crimes, the
context of their commission, the structure and organization of perpetrators and their groups,
and command hierarchy.
26. Support the designation and work of an independent group of experts to undertake
a comprehensive mapping of international crimes committed between 2003 and 2014.
27. Support the Military Prosecutor General and the (civilian) Prosecutor General in
initiating a prosecutorial strategy. This strategy should maximize the resources allocated to
the fight against impunity for serious crimes and ensure transparency and consistency in the
administration of justice and the selection of cases.
28. Support the investigation and prosecution of cases of serious crimes in accordance
with criteria set out in the national prosecutorial strategy.
29. Support the judiciary in establishing an information management system within
the military and civilian judicial sector. Establish a system of information sharing with the
judiciary that protects the confidentiality of sources and facilitates the systematic sharing of
information on the commission of serious crimes.
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APPENDIX
Table of international crimes cases initiated
before Congolese courts and tribunals in South Kivu,
North Kivu, and Ituri between 2009 and 2014
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CASE
NUMBER
CASE NAME1 DATE AND
LOCATION OF
ALLEGATIONS
SUMMARY OF THE
FACTS
EVOLUTION OF THE CASE SUPPORT PROVIDED
SOUTH KIVU PROVINCE2
RP 083/14
RMP
1377/
MTL 2011
Col. 106 case
Lt. Col. Bedi
Mobuli Engangela,
alias
Col. 106
16 December
2005, January-
March 2006
Kashewe, Bulambika,
Kambale,
Kando,
Kahuzi-Biega,
Kahesi, Hembe,
Bikumbi, Mihinga,
Cifunzi,
Mushingi, Nguliro,
Chibumbuji,
Karama,
Kashumu,
Kashesha in Kalima,
Bitale and
Kalonge groupments
in the
sectors of Buhavu
and Buloho, territory
of Kalehe,
Shabunda, South
Kivu
On 16 December 2005,
around 1 a.m., Lt. Col. Bedi
Mobuli, alias Col. 106, attacked
the village of Bulambika.
He looted shops, removed
civilians from their homes, tortured
them, and used women
and girls as sexual slaves.
From January to March 2006,
Col. 106 and his troops
committed further attacks
in the villages of Kashewe,
Bulambika, Kambale, Kando,
Kahuzi-Biega, Kahesi, Hembe,
Bikumbi, Mihinga, Cifunzi,
Mushingi, Nguliro, Chibumbuji,
Karama, Kashumu, and
Kashesha.3
UNJHRO also reported that,
on 2 September 2006, Col.
106’s troops abducted 33 individuals.
Col. 106 was member of the
former Force armées zaïroises
(FAZ). He was integrated into
the Mai Mai militia following
the Rassemblement congolais
pour la démocratie (RCD)
rebellion, and spent six years in
this capacity in Bunyakiri. In
2003, Col. 106 was integrated
into the FARDC with the
ranking of a Captain.
Registration at the AMS SK: 21 November
2011.
Arrest: On 4 May 2013provisional arrest
warrant including charges (MAP)
issued against Col. 106. He was arrested
in Bukavu in 2007 and transferred to
Kinshasa, then transferred again from
Kinshasa to Bukavu on 2 April 2013.4
Charges:
• Prior to referral decision: charges
in the registry of the AMS’ Secretary
included incendiarism, rape, pillage,
abduction, sexual slavery, child recruitment,
and hostage.
• Referral decision: crimes against humanity
of rape, murder, other inhumane
acts, sexual slavery, murder, imprisonment,
and other forms of liberty deprivation,
and of arbitrary arrest, rape, and
abduction.5
Registration at the MC on 23 May
2014; sent by the AMS to the MC on 27
December 2013.
Civil parties: 723
Trial: From 11 August to 30 August
2014 in Kalehe; from 9 September to
22 September 2014 in Bukavu. Date of
the start of the trial was set on 11 August
2014.
Verdict and sentence: Delivered on 15
December 2014. Col. 106 was found
guilty of crimes against humanity by
rape, sexual slavery, pillage, arbitrary
arrest, and the war crime of murder. Col.
106 was sentenced to life imprisonment.
He was also sentenced to a complementary
sentence of 5 years as an interdiction
to exercise civil rights. Col. 106 was also
condemned in solidum with the state
to pay amounts between $500 USD to
$1500 USD to each civil party.
Imprisonment: Col. 106 was transferred
to Kinshasa to serve his sentence.
Appeal: Col. 106 appealed the MC’s
decision before the HMC.
UNJHRO: Identification
of victims and
witnesses, support
of investigation (expenses
coverage for
magistrates, logistics),
expenses coverage of
victims’ lawyers during
the trial, protection
measures for victims
before, during and
after the trial; medical
and psychological assistance.
MONUSCO: Transfer
of the accused to Ndolo
Bukavu and Bukavu in
Ndolo after his conviction,
security, logistics
assistance.
UNDP: Expenses
coverage for judges and
defendants.
ASF: Legal aid, legal
representation and
protection of victims.
CAP: technical support.
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RP
0132/10
RMP
0933/
KMC/10
(Trial)
RPA 0180
RMP
0802/
BMN/ 010
(Appeal)
Mulenge/
Lemera case
First Sgt.
Christophe Kamona
Manda,
et al.
8 August 2009
Mulenge, Uvira
territory, South
Kivu
On 8 August 2009,6 FARDC
members of the 83rd battalion
attacked civilian women,
who were being escorted by
men, on their way to look for
food in neighboring fields in
Kishagala, Mulenge center. The
FARDC accused the women
and their daughters of being
wives of their enemy, the
FDLR.7 Seven women, including
one blind woman and two
pregnant women, were raped
by FARDC members and
other non-identified militiamen
in an abandoned school
and in fields near Kishagala,
Mulenge.8
In 2009, the FARDC 83rd
battalion was based in Sangein
for the purpose of operations
against FDLR in the region.
During the Kimia II operation
against FDLR, the 83rd
battalion sent a company to
Mulenge Centre. Prior to this
operation, the civilian population
had fled hostilities in
Mulenge and found refuge in
Mugaja.9
Arrest:
• Arrest warrants were issued against: (1)
First Sgt. Christophe Kamona Manda, (2)
Cpl. Ndagijimana Sekuye, (3) Cpl. Justin
Mambwe Mukebu, (4) Cpl. Gahungu
Maniragaba, and (5) Sgt. Okelo Tangi.
• The arrest of the accused was facilitated
by the Commander of the Integrated
Battalion. The accused were arrested in
Hombo, in Kalehe territory, South Kivu.
Charges: Crimes against humanity by rape.
Civil parties: Seven.10
Trial: Hearings were held on 10, 11 and
12 October 2010.11
Verdict and sentence: On 30 October
2010, the MGT Uvira found all five
defendants guilty of crimes against humanity
by rape. All five defendants were
sentenced to life imprisonment. The
MGT Uvira also condemned all five to
pay, jointly and severally with the state,
$50,000 USD to the victims.12
Appeal:
• On 1 November 2010, all five convicted
persons appealed the MGT Uvira’s
decision before the MC SK.
• Registration before the MC SK on 15
October 2011.
• Appeal began on 1 November 2011.
• Verdict and sentence delivered on 7
November 2011. The MC SK confirmed
the judgment rendered in its entirety.13
All of the convicted were sentenced to
life imprisonment, except for Sgt. Okelo
Tangi, who died before the appeal.14
ASF: Assistance and
legal representation of
victims.
UNDP: Institutional
support and assistance
to defendants.
RP 038
RMP
1427/
NGG/
2009
RMP
1280/
MTL/09
Balumisa case
Lt. Col. Balumisa
Manasse,
et al.
26-28 September
2009
Katasomwa,
Kalehe territory,
South Kivu
From 26 to 28 September
2009, members of FARDC’s
former 85th brigade (which became
the 332nd brigade during
the trial), under the command
of Lt. Col. Balumisa Manase,
launched attacks against the civilian
population of Katasomwa
Centre, Katasomwa Rijiwe,
Katasomwa Parc, Kitendebwa,
Mweva Chibangi, and other
neighboring villages.
Violations included rape,
including collective rape,
and widespread pillaging of
a school, houses, and storagerooms.
This caused the
civilian population to flee
Katasomwa.
The attacks were launched in
retaliation for the murder in
Registration at the AMG Bukavu: on
26 October 2009; complaint received on
23 October 2009.
Transferred from AMG Bukavu to the
AMS SK: on 26 August 2010.
Registration at the AMS SK: on 20
November 2009.
Registration at the CMS SK: on 1 September
2010 (sent from AMS SK to MC
SK on 31 September 2010).
Arrest:
• Arrest warrants were issued against:
(1) Lt. Col. Balumisa Manasse, (2) Maj.
Eugide Elya Mungembe, (3) Cpt. Makanyaka
Kizungu Kilalo, (4) Lt. Col. Jean-
Claude Senjishi, (5) Cpt. Chongo Musemakweli,
(6 )Cpt. Beni Mutakato, (7) Cpt.
Desiré Ekofo Petea, (8) Lt. Zihindula, (9)
Lt. Justin Matabaro, (10) Sub. Lt. Kanabo,
and (11) Sub. Lt. Lybie Mirasalo.
UNJHRO and UNDP:
Institutional support.
ASF: Assistance and
legal representation of
the victims.
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Katasomwa, on 26 September
2009, of a FARDC member,
under Capt. Ekofo Petea
(known as Le Blanc). He was
killed by a civilian who was a
demobilized former member of
the military.15
• On 16 October 2009, (1) Lt. Col.
Balumisa Manasse, (2) Maj. Eugide Elya
Mungemba, and (3) Capt. Makanyaka
Kizungu Kilalo were arrested.
• On 20 November 2009, a provisional arrest
warrant (including specific charges) was
issued against the three individuals arrested.
• These three were the ones initially
arrested, but the other persons convicted
(see below) were arrested during the
process. No additional information is
available on their date of arrest.
Charges:
• Concealment against Balumisa
Manasse and Jean-Claude Senjishi;
• Illegal wearing of ranking insignia
against Eugide Elya Mungembe;
• Crimes against humanity by rape against
all accused, except Jean-Claude Senjishi;
• Crimes against humanity by pillage
against all accused, except Jean-Claude
Senjishi;
• Abduction of a four month old child
against all accused, except Jean-Claude
Senjishi;
• Destruction of schools against all accused,
except Jean-Claude Senjishi;
• Crimes against humanity for other
inhumane acts against all accused, except
Jean-Claude Senjishi.16
Transfer: The case was transferred
from the AMG Bukavu (RMP 1427/
NGG/2009) to AMS SK (RMP 1280/
MTL/09) on 26 August 2010.
Registration at the CMS SK: On 1
September 2010.
Civil Parties: 176 (including 22 victims
of rape).18
Trial: Started on 28 February 2011.
Verdict and sentence: declared on 9
March 2011 by the MC SK:
• Jean-Claude Senjishi guilty of concealment
(five years);
• Balumisa Manasse guilty of concealment
(18 months), crimes against humanity by
rape (15 years), crimes against humanity
for other inhumane acts (15 years);
• Elia Eugide Mungembe guilty of
crimes against humanity by rape (15
years), crimes against humanity for other
inhumane acts (15 years);
• Makanyaka Kizungu Kilalo guilty of
infraction by concussion (one month),
crimes against humanity by rape (15
years), crimes against humanity for
other inhumane acts (15 years);
• Chongo Musemakweli, Beni Mutakato,
Desiré Ekofo Petea, Zihindula, Justin
Matabaro, Kanabo, and Lybie Mirasalo
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guilty of crimes against humanity by
rape (life imprisonment), crimes against
humanity for other inhumane acts (life
imprisonment);
• The MC SK also condemned Jean-
Claude Senjushi and Kizungu Kilalo to
restitute or compensate, in solidum with
the state, the stolen goods (including
cattle, goats, beer, and boots.
• MC SK also required all accused, in
solidum with the state, to pay $5,000
USD to victims of rape and $200 USD
to victims of pillage.
Appeal: The convicted, as well as the
Auditeur, appealed the case before the
HMC on the day of the verdict, 9 March
2011.
RP 708/12
RMP
1868/
TBK/
KMC/
1012
(Trial)
RPA 230
RMP
1868/
KMC/11
(Appeal)
Mupoke Market
case
Sub. Lt. Kabala
Mandumba,
Emmanuel
Ndahisaba and
Donat Kasereka
17 January 2010
Walungu territory,
South Kivu
On 17 January 2010, around
30 members of the 512th battalion
of FARDC, under the
command of Donat Kasereka,
attacked the civilian population
in the market of Mupoke.
Following the attack and the
escape of the population into
the surrounding areas, the
military plundered the market
and homes. Men and women
who attempted to flee were
raped, beaten or forced to
come back to the market to
transport pillaged goods.19 The
perpetrators, and the civilians
transporting the goods, walked
towards Nyalubembe where
FARDC was based. After two
hours of walking, in Kapuku,
those who were weak were
released, others escaped, and
some were raped during the
night. The following morning,
all women were sent back to
Mupoke. The men were forced
to continue transporting the
goods to Nyalubembe (a further
five-hour walk).20
This attack was launched to
identify and defeat the FDLR
militiamen present at the market.
It was prepared two days
earlier by the commanders of
the various FARDC units.21
Registration at the AMG Bukavu: 20
October 2010
Arrest:
• Arrest warrants were issued against
Sub. Lt. Kabala Mandumba Mundande,
Emmanuel Ndahisaba, Monga Mukangabantu,
and Donat Kasereka.
• On 5 October 2010, Sub. Lt. Kabala
Mandumba was arrested.
• On 21 October 2010, a provisional arrest
warrant (including specific charges)
was issued against Sub. Lt. Kabala Mandumba.
• At the time of the trial, Emmanuel
Ndahisaba, Monga Mukangabantu and
Donat Kasereka still had not been apprehended.
22
Charges: Initial charges, as per the referral
decision of the AMG Bukavu, were
for crimes against humanity. However,
these were amended by the MGT Bukavu
during the trial to the war crimes of
murder, torture, rape, pillage, and attacks
against protected property.23 On appeal,
the MC SK requalified the facts to the
war crimes of murder, pillage, rape, and
degrading treatment.24
Registration at the MGT Bukavu: 21
March 2012
Civil parties: 135, including one murder
victim, 11 rape victims, 15 torture
victims, 107 pillage victims, one victim
of an attack against protected property
(a church).25
Trial: Commenced 8 October 2012.
Verdict and sentence: Delivered on 15
October 2012, the MGT Bukavu condemned:
MONUSCO: Security
during trial.
UNJHRO: Support
of the trial (expenses
coverage for the magistrates,
interpreters,
escorts), measures to
protect victims.
PSC: Operational and
technical support (organization
of a mobile
trial, transportation
including judges to the
mobile courts, technical
advice during interviews
with victims and
witnesses) following
a request for support
that was made to them
approved on 27 July
2012.
ASF, ABA, African
Center for Peace,
Democratie and Human
Rights (ACPD),
UNDP: Support to
the trial.
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• Sub. Lt. Kabala Mandumba to 20
years’ imprisonment for the war crimes
of murder, rape, torture, pillage, and
attacks against protected property;
• Emmanuel Ndahisaba, Monga Mukangabantu,
and Dona Kaserekawere, in
absentia, to life imprisonment;26
• All accused to pay, jointly with the
state, amounts of $50,000 USD for the
murder victim; $2,500 USD to $30,000
USD to the rape victims; $1,750 USD
to $15,000 USD to the torture victims;
$5,000 USD to the victim of the attack
against protected property (the church
representative); and $800 USD to each
of the 107 victims of pillage.27
Appeal:
• The MGT decision was appealed by
Kabala Mandumba on 16 October 2012
and by the Prosecutor on 17 October
2012;
• The appeal date set on 6 May 2013
was postponed until 9 May 2013, and
again until 13 May 2013;
• The verdict and sentence were delivered
on 20 October 2013. The MC SK
confirmed the guilty verdict, and sentenced
Kabala Mandumba to life imprisonment
for the crimes against humanity
of murder, pillage, rape, and degrading
treatment.
• The MC SK also sentenced Kabala
Mandumba to pay, jointly with the
state, $60,000 USD for the murder victim;
$55 USD to $5,000 USD to rape
victims; and $2,000 USD to victims of
degrading treatment.
Sub. Lt. Kabala Mandumba subsequently
escaped from prison.
RMP
1298/
PEN/10
Mukerenge
case
Lt. Col. Mukerenge
21 June 2010
Fizi, South Kivu
Allegations included mass
rapes and other crimes against
humanity.
Registration at the AMS Bukavu: 21
June 2010.
Transfer: As the case did not concern
high officers, it was transferred on 25
June 2010 to the AMG Uvira (by letter
258/AMS/SK/2010).
This case was initiated after a complaint
was lodged by a local NGO in Fizi. Once
the case was transferred, it was not followed
up by the NGO. The case did not
proceed because of a lack of evidence.29
RP 043/11
RMP
1337/
MTL/
2011
Fizi I/Baraka
case
Lt. Col. Daniel
Kibibi Mutuare,
et al.
1-2 January 2011
Fizi Centre, Fizi,
South Kivu
Between 1 and 2 January
2011, Lt. Col. Daniel Kibibi
Mutuare, acting Commander
of the 43rd operational sector
of the Amani Leo operation,
launched a targeted attack
against the population of
Registration at the AMS SK: 26 January
2011.
Referral decision: On 3 February 2011.
Arrest:
• Arrest warrants were issued against: (1)
MONUSCO: Transferred
by plane, on 24
March 2011, Lt. Col.
Kibibi Mutware and six
other accused from Bukavu
central prison to
Ndolo military prison
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Fizi.30 Seven civilians were
captured, beaten, and detained
until the intervention of the
territory administration on 2
January 2011. Many civilians,
including children, were also
beaten and stabbed. Dozens
of women, aged between 19
and 60, who were hiding in
their houses were raped in
front of their husbands and
children by armed military
members. Goods were stolen,
nd shops were destroyed and
pillaged. Many families were
displaced.31
The attacked was launched
in retaliation for an incident
against one FARDC soldier
who was mobbed in Fizi center
on 1 January 2011.32 Lt. Col.
Daniel Kibibi Mutuare ordered
his men to scour every corner
of Fizi and arrest all men. This
led the military soldiers to
conduct a manhunt, loot and
destroy shops, and commit
murder, torture, and rape.33
Daniel Kibi Mutuare, (2) Sido Bizimungu,
alias America, (3) Mundande
Kitambala, (4) Chance Bahati Lisuba,
(5) Abdoul Haruna Bovic, (6) Lucien
Sezibera, (7) Eric Kenzo Shumbusho, (8)
Kisa Muhindo, (9) Muyamaraba Amani,
(10) Justin Kambale Bwira, and (11)
Pascal Ndagijimana.
• The accused were arrested on 2 January
2011.
• Provisional arrest warrants including
charges (MAP) were issued on 31 January
2011.
Charges: All eleven defendants were
charged with crimes against humanity
for rape, other inhumane acts, terrorism,
imprisonment, and other severe deprivations
of physical liberty.
Civil parties: 91.
Trial: commenced on 10 February 2011
(it had been sent to the MC SK by the
AMS SK on 3 February 2011).
Verdict and sentence: on 21 February
2011, the MC SK made the following
orders:
• Daniel Kibi Mutuare to 20 years’ imprisonment
for crimes against humanity
by rape, other inhumane acts, terrorism,
imprisonment, and other severe deprivations
of physical liberty;
• Sido Bizimungu to 20 years’ imprisonment
for crimes against humanity by rape,
other inhumane acts, and terrorism;
• Mundande Kitambala to 20 years’ imprisonment
for crimes against humanity
by imprisonment, other severe deprivations
of physical liberty, other inhuman
acts, and terrorism;
• Abdoul Haruna Bovic to 20 years’ imprisonment
for crimes against humanity
by other inhumane acts and terrorism;
• Eric Kenzo Shumbusho to 20 years’
imprisonment for crimes against humanity
by rape, other inhumane acts, and
terrorism;
• Lucien Sezibera to 15 years’ imprisonment
for crimes against humanity by
rape, other inhumane acts, and terrorism;
• Justin Kambale Bwira to 10 years’ imprisonment
for crimes against humanity
by other inhumane acts, and terrorism;
in Kinshasa. This transfer
was organized after
information was received
about the planning
of an escape from
the Bukavu prison.35
Provided a helicopter to
transport magistrates.
Also provided technical
and logistical support
to mobile trial.36
UNJHRO: Protection
measures for the
victims.
UNDP and ABA:
Institutional support
and assistance to the
defendants.
ASF, DanChurchAid,
and Arche d’Alliance:
Assistance to victims.
• Pascal Ndagijimana to 10 years’ imprisonment
for crimes against humanity
by other inhumane acts, and terrorism;
• Kisa Muhindo to 10 years’ imprisonment
for crimes against humanity by
other inhumane acts, and terrorism;
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• Chance Bahati Lisuba was found not
guilty of all charges;
• The MC SK condemned all those
accused found guilty to pay, jointly and
severally with the state, $10,000 USD to
each rape victim, $1,000 USD to victims
of imprisonment, $200 to victims of
harm and injuries, and $500 USD to
victims of theft.34
Appeal: An appeal was lodged before
the HMC.
RMP
1373/
WAV/11
Kikozi case
Maj. Rupongo
Rogatien John
and Maj. Shaka
Nyamusaraba
26 March 2011
Kikozi, Uvira
territory, South
Kivu
On the night of 26 March
2011, FARDC soldiers from a
battalion composed of former
members of the newly integrated
Forces Républicaines
Fédéralistes (FRF), launched
an attack in Kikozi, in the
Kalungwe groupement.37 Nine
women were raped, 16 civilians
were subjected to torture,
cruel and degrading treatment,
and several houses and a health
center were looted.38
Registration at the AMS SK: 25
October 2011 (following a complaint
lodged by Célestin Ibrahim on 4 April
2011 concerning alleged crimes against
humanity).
Accused: The alleged perpetrators were
identified as Maj. Rupongo Rogatien
John and Maj. Shaka Nyamusaraba of the
4422nd battalion.39 An arrest warrant was
issued against the alleged perpetrators.40
Charges: Mass rape.
No progress has subsequently been made
on the case. 41
UNJHRO: Deployment
of a joint team
with members of the
AMG of Uvira, in the
area to document allegations
of human rights
violations on 19-20
April 2011.
RMP
1358/
MTL/11
Fizi II, Nakiele
case
Col. Kulimushi,
alias
Kifaru
9-12 June 2011
Nakiele, Fizi,
South Kivu
From 9 to 12 June 2011,
FARDC soldiers under the
command of Lt. Col. Kifaru
Niragire Karibushi, alias Kifaru,
committed an attack in the
village of Nakiele (140 kilometers
north of Fizi center), and
two neighboring villages.42
Allegations included the alleged
rape of at least 250
women.43
Kifaru is a former member
of Mai Mai PARECO and
was integrated into FARDC
and placed in charge of the
43rd sector, but deserted from
a military training camp at
Kananda on 9 June 2011. He
subsequently surrendered to
the authorities on 7 July 2011,
along with 191 soldiers.44
Registration at the AMS SK: 24 June
2011.45
Investigations:
• Two investigation missions were led
in the area, and 121 victims were interviewed.
However, doubts arose about the
credibility of some of the testimonies.46
The investigation was suspended as a
result.
• Another investigation seems to have
been opened against Col. Kulimushi,
alias Kifaru, on 21 June 2011 (RMP
1299/PEN/10).47
MONUSCO: Deployment
of a joint team in
Nakiele and the surroundings
on 6-7 July
2011; deployment of
a second investigation
mission between the
10-15 August 2011,
but investigations were
interrupted for security
reasons.48
UNJHRO and
UNDO: Institutional
support.
ABA and Arche
d’Alliance: Assistance
to victims.
RMP
2605/
KK/2012
RMP
1486/
BKL/13
Lwizi–FARDC
case
Maj. Safari
Kateyateya, et
al.
21 July 2012
Mushashirwa,
Kalehe, South
Kivu
On 21 July 2012, soldiers of
the FARDC 102nd battalion,
based in Chololohave, allegedly
attacked the villages of
Karimba and Businzir. 61
people were attacked, including
13 cases of sexual violence.
Registration at the AMG Bukavu: 13
September 2012 (RMP 2605/KK/2012).
Transfer: On 17 September 2012, transferred
to AMS SK (by letter No 278, dated
17 September 2012) as at the time AMG
Bukavu opened the investigation, the rank
of Maj. Kateyateya was not known.
UNJHRO: Support to
investigations (special
flights, expenses coverage
for the magistrates,
logistics).
ABA: Assistance to
victims, with the support
of ACPD.
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The attack was launched during
an operation against the
FDLR.
Registration at the AMS SK: 30 September
2013 (new RMP: RMP 1486/BKL/13).
Arrest:
• Col. Vonga Ngizo, Lt. Col. Luezo, and
Maj. Kateyateya Safari were arrested on
13 June 2014.
• Provisional arrest warrant (including
charges) was issued against the three
defendants arrested on the same day, 13
June 2014.
• Since 15 September 2014, the three
defendants have been on provisional
release, with a requirement to report to
the AMS twice per week.
Charges: Crimes against humanity.
RMP
1421/
BKL/12
Katalukulu
case
Col. Sebimana,
et al.
6 August 2011
Fizi, South Kivu
Ten women were allegedly
raped by FARDC soldiers from
the 431st battalion, under the
command of Col. Sebimana.
It was reportedly in retaliation
for the murder of two soldiers
by an alleged thief. The joint
mission report indicates that
the women victims refused to
complain for fear of reprisals.
Registration at the AMS SK: 19 June
2012.
Charges: Murder, rape, extortion, arbitrary
detention, torture, and home
invasion (as described in the AMS SK
registry).
The facts were reported by NGOs, but
no investigation was opened regarding
this attack as the commander, Col.
Sebimana Mwendangabo Samuel, was
protected by the CNDP.
Other convictions: In 2012, Sebimana
was prosecuted and tried for insurrection,
extortion, and other criminal acts
in another case (RP1421).
MONUSCO: Support
to the initiation of an
investigation.49
RMP
1482/
KK/13
Mirenzo case
Maj. Mabiala
7-9 June 2013
Mirenzo and
Chirimiro, South
Kivu
Between 7 and 9 June 2013,
FARDC members attacked
the villages of Mirenzo and
Chirimiro. Nine civilians were
killed, and. houses in the villages
were looted and burned.
The attack was planned after
confrontations with Raia
Mutomboki and after Cpt.
Bahati was informed of Raia
Mutomboki’s plan to liberate
one of their members who had
previously been arrested by
FARDC.
Registration at the AMS SK: 26 August
2013 (following a complaint lodged by a
national NGO, LADHO, on 8 September
2013 in Bunyakiri).
Accused: Maj. Mabiala, from the special
battalion.
Investigation: Investigations are ongoing.
An investigation that was planned
for December 2014 was postponed.
UNJHRO: Support of
the victims during the
investigation.
ASF: Assistance to
victims.
UNDP: Institutional
support.
RMP
1463/
WAV/13/
NDM/
KK/2013
RMP
2678/
KMC/12
Birungurungu
case
Lt. Col. Ilunga
Jean Jacques
1 December
2012
Birungurungu,
Lulimba, Fizi
territory, South
Kivu
On 1 December 2012, Lt.
Col. Jean-Jacques Ilunga and
FARDC allegedly committed
rape and torture on the Bembe
community of Birungurungu
and Lulimba.
Registration at the AMG/BKV: 5 November
2012 (following a complaint N°
024/NYRA/DIV/2012 submitted on 29
October 2012)
Transfer: From AMG Bukavu to AMS
SK (by letter No 024, dated 6 February
2013).
Registration at the AMS SK: On 22
February 2013.
UNDP: Received a request
from AMS in January
2014 to lead investigations
into the allegations
against Col. Ilunga
in Birungurungu.50
ASF: Assistance to the
victims with the support
of ACPD to identify
victims.
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Arrest:
• While Lt. Col. Ilunga’s commander,
Gen. Masunzu, had initially refused to
proceed with Lt. Col. Ilunga’s arrest, on
16 August 2013, Lt. Col. Ilunga was
arrested.
• On 3 September 2013, a provisional
arrest (including charges) was issued
against him.
• On 18 December 2013, Col. Ilunga was
granted provisional release with a requirement
to report to AMS twice per week.
Charges: Crimes against humanity.
Investigation: Investigations are ongoing.
A support request was submitted to
the justice sector’s partner to lead investigations
and interviews with victims.
RMP
1245/
MTL/09/
Bukavu
Lulingu case
Lt. Col. Angali
Mukumbwa,
et al.
2-3 July 2009
Shabunda, South
Kivu
Between 2 and 3 July 2009,
members of FARDC 5th
brigade attacked villages in
South Kivu, committing rape,
looting, and taking civilian
hostages.
Registration at the AMS SK: 9 September
2009.
Arrest: AMS SK had led an investigation
in Shabunda and Lulingu. Some accused
were arrested at the time of the investigation,
but they escaped before they could
be transferred to the Bukavu prison.
Charges: Crimes against humanity of
pillage and rape.
Investigations: Due to difficulties in accessing
Shabunda, it has been difficult to undertake
comprehensive investigations. The total
list of suspects has not yet been identified.
The project “Restauration
de la justice
à l’Est du Congo”
(REJUSCO): Logistical
and financial support of
investigations.
ASF: Provided funding
to the national NGO
CADDHOM to provide
legal assistance
RMP
1282/
KM/09
Ombeni Matayo
case
Ombeni Matayo
7 August 2002
Kalimba village,
Bunyakiri, South
Kivu
On 7 August 2002, Mai Mai,
under Ombeni Matayo’s command,
attacked the civilian
population of Kalimba village,
Bunyakiri, with a rocket. The
attack was launched in reprisal
for the civilian population’s
presumed support of Armée
patriotique rwandaiseAPR and
RCD.
Registration at the AMS SK: 28 November
2009.
Arrest: An arrest warrant for war crimes
was issued against the presumed author,
who was expected to be in Hombo.
It was transmitted to the Congolese
national police (PNC) of Bunyakiri for
execution.
On 5 April 2012, it was determined that
the presumed author of the violations
was initially incorrectly identified.51
ASF: Financial support
of a national NGO,
LADDHO, to collect
data before presenting
the allegations to the
AMS.
RP 036-
039
RMP
1303/
MTL/
2010
1308/
MTL/
2010
Kyat Hend
Dittman case
Kyat Hend
Dittman, et al.
March-June
2010
Shabunda territory,
South Kivu
In March 2010, the police
station in Kitindi was attacked,
and uniforms, weapons and
ammunition were stolen. In
April 2010, six individuals
under the command of Emmanuel
Kyat Hend Dittman
went to Wagila Ngoy quarry
to loot possessions and collect
taxes. Twenty individuals were
forced to leave with the militiamen
to transport the looted
Two cases (RP 036 and RP 039, RMP
1303/MTL/2010 and RMP 1308/
MTL/2010) were joined at the trial
before the MC SK on 20 August 2010.
RMP 1303/MTL/2010:
Registration at the AMS SK: 23 June
2010 (following minutes of meetings No
08/46/20/007/006/2009).
Accused: Kyat Hend Dittman, et al.
UNDP: Support of
mobile trials.
UNJHRO: Institutional
and logistical
support, , protection
and transportation of
victims.
ASF: Assistance and
legal representation of
victims.
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property. During the night
of 31 May 2011, the militiamen
attacked the political and
administrative authorities and
the population of Matili, committing
torture and pillage.
On the way to Shabunda, Kyat
Hend militiamen launched
attacks against police stations
in a number of villages, including
Mulungu, Tusisi, and
Tutungulu.52
In 2010, a rebel movement
led by Emmanuel Kyat Hend
Dittman, alias Pharaon, encouraged
the population to
dismantle state authority in
Shabunda territory. In Bangoma
Nord and Beygala, the
militiamen under the command
of Kyat Hend formed an
alliance with Raia Mutomboki,
under the command of Amuri
Kikukama. The command of
the troops was given to Kyat
Hend.53
Charges: participation in an insurrectional
movement, crimes against humanity,
and theft of military properties.
RMP 1308/MTL/2010:
Registration at the AMS SK:
Following complaint No 15/AMS/IPJ/
MSG/SBD/10 of 2 September 2010
inShabunda.
Accused: Charlequin, et al.
Charges: Participation in an insurrectional
movement, crimes against humanity,
pillage, conspiracy, illegal detention
of war weapons and ammunitions, illegal
wearing of rank insignia, voluntary assault,
and murder.
RP 039:
Registration at the MC/SK Registry: 8
August 2010.
RP 036:
Registration at the MC/SK Registry:
04 August 2010.
Trial: The date to commence the trial
was set for 17 September 2010.
Arrest: 27 individuals were arrested
(the date of the arrests is unknown): (1)
Emmanuel Kyat Hend Dittman, (2)
Kasongo Wassanga, (3) Célestin Nsunga
Mubulanwa, (4) Songa Kinyengele, (5)
Gabriel Lepalepa Mwanda, (6) Paul Yiyi,
alias Misenga, (7) Paul Sengi Kyabutwa,
(8) Léon Busilingi Matenda, (9) Wabula
Kalenga, alias Nadia, (10) André Mwepa
Salumu, (11) Bernard Sadiki Masumo,
(12) Amuri Kikukama, (13) Mbula Kinyasubi
Songa, (14) Kitembo Mugeni, (15)
Sébastien Chikuru Katara, (16) Bahati
Mwati, (17) Kazombo Amisi, (18) Dodos
Asani Abeli, (19) Feruzi Lubanda, (20)
Alexander Bwansolu Mizaba, (21) Wabula
Kalenga, alias Nadia,54 (22) Kitalaganza
Ngoma, (23) Bitalibwa Kangolingoli, (24)
Wenda Kyamoneka, (25) Lukamenya
Kikuni, (26) Abedi Kikuni Betu, alias
Benz, (27) Kalomo Mali Ya Macha, alias
Djo Mali, and (28) Kitima Sumaili. The
accused were issued provisional arrest warrants
(including charges) on 24 June 2010.
Charges: Conspiracy against state
authority and territorial integrity, conspiracy,
terrorism, incitement of military
disciplinary misconduct, participation
in an insurrectional movement, crimes
against humanity of imprisonment or
other severe deprivation of physical lib-
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erty, other inhumane acts, armed robbery,
rape, conscription with the enemy,
simple desertion, and desertion abroad.55
Civil parties: 49 (although 69 victims
were identified).
Verdict and sentence: On 15 October
2012, the MC SK made the following
orders:
• Kyat Hend Dittman and Célestin
Mubulanwa Nsunga to 20 years’ imprisonment
for crimes against humanity of
imprisonment or other severe deprivation
of physical liberty, other inhumane acts,
conspiracy against state authority and territorial
integrity, participation in an insurrectional
movement, and terrorism;
• Lepalepa Wanda to 10 years’ imprisonment
for crimes against humanity of
imprisonment or other severe deprivation
of physical liberty, other inhumane
acts, conspiracy against state authority
and territorial integrity, participation in
an insurrectional movement, terrorism,
and desertion;
• Kazombo Amisi to 15 years’ imprisonment
and Bahati Mwati to 10 years’ imprisonment
for crimes against humanity
of imprisonment or other severe deprivation
of physical liberty, other inhumane
acts, participation in an insurrectional
movement, and terrorism;
• Kitima Sumaili, Bisilingi Matenda,
Feruzi Lubanga, and Lukamenya Kikuni
to 10 years’ imprisonment for participation
in an insurrectional movement, and
terrorism;
• Bwansolu Mizaba to three years’ imprisonment
for desertion;
• Yiki Paul to 30 months’ imprisonment
for desertion;
• Mwepa Salumu to 15 years’ imprisonment
for participation in an insurrectional
movement, and terrorism;
• Bitalibwe Kangolongoli to 15 years’
imprisonment for participation in an
insurrectional movement, and rape;
• Sadiki Masumu to 15 years’ imprisonment
for conscription with the enemy,
terrorism, and participation in an insurrectional
movement;
• Mbula Kanyasubi Songa and Amuri
Kikukama to 15 years’ imprisonment
and Asan Abeli Dodos to 10 years’ imprisonment
for terrorism and participation
in an insurrectional movement.
• The MC SK acquitted Sengi Kyabutwa,
Wabula Kalenga, Kasongo Wassanga,
Kitalaganza Ngoma, Wenda Kyamonika,
Kalumo Mali Ya Macho, Abeli Biluma
Dumbo, Chikuru Katara, and Songa
Kinyengele.
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The MC SK declared the end of proceedings
against Kitembo Mugeni and Abedi
Kikuni Benz.
Appeal: An appeal is pending before the
High Military Court.
Kyat Hend Dittman escaped from the
Bukavu central prison.
RMP
1526/
BKL/2014
Mutarule case
Maj. Kayumba
Nyenyere Venance,
et al.
6 June 2014
Mutarule, South
Kivu
At least thirty civilians, including
eight children, were killed
in an attack on 6 June, 2014
in Mutarule. The perpetrators
attacked civilians at a church
service, shooting and burning
victims to death. They also
attacked a health center and
several houses.56
Registration at the AMS: 17 June 2014.
Arrest: Maj. Kayumba Nyenyere Venance
and Sheria Kahungu arrested on
11 June 2014. Provisional arrest warrants
issued on 17 June 2014.
Charges: War crimes of murder, attacks
against civilians and protected objects (as
described in the AMS SK registry).
Trial: A mobile court was scheduled to
take place in October 2014, but it was
postponed for lack of sufficient funding.
RMP
2128/
MPL/12
Eben-Ezer case
Eben-Ezer
4 October 2011
Kalongwe, Fizi
territory, South
Kivu
On 4 October 2011, an attack
was launched by unidentified
perpetrators against civilians in
Kalongwe on the basis of their
Banyamulenge origin. Fourteen
individuals from the Eben-Ezer
NGO, travelling on a mission to
Itombwe and Minembwe, were
attacked in Kalongwe. Ten were
of Banyamulenge origin and four
were of other origins. Seven of
the Banyamulenges were killed
by guns, machetes, or burned
alive; two were severely injured;
one escaped. The four non-Banyamulenges
were not attacked.
Registration at the AMG Bukavu: 24
April 2010(RMP 1673/KMC/10).
Arrest:
• As per the referral decisions of 15
December 2007 and 8 May 2008, the
accused persons were Jean Bosco Maniraguha,
alias Kazungu, Sibomana Kabanda
Tuzaruana, Rasta, Freddy, Vatican, Gitamisi,
MONUC and Njegitera.61
RMP
0940/
KMC/
2010
Lulinda and
Lusenda case
Lulinda
29-30 June 2000
Lusenda village,
South Kivu
During the night of 29 June
2000, the Forces pour la Défense
de la Démocratie (FDD) and
RCD launched an attack against
the population of Lusenda village.
The village was looted and
79 persons were killed.
This case is still at the investigation level.
It seems to be blocked, as no developments
were noted.
(The Auditorat Militaire
de Garnison of
Uvira requested support
from partners to
investigate this case and
interview victims. No
support was provided.)
RP 275/09
and
521/10
RMP 581/
TBK/07
and 1673/
KMC/10
(Trial)
RPA 0177
(Appeal)
Kazungu case
Jean Bosco
Maniraguha,
alias Kuzungu
or Petit Bal,
et al.
June 2006-January
2007
Tulumamba,
Kalega, Rwamikundu,
Mamba,
Fendula, Kafuna,
Mushenge,
Bitage, Tulabilao,
Mafuo, Kabiso,
Batatenga, Hungu
and other villages,
South Kivu
From June 2006 to January
2007, Jean Bosco Maniraguha,
alias Kazungu or Petit Bal,
Sibomana Kabanda Tuzaruana,
and other members of FDLR
Rasta launched attacks on many
villages in South Kivu, particularly
on the Kalehe and Bunyakiri
axes. Attacks were committed
on the Kalonge axis in
June and July 2006, and on the
Bunyakiri axis between August
2006 and January 2007.57
Registration at the AMG Bukavu: 24
April 2010(RMP 1673/KMC/10).
Arrest:
• As per the referral decisions of 15
December 2007 and 8 May 2008, the
accused persons were Jean Bosco Maniraguha,
alias Kazungu, Sibomana Kabanda
Tuzaruana, Rasta, Freddy, Vatican, Gitamisi,
MONUC and Njegitera.61
• Jean Bosco Maniraguha, alias Kazungu,
and Sibomana Kabanda Tuzaruana
were arrested. Precise date of arrest is not
UNDP and UNJHRO:
Institutional support.
ASF: Assistance to
victims.
ABA: Psychological
support to victims during
the Appeal.
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On 2 July 2006 at around
7:30p.m., Kazungu and 18 of
his militiamen attacked villages
in Kalonge, including Tulumamba,
Kalega, Rwamikundu,
Mambu, and Fendula. They
committed pillage, abducted
and killed civilians, including
women and girls. Individuals
who were abducted were
brought back to the FDLR
Rasta camp, distributed between
the militiamen, and
repeatedly raped.58
During the evening of 9 July
2005, at around 8p.m., 56
houses in Rwamikundu village
were burned, killing 52 people
including, seven children. More
civilians were tortured and
killed. Women, including girls,
were tortured and raped.59
Sibomana Kabanda Tuzaruana
joined the FDLR Rasta to
support the militiamen. After
confrontations between
FARDC and FDLR Rasta,
attacks were launched against
a number of villages, including
Kafuna, Mushenge, Bitage,
Tulabilao, Mafuo, Kabiso,
Batatenga, and Hungu. They
committed murders, rapes, and
pillages. Twelve houses in Cifunza
village and 13 houses in
Sati village were burned.6
available at AMG Bukavu. RP refers to
the arrest of Kazungu in Kabiso village in
January 2007.62
Charges: Crimes against humanity of
murder, rape, imprisonment, inhumane
treatment, torture, and illicit possession
of arms and munitions of war.63
Transfer: Transferred from AMG Bukavu
to MGT Bukavu on 15 December
2008 (RMP 581/TBK/KMC/07) and 8
May 2010 (RMP 1673/KMC/10).
Joinder of cases: Both case RMP 581/
KMC/07 and RP 275/09 against Jean
Bosco Maniraguha, alias Kazungu, and
Sibomana Kabanda Tuzaruana for crimes
committed in Bunyakiri, and case RMP
1673/KMC/10 and RP 521/10 against
Jean Bosco Maniraguha, alias Kazungu,
Sibomana Kabanda Tuzaruguana, et al.
or crimes committed in Kalonge, were
joined by MGT Bukavu.64
Registration at the MGT Bukavu: 2
January 2011.
Civil parties: 400 civil parties65
Trial: Commenced 8 August 2011.
Verdict and sentence: On 16 August
2011, the MGT Bukavu gave the following
orders:
• Jean Bosco Maniraguhato sentenced to
life imprisonment for all charges (crimes
against humanity of torture, rape, murder,
imprisonment and other forms of
physical deprivation, and illegal possession
of arms and munitions);
• Sibomana Kabanda sentenced to 30
years’ imprisonment for crimes against
humanity of murder, and imprisonment
and other forms of physical deprivation;
• Both accused to provide restitution of
the victims’ belongings.66
• MGT BKV also ordered the state,
alone, to pay $700 USD for compensatory
damage to each rape victim; $550
USD to each torture victim, $400 USD
to each victim of imprisonment and
other forms of physical deprivation; and
$5,800 USD for each murder victim.67
Appeal:
• Registered at the MC SK on 13 October
2011.
• Commenced on 24 October 2011.
• On 29 October 2011, the MC SK
confirmed the convictions delivered by
MGT Bukavu. It confirmed Jean Bosco
Maniraguha’s life imprisonment, and
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0 increased Sibomana Kabanda’s sentence
to life imprisonment.
• For victims who cross-appealed the
order, the MC SK ordered the state to
pay $10,000 USD for compensatory
damage to each rape victim; $20,000
USD to each murder victim; $5,000
USD to each victim of imprisonment
and other forms of physical deprivation;
and $5,000 USD to each victim
of torture and other inhumane acts.68
RP 702/11
RMP
1901/
KMC/
2010
Sabin Kizima
Lenine case
30 December
2009
Lulingu, Shabunda,
South Kivu
On 30 December 2009, FDLR
launched an attack in the village
of Lulingu, Shabunda.
Sabin Kizima Lenine allegedly
entered the village, attacked
women and girls, looted property,
burned alive one young
man, and abducted boys to
become porters.66
Registration at the AMG Bukavu: 11
November 2010.
Arrest: Sabin Kizima Lenine was arrested
on 10 November 2010. On 11 November
2010, a provisional arrest (including
charges) was issued against the accused.
Charges: crimes against humanity by murder,
rape, torture, and other degrading acts.
Civil parties: 454 civil parties.
Registration at the MGT Bukavu:
During February 2012 (it had been sent
from AMG Bukavu on 13 December
2011). The MGT Bukavu had initially
set the date of trial due to difficulties
organizing the hearings, considering
victims and witnesses (100 in total) were
in Shabunda, which is remote and 350
kilometers from Bukavu.
Trial: Commenced 9 June 2014.
Verdict and sentence: on 29 December
2014, MGT Bukavu condemned Sabin
Kizima Lenine to life imprisonment and
to pay $5,000 USD for each rape victim;
$10,000 USD for each murder victim;
and $3,000 USD for each victim of
imprisonment or other forms of physical
liberty deprivation.
Appeal: An appeal was requested before
the MC Bukavu.
UNJHRO: Support of
the April 2011 investigation
(expenses coverage
for magistrates,
logistical support),
support during the
trial (expenses coverage
for the magistrates,
supplies), assistance to
victims during the investigation,
protection
measures for victims.
UNDP: Institutional
support.
ASF: Assistance and
legal representation to
victims
RMP
2304/
KMC/
2012
2180/
IH/2304/
KMC/
2012
Sabin Kizima
Lenine case
Singabanza
Nzovu case
Singabanza,
et al.
1-4 January 2012
Nzovu, Shabunda
territory,
South Kivu
From 1 to 4 January 2011,
FDLR launched an attack
against remote villages in
Shabunda, South Kivu.70 Thirty-
three people were killed,
one woman and one girl were
abducted and raped for two
days, 2700 people were displaced,
and most of the houses
of the region were looted and
burned.71
Registration at the AMG Bukavu: 23
January 2012.
Transfer: Transferred to AMG Uvira on
17 March 2012 (by letter 059).
Charges: Crimes against humanity by
murder and attempted murder.
Arrest: On 23 January 2012, Jean Bosco
Singababanza and Dufitimana Victor
were arrested.
MONUSCO: Part of
a joint team to investigate
alleged violations
on 9-12 April 2011.72
PSC: Technical support
in planning investigation,
as well as logistics, transport,
and equipment.
UNDP: Institutional
support.
ABA and ASF: Assistance
to victims.
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International Center The Accountability Landscape in Eastern DRC
for Transitional Justice
www.ictj.org
UNDP: Institutional
support.
ABA and ASF: Assistance
to victims.
RMP
1248/
MTL/09
Kasika Carnage
case
Commander
Shetani
24 August 1998
Kasika, Kalama,
Kilungutwe,
Zokwe and Tchidasa,
South Kivu
On 24 August 1998, members
of RCD, under the command
of Commander Shetani, and
APR attacked the villages of
Kasika, Kalama, Kilungutwe,
Zokwe, and Tchidasa. At least
800 civilians were killed and
the villages were looted and
burned.
These attacks were revenge for
earlier defeats of RCD and
APR by the Mai Mai militia,
under Commander Nyakiliba.
They presumably followed the
instruction to kill every civilian
on the Tubimbi-Kangola axes.
Registration at the AMS SK: 10 September
2009.
Charges: War crimes of murder (as described
in the AMS SK registry).
Accused: Col. Eric Rorimbere and Commandant
Shetani. Since the violations
were allegedly committed, Eric Rorimbere
had become a general in FARDC,
assigned to Lubumbashi.
Arrest: No arrest to date.
Investigations: No investigations are
ongoing, but the case is still open.
NORTH KIVU PROVINCE73
RMP
026/2009
Miriki/Lubero
case
January 2009-
May 2009
Miriki, Bushalingwa,
and
Kishonja, Lubero
and Walikale
territories, North
Kivu
In early 2009, FARDC
soldiers attacked villages in
North Kivu, including Miriki,
Bushalingwa, and Kishonja.
FARDC soldiers pillaged and
burned hundreds of houses,
as well as schools and health
centers, in the context of
military operations in Eastern
DRC. It was also reported that
women were taken as sex slaves
by soldiers.74
One attack in Miriki was
in retaliation for the killing
of more than 12 soldiers by
Rwandan militias. FARDC
soldiers allegedly killed the
police commander, who they
accused of collaborating with
the FDLR, and pillaged and
burned houses.75
Information not available.
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International Center The Accountability Landscape in Eastern DRC
for Transitional Justice
RMP
0236/
MLS/2011
Bushani case
Maj. Dario,
Maj. Emmanuel
Ndungutsi,
Maj. Eustache,
Col. Jonathan
Balumisa
Tchumaandall
31 December
2010-1 January
2011
Bushani, Kalambahiro,
Masisi
territory, North
Kivu
Between 31 December 2010
and 1 January 2011, men
identified as belonging to
FARDC76 launched attacks
against the villages of Bushani
and Kalambahiro, in Masisi
territory.77 Soldiers committed
sexual violence, including
rape, against at least 47 women
(including one girl), abducted
civilians, and inflicted inhuman
and degrading treatments
to at least 12 other persons.78
They also allegedly looted 100
houses and three buildings,
and burned or destroyed four
houses.79
At the time of these events,
the joint MONUSCO and
FARDC mission, “Hatua Yamana”,
was being undertaken.
It ran from 31 December
2010 to 7 January 2011 to
fight against numerous armed
groups in the area, including
Alliance of Patriots for a Free
and Sovereign Congo (APCLS)
and FDLR. The 1213,
2212, 2222, 2331, and 2311
FARDC battalions were part
of the mission. However, it has
not been confirmed whether
any of these battalions committed
the violations.80
Registration at the Auditorat militaire
opérationnelle (AMO): 13 January
2011.
Accused: (1) Maj. Dario (2312th battalion),
(2) Maj. Emmanuel Ndungutsi (2331st
battalion), (3) Maj. Eustache (2222nd
battalion), (4) Maj. Bony Matiti (1213th
battalion), (5) Lt. Col. Jule Butoni (2312nd
battalion), (6) Maj. Mahoro Sebuhoro
(deputy, 2311st battalion), (7) Col. Paul
Mugisha Muhumuza, (8) Col. Jonathan
Balumis Tchuma (9-12) four Company
Commanders not otherwise identified.
Arrest: Maj. Mahoro was arrested on 3
May 2011, but subsequently escaped.
Charges: Crimes against humanity by
rape, pillage, and imprisonment.
Investigations:
• On 10 February 2011, the MOC
requested the availability of the commanders
of the FARDC battalions.
• In March 2011, FARDC officers, including
Col. Tshumo and Col. Mugisha,
were made available to be questioned by
military justice officials.
• UNJHRO indicated that the absence
of progress is due to a number of factors,
including the lack of cooperation of
FARDC hierarchy.81
• The number of victims has not been determined,
and investigations are ongoing.
UNJHRO:
Deployment of a team
to investigate in the
area from 17 to 19
January 2011;
Second investigation
in conjunction with
representatives of the
military prosecutor at
the CMO and local
NGOs from 2 to 4
February 2011;
Publication of a public
report on the case.82
RP
003/2013
RMP
0372/
BBM/013
Bweremana–
Minova case
20-30 November
2012
Minova, and
neighboring villages
of Bwisha,
Buganga, Mubimbi,
Kishinji,
Katolo, Ruchunda
and Kalungu,
North Kivu and
South Kivu
From 20 to 30 November
2012, members of FARDC
committed numerous rapes
in Minova and neighboring
villages.83 Over 102 women
and 33 girls were victims of
rape and other sexual violence
offences.84
Following M23 attacks in
Goma and the takeover of the
city on 20 November 2012,
FARDC withdrew to the city
of Minova and the surroundings
areas of Kalehe territory.
While fleeing the frontline
towards Minova, FARDC
soldiers engaged in a series
of massive abuses, including
sexual violence, pillaging, and
other systematic violations of
human rights such as murder,
and cruel, inhuman and degrading
treatment.85
Registration at the AMO: 4 November
2013.
Transfer: Sent from AMO to MOC on
8 November 2013.
Accused: (1) Lt. Col. Nzale Nkumu
Ngandu, (2) Lt. Col. Sylvain Djalonga
Rekaba, (3) Lt. Col. Romain Nzambe
Kwande, (4) Lt. Col. Jean-Marie Wasinga
Ntore, (5) Maj. Rocky Usuna Kitambi,
(6) Capt. Patrick Kangwanda Swana, (7)
Capt. Byamungu Rusema Sema, (8) Capt.
Ndjate Kusombo, (9) Capt, Jean-Marie
Bola Mpulu, (10) Capt. Jules Kilonda
Pemba, (11) Capt. Nzemo Rene Albert,
(12) Capt. Charles Kapende Mayimbi,
(13) Lt. Paty Kasereka Kambale, (14) Lt.
Désiré Solo Mateso, (15) Sub. Lt. Sabwe
Tshibanda, (16) Sub. Lt. Mbaki Bokinda,
(17) Adj. First Cl. Kalaki Mutombo, (18)
Adj. First Cl. Etienne Longondo, (19)
Adj. First Cl. Alele Monga, (20) First Sgt.
Maj. Kabongo Katete, (21) Sgt. Trésor
Balonga Sangwa, (22) Sgt. Roger Kasereka
Bolali, (23) Cpl. Jules Mogisha Tibasima,
(24) Cpl. Guélord Betoko Ipoya, (25)
MONUSCO: Joint
investigative mission
with the Auditorats NK
and SK;
Logistical support for
government missions of
administrative investigations;
Logistical and technical
support; 2 missions
and 1 protocol mission
to deliver legal documents;
Provided technical
reports (interviews,
examinations and rogatory
commission).
PSC: Operational
and technical support
(practical advice during
interviews with victims
and witnesses, magistrates
transport);
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International Center The Accountability Landscape in Eastern DRC
for Transitional Justice
www.ictj.org
Cpl. Mohindo Kizito, (26) Cpl. Jean
Kombe Bakaluke, (27) Cpl. Michel
Magbo Alphonse, (28) Cpl. Kabiona
Ruhingiza, (29) Cpl. Désiré Mumbere
Kisangani, (30) Cpl. Patrick Paluku
Mbokani, (31) Cpl. Kambale Bakwana,
(32) First Cl. Jean Kambale Kamabu,
(33) First Cl. Kakule Karubandika, (34)
First Cl Manzia Mombi, (35) First Cl.
Kambale Kazeire, (36) First Cl. Paluku
Akufakala, (37) Mumbere Tshongo, (38)
Jean de Dieur Mandro Lotima, and (39)
Donation Bahati Safari.
Charges: War crimes of rape, pillage,
murder, and violation of instructions.
Trial:
• Commenced 20 December 2013.
• While the trial was initially set to commence
on 20 November 2013, the First
President of the HMC nominated two
magistrates of the HMC (HMC advisors)
to be part of the MOC bench. This
nomination presumably caused the delay
of a month so that the magistrates could
familiarize themselves with the case.
Civil Parties: 1,016 civil parties.86
Verdict and sentence: On 5 May 2014,
the MOC NK found 26 members of the
FARDC guilty, including two superior
officers, out of the total 39 individuals
accused. Two were convicted of rape and
sentenced to life imprisonment; one was
convicted for murder and sentenced to
life imprisonment; one was convicted
for extortion and sentenced to five years’
imprisonment; one was convicted for pillage
with aggravating circumstances and
sentenced to 20 years’ imprisonment; one
was convicted of embezzlement of ammunition
and sentenced to 10 years’ imprisonment;
19 were convicted of pillage
and sentenced to ten years’ imprisonment;
and one was convicted of pillage and
sentenced to 20 years’ imprisonment.87
Appeal: The civil parties appealed the
MOC decision on 9 May 2014.
UNJHRO: Assisting
victims during investigations
and mobile
trials;
UNJHRO and Child
Protection Unit
(CPU): 2 investigative
missions (interview
with about 200 victims
and witnesses).
ABA and ASF: Legal
representation of victims.
MONUSCO and
UNJHRO: Joint investigation
with the
Auditorats of NK and
SK. Logistical support
to a governmental
RMP
0041/
MA/2013
RMP
0362/
BBM/
2013
Kitchanga case
Col. Mudahunga
Safari,
Col. Muhire,
et al.
27 February-5
March 2013
Kitchanga,
Masisi territory,
North Kivu
Between 27 February 2013 and
5 March 2013, civilians were
targeted during FARDC and
APCLS confrontations, between
Masisi and Kitchanga.88
At least 27 civilians, including
ten children, were killed, two
women were raped and then
killed, 89 were wounded, and
more than 500 houses were
looted, burned and destroyed.89
Registration at the AMO: 2 July 2013.
Charges: Crimes against humanity
by murder, pillage, and burning, and
war crimes by murder, pillage, and
burning.
Accused: Involved both members of the
FARDC and APCLS. Twelve presumed
authors were interviewed during the
investigations.
UNJHRO: Logistical
and financial support of
investigations,94 assistance
of victims during
the investigations.
UNDP, PSC and ASF:
Two joint investigation
missions on 1-6 October
2013 and 21-25
July 2014.
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International Center The Accountability Landscape in Eastern DRC
for Transitional Justice
The attack allegedly had had
an ethnic dimensions, with
FARDC members attacking
civilians of Hunde origin for
their suspected support of
APCLS.90 However, both parties
to the conflict committed
attacks against civilians. The
majority of the offences were
committed by FARDC members
of the 812th regiment,
based in Kitchanga.91 A number
of offences were committed
by APCLS, under the command
of Musa Jumapile.92 Col.
Mudahunga and Col. Muhire
allegedly distributed arms to
Rwandophones of Kitchanga
and Kahe camp, inciting them
to attack Hundes.93
Investigations: Over 300 victims were
identified.
UNDP and PSC: Institutional
support.
ASF: Assistance to
victims and financial
support of the national
NGO, Action Globale
Pour La Promotion
Sociale Et La Paix (AGPSP),
who participated
in the identification of
victims.
PSC: Support of ongoing
investigations
RMP
0223/
MLS/10
RP
055/2011
Kibua–Mpofi
Walikale case
Lt. Col. Mayele,
et al.
30 July-2 August
2010
Bunangiri,
Kembe, Tweno,
Ruvungi, Bunyampiri,
Chobu,
Bitumbi, Rubonga,
Kasuka, Ndorumo,
Brazza,
Kitika, Nsindo,
North Kivu
From 30 July to 2 August 2010,
a coalition of armed groups,
including FDLR and Mai Mai
Sheka, attacked 13 villages near
Luvungi on the Kibua Mpofi
axis, in Walikale territory.95 At
least 387 women, men, and
children were raped.96 Rapes
were mostly committed by
groups of two to six combatants,
in the presence of victims’
children and relatives.97 Combatants
also allegedly looted at
least 923 houses and 42 shops
in the villages.98 At least 116
people, including 15 minors,
were allegedly abducted and
subjected to forced labor.99 At
least 12 men and three children
abductees were also subjected to
cruel, inhuman, and degrading
treatment.100
The attack would have been
planned on 27 July 2010 in
the presence of Ntabo Ntaberi
Sheka, Capt. Sérafin Lionso
(FDLR) and Lt. Col. Emmanuel
Nsengiyumva.101 The attack
was ordered on the same day
by Ntabo Ntaberi Sheka.102 It
was intended to punish those
communities considered as
supportive of the FARDC, and
for equipping the coalition of
armed groups.103
Registration at the AMO: 30 August
2010.
Accused: (1) Lt. Col. Sadoke Kikunda
Mayele (died in Munzenze prison) (Provisional
Arrest Warrant including charges
(MAP): 6 October 2010), (2) Ntabo
Ntaberi Cheka (MAP: 6 January 2011),
(3) Maj. Alphonse Karangwa Musemakwel
(escaped) (MAP: 6 January 2011),
(4) Maj. Pumuzika Wango, alias Alpha
(MAP: 31 May 2011), (5) Maj. Jean-
Marie Rwasibo Sabira (MAP: 31 May
2011), (6) Maj. Bizimana Mukengezi,
alias Madoadoa (MAP: 31 May 2011),
(7) Lionso Séraphin (MAP: 6 January
2011), (8) Evariste Kanzeguhera, alias
Sadiki (died) (MAP: 6 January 2011).
Arrest:
• On 5 October 2010, Lt. Col. Mayele
(Mai Mai Sheka) was arrested with the
support of MONUSCO,104 which then
facilitated his transfer to Goma. Lt. Col.
Mayele died in prison in August 2012.
• In September 2012, Maj. Alphonse
Karangwa, from FARDC, was apprehended,
but escaped a few weeks
later.
• FDLR and Mai-Mai Sheka remain
active in Eastern DRC. This has made
arrests and prosecutions more difficult.105
Provisional arrests (including charges
issued):
• Against Lt. Col. Sadoke Kikunda
Mayele on 6 October 2010;
• Against Ntabo Ntaberi Cheka, Maj.
Alphonse Karangwa Musemakwel, Lionso
Séraphin, and Evariste Kanzeguhera,
alias Sadiki, on 6 January 2011;
• Against Maj. Pumuzika Wango, alias
Alpha, Maj. Jean-Marie Rwasibo Sabira,
UNJHRO: Deployment
of a team to the
area to investigate the
alleged violations on
13-17 August 2010;
deployment of a factfinding
team in the area
on 25 August-2 September
2010; publication
of a preliminary report
on 24 September 2010;
deployment of a team
to further investigate
allegations and assess
implementation of the
preliminary report on
16-21 October 2010;109
publication of a final
report on fact-finding
mission in July 2011.110
MONUSCO and
UNDP (and other international
partners):
Supported a team of
military investigators
deployed in Walikale,
28 October-29 November
2011 to collect
victims’ and witness’
testimonies.111 The
investigation, however,
was interrupted for
security reasons.112
PSC: Following a support
request approved
by PSC on 5 April
2012 provided technical
support in investigation
planning and
techniques.
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International Center The Accountability Landscape in Eastern DRC
for Transitional Justice
www.ictj.org
Maj. Bizimana Mukengezi,
alias Mado adoa, on 31 May
2011.
Charges: Crimes against humanity by
rape, pillage, murder, and other inhumane
and degrading acts, participating in an
insurrectional movement, and terrorism.
Investigations: on 28 October 2010, despite
a difficult security situation, AMO
conducted on-site interviews of more
than 150 victims in Walikale. The investigation
was suspended on 30 November
2010 for security reasons.105 In total,
around 250 victims were identified.
Detention extension: On 29 September
2011 (prior to transferal from AMO to
MOC), a hearing was held to identify
the accused.
Transfer: By a decision in October 2011,
the case was transferred to the MOC.
However, due to security issues, the
MOC could not sit in Walikale and the
trial was delayed.107
Registration at the MOC: 25 October
2011.
Trial:108
• The first hearing was held on 10 November
2011 to identify the accused;
• The second hearing for the trial in
Walikale, on 6 December 2011, was
suspended due to insecurity in the area.
RMP
0261/
MLS/11
Mutongo case
Janvier Buingo
Karairi
(APCLS) and
Ntabo Ntaberi
Sheka (NDC)
10-16 June
2011113
Mutongo, Kaseke,
Misoke,
Ntaka, Mahinge,
and Misaho in
Walikale territory,
North Kivu
From 10 to 16 June 2011, there
were confrontations between
Mai Mai Sheka and APCLS in
23 villages in the Ihana groupement,
including Mutongo, in
the Walikale territory. During
these confrontations, at least 50
people were victims of sexual
violence, including 12 minors
and one adult male, and 40
people were victims of inhuman
and degrading treatment.114
Tens of thousands were displaced
in the direction of Pinga
and Kibua.
UNJHRO also reported that
from July to August 2011,
following the confrontations,
rapes were allegedly committed
on a large scale in Mutongo
and surrounding villages.
Eighty cases of rape and sexual
violence, including 12 children
and one man, were reported.
More than 40 people were
subjected to cruel, inhuman or
degrading treatment.115
Registration at the AMO: 15 August 2011.
Arrest:
• On 20 September 2014, provisional
arrest warrants, including charges, were
issued. They were never executed.116
• Col. Karara Mukandirwa, who had
been a commander, deserted and was
killed in Pinga in 2012.117
Charges: Crimes against humanity by
rape, murder, torture, and pillage.
Civil parties: 88 victims expressed their
willingness to complain by signing a
judicial mandate with ABA and Dynamiques
Femmes Jurists (DFJ).
Investigations: On 26 September
2011, an investigation was led by a joint
team of AMO, Judicial Police Office,
inspectors, UNJHRO, PSC, and DFJ.
Forty-nine victims (including 17 victims
of pillage, 27 victims of rape, two in
relation to murder victims, and three
victims of torture) were interviewed. An
additional 43 victims were identified but
not interviewed, due to a lack of time.
UNJHRO: Led investigations
on alleged
violations in Mutongo,
Pinga and Kibua in July
and August 2011.118
MONUSCO, PSC,
UNJHRO, ABA, and
Dynamiques Femmes
Juristes (DFJ): Supported
and participated
in joint investigation
team in Pinga in September
2011.119
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60 www.ictj.org
International Center The Accountability Landscape in Eastern DRC
for Transitional Justice
RMP
0297/
BBM/
2012
M23 Rutshuru
case
Col. Makenga
Sultani, et al.
June-August
2012
Rutshuru, North
Kivu
From June to August 2012 M23
combatants launched attacks
against the civilian population
of Rutshuru. They deliberately
killed at least 15 civilians, injured
14 others, and raped at least 46
women and girls in areas under
their control. At least 13 victims
of rape were children. By the
end of September 2012, the UN
established that 46 cases of rape
had been committed by M23 elements.
120 It was also documented
that M23 arbitrarily executed
at least 20 prisoners of war,121
and conscripted and enlisted
more than 250 children.122
Some of the civilians were
attacked because they resisted
forced recruitment or refused
to give food to M23. Others
were targeted because they
were suspected of being hostile
to M23 or fled to government
controlled areas and tried to
return to find food.123
Registration at AMO: 27 June 2012.
Arrest warrant: issued on 23 January
2014.
Charges: Participation in an insurrectional
movement, desertion, war crimes
of rape, murder, and child recruitment.
Accused: As per the information
available the registry, the accused are:
Col. Makenga Sultani, Saddam, Col.
Masozera, Col. Kazaram Vianney,
Seraphin Mirindi, Jimmy Nazamuyenyi,
Kayina Innocent, Neck. Innocent
Zimurinda, Bedi Rusagara, Xavier
Tshiribani, Baudoin Ngaruye, and Col.
Munyakazi, Lt. Col. Makiese.
RMP
0363/
BBM/12
Ufamandu/
Masisi case
April-September
2012
Ufamandu I,
Ufamandu II and
Kibiti in Masisi
territory, North
Kivu
During the night of 5 April
2012, Raia Mutomboki
launched an attack against the
village of Nyalipe, Ufamendu
II. Nine women, including
four minors, were raped, 19
people were killed, and at least
29 houses were burned down
during this attack.124
From 5 to 28 May, 2012, a coalition
of Raia Mutomboki and
Mai Mai Kifuafua launched 20
attacks against 11 villages in
the area of Ufamandu II, Masisi.
Three hundred and fortythree
people, mostly children
and women of the Hutu ethnic
group, were killed.125
Between August and September
2012, during a period of three
weeks starting from 27 August
2012, Raia Mutomboki, under
M23 leaders, launched attacks
against the civilian population
of Hutu communities in Masisi,
including Ngungu and Luke.126
More than 800 houses were looted
and hundreds of civilians were
killed during these attacks.127 At
least 112 civilians were killed in
Katoyi during this period.128
From May until September
2012, more than 75 attacks were
Registration at AMO: 12 July 2013.
Based on a complaint of 16 November
2012 (BCNUDH/080/12) and 30 November
2012 (letter No AG/080/12).
Arrest warrants: Issued 23 January
2014.
Accused: 1) Commander of the Mai Mai
Kifuafua armed group, 2) Commander
of the Nyatura armed group, and 3)
commander of the Raia Mutomboki
armed group
Charges: Crimes against humanity by
rape, murder, and other inhumane and
degrading acts, and war crimes.
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International Center The Accountability Landscape in Eastern DRC
for Transitional Justice
www.ictj.org
launched against civilians, mostly
led by Raia Mutomboki.129
RMP
0364/
BBM/13
RP
001/013
Salomon case
Sub. Lt. Salomon
Bangala
Urbain and
Lubamba Kuyangisa
(PNC/
APP)
16 July 2013
Kanyarachina,
Nyiragongo
territory, North
Kivu.
On 16 July 2013, at the same
time as confrontations between
FARDC and M23 in
Kanyarachina, M23 members
allegedly mutilated half naked
corpses with weapons.130
Registration at AMO: 20 July 2013.
Based on a complaint (No 029/EM/First
Bde URR Cdo Cmdt/13).
Accused: Salomon Bangala Urbain and
Lubamba Kuyangisa.
Arrest: on 18 July 2013.
Provisional arrest warrant including
charges: On 8 November 2013.
Charges: Corpse mutilation (requalified
as the war crime of committing outrages
upon personal dignity, in particular,
humiliating and degrading treatment, as
per art. 8(2)(c)(ii) of the Rome Statute).
Transfer: Transferred to the MOC on
20 July 2013 (letter No AMS OPS
NK/0003/D’5/13).
Verdict and sentence: On 19 August
2014, convicted both defendants and
sentenced Salomon Bangala Urbain to
two years’ imprisonment and Lubamba
Kuyangisa to one year imprisonment.
RMP
0412/
BBM/014
RP
019/014
Birotsho case
Lt. Col. Birotsho
Nzanzu
Kossi, Kakule
Makambo
Richard,
Lubangule
Ndele Emmanuel,
Katembo
Kalisha Gervais
No information available and
the decision is not available.
Manuscript of the decision is
with the MOC First President.
Registration at AMO: 11 November
2014.
Charges: War crimes of murder, pillage,
terrorism, and participation in an insurrectional
movement.
Accused: Lt. Col. Birotsho Nzanzu Kossi,
Kakule Makambo Richard, Lubangule
Ndele Emmanuel, and Katembo Kalisha
Gervais.
Verdict and sentence: On 17 November
2014, the MOC:
• Convicted Kakule Makambo Richard
and sentenced him to death for war crimes
by murder, pillage, terrorism, and participation
in an insurrectional movement;
• Convicted Katembo Kalisha Gervais
and sentenced him to four years’ imprisonment
for participation in an insurrectional
movement;
• Acquitted Lt. Col. Birotsho Nzanzu
Koss for war crimes by murder, pillage,
terrorism, and participation in an insurrectional
movement; and
• Acquitted Emmanuel Lubangule
Ndele for participation in an insurrectional
movement.
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ITURI DISTRICT131
RP
071/09,
009/010
and
074/010
RMP 885/
EAM/08
RMP
1141/
LZA/010
RMP
1219/
LZA/010
RMP
1238/
LZA/010
Kakado case
Kakado
Barnaba Yonga
Tshopena
5 September
2002
Bahiti, Tscheletshel
and Tsheyi,
Nyakunde
groupement,
Loy Banigaga,
Chini Ya Kilima
groupement,
Sidabo groupement,
Marabo
Musedzo groupement
and Mayaribo
groupement,
Andisonma Chefferie
and Mobala
Chefferie,
Nyakunde, Ituri
On 5 September 2002, Ngiti
Force de Résistance patriotique
de l’Ituri (FRPI) militiamen
launched an attack called “Operation
Polio” at 9 a.m. This
attack was launched with the
agreement of Kakado Barnaba
Yonga Tshopena, under the
command of Kandro Ndekote,
Cobra Matata, and Faustin Paluku.
Militiamen came from four
different directions – from Songola,
Bavi, Tsheyi, and Baitilooting.
They destroyed and burning
buildings and infrastructure
in 28 localities on their way
towards Nyankunde center, and
committed killings and rapes.
In the groupements of Loy
Banigaga, Chini Ya Kilima, and
Sibado, 949 civilians were killed.
In the groupements of Marabo
Musedzo and Mayaribo, 260
civilians were killed. Following
this attack, the FRPI occupied
the area for 15 months, until 4
December 2003.132
This attack was retaliation
against the population that
FRPI accused of complicity
with the Union des Patriotes
Congolais (UPC).133 It was
followed by occupation of
Nyakunde for 15 months.
Between 2002 and 2007, the
FRPI committed a series of
crimes against the population.
Kakado Barnaba is part of
the tribal militia of Ngiti
combatants. He subsequently
became a member of an armed
politico-military called FRPI,
of which he became the supreme
leader.
Registration at AMG Bunia: 11 November
2009.
Arrest: Kakado Barnaba Yonga Tshopena
arrested on 5 August 2007.
Registration at the MGT Bunia: 12
January 2010.
Charges: Participation in an insurrectional
movement, war crimes of murder,
attack against civilians, attack against
protected property, pillage, rape, cruel
and inhumane treatment, attacks against
undefended towns, other inhumane acts,
and sexual slavery.
Trial: Commenced 18 January 2010.
Joinder of cases: The MGT joined
the cases on 5 February 2010 (RP No
071/09 and 009/010, RNP RMP No
885/EAM/08 and 1141/LZA/010).
Civil parties: Only 12 civil parties;134
with 1309 victims of murder identified.
135
Verdict and sentence: On 9 July 2010,
MGT Bunia sentenced Kakado Barnaba
Yonga Tshopena to life in prison for
insurrection, war crimes of murder,
rape, sexual slavery, other inhumane
treatments, attacks against undefended
towns, pillage, attacks against protected
properties, and attacks against civilians.
He was convicted as a “superior” under
art. 28 of the Rome Statute.136
Appeal: Kakado Barnaba Yonga Tshopena
appealed the MGT Bunia’s decision,
but died before it was taken further.
ASF: Legal assistance to
victims.
RP 175/12
RMP
1699/
MML/012
RMP
1699/
KNG/12
RMP 1703/
KNG/
12137
Cobra Matata
case
Irizo Muzungu
Barakiseni and
Baluku Utugba
Bahati
20 June 2011-20
May 2012
Mangava,
Singo, Tcheyi,
Tchekele, Ovusoni,
Matse,
Nyakeke, Ngida,
Kelegpese, Bavi,
Walendu-Bindi,
Avebu, Kelekpese,
Talolo,
Kasomaka, Be
tho, Bute, Kato-
Between July 2011 and April
2012, Cobra Matata militiamen
and militiamen associated
with Front populaire pour
la justice au Congo (FPJC)
and FRPI launched a series
of attacks against the civilian
population in Irumu territory.
Militiamen committed murders,
rapes, pillage, and burned
down 50 houses.
Registration at the AMG Bunia: 15
March 2012.
Accused:
• Irizo Muzungu Barakiseni and Baluku
Utugba Bahati (RMP 1699/KNG/12);
• Masumbuko Kazi (RMP 1703/
KNG/12).
Arrest: On 4 March 2012 at État Major
Safisha. Provisional arrest warrant (including
charges) issued on 19 March 2012.
MONUSCO: Punctual
recommendations; two
investigations; one
mobile trial.139
UNDP: Logistical and
material support for
the trial.
ASF: Legal assistance to
witnesses and victims.
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www.ictj.org
rogo, Nginda,
Talolo, Badjanga,
Katorogo, Boninga,
Kalibugongo,
Tangamatafu,
Irumu territory,
Ituri district
Charges: Participation in an insurrectional
movement and possession of
armed weapons and ammunition. The
allegations, however, were described as
war crimes in the referral decision (26
October 2010)138 and in the support
request sent by AMS to the PSC (support
request letter No AMG/ITI/0124/
D8a/12, dated 28 August 2012)
Investigations:
• 150 victims and 120 witnesses were
identified during the investigations.
• From 17 to 18 May 2012, an investigatin
was undertaken in South Irumu
of severe crimes committed between
4 March and 10 May 2012 by Cobra
Matata and his troops. Twenty-four victims
were interviewed.
• Investigations were subsequently suspended
for security reasons.
Trial:
• On 4 February 2013, the AMG of
Bunia suspended the prosecution against
Cobra Matata, in the name of peace, as
the militia leader had expressed his willingness
to integrate into FARDC under
the rank of general.
• The trial, however, resumed on 18
April 2014.
RPA
274/013
RP
153/012
RMP
1818/
KNG/13
(against the
accused:
(1) Moussa
Oredi,
(2)
Mumbere
Makasi,
(3) Gaston
Awawungo,
(4) Delphin
Mumbere
Mulimirwa,
alias Le
Blanc,
(5) Kambale
Kahese,
(6) Mumbere
Sumbadede,
Morgan/Epulu
Reserve Carnage/
Mambasa
I case
Moussa Oredi,
Mumbere
Makasi, Gaston
Awawungo,
Delphin
Mumbere
Mulimirwa,
alias Le Blanc,
Kambale Kahese,
Mumbere
Sumbadede,
and Sébastien
Katembo Mukandirwa
Paul Sadala,
alias Morgan,
et al.
24-25 June 2012
Mambasa,
Lubero and
Bafwasende territories,
Ituri
On 10 March 2012, the Mai-
Mai Morgan militia launched
an attack against the civilian
population of Pangoyi in
Mambasa territory. Another
attack was launched against the
population of Epulu, Mambasa
territory, at about 5am on the
morning of 25 June 2012. The
perpetrators committed murder,
rape, and pillage.140
Several attacks have involved
the Mai-Mai Morgan militia
under the command of Paul
Sadala. Paul Sadala, alias Morgan,
is a poacher operating
in the territories of Mambasa
Lubero and Bafwasende, Province
Orientale. In 2012, he
launched violent attacks against
FARDC and the Institut Congolais
pour la conservation de
la nature (ICCN) while committing
violations against the
population, including mass rape
and subjugation of prisoners
into sexual slavery.141 Between 1
and 5 November 2012, members
of Mai Mai Morgan alleg
edly committed 150 rapes and
sexual mutilations.142
Registration at the AMG Bunia: 3 July
2012.
Arrest: On 29 June 2012. Provisional arrest
(including charges) on 3 July 2012.
Transferal: on 11 December 2012 it was
transferred to MGT Bunia from AMG Bunia.
Charges: (for referral decision RP153)
Participation in an insurrectional movement,
possession of weapons of war and
ammunitions, war crimes by rape, pillage,
murder, population displacement, enslavement,
persecution of a group, destruction
of fauna and flora, soil and sub-soil, and
destruction of cultural patrimony.143
Registration at the MGT Bunia: 11 August
2012 (RP153/012) and 18 October
2012 (RP155/012).
Trial: Commenced 15 November 2012
(the trial start date had been fixed for 9
November 2012).
Civil parties: 66 at trial and 30 at the
Appeal.
Accused:
• RP153: (1) Moussa Oredi, (2) Mumbere
Makasi, (3) Gaston Awawungo,
UNJHRO, PSC and
UNDP: Logistical
and financial support,
advice and recommendations.
Also supported
investigation missions
and the mobile court.
ASF: Legal assistance to
victims.
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International Center The Accountability Landscape in Eastern DRC
for Transitional Justice
(7)
Sébastien
Katembo
Mukandirwa)
RP
155/012
RMP
1915/
KNG/12
(against
Paul Sadala,
alias
Morgan)
(4) Delphin Mumbere Mulimirwa,
alias Le Blanc, (5) Kambale Kahese, (6)
Mumbere Sumbadede, and (7) Sébastien
Katembo Mukandirwa;
• RP 155: Morgan Sadala.
Charges (revised): After revisions during
the trial for RP153 by MGT Bunia,
charges were amended to participation
in an insurrectional movement, crimes
against humanity by rape, other forms of
sexual violence, pillage, murder, illegal
displacement of population, extermination,
imprisonment or other severe
deprivation of physical liberty, torture,
enslavement, persecution of a group, enforced
disappearance, severe destruction
of fauna and flora, soil and sub-soil, and
destruction of cultural patrimony.144
Verdict and sentence:
RP 155: on 28 November 2012, MGT
Bunia declared itself to not be seized by
the Morgan Case (RP 155/2012). Morgan
Sadala had died on 14 April 2014,
two days after his rendition to FARDC
under obscure circumstances.145 AMS
Bunia announced an investigation into
the circumstance of his death.146
RP 153: MGT Bunia delivered the following
verdict on 28 November 2012:
• (1) Moussa Oredi convicted and sentenced
to 20 years’ imprisonment for illegal possession
of war weapons and ammunitions;
• (2) Delphin Mumbere Mulimirwa and
(3) Kambale Kahese convicted and sentenced
to life imprisonment for participation
in an insurrectional movement, and
for all charges of crimes against humanity;
• MGT Bunia found (4) Sébastien
Katembo Mukandirwa and (5) Mumbere
Makasi not guilty of participation in an
insurrectional movement and crimes
against humanity;
• Declared itself to not be seized of the
case of (6) Mumbere Makasi;
• Closed the case of (7) Gaston
Awawungo, following his death and
• MGT Bunia ordered all those convicted,
jointly with the state, to pay 100,000
CDF to each civil party.
Appeal: CMS Kinsangani upheld all
provisions of the first instance case.
-
RPA
341/14
RP 246/13
RMP
2030/
KNG/012
Mambasa II
case
Paul Sadala,
alias Morgan,
Papy Masumbuko,
Philipo
Tegere, Mun
5-9 January 2013
Itembo, Pangoyi
and Masikini,
Mambasa territory,
Ituri District.
Between 5 and 9 January
2014, on Mambasa territory,
Mai Mai Simba members,
commanded by Paul Sadala,
alias Morgan, organized and
launched an attack against the
civilian population of Mambasa.
Murder, rape,
Registration at the AMG Bunia: (date
not available).
Arrest: (date not available).
Transfer: sent from AMG Bunia to MGT
Bunia on 19 August 2013.
UNDP and PSC:
logistical support and
punctual recommendations.
ASF: legal assistance to
victims.
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bere Emmanuel,
Katembo
Mastaki, et al.
looting, and expulsion of
the civilian population were
committed.
In June 2012, Mai-Mai Simba
launched an attack against the
population of the Okapi Fauna
Reserve, of Elota, Kalemi,
Mandima, Masikini, Mandulu,
Maroc, Endjewe, Zalana
Bangu, and Bandengaido, on
their way to Epulu. The Mai
Mai Simba committed pillage
in various locations, displaced
populations, committed rape,
torture, and murder of civilians,
including killing of Okapis
and burning people alive.
On 2 November 2012, carriers
went through Masikini, Pakwa,
and Kalemie before regaining
Pangoy-Itembo.
In Pangoy-Itembo, there
were 559 victims identified,
including 28 victims of pillage,
five victims of rape, two
victims of deportation, one
victim of torture. In the village
of Masikini, there were
40 victims of pillage and three
victims of rape. In the village
of Mabukusu, there were 34
victims of pillage, five victims
of rape, and four victims of
deportation. In the village of
Mambasa Center, there were
23 victims of pillage and one
victim of murder. In Bandikalo,
there were 12 victims of
pillage, two victims of rape,
one victim of murder, and 12
victims of deportation. There
were four pillage victim in
Badisende. There were also
85 pillage victims, seven rape
victims, and four deportation
victims in the PK 47 and
PK 51 localities. Finally, in
Badengayido, there were ten
victims of pillage and eight
victims of rape.
Registration at the MGT Bunia: 18
October 2013.
Accused: (1) Paul Sadala, alias Morgan,
(2) Papy Masumbuko, (3) Philipo
Tegere, (4) Munbere Emmanuel, (5)
Katembo Mastaki, (6) Kasereka Kashapo,
(7) Gaston Mahamba, (8) Mussa Djeff,
(9) Gabriel Asobe, (10) Adoul Kombe,
(11) Djafari Bendera, (12) Jacques
Manvota Taduma, (13) Alphonse
Matantu Manvota, (14) Dieudonné
Aduma, (15) Musavuli Kantshura, (16)
Mathieu Paluku, (17) Masika Kavira,
(18) Albertine Paluku, (19) Ivio Ivio
Milimomwana, (20) Elua Sengi, (21)
Basomaka Abundu, (22) Désiré Mbula,
and (23) Kazadi Mutombo.
Arrest: following the attack, 23
members of Mai Mai Simba were
captured by the FARDC and delivered
to judicial authorities.
Civil parties: 451, including 6
minors (even though 559 victims were
identified).
Trial: Commenced 1 March 2014 (start
date set on 28 February 2014).
Verdict and sentence: on 16 April
2014, MGT Bunia determined the
following:
• Convictions for (1) Masika Kavira,
(2) Dieudonné Adouma, (3) Matthieu
Paluku, (4) Elya Sengi, (5) Basomaka
Abundu, (6) Kasereka Kashapo, (7)
Alphonse Mantatu, (8) Musamvuli
Kantshura, (9) Mamvota Taduma,
(10) Gabriel Asobe, (11) Désiré Tika,
(12) Kazadi Mutombo, and (13)
Musa Djeffto. All sentenced to life
imprisonment for war crimes of pillage,
crimes against humanity of rape,
deportation, and torture;
• Declaration that investigations should
be made to arrest (14) Désiré Mbula;
• Acquittal, on all charges, for (15)
Albertine Paluku, (16) Djafari Bendera,
(17) Emmanuel Mumbere, (18) Abdoul
Kombe, (19) Ivio Ivio Molimomwana,
and (20) Papy Masumbuko;
• Declaration of the end of proceedings
against (7) Gaston Mahamba, following
his death;
• Order that all persons convicted pay
the respective amounts claimed by all
civil parties individually.
Appeal: the 14 individuals convicted
requested an appeal. The appeal is to be
organized in a mobile court in Mambasa,
subject to support from partners.
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for Transitional Justice
RP
347/2014
RMP
2611/
KNG/
2014
Morgan case
Fiston Mohindo
Kakome
Same facts as for the Mambasa
II case (RP 246).147
Registration at the MGT Bunia: 17
September 2014.
Accused: Fiston Mohindo Kakome.
Charges: crimes against humanity.
RMP
2456/
KNG/013
Sud Irumu
FARDC case
Lt. Col. Simon
Boande Belinga,
Maj. Golf
Terengbana
Moyanzi, Capt.
Foudre Grégoire
Batafe,
et al.
September-December
2013
Walendu, Bindi,
Ituri Distict.
Violations were committed
in Geti between August and
September 2013, and again in
December 2014, during the
military operations against the
FRPI of Cobra Matata. The
former 807th regiment (which
then became the 407th regiment)
killed ten individuals at
the hospital, and then they also
pillaged the Walendu-Bindi
collectivity.
Registration at the AMG Bunia: 2
January 2014.
Investigations: An AMG Bunia investigation
from 6 to 11 January 2011, and
an AMS Oriental Province investigation
from 15 to 30 July 2014.
Transfer: Date unknown for
transfer from AMG Bunia to AMS Kisangani.
Accused and arrests:
• 1) Lt. Col. Simon Boande Belinga
arrested 20 December 2014; provisional
arrest warrant, including charges, 23
January 2014;
• 2) Maj. Golf Terengbana Moyanzi,
provisional arrest warrant, including
charges, 23 January 2014;
• 3) Capt. Foudre Grégoire Batafe arrested
11 September 2014; provisional
arrest warrant, including charges, 9 October
2014;
• 4) Capt. Musafiri Kalinda Kandolo
arrested 15 January 2014; provisional
arrest warrant, including charges, 23
January 2014;
• 5) First Sgt. Mbiombio Yota arrested
18 January 2014; provisional arrest
warrant, including charges, 21 January
2014;
• 6) Sgt. Eyamba Ayembe arrested 19
January 2014; provisional arrest warrant,
including charges, 21 January 2014;
• 7) Capt. Salumu Saliboko, arrested 18
January 2014; provisional arrest warrant,
including charges, 22 January 2014;
• 8) Lt. Mpiana Mukungu arrested 10
January 2014; provisional arrest warrant,
including charges, 22 January 2014;
• 9) Sgt. Kabwela Mutombo arrested 10
January 2014; provisional arrest warrant,
including charges, 15 January 2014;
• 10) Capt. Swedi Mwinyi Longo arrested
19 January 2014; provisional
arrest warrant, including charges, 23
January 2014;
• 11) Sub. Lt. Kaninda Twite arrested 9
January 2014; provisional arrest warrant,
including charges, 23 January 2014;
• 12) Sgt. Alfano Assumani arrested 10
January 2014; provisional arrest warrant,
including charges, 23 January 2014;
• 13) Sgt. Bakateya Kicha arrested 10
January 2014; provisional arrest warrant,
PSC: Technical support
on investigation
techniques and planning,
logistical support,
transport, and equipment.
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including charges, 24 January 2014;
• 14) Cpl. Ramazani Kitoko arrested 25
January 2014; provisional arrest warrant,
including charges, 7 February 2014;
• 15) Capt. Tshibangu Wathibangu
arrested 14 January 2014; provisional
arrest warrant, including charges, 23
January 2014;
• 16) First Sgt. Maj. Mboyo Elima
Janvier arrested 10 January 2014; provisional
arrest warrant, including charges,
15 January 2014;
• 17) Adj. Lomboto Mboyo arrested 26
January 2014; provisional arrest warrant,
including charges, 22 March 2014;
• 18) Lt. Vasongia Kavokwa Patrick,
• 19) Mogbolu Mongamba,
• 20) Voloyo Adama,
• 21) Paluku Muhima, and
• 22) Yula Dimandja arrested 2 August
2014; provisional arrest warrant, including
charges, 15 August 2014; and
• 23) Kalikililo Morota arrested 2 August
2014; provisional arrest warrant,
including charges, 30 September 2014.
Charges: War crimes by murder, pillage,
rape, and arbitrary arrest
RMP
2778/
YBK/014
FRPI of Cobra
Matata case
Registration date: 9 March 2012.
Arrest: on 4 January 2015; provisional
arrest warrant, including charges, 4 January
2015.
Investigations: Commenced March
2012. During a mission between 18
September and 3 October 2014, 474
victims (239 men, 233 women, and two
children) were interviewed. Twelve witnesses
were also interviewed.
Charges: War crimes of murder, pillage,
rape, and child recruitment, crimes
against humanity, constitution of an
insurrectional movement, desertion with
war weapons, and an evasion attempt.
Transfer: Transferred to Auditorat Général
of FARDC on 6 January 2015.
UNJHRO, PSC, and
UNDP: Logistical and
financial support, and
punctual recommendations.
ASF: Lgal assistance to
victims.
End Notes
1. Name by which the case is commonly known in the judicial sector. It is usually either the name of the place where crimes
were committed, the name of the accused, or the name of the armed group involved in the crimes.
2. Th ere were two additional serious crimes cases initiated before the military jurisdiction of South Kivu that were not included
in this table due to insuffi cient information about the context and nature of the crimes committed: AMS SK, Col. Gwigwi Busogi,
et al. (Jun. 5, 2013), RMP 1473/BKL/13 [“Gwigwi case”]; and AMS SK, Lt. Col. Maro Ntumwa, (Aug. 11, 2014), RMP 1539/
BKL/2014 [“Maro case”].
3. Interview with judicial actors involved in the process.
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4. AMS SK registry; U.N. Joint Human Rights Offi ce, “Progress and Obstacles in the Fight against Impunity for Sexual Violence
in the Democratic Republic of the Congo” (2014), para. 41; U.N. General Assembly and Human Rights Council, “Report of the
United Nations High Commissioner for Human Rights on the situation of human rights and the activities of her Offi ce in the
Democratic Republic of the Congo,” U.N. Doc. A/HRC/24/33 (Human Rights Council, 24th session, Jul. 12, 2013), para. 50;
U.N. Security Council, “Report of the Secretary-General on the United Nations Organization Stabilization Mission in the Democratic
Republic of the Congo,” U.N. Doc. S/2013/388 (Jun. 28, 2013), para. 47.
5. See referral decision transferring the case to CMS SK.
6. Th ere is some uncertainty as to the accuracy of this date. Th e referral decision and the appeal decision refer to events of 18 August
2009, however, the prosecutor referred to 8 August 2009 during the trial. See MC SK, MGT Bukavu, First Sgt. Christophe Kamona
Manda, et al. (Oct. 30, 2010; Nov. 17, 2011), RPA 180, RP 0132/10, RMP 0933/KMC/10 (Trial), RMP 0802/BMN/010 (Appeal)
[“Mulenge/Lemera case”]. In the trial decision: “Surtout que dans son réquisitoire du 19 octobre 2010, le Ministère public requiert des
peines pour les faits commis le 08 août 2009 et non le 18 août 2009 comme contenu dans ses décisions de renvoi, faits autres que ceux
dont chacun des prévenus est poursuivi. […] En plus quant à la date de commission des faits, le juge est saisi des faits et non de la date,
peu importe qu’il s’agisse du 08 ou 18 août 2009, l’essentiel est que c’était à une date non encore couverte par le délai légal de la prescription”;
and in the appeal decision: “La Cour constate que toutes les pièces du dossier (D.R, citation, PV des auditions des parties civiles
et des témoins, certifi cats médicaux correspond offi cielles et jugement a quo) indiquent la date du 18/08/2009 comme celle des faits.
Le réquisitoire du ministère public, qui n’est pas l’aveu du juge, a repris une date, celle du 8/08/2009. Pour la Cour il s’agit d’une erreur
matérielle parce que les faits sont été instants devant le premier juge comme ayant été commis le 18, date reprise dans tous les exploits.”
7. MC SK, MGT Bukavu, First Sgt. Christophe Kamona Manda, et al. (Oct. 30, 2010; Nov. 17, 2011), RPA 180, RP 0132/10,
RMP 0933/KMC/10 (Trial), RMP 0802/BMN/010 (Appeal) [“Mulenge/Lemera case”].
8. MC SK, MGT Bukavu, First Sgt. Christophe Kamona Manda, et al. (Oct. 30, 2010; Nov. 17, 2011), RPA 180, RP 0132/10,
RMP 0933/KMC/10 (Trial), RMP 0802/BMN/010 (Appeal) [“Mulenge/Lemera case”].
9. MC SK, MGT Bukavu, First Sgt. Christophe Kamona Manda, et al. (Oct. 30, 2010; Nov. 17, 2011), RPA 180, RP 0132/10,
RMP 0933/KMC/10 (Trial), RMP 0802/BMN/010 (Appeal) [“Mulenge/Lemera case”]; Avocats Sans Frontières, “Recueil de Jurisprudence
Congolaise en Matière de Crimes Internationaux: Edition Critique” (2013), 65-67, 91-92.
10. MC SK, MGT Bukavu, First Sgt. Christophe Kamona Manda, et al. (Oct. 30, 2010; Nov. 17, 2011), RPA 180, RP 0132/10,
RMP 0933/KMC/10 (Trial), RMP 0802/BMN/010 (Appeal) [“Mulenge/Lemera case”].
11. MC SK, MGT Bukavu, First Sgt. Christophe Kamona Manda, et al. (Oct. 30, 2010; Nov. 17, 2011), RPA 180, RP 0132/10,
RMP 0933/KMC/10 (Trial), RMP 0802/BMN/010 (Appeal) [“Mulenge/Lemera case”].
12. See MC SK, MGT Bukavu, First Sgt. Christophe Kamona Manda, et al. (Oct. 30, 2010; Nov. 17, 2011), RPA 180, RP
0132/10, RMP 0933/KMC/10 (Trial), RMP 0802/BMN/010 (Appeal) [“Mulenge/Lemera case”]; Avocats Sans Frontières, “Recueil
de Jurisprudence Congolaise en Matière de Crimes Internationaux: Edition Critique” (2013), 82.
13. See MC SK, MGT Bukavu, First Sgt. Christophe Kamona Manda, et al. (Oct. 30, 2010; Nov. 17, 2011), RPA 180, RP
0132/10, RMP 0933/KMC/10 (Trial), RMP 0802/BMN/010 (Appeal) [“Mulenge/Lemera case”]; MC SK, Lt. Col. Balumisa
Manasse, et al. (Mar. 9, 2011), RP 038, RMP 1427/NGG/2009, RMP 1280/MTL/09 [“Balumisa case”]; Avocats Sans Frontières,
“Recueil de Jurisprudence Congolaise en Matière de Crimes Internationaux: Edition Critique” (2013), 96.
14. MC SK, MGT Bukavu, First Sgt. Christophe Kamona Manda, et al. (Oct. 30, 2010; Nov. 17, 2011), RPA 180, RP 0132/10,
RMP 0933/KMC/10 (Trial), RMP 0802/BMN/010 (Appeal) [“Mulenge/Lemera case”].
15. See MC SK, Lt. Col. Balumisa Manasse, et al. (Mar. 9, 2011), RP 038, RMP 1427/NGG/2009, RMP 1280/MTL/09 [“Balumisa
case”].
16. “Pour ces deux dernières infractions, à savoir l’enlèvement d’un enfant de quatre mois et les destructions des écoles, le
Ministère Public ainsi que les parties civiles ont, in limine litis, sollicité de cette Cour qu’elles soient poursuivies en tant que crime
contre l’humanité par autres actes inhumains de caractère analogue commis dans le cadre d’une attaque généralisée lancée contre
la population civile, prévu et puni par les articles 7, para. 1, litera k et 77 du Statut de Rome de la Cour Pénale Internationale.”
See MC SK, Lt. Col. Balumisa Manasse, et al. (Mar. 9, 2011), RP 038, RMP 1427/NGG/2009, RMP 1280/MTL/09 [“Balumisa
case”].
17. Th e date of the referral decision of AMS Bukavu is noted as 31 August 2010. See MC SK, Lt. Col. Balumisa Manasse, et al.
(Mar. 9, 2011), RP 038, RMP 1427/NGG/2009, RMP 1280/MTL/09 [“Balumisa case”].
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18. MC SK, Lt. Col. Balumisa Manasse, et al. (Mar. 9, 2011), RP 038, RMP 1427/NGG/2009, RMP 1280/MTL/09 [“Balumisa
case”].
19. MC SK, MGT Bukavu, Sub. Lt. Kabala Mandumba, Emmanuel Ndahisaba and Donat Kasereka (Oct. 15, 2012; Oct. 20,
2013), RP 708/12, RMP 1868/TBK/KMC/1012 (Trial), RPA 230, RMP 1868/KMC/11 (Appeal) [“Mupoke Market case”].
20. MC SK, MGT Bukavu, Sub. Lt. Kabala Mandumba, Emmanuel Ndahisaba and Donat Kasereka (Oct. 15, 2012; Oct. 20,
2013), RP 708/12, RMP 1868/TBK/KMC/1012 (Trial), RPA 230, RMP 1868/KMC/11 (Appeal) [“Mupoke Market case”].
21. See MC SK, Sub. Lt. Kabala Mandumba, Emmanuel Ndahisaba and Donat Kasereka (Oct. 15, 2013; Oct. 20, 2013), RP
708/12, RMP 1868/TBK/KMC/1012 (Trial), RPA 230, RMP 1868/KMC/11 (Appeal) [“Mupoke Market case”]; Avocats Sans
Frontières, “Recueil de Jurisprudence Congolaise en Matière de Crimes Internationaux: Edition Critique” (2013), 197-198.
22. Avocats Sans Frontières, “Recueil de Jurisprudence Congolaise en Matière de Crimes Internationaux: Edition Critique”
(2013), 225-227.
23. MC SK, MGT Bukavu, Sub. Lt. Kabala Mandumba, Emmanuel Ndahisaba and Donat Kasereka (Oct. 15, 2012; Oct. 20,
2013), RP 708/12, RMP 1868/TBK/KMC/1012 (Trial), RPA 230, RMP 1868/KMC/11 (Appeal) [“Mupoke Market case”].
24. Ibid. It should be noted, however, that the provisional arrest warrant only included charges of violation of orders, violence
against the population, pillage, rape, and aggravated assault and injury.
25. Ibid.
26. Ibid.
27. MC SK, MGT Bukavu, Sub. Lt. Kabala Mandumba, Emmanuel Ndahisaba and Donat Kasereka (Oct. 15, 2012; Oct. 20,
2013), RP 708/12, RMP 1868/TBK/KMC/1012 (Trial), RPA 230, RMP 1868/KMC/11 (Appeal) [“Mupoke Market case”]; Avocats
Sans Frontières, “Recueil de Jurisprudence Congolaise en Matière de Crimes Internationaux: Edition Critique” (2013), 228.
28. U.N. Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO), “Répertoire des Jugements
en Audiences Foraines du Sud Kivu en 2012” (2012).
29. Interview with the Secretary of the AMS; Avocats Sans Frontières, “Tableau de suivi des dossiers: crimes internationaux,”
(YEAR).
30. Human Rights Watch, “Ending Impunity for Sexual Violence: New Judicial Mechanism Needed to Bring Perpetrators to
Justice” (2014), 8, www.hrw.org/sites/default/fi les/related_material/DRC0614_briefi ngpaper_brochure%20coverJune%209%20
2014.pdf
31. MC SK, Lt. Col. Daniel Kibibi Mutuare, et al. (Feb. 21, 2011), RP 043/11, RMP 1337/MTL/2011 [“Fizi I/Baraka case”].
32. MC SK, Lt. Col. Daniel Kibibi Mutuare, et al. (Feb. 21, 2011), RP 043/11, RMP 1337/MTL/2011 [“Fizi I/Baraka case”].
33. MC SK, Lt. Col. Daniel Kibibi Mutuare, et al. (Feb. 21, 2011), RP 043/11, RMP 1337/MTL/2011 [“Fizi I/Baraka case”].
34. See MC SK, Lt. Col. Daniel Kibibi Mutuare, et al. (Feb. 21, 2011), RP 043/11, RMP 1337/MTL/2011 [“Fizi I/Baraka
case”].
35. U.N. Security Council, “Report of the Secretary-General on the United Nations Organization Stabilization Mission in the
Democratic Republic of the Congo,” U.N. Doc. S/2011/298 (May 12, 2011), para. 12.
36. U.N. Joint Human Rights Offi ce, “Progress and Obstacles in the Fight against Impunity for Sexual Violence in the Democratic
Republic of the Congo” (2014), para. 31.
37. U.N. Security Council, “Letter dated 29 November 2011 from the Chair of the Security Council Committee established
pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo addressed to the President of the Security
Council,” U.N. Doc. S/2011/738 (Dec. 2, 2011), para. 642.
38. U.N. Security Council, “Letter dated 29 November 2011 from the Chair of the Security Council Committee established
pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo addressed to the President of the Security
Council,” U.N. Doc. S/2011/738 (Dec. 2, 2011), para. 642; U.N. General Assembly and Human Rights Council, “Report of the
United Nations High Commissioner for Human Rights on the human rights situation and the activities of her Offi ce in the Democratic
Republic of the Congo,” U.N. Doc. A/HRC/19/48 (Human Rights Council, 19th session, Jan. 13, 2012), para. 59.
39. CSNU, fi nal report of the Group, prepared in pursuance of paragraph 5 of Security Council resolution 1952 (2010), UN
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Doc, S/2011/738, UN Doc., S/2011/738, 2 décembre 2011, para. 642, www.un.org/french/documents/view_doc.asp?symbol=S/20
11/738&TYPE=&referer=/french/&Lang=E
40. U.N. Security Council, “Letter dated 29 November 2011 from the Chair of the Security Council Committee established
pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo addressed to the President of the Security
Council,” U.N. Doc. S/2011/738 (Dec. 2, 2011), para. 642.
41. Ibid.
42. Ibid., para. 641.
43. U.N. Security Council, “Letter dated 29 November 2011 from the Chair of the Security Council Committee established
pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo addressed to the President of the Security
Council,” U.N. Doc. S/2011/738 (Dec. 2, 2011), para. 641.
44. U.N. Security Council, “Letter dated 29 November 2011 from the Chair of the Security Council Committee established
pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo addressed to the President of the Security
Council,” U.N. Doc. S/2011/738 (Dec. 2, 2011), para. 641.
45. U.N. Security Council, “Report of the Secretary-General on the United Nations Organization Stabilization Mission in the
Democratic Republic of the Congo,” U.N. Doc. S/2011/656 (Oct. 24, 2011), para. 44.
46. U.N. Security Council, “Letter dated 29 November 2011 from the Chair of the Security Council Committee established
pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo addressed to the President of the Security
Council,” U.N. Doc. S/2011/738 (Dec. 2, 2011), para. 641.
47. CSNU, fi nal report of the Group, prepared in pursuance of paragraph 5 of Security Council resolution 1952 (2010), UN
Doc, S/2011/738, UN Doc., S/2011/738, 2 décembre 2011, para. 157, www.un.org/french/documents/view_doc.asp?symbol=S/20
11/738&TYPE=&referer=/french/&Lang=E
48. U.N. Security Council, “Report of the Secretary-General on the United Nations Organization Stabilization Mission in the
Democratic Republic of the Congo,” U.N. Doc. S/2011/656 (Oct. 24, 2011), para. 44.
49. U.N. Security Council, “Report of the Secretary-General on the United Nations Organization Stabilization Mission in the
Democratic Republic of the Congo,” U.N. Doc. S/2010/512 (Oct. 8, 2010), para. 13.
50. See Letter No 0055/AMS/SK/2014 (Jan. 27, 2014).
51. Interview with Secretary of the AMS.
52. MC SK, Kyat Hend Dittman, et al. (Oct. 15, 2012), RP 036-039, RMP 1303/MTL/2010, 1308/MTL/2010 [“Kyat Hend
Dittman case”].
53. Ibid.
54. Th e decision (RP 036-039) refers to the list of accused as detailed in this Annex where the accused Wabula Kalenga, alias
Nadia, fi gures twice. Yet, Capitaine Abeli Biluma Dumbo, another accused should also fi gure on this list of 28 accused. It is apparently
a transcription error in the decision. Capitaine Abeli Biluma Dumbo was however acquitted by MC, as per the decision and
mentioned below.
55. MC SK, Kyat Hend Dittman, et al. (Oct. 15, 2012), RP 036-039, RMP 1303/MTL/2010, 1308/MTL/2010 [“Kyat Hend
Dittman case”].
56. See Human Rights Watch, “DR Congo: Army, UN Failed to Stop Massacre” (2014), www.hrw.org/news/2014/07/02/drcongo-
army-un-failed-stop-massacre
57. MC SK, MGT Bukavu, Jean Bosco Maniraguha, alias Kuzungu or Petit Bal, et al. (Aug. 16, 2011; Oct. 29, 2011), RP 275/09
and 521/10, RMP 581/TBK/07 and 1673/KMC/10 (Trial), RPA 0177 (Appeal) [“Kazungu case”].
58. Ibid.
59. Ibid.
60. Ibid.
61. As provided in information available the registry of MGT Bukavu.
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62. MC SK, MGT Bukavu, Jean Bosco Maniraguha, alias Kuzungu or Petit Bal, et al. (Aug. 16, 2011; Oct. 29, 2011), RP 275/09
and 521/10, RMP 581/TBK/07 and 1673/KMC/10 (Trial), RPA 0177 (Appeal) [“Kazungu case”].
63. Ibid.
64. Ibid.
65. Ibid.
66. Ibid.
67. Ibid.
68. As per the registry.
69. Information shared by judicial actor.
70. U.N. Security Council, “Report of the Secretary-General on the United Nations Organization Stabilization Mission in the
Democratic Republic of the Congo,” U.N. Doc. S/2012/65 (Jan. 26, 2012), para. 24.
71. U.N. Security Council, “Report of the Secretary-General on the United Nations Organization Stabilization Mission in the
Democratic Republic of the Congo,” U.N. Doc. S/2012/65 (Jan. 26, 2012); U.N. Security Council, “Report of the Secretary-General
on the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo,” U.N. Doc. S/2012/355
(May 23, 2012), para. 45.
72. U.N. Security Council, “Report of the Secretary-General on the United Nations Organization Stabilization Mission in the
Democratic Republic of the Congo,” U.N. Doc. S/2012/355 (May 23, 2012), para. 45.
73. Th ere were fi ve additional serious crimes cases initiated before the military jurisdiction of North Kivu that were not included
in this table due to confi dentiality matters, insuffi cient information about the context and nature of the crimes committed, or lack
of corroborated information on legal proceedings initiated: AMS OPS NK, Maj. Bwete Landu, et al. (Sept. 6, 2012), RMP 0155/
MLS/09 [“Kasuho Case”]; AMS OPS NK, unknown FARDC (no RMP available) [“Lukopfu/Kaniro, Masisi case”]; Confi dential
case; Kimia II case (jurisdiction and RMP not available); and AMG Beni NK, Mbau, Kamango, Watalinga, Beni territory, RMP
1405/HKK/014 [“Mbau, Kamango, Watalinga case”]. Also important to note is that in the case AMS OPS NK, Habarugira Rangira
Marcel, RMP 0407/BBM/2014 (Nyatura case) which was initially looking into charges of ordinary crimes (conspiracy, armed robbery,
looting) charges of child recruitment were added following the sharing of a report from the Child Protection Unit of MONUSCO
on 9 April 2015; information shared by judicial actors.
74. Human Rights Watch, “DR Congo: Hold Army to Account for War Crimes” (2009), www.hrw.org/news/2009/05/19/drcongo-
hold-army-account-war-crimes
75. Human Rights Watch, “DR Congo: Hold Army to Account for War Crimes” (2009), www.hrw.org/news/2009/05/19/drcongo-
hold-army-account-war-crimes
76. See U.N. Security Council, “Letter dated 29 November 2011 from the Chair of the Security Council Committee established
pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo addressed to the President of the Security
Council,” U.N. Doc. S/2011/738 (Dec. 2, 2011), para. 634.
77. U.N. Joint Human Rights Offi ce, “Report on the Investigation Missions of the United Nations Joint Human Rights Offi ce
into the Mass Rapes and Other Human Rights Violations Committed in the Villages of Bushani and Kalambahiro, in Masisi Territory,
North Kivu, on 31 December 2010 and 1 January 2011” (2011), para. 1.
78. U.N. Joint Human Rights Offi ce, “Report on the Investigation Missions of the United Nations Joint Human Rights Offi ce
into the Mass Rapes and Other Human Rights Violations Committed in the Villages of Bushani and Kalambahiro, in Masisi Territory,
North Kivu, on 31 December 2010 and 1 January 2011” (2011), para. 3, 20-23, 26; U.N. Security Council, “Report of the
Secretary-General on the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo,” U.N. Doc.
S/2011/298 (May 12, 2011), para. 44.
79. U.N. Joint Human Rights Offi ce, “Report on the Investigation Missions of the United Nations Joint Human Rights Offi ce
into the Mass Rapes and Other Human Rights Violations Committed in the Villages of Bushani and Kalambahiro, in Masisi Territory,
North Kivu, on 31 December 2010 and 1 January 2011” (2011), para. 3, 27-29.
80. Ibid., para. 8, 30-32, 636.
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81. Ibid., para. 44.
82. U.N. Joint Human Rights Offi ce, “Report on the Investigation Missions of the United Nations Joint Human Rights Offi ce
into the Mass Rapes and Other Human Rights Violations Committed in the Villages of Bushani and Kalambahiro, in Masisi Territory,
North Kivu, on 31 December 2010 and 1 January 2011” (2011); U.N. Security Council, “Report of the Secretary-General on
the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo,” U.N. Doc. S/2011/656 (Oct.
24, 2011), para. 46.
83. U.N. Security Council, “Letter dated 19 July 2013 from the Chair of the Security Council Committee established pursuant
to resolution 1533 (2004) concerning the Democratic Republic of the Congo addressed to the President of the Security Council,”
U.N. Doc. S/2013/433 (Jul. 19, 2013), para. 132.
84. U.N. Joint Human Rights Offi ce, “Progress and Obstacles in the Fight against Impunity for Sexual Violence in the Democratic
Republic of the Congo” (2014), para. 40.
85. See MC OPS, MOC NK, Aff aire Retrait des FARDC of Goma, Minova-Bweremana (May 5, 2014), RP 003/2013, RMP
0372/BBM/01 [“Bweremana–Minova case”].
86. Ibid.
87. Ibid.
88. CSNU, Report of the Secretary-General on the United Nations Organization Stabilization Mission in the Democratic Republic
of the Congo, UN Doc. S/2013/388, 21 June 2013, para. 43.
89. U.N. Security Council, “Report of the Secretary-General on the United Nations Organization Stabilization Mission in the
Democratic Republic of the Congo,” U.N. Doc. S/2013/388 (Jun. 28, 2013), para. 43.
90. U.N. Security Council, “Letter dated 19 July 2013 from the Chair of the Security Council Committee established pursuant
to resolution 1533 (2004) concerning the Democratic Republic of the Congo addressed to the President of the Security Council,”
U.N. Doc. S/2013/433 (Jul. 19, 2013), para. 121-124, 128.
91. Human Rights Watch, “Democratic Republic of Congo: UPR Submission September 2013” (2013 with 2014 update), www.
hrw.org/news/2013/09/24/democratic-republic-congo-upr-submission-september-2013
92. U.N. Security Council, “Report of the Secretary-General on the United Nations Organization Stabilization Mission in the
Democratic Republic of the Congo,” U.N. Doc. S/2013/388 (Jun. 28, 2013), para. 43; information shared by judicial actor; U.N.
Security Council, “Letter dated 19 July 2013 from the Chair of the Security Council Committee established pursuant to resolution
1533 (2004) concerning the Democratic Republic of the Congo addressed to the President of the Security Council,” U.N. Doc.
S/2013/433 (Jul. 19, 2013), para. 128.
93. Ibid., para. 122.
94. Information shared by judicial actor.
95. U.N. General Assembly and Human Rights Council, “Report of the United Nations High Commissioner for Human
Rights on the situation of human rights and the activities of her Offi ce in the Democratic Republic of the Congo,” U.N. Doc. A/
HRC/16/27 (Human Rights Council, 16th session, Jan. 10, 2011), para. 4.
96. Human Rights Watch, “DR Congo: Arrest Candidate Wanted for Mass Rape” (2011), www.hrw.org/news/2011/11/02/drcongo-
arrest-candidate-wanted-mass-rape
97. Human Rights Watch, “DR Congo: Arrest Candidate Wanted for Mass Rape” (2011), www.hrw.org/news/2011/11/02/
dr-congo-arrest-candidate-wanted-mass-rape; U.N. Joint Human Rights Offi ce, “Final Report of the Fact-Finding Missions of the
United Nations Joint Human Rights Offi ce into the Mass Rapes and Other Human Rights Violations Committed by a Coalition
of Armed Groups Along the Kibua-Mpofi Axis in Walikale Territory, North Kivu, from 30 July to 2 August 2010” (2011), para. 25,
27-28.
98. U.N. Security Council, “Report of the Secretary-General on the United Nations Organization Stabilization Mission in the
Democratic Republic of the Congo,” U.N. Doc. S/2010/512 (Oct. 8, 2010), para. 8; U.N. Joint Human Rights Offi ce, “Final Report
of the Fact-Finding Missions of the United Nations Joint Human Rights Offi ce into the Mass Rapes and Other Human Rights
Violations Committed by a Coalition of Armed Groups Along the Kibua-Mpofi Axis in Walikale Territory, North Kivu, from 30
July to 2 August 2010” (2011), para. 30.
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99. U.N. Joint Human Rights Offi ce, “Final Report of the Fact-Finding Missions of the United Nations Joint Human Rights Offi
ce into the Mass Rapes and Other Human Rights Violations Committed by a Coalition of Armed Groups Along the Kibua-Mpofi
Axis in Walikale Territory, North Kivu, from 30 July to 2 August 2010” (2011), para. 31; see U.N. Joint Human Rights Offi ce,
“Progress and Obstacles in the Fight against Impunity for Sexual Violence in the Democratic Republic of the Congo” (2014), para.
37.
100. U.N. Joint Human Rights Offi ce, “Final Report of the Fact-Finding Missions of the United Nations Joint Human Rights Offi
ce into the Mass Rapes and Other Human Rights Violations Committed by a Coalition of Armed Groups Along the Kibua-Mpofi
Axis in Walikale Territory, North Kivu, from 30 July to 2 August 2010” (2011), para. 32.
101. Ibid., para. 18-24.
102. Ibid., para. 18-19.
103. Ibid., para. 26.
104. MC OPS NK, Lt. Col. Mayele, et al., RP 055/2011, RMP 0223/MLS/10 [“Kibua–Mpofi /Walikale case”]; U.N. Security
Council, “Report of the Secretary-General on the United Nations Organization Stabilization Mission in the Democratic Republic of
the Congo,” U.N. Doc. S/2010/512 (Oct. 8, 2010), para. 10.
105. U.N. Joint Human Rights Offi ce, “Progress and Obstacles in the Fight against Impunity for Sexual Violence in the Democratic
Republic of the Congo” (2014), para. 37.
106. U.N. Joint Human Rights Offi ce, “Final Report of the Fact-Finding Missions of the United Nations Joint Human Rights Offi
ce into the Mass Rapes and Other Human Rights Violations Committed by a Coalition of Armed Groups Along the Kibua-Mpofi
Axis in Walikale Territory, North Kivu, from 30 July to 2 August 2010” (2011), para. 45.
107. MC OPS NK, Lt. Col. Mayele, et al., RP 055/2011, RMP 0223/MLS/10 [“Kibua–Mpofi /Walikale case”].
108. See U.N. Security Council, “Report of the Secretary-General on the United Nations Organization Stabilization Mission in the
Democratic Republic of the Congo,” U.N. Doc. S/2012/65 (Jan. 26, 2012), para. 50.
109. U.N. Joint Human Rights Offi ce, “Final Report of the Fact-Finding Missions of the United Nations Joint Human Rights Offi
ce into the Mass Rapes and Other Human Rights Violations Committed by a Coalition of Armed Groups Along the Kibua-Mpofi
Axis in Walikale Territory, North Kivu, from 30 July to 2 August 2010” (2011), para. 2-3.
110. Ibid.
111. U.N. Security Council, “Report of the Secretary-General on the United Nations Organization Stabilization Mission in the
Democratic Republic of the Congo,” U.N. Doc. S/2011/20 (Jan. 17, 2011), para. 63.
112. Ibid., para. 41.
113. As indicated in the investigation report of the AMO.
114. See U.N. Security Council, “Letter dated 29 November 2011 from the Chair of the Security Council Committee established
pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo addressed to the President of the Security
Council,” U.N. Doc. S/2011/738 (Dec. 2, 2011), para. 639.
115. U.N. Security Council, “Report of the Secretary-General on the United Nations Organization Stabilization Mission in the
Democratic Republic of the Congo,” U.N. Doc. S/2011/656 (Oct. 24, 2011), para. 42.
116. As per the AMO registry.
117. U.N. Security Council, “Letter dated 21 June 2012 from the Chair of the Security Council Committee established pursuant
to resolution 1533 (2004) concerning the Democratic Republic of the Congo addressed to the President of the Security Council,”
U.N. Doc. S/2012/348 (Jun. 21, 2012), para. 170.
118. U.N. Security Council, “Report of the Secretary-General on the United Nations Organization Stabilization Mission in the
Democratic Republic of the Congo,” U.N. Doc. S/2011/656 (Oct. 24, 2011), para. 42.
119. U.N. Joint Human Rights Offi ce, “Progress and Obstacles in the Fight against Impunity for Sexual Violence in the Democratic
Republic of the Congo” (2014), para. 39.
120. U.N. Security Council, “Letter dated 12 November 2012 from the Chair of the Security Council Committee established
pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo addressed to the President of the Security
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Council,” U.N. Doc. S/2012/843 (Nov. 15, 2012), para. 147; see Human Rights Watch, “DR Congo: War Crimes by M23, Congolese
Army” (2013), www.hrw.org/news/2013/02/05/dr-congo-war-crimes-m23-congolese-army
121. U.N. Security Council, “Letter dated 12 November 2012 from the Chair of the Security Council Committee established
pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo addressed to the President of the Security
Council,” U.N. Doc. S/2012/843 (Nov. 15, 2012), para. 151.
122. U.N. Security Council, “Letter dated 12 November 2012 from the Chair of the Security Council Committee established
pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo addressed to the President of the Security
Council,” U.N. Doc. S/2012/843 (Nov. 15, 2012), para. 153, 156; Human Rights Watch, “DR Congo: War Crimes by M23, Congolese
Army” (2013), www.hrw.org/news/2013/02/05/dr-congo-war-crimes-m23-congolese-army
123. Human Rights Watch, “RD Congo: Les rebelles du M23 commettent des crimes de guerre” (2012), www.hrw.org/fr/
news/2012/09/10/rd-congo-les-rebelles-du-m23-commettent-des-crimes-de-guerre
124. U.N. Security Council, “Letter dated 12 November 2012 from the Chair of the Security Council Committee established
pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo addressed to the President of the Security
Council,” U.N. Doc. S/2012/843 (Nov. 15, 2012), annex 56(A)(1)(b).
125. U.N. Security Council, “Letter dated 12 November 2012 from the Chair of the Security Council Committee established pursuant
to resolution 1533 (2004) concerning the Democratic Republic of the Congo addressed to the President of the Security Council,”
U.N. Doc. S/2012/843 (Nov. 15, 2012), annex 56(B)(2)(d); U.N. Joint Human Rights Offi ce, “Report of the United Nations Joint
Human Rights Offi ce on Human Rights Violations Perpetrated by Armed Groups During Attacks on Villages in Ufamandu I and II,
Nyamaboko I and II and Kibabi Groupements, Masisi Territory, North Kivu Province, Between April and September 2012” (2012).
126. U.N. Security Council, “Letter dated 12 November 2012 from the Chair of the Security Council Committee established
pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo addressed to the President of the Security
Council,” U.N. Doc. S/2012/843 (Nov. 15, 2012), para. 148, annex 56(B)(2)(e).
127. U.N. Security Council, “Letter dated 12 November 2012 from the Chair of the Security Council Committee established
pursuant to resolution 1533 (2004) concerning the Democratic Republic of the Congo addressed to the President of the Security
Council,” U.N. Doc. S/2012/843 (Nov. 15, 2012), 3, para. 148, annex 56(B)(2)(e), 166.
128. U.N. Security Council, “Report of the Secretary-General on the United Nations Organization Stabilization Mission in the
Democratic Republic of the Congo,” U.N. Doc. S/2012/838 (Nov. 14, 2012), para. 14.
129. Ibid., para. 51.
130. Based on information available in the AMO registry.
131. Th ere were two additional serious crimes cases initiated before the military jurisdiction of Ituri that were not included in this
table due to insuffi cient information about the context and nature of the crimes committed: AMG Ituri (Apr. 29, 2014), RMP 2542/
YBK/14; and AMG Ituri, Salumu bin Amisi (PNC Offi cer) and Lunzolo Mayitiki (civil) (Jun. 14, 2012), RMP 1810/KNG/12.
132. MGT Bunia, Kakado Barnaba Yonga Tshopena (Jul. 9, 2010), RP 071/09, 009/010 and 074/010, RMP 885/EAM/08, RMP
1141/LZA/010, RMP 1219/LZA/010, RMP 1238/LZA/010, para. 31-34 [“Kakado case”].
133. MGT Bunia, Kakado Barnaba Yonga Tshopena (Jul. 9, 2010), RP 071/09, 009/010 and 074/010, RMP 885/EAM/08, RMP
1141/LZA/010, RMP 1219/LZA/010, RMP 1238/LZA/010, para. 32-33 [“Kakado case”].
134. MGT Bunia, Kakado Barnaba Yonga Tshopena (Jul. 9, 2010), RP 071/09, 009/010 and 074/010, RMP 885/EAM/08, RMP
1141/LZA/010, RMP 1219/LZA/010, RMP 1238/LZA/010 [“Kakado case”].
135. Number of murder victims identifi ed in the Loy Banigaga groupement: Loy Batine village (23), Gambali village (18), Loy
Banigaga village (86), Nzarahohe village (18), Bubongo village (20), Kakaludza village (21), Nongo village (14), Nsingoma Talolo
village (25), Mbandi village (31), N’Singoma village (63), Ngobu village (35), Gambili village (67), Chekedele 1 village (20),
Chekedele 2 village (38), Ndete village (56), Hamado village (51), Balumbata village (34), Mboppo 1 village (21), Mboppo 2 village
(23); number of murder victims identifi ed in the ChiniYa Kilima groupement: Mudze village (40), Ndugu village (41), Malumbabo
village (9), Guna village (19), Babadu village (18), Nginda village (35), Rusa 1 village (40), Sezabo 1 village (82); number of murder
victims identifi ed in the Sibado groupement: Bagabila village (37); number of murder victims identifi ed in the Marabo Musedzo
groupement: Gangu 2 village (76), Lawa village (18), Bakoso village (43), Kpesa village (3), Kikale village (4), N’Kimba village
(39); and number of murder victims identifi ed in the Mayaribo groupement: Mambeso village (28), Kudaya Musedzo village (9);
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75
International Center The Accountability Landscape in Eastern DRC
for Transitional Justice
www.ictj.org
MGT Bunia, Kakado Barnaba Yonga Tshopena (Jul. 9, 2010), RP 071/09, 009/010 and 074/010, RMP 885/EAM/08, RMP 1141/
LZA/010, RMP 1219/LZA/010, RMP 1238/LZA/010, para. 22-61 [“Kakado case”].
136. MGT Bunia, Kakado Barnaba Yonga Tshopena (Jul. 9, 2010), RP 071/09, 009/010 and 074/010, RMP 885/EAM/08, RMP
1141/LZA/010, RMP 1219/LZA/010, RMP 1238/LZA/010, para. 135 [“Kakado case”]; see, generally, Avocats Sans Frontières,
“Recueil de Jurisprudence Congolaise en Matière de Crimes Internationaux: Edition Critique” (2013), 135-184.
137. Another fi le is dated from the end of 2011; the two cases were joined.
138. Interview with justice stakeholder.
139. Interviews with MONUSCO justice support section.
140. MC Kisangani, MGT Ituri, Moussa Oredi, Mumbere Makasi, Gaston Awawungo, Delphin Mumbere Mulimirwa, alias
Le Blanc, Kambale Kahese, Mumbere Sumbadede, and Sébastien Katembo Mukandirwa (Aug. 11, 2012; Nov. 28, 2012), RPA
274/013, RP 153/012, RMP 1818/KNG/13 [“Morgan/Epulu Reserve Carnage/Mambasa I case”].
141. U.N. Security Council, “Letter dated 19 July 2013 from the Chair of the Security Council Committee established pursuant
to resolution 1533 (2004) concerning the Democratic Republic of the Congo addressed to the President of the Security Council,”
U.N. Doc. S/2013/433 (Jul. 19, 2013), para. 76-78, 133-135.
142. U.N. Security Council, “Letter dated 19 July 2013 from the Chair of the Security Council Committee established pursuant
to resolution 1533 (2004) concerning the Democratic Republic of the Congo addressed to the President of the Security Council,”
U.N. Doc. S/2013/433 (Jul. 19, 2013), para. 133.
143. See MC Kisangani, MGT Ituri, Moussa Oredi, Mumbere Makasi, Gaston Awawungo, Delphin Mumbere Mulimirwa, alias
Le Blanc, Kambale Kahese, Mumbere Sumbadede, and Sébastien Katembo Mukandirwa (Aug. 11, 2012; Nov. 28, 2012), RPA
274/013, RP 153/012, RMP 1818/KNG/13, 1-7 [“Morgan/Epulu Reserve Carnage/Mambasa I case”].
144. MC Kisangani, MGT Ituri, Moussa Oredi, Mumbere Makasi, Gaston Awawungo, Delphin Mumbere Mulimirwa, alias
Le Blanc, Kambale Kahese, Mumbere Sumbadede, and Sébastien Katembo Mukandirwa (Aug. 11, 2012; Nov. 28, 2012), RPA
274/013, RP 153/012, RMP 1818/KNG/13, 17, 41-56 [“Morgan/Epulu Reserve Carnage/Mambasa I case”].
145. See Timo Mueller, “Th e Death of Rebel Leader Paul Sadala – Questions Remain,” Timo Mueller: Political Analysis on DRC
(July 15, 2014), http://muellertimo.com/2014/07/15/the-death-of-rebel-leader-paul-sadala…
146. Radio Okapi, “‘On nous a remis Paul Sadala déjà décédé’, precise la Monusco”, Radio Okapi (April 14, 2014), http://radiookapi.
net/actualite/2014/04/14/nous-remis-paul-sadala-deja-decede-precise-la-monusco/#.U4H_YpR5PUQ; Sonia Rolley, “RDC:
information judiciaire ouverte sur la mort du chef maï-maï Morgan”, RFI (April 29, 2014), www.rfi .fr/afrique/20140429-rdc-justice-
militaire-information-judiciaire-mort-morgan-sadala/
147. Fiston Mohindo Kakome was arrested along with the other defendants in the Mambasa II case (MC Kisangani, MGT Ituri,
Paul Sadala, alias Morgan, Papy Masumbuko, Philipo Tegere, Munbere Emmanuel, Katembo Mastaki, et al. (Apr. 16, 2014), RPA
341/14, RP 246/13, RMP 2030/KNG/012 [“Mambasa II case”]). However, authorities essentially forgot about him in prison at
the time of the trial of the other accused. He was not noticed until the AMG inspected the central prison and realized the situation.
Th us the AMG opened a separate case before MGT Ituri for this accused: MGT Ituri, Fiston Mohindo Kakome (Sept. 17, 2014),
RP 347/2014, RMP 2611/KNG/2014 [“Morgan case”].
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ICTJ Goma
Boulevard Kanyamuhanga N° 13
Quartier Les Volcans, Goma
Democratic Republic of the Congo
ICTJ New York
5 Hanover Square, 24th Fl.
New York, NY 10004
Tel +1 917 637 3800
Fax +1 917 637 3900
www.ictj.org
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ANNEX 7.4
Evaluation of the military damage suffered by the DRC armed forces and
caused by the Ugandan army and its allies, Kinshasa, 31 August 2016
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Evaluation of the military damage suffered by the DRC armed forces and caused by the Ugandan army and its allies, Kinshasa, 31 August 2016
[Translation]
No. Periods and regions Losses sustained
Men in the DRC armed forces § Unit value Evaluation
1 Pont de Télé (24 September 1998) 159 dead 2.45 US$18,913.00 US$3,007,167.00
2 Mindembo (October-December 1998) 202 dead 2.48 US$18,913.00 US$3,820,426.00
3 Mozamboli (November-December 1998) 40 dead 2.50 US$18,913.00 US$756,520.00
4 Pima (May 1999) major losses 2.51
5 Libanda (June 1999) several dozen victims 2.52
6 Libenge (August 2000) 300 dead 2.54 US$18,913.00 US$5,673,900.00
7 Ubangi (August 2000) 800 dead 2.55 US$18,913.00 US$15,130,400.00
Total deaths recorded 1,501 dead US$28,388,413.00
9 Estimated total number 2,000 dead US$37,826,000.00
Arms and munitions
1 May 1998, Pima 2 82mm mortars US$5,432.00 US$10,864.00
4 60mm mortars US$5,432.00 US$21,728.00
1 75mm gun US$13,000.00 US$13,000.00
4 machine guns US$400.00 US$1,600.00
10 rocket-launchers (estimate) US$900.00 US$9,000.00
2 November and December 1998, Mindembo 1 battle tank US$60,000.00 US$60,000.00
1 munitions truck destroyed US$40,000.00 US$40,000.00
3 June-July 1998, Gbadolite 400 tonnes equipment and munitions destroyed US$30,000.00 US$12,000,000.00
4 3 December 1998, Mindembo 1 tank and a munitions truck US$110,000.00 US$110,000.00
5 9 August 2000, Ubangi 8 trucks US$20,000.00 US$160,000.00
2 heavy artillery (75mm guns) US$13,000.00 US$26,000.00
100 Kalashnikovs US$400.00 US$40,000.00
500 AKM assault rifles US$500.00 US$250,000.00
800 tonnes munitions US$8,000,000.00
2 boats US$48,350,000.00
5 armoured jeeps US$65,000.00 US$325,000.00
US$ 69,417,192.00
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Cost of military equipment
No. Description Unit Unit price in
US$
Comments
1. ARMS
1 AKM assault rifle Piece 500
2 7.62 mm RPD machine gun Piece 400
3 PKMS Piece 1,700
4 12.7 mm machine gun Piece
5 14.5 mm machine gun Piece
6 RPG 7 portable rocket-launcher Piece 900
7 60 mm mortar Piece 5,432
8 82 mm mortar Piece
9 120 mm mortar Piece 13,500
10 75 mm gun Piece
11 T-55 tank Piece 60,000
12 BMP-1 armoured vehicle Piece 65,000
13 T-64 tank Piece 390,000
14 Praga armoured vehicle Piece 190,000
15 BTR-60 Piece 480,000
2. BOAT Piece 24,175,000 Cfr EM log
3. MUNITIONS AND MORTARS
1 7.62 x 39 mm cartridges Round 0.28
2 7.62 x 54 mm cartridges Round 0.32
3 12.7 x 108 mm API cartridges Round 6.5
4 14.5 x 114 mm API cartridges Round 0.53
5 100 mm HEAT shells Round 398
6 100 mm HE shells Round 355
7 40 mm RPG 7 rockets Round 215
8 107 mm rockets Round 83.95
9 60 mm HE mortars Round 1.9
10 82 mm HE mortars Round 90
11 120 mm HE mortars Round 110
[Seal] Done at Kinshasa, 31/08/2016
[Signed]
Vice-Admiral Damas KABULO,
Sec-Gen for Defence.
___________
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