The role of AU organs on transitional justice in the DRC                                          Dr. Joseph Yav KatshungI...
Since 1998 the DRC has been a theatre of war and it is estimated that this war alone have led to thedeath of between 3.3 a...
SADC Organ of Inter-State Defence and Security Committee, held in Harare, Zimbabwe.[6] It was inthat meeting that it was d...
both regionally and domestically. The second stage constitutes the period after the signing of theLusaka Ceasefire Agreeme...
The end of conflict or repression and transition to peace or democracy signify important momentsin a country’s history. St...
Also, all parties to the 2003 Sun City Peace Accords adopted a Resolution No. DIC/CPR/05 of March2005, calling for the cre...
negotiable condition of being granted amnesty for all offences committed during the conflict. As aresult no condition was ...
than those conducted far away from the contexts in which the crimes were committed. It is therefore atthe domestic level t...
Moreover, the spectacular escapes of certain convicts have considerably reduced the impact, in thepopulation, of the judgm...
a mechanism of transitional justice. Moreover, many critiques have been made because commissionerscame from different fact...
On the one hand, they want justice, but on the other hand, they doubt that justice will be done. This isbecause they have ...
The issue of justice was raised in DRC to respond to the question of the extremely grave crimescommitted. The conflicts af...
Union, all of whom have a role to play in the design, enactment, and follow-up of transitional justiceprocesses.From the A...
Selected Bibliography      1. Assefa, H., and G. Wachira (eds) 1996, Peace Making and Democratization in Africa:      Theo...
9. International Center for Transitional Justice (ICTJ) “Amnesty Must Not Equal Impunity”,Focus: 2009 DRC Amnesty Law10.  ...
23.               UN Security Council press release (2005) Security Council Notes Decision in         Democratic Republic ...
Read, Assefa, H., 1996, Peace and Reconciliation as a Paradigm: A Philosophy of Peace and its Implications for Conflict,Go...
[21] The DRC ratified the Rome Statute on March 30, 2002[22] Thomas Lubanga is the subject of the ICC’s first trial, which...
In the contrary read a interview made in November 2008 on Deutsche Welle, a Germany’s international broadcaster, anexpert ...
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The role of AU organs on transitional justice in the DRC

  1. 1. The role of AU organs on transitional justice in the DRC Dr. Joseph Yav KatshungI. Background to the country and conflict that has necessitated transitional justice processes andmechanismsThe Democratic Republic of Congo (DRC) is Africa’s third largest country, with a population of about65 million people. From 1874–1908, the DRC was known as Congo Free State, then a privateconcession of King Leopold II, King of Belgium. In 1908 the DRC became an official colony ofBelgium. It was not until June 1960 that the DRC became independent. The DRC is situated in centralAfrica and shares its borders with Angola, Zambia, Burundi, Sudan, Rwanda, Tanzania and the CAR aswell as the Republic of the Congo. Violence has plagued this country since its emergence from Belgiancolonial rule in 1960, leading to the assassination of Patrice Lumumba and then three decades of theMobutu kleptocracy and dictatorship. It has experienced continuous instability and wars that took anextremely heavy toll on the civilian population. The numbers are vast: from the spill-over from theRwandan genocide in 1994, to the 1996-1998 and the 1998-2003 wars and the ensuing politicaltransitions, millions of civilians died of conflict-related causes and hundreds of thousands of otherswere displaced.The first war in the DRC began in 1996 when in October of that year Laurent Kabila decided to fightagainst the government of Mobutu beginning from the eastern part of the country. Supported byUganda, Rwanda and Burundi, Kabila established a military alliance called Alliance of DemocraticForces for the Liberation of Congo-Zaire (AFDL). The eruption of the war in October 1996 marked thefirst phase of the war in the DRC. That phase ended with the overthrow of the government of Mobutuand Kabila proclaimed as President of the DRCThe second war and the most violent broke out on the 2 August 1998. Soldiers in the Eastern DRC ndlaunched an armed rebellion against the government of Laurent Kabila. Fighting erupted in a number ofcities such as Goma, Bakavu and even Kinshasa. Uganda and Rwanda decided to support the rebels.This was due to misunderstandings that had developed between the Government of Kabila on one handand the governments of Uganda and Rwanda on the other. But it should be noted however, that severalinterconnected elements have shaped this conflict, including the interests of neighbouring countries,competition over natural and economic resources concerns over instability and lack of security, andethnic chauvinism, to name but a few. In addition, this country has been afflicted by poor governanceand political opportunism, which leads to military action being used to resolve essentially social,political and economic problems.[1]The capture of Kinshasa by the rebels was saved due to entry into the War by Zimbabwe, Angola andNamibia in support of the Kabila Government. That made the war highly internationalized. The warinvolved dozens of rebel groups, both Congolese and foreign[2] and almost all the neighbouring statesand others like Zimbabwe, from further a field: Angola, Namibia, Zimbabwe, Chad and Sudan insupport of the Kabila regime, and Rwanda, Burundi, and Uganda backing the rebellion against Kabila.The current President Joseph Kabila’s father, then President Laurent-Desire Kabila, was assassinated atthe Presidential Residence in Kinshasa 2001, plunging an already unstable Great Lakes region intofurther chaos.
  2. 2. Since 1998 the DRC has been a theatre of war and it is estimated that this war alone have led to thedeath of between 3.3 and 5.4 million civilians, which ranks it as the world’s deadliest conflict sinceWorld War II.[3] Ultimately, all the parties sat together in a regional effort and considered all internaland external dimensions to the conflict. The resultant Lusaka Peace Agreement addressed the concernsof the rebel armed groups and those of the neighbouring countries. Consequently, forces ofneighbouring countries withdrew and eventually, elections were held in the DRC. It should be notedthat the global peace agreement, concluded in December 2002 in the framework of the Inter-CongoleseDialogue organised in Sun City, South Africa, officially ended armed conflict in the DRC andresponded to the need for the required justice for the serious crimes committed during the war byestablishing a transitional justice system accompanying the political transition.Currently, the DRC continues to face instability in some parts of the country and resulting abuseagainst the civilian population.II. Conflict resolution process in DRC and parties involvedThe African experience has showed that an important outcome of peace negotiations has been thesigning of peace agreements and ceasefire agreements and their implementations. In some casesimplementations have proved successful while in other cases they have proved a failure.[4] Analysis ofkey role players and their contribution in conflict resolution and peace building in the DRC entails acomplex process. The complexity arises out of the fact that since 1996 the country has been involved ina complicated war situation. The complexity became more serious when the war erupted the secondtime in August 1998 as it involved more than six countries, some supporting the government of theDRC, while others supporting rebel groups that were intending overthrow that government. In theprocess of the war many armed groups emerged some based on ethnic lines. As we shall see in thissection the complexity of the war gave rise into complexity of conflict resolution processes. First it hadto involve various international organizations such as the SADC, the OAU -AU and the UN. It had alsoto involve individual countries. The complexity is even greater given different economic interests byactors in the war as well as other actors not directly involved with the war. Suffice is to say that severalattempts have been made to broker peace in the DRC.[5]2.1. The signing of the Lusaka Ceasefire Agreement : the first stageThe first stage constitutes the period from August 1998 to the signing of the Lusaka CeasefireAgreement in July, 1999. In fact, diplomatic efforts to broker peace in the DRC included efforts by thethen Organisation of African Unity (OAU) and a team of African leaders, which culminated inmeetings in Addis Ababa, Ethiopia in 1998 and Sirte, Libya in April 1999, etc. Both meetings calledfor ceasefires and the deployment of African peacekeeping troops, but neither measure wasimplemented. President Fredrick Chiluba of Zambia and his SADC counterparts made strongdiplomatic efforts that secured the attendance of the belligerent groups to a Lusaka conference in July1999.Thus, it should be recognized that during this first stage it was the SADC and President MuamarKadhafi of Libya who played an active role. The initiative began with holding of a number of Summitand other meeting of the SADC. The first was on 7th and 8th August, 1998 at Victoria Falls, Zambia.The summit was attended by SADC Presidents as well as Presidents from Uganda and Rwanda. Thesecond was a meeting of defence ministers called by President Mugabe as the then chairman of the
  3. 3. SADC Organ of Inter-State Defence and Security Committee, held in Harare, Zimbabwe.[6] It was inthat meeting that it was decided that any SADC country that was able to assist Kabila in the Warshould do so; thus the measures taken by Zimbabwe, Angola and Namibia. It should be noted thatdifferent approaches were indeed in contention among different SADC member states, while reflectingtheir respective national interests and allies.[7]Other summit meetings were held in September 7th and 8th at Victoria Falls, and then 13th and 14thSeptember in Mauritius. During the two summits support and appreciation was given to the SADCCountries which supported Laurent Kabila in the War. From September 1998 to June 1999 a number ofother summits and meetings were held with the objective of finding a solution to the Congo war by theSADC. From November 1998 to June 1999 President Muamar Kadhafi of Libya also took steps ofconflict resolution. He held talks at different times with Presidents Kabila of the DRC, Museveni ofUganda and Kagame, the Prime Minister of Rwanda. Arising out of such an initiative PresidentMuseveni signed a ceasefire agreement with President Kadhafi in May, 1999. Kadhafi insisted thatwarring parties should agree on ceasefire to be followed by withdrawal of foreign troops from theCongo and the deployment of international peace keeping forces.On July 10, 1999, at a summit in Lusaka, Zambia, the leaders of Uganda, Rwanda, DRC, Zimbabwe,Namibia, and Angola signed a peace agreement. The agreement focused on the following buildingblocks: - establishment of a cease-fire; - freezing of the territorial control of all conflict parties and subsequent withdrawal of all armed groups operating in the territory of the DRC; - deployment of a UN peacekeeping force in the DRC; - establishment of a joint military commission made up of African countries to monitor the implementation of the agreement as well as the disarmament of the Interahamwe militia; and - initiation and setting up of the Inter Congolese National Dialogue, aimed to bring about a new political order in Congo and based on the participation of the Congolese armed groups, the non-armed political opposition to Kabila’s government and representatives from civil society (or so-called ‘Forces vives de la Nation’).However, in the following months, the commitments made by the parties during the signing of theagreement were not respected, as parties accused each other of breaking the ceasefire. Despite the UNSecurity Council passing a resolution on 6 August 1999, authorising the deployment of military liaisonpersonnel and other necessary officials to the DRC to assist in the development of modalities for theimplementation of a ceasefire, incidents of hostility and armed conflict continued.[8] Laurent Kabilawas accused of indifference towards the accord -whose implementation, he thought, would underminehis own powers. In February 2000, the UN authorised a force of 5,537 troops - referred to as the UNMission in the DRC or MONUC - to monitor the ceasefire. Fighting, however, continued between therebels and government forces, and between the Rwandan and Ugandan forces followed by some 18months of deadlocks, all of which came to a sudden end with the assassination of President LaurentDesiré Kabila on 16 January, 2001. It was then clear that military operations failed, and diplomaticefforts that were made bilaterally or through the UN, African Union (AU) and SADC, also failed tomake any headway.2.2. The signing of the Pretoria agreement : the second stageAs mentioned supra, although the signature of the agreement in July 1999 constituted the first realprospect for peace in the DRC, the Accord was only the first step toward the settlement of the conflict,
  4. 4. both regionally and domestically. The second stage constitutes the period after the signing of theLusaka Ceasefire Agreement in July 1999 to 2003. Conflict resolution steps taken during this secondperiod included the appointment of ex-president Ketumile Masire of Botswana to be the mediator in theDRC crisis. He was appointed by the OAU but he faced problems because some parties, includingLaurent Kabila, did not accept him.On January 16, 2001, Laurent Kabila was assassinated and succeeded by his son, Joseph Kabila. JosephKabila reversed many of his father’s policies; over the next year, MONUC deployed throughout thecountry, and the Inter-Congolese Dialogue proceeded. By the end of 2002, all Angolan, Namibian, andZimbabwean troops had withdrawn from the DRC. Following DRC-Rwanda talks in South Africa thatculminated in the Pretoria Accord in July 2002, Rwandan troops officially withdrew from the DRC inOctober 2002, although there were continued, unconfirmed reports that Rwandan soldiers and militaryadvisers remained integrated with RCD/G forces in eastern DRC. Ugandan troops officially withdrewfrom the DRC in May 2003.In October 2001, the Inter-Congolese Dialogue began in Addis Ababa under the auspices of FacilitatorKetumile Masire (former president of Botswana). The initial meetings made little progress and wereadjourned. On February 25, 2002, the dialogue was reconvened in South Africa. It includedrepresentatives from the government, rebel groups, political opposition, civil society, and Mai-Mai.The talks ended inconclusively on April 19, 2002, when the government and the MLC brokered anagreement that was signed by the majority of delegates at the dialogue but left out the RCD/G andopposition UDPS party, among others. This partial agreement was never implemented, andnegotiations resumed in South Africa in October 2002. A Global and All Inclusive Agreementfacilitated by former President Thabo Mbeki was signed at Sun City in South Africa in 2003, under theaegis of the African Union. This time, the talks led to an all-inclusive power sharing agreement, whichwas signed by delegates in Pretoria on December 17, 2002, and formally ratified by all parties on April2, 2003.Following nominations by each of the various signatory groups, President Kabila on June 30, 2003issued a decree that formally announced the transitional government lineup. The four vice presidentstook the oath of office on July 17, 2003, and most incoming ministers assumed their new functionswithin days thereafter. The UN Mission in the Congo (MONUC) was established, and all foreignarmies were repatriated. It should be recalled that the establishment of the institutions of the Republicgathered momentum after the formation of the Transitional Government. On 22 August 2003, theParliament and the Senate were inaugurated in Kinshasa. By 28 August 2003, the IndependentElectoral Commission (IEC), the National Human Rights Observatory, the High Media Authority, theTruth and Reconciliation Commission and the Ethics and Anti-Corruption Commission had all beenestablished.By late 2003 a comprehensive process for the drafting of a transitional new Constitution put in place.This Constitution received popular approval in a Referendum in December 2005 at which 84% ofregistered voters cast their votes. The Constitution became the basis for the elections held in July 2006.The elections were hailed as a great success, and after some initial resistance and clashes, the losingcandidate Jean-Pierre Bemba accepted the final results of the Presidential Poll as declared by theSupreme Court.III. Starting point: Discussing the Transitional Justice processes in DRC
  5. 5. The end of conflict or repression and transition to peace or democracy signify important momentsin a country’s history. Strategies on how to move away from a past characterized by violenceor repression to a new dispensation of peace, respect for humanrights, reconstruction and reconciliation constitute the realm of transitional justice.There is a wide choice of transitional justice approaches, ranging from silence on the one extremeand criminal prosecution on the other. The DRC choice was made mainly on three pillars oftransitional justice mechanisms: Amnesty, Truth Commission and Prosecutions. The problem howeveris to assess if those pillars have been applied on the ground. Before that, it should be recognised that on10 July 1999, the DRC government and the other parties to the conflict signed the Lusaka cease-fireagreement.The main aspects of the agreement included among others the disarming, cantoning and documentingof all armed groups, and measures to hand over mass killers and perpetrators of crimes againsthumanity to the ICTR and to national courts.[9]In fact, already in the preamble to the Lusaka agreement, the parties declare their determination toensure respect for the 1949 Geneva conventions and the 1977 additional protocols, as well as the 1948Genocide convention. The modalities of the implementation of the agreement were further specified inannex A which, among others, entails provisions on issues such as the cessation of hostilities,disengagement, the orderly withdrawal of all foreign forces, national dialogue and reconciliation, theUN peacekeeping mandate and ‘disarmament of armed groups’. A Joint Military Commission (JMC)has been instituted.The latter provisions, given in Chapter 9 of Annex A, read as follows: 0. "9.1 The JMC with the assistance of the UN/OAU shall work out mechanisms for the tracking, disarming, cantoning and documenting of all armed groups in the DRC, … and put in place measures for: - Handing over to the UN International Tribunal and national courts, mass killers and perpetrators of crimes against humanity; - Handling of other war criminals. 0. 9.2 The parties together with the UN and other countries with security concerns, shall create conditions conducive to the attainment of the objective set out in 9.1 above, which conditions may include the granting of amnesty and political asylum, except for genocidaires. The parties shall also encourage inter-community dialogue."Moreover, when the ‘Inter-Congolese Dialogue’ peace conference organised in Sun City, South Africa,officially ended armed conflict in the DRC, the conflict had already claimed millions of direct andindirect victims. The global peace agreement, concluded in December 2002 in the framework of theInter-Congolese Dialogue, responded to the need for the required justice for these serious crimes byestablishing a transitional justice system accompanying the political transition. This encompassed aTruth and Reconciliation Commission (TRC), a National Human Rights Observatory and an Ethics andCorruption Commission. It also recommended the establishment, with the support of the internationalcommunity, of a special International Criminal Court for the DRC, which, however, was never actuallycreated, chiefly due to a lack of funding.
  6. 6. Also, all parties to the 2003 Sun City Peace Accords adopted a Resolution No. DIC/CPR/05 of March2005, calling for the creation of an “International Criminal Tribunal for the DRC”, without detailing itsjurisdiction, procedure or other modalities. The ICD agreement asks for a court “endowed with thenecessary competence to take cognizance of crimes of genocide, crimes against humanity, war crimesand mass violations of human rights committed or presumed committed since 30 June 1960 as well asthose committed or presumed committed during the two wars of 1996 and 1998.”[10] Since then, thisresolution has never been seriously discussed or officially considered.Nevertheless, some Congolese civil society actors and other international observers have called andstill calling for the establishment of such a mechanism to investigate and prosecute notably the crimesthat took place before 2002. In fact, there is broad agreement in DRC that war crimes and crimesagainst humanity cannot go unpunished, and civil society and some in the former and new governmentshave called for the establishment of an international criminal tribunal of some type. Therefore, onesolution for bringing the perpetrators of these heinous crimes to book in the DRC may be for theSecurity Council to establish a new ad hoc tribunal, modelled after the ICTY and ICTR. Aninternational criminal tribunal for the DRC would satisfy the goals of accountability in their fullestsense by prosecuting perpetrators of atrocities committed during war and beyond the scope of the ICC.[11] Certainly, the prima facie case of guilt for severe violations of international law is manifestenough to justify use of this mechanism. More importantly, the severe difficulties of domestic trials, inparticular the clear prospect of their manipulation by domestic political forces and to some extentforeign forces, justify an international tribunal as the best forum for achieving fair and effective justicein this case. In this line, in her report to the fifty-ninth session of the Commission on Human Rights, theSpecial Rapporteur on the human rights situation in the DRC recommended the establishment of aspecial jurisdiction to investigate and prosecute those responsible for war crimes and crimes againsthumanity perpetrated by all parties in the DRC conflict.[12] However, since then nothing has beendone and it seems unlikely that the UN will be willing to establish another international criminaltribunal modelled on the ICTY and ICTR.[13] It should be noted that the lack of international will toset up this tribunal has prompted an exploration of specialized chambers within the domestic courtsystem to deal with grave human rights crimes, similar to that recommended for Burundi.[14]IV. Transitional justice mechanisms implemented in the DRC4.1. The granting of amnesty to belligerentsThe granting of amnesty as a political tool in a peacemaking process is commonplace.[15] Muchdebating has occurred in recent years over the limits for granting amnesties for past human rightsviolations and crimes under international law. Particularly in respect of crimes such as genocide, crimesagainst humanity and war crimes, as well as torture, strong opinions have been expressed againstamnesties. For example, the UN Secretary-General has expressed in many instances - also in respect ofthe DRC - that, while amnesties may be a necessary means to facilitate disarmament, demobilisationand the reintegration of former combatants into society, it is not an option for crimes like genocide andcrimes against humanity.[16]In DRC, as noted previously it has been included in the peace agreements the possibility of granting ofamnesty and political asylum, except for genocidaires. In order to sign the agreement and end theconflict, all the parties were asked to make a power-sharing concession in the form of a government ofnational unity. A transitional government of national unity was formed. However the rebel groups,including RCD-Goma, MLC, RCD-N submitted to participation in the government on the non-
  7. 7. negotiable condition of being granted amnesty for all offences committed during the conflict. As aresult no condition was imposed on the belligerent groups to apologise, tell the truth or ask forforgiveness for their wrongdoings.This was materialised by a Presidential Decree Nº03-001 of April 15, 2003, which granted amnesty bytemporary executive order as per the 2002 Global and All-Inclusive Agreement. This amnesty coveredacts of war, political breaches of the law, and crimes of opinion for the period of August 2, 1998 toApril 4, 2003 but excluded genocide, war crimes, and crimes against humanity from its reach.Thereafter, the Congolese transitional parliament passed the Law Nº05/023 of December 19, 2005, toabrogate the 2003 Presidential Decree; it codified an amnesty over the crimes enumerated in thatDecree, but altered the timeframe to include acts committed from August 20,1996 to June 20, 2003;this law allowed for the retroactive pardon and commutation of convictions for the acts falling underthe amnesty law.[17]The majority of Congolese people as well as the principal non-armed opposition parties, includingUDPS, PALU, FONUS and PDSC were unanimous in their criticism of the amnesty offered asimpunity in the name of reconciliation. The former perpetrators could not, during the transition, beprosecuted and punished, in order to preserve peace and prevent a relapse into conflict. But, in theopinion of many Congolese, reconciliation through justice and truth is extremely crucial in the DRCcontext considering the degree of violence and terror that occurred during the years of conflict.Another Amnesty Law was passed after the latest negotiations in the eastern DRC. The January 2008Goma peace agreements called for an amnesty law, and the Congolese National Assembly adopted abill on July 12, 2008. But fighting resumed before the Senate could consider it. The March 23, 2009accord between the DRC and the CNDP again called for swift adoption of an amnesty. When theSenate first reviewed the bill, opposition politicians successfully rejected it, claiming that an amnestyshould have a broader geographic and substantive scope. The bicameral Joint HarmonizationCommission approved a text adopted by parliament and on May 7, 2009, President Joseph Kabilasigned and thereby put into effect an Amnesty Law.It applies to Congolese living in the DRC or abroad and covers acts of war and insurrection committedin the eastern provinces of North and South Kivu from June 2003 to the date of signing. Some haveseen the contrary and rightly the ICTJ has put clearly that “… on the surface, the amnesty is of limitedtemporal and geographic scope, explicitly excludes genocide, war crimes, and crimes againsthumanity from its reach, and does not preclude reparations. In practice, however, it perpetuatesCongo’s pattern of rewarding violence and creates a blanket amnesty for scores of crimes perpetratedby rebel groups, Congolese armed forces (FARDC), militias, and police alike…”[18] In fact, thisperception is justifiable as after a decade of failed peacemaking efforts, it is clear that only a majoreffort to combat impunity in the African Great Lakes region will bring a sustainable end to the cycle ofviolence and mass killings plaguing eastern DRC.4.2. Prosecutions at national and international levelsThe obligation to prosecute rests firmly with States, particularly with those on whose territory thecrimes were committed, or whose nationals are either accused of perpetrating the crimes or are victimsof the crimes. It can be assumed that States on whose territory the crimes occurred are better able toaccess and collect the evidence than tribunals that operate remotely. Domestic trials, if adhering tocertain standards, have more potential to transform societies and lead to domestic institutional reforms
  8. 8. than those conducted far away from the contexts in which the crimes were committed. It is therefore atthe domestic level that long- term and sustainable solutions to ending impunity must be found.[19]The reality however like in the DRC case is that there are usually tremendous challenges facingdomestic criminal justice systems in investigating and prosecuting international crimes. The mainchallenge is often the lack of political will to pursue justice. The involvement of powerful segments ofthe political, military or other security forces in these crimes is frequent, as their commission usuallyrequires planning, organization, and the capacity to mobilize and deploy resources over extendedperiods of time and over large territories. In many instances, those who are themselves responsible forthe crimes are still in power or have the means to ensure that those in power protect their interests. Inaddition, domestic prosecutions often include several challenges including the legal barriers; lack of anindependent judiciary; lack of capacity and security and access issues, including a volatile securityenvironment, continued armed conflict, lack of a safe environment for victims and witnesses or legalprofessionals.[20]It is against this background that on April 19, 2004, President Joseph Kabila sent a blank referral to theInternational Criminal Court (ICC) requesting them to investigate the crimes committed in the DRCsince July 2002.[21] The first ICC investigations into the atrocities that had taken place in the DRCwere launched in June 2004, focusing on the eastern part of the country. The Court is now conductingtwo trials: one for Thomas Lubanga[22], and the other for Germain Katanga and Mathieu NgudjoloChui.[23] Both cases address the conflict in Ituri, a district in northeastern DRC. The Court’s fourthdetainee, Jean-Pierre Bemba[24], is also a Congolese national. But unlike the other three, Bemba is aprominent public figure; he lost in the 2006 presidential election to the incumbent, Joseph Kabila.Bemba was serving as a senator when he was arrested in Belgium and transferred to The Hague in June2008. He is charged with crimes allegedly perpetrated by his Mouvement pour la Libération du Congo(MLC) forces in CAR. Bemba’s trial is set to open in July 2010.As for the ICC, although it has begun the prosecutions of the above-mentioned cases, its jurisdictionalrules do not allow it to deal with crimes committed before 2002 and its institutional capacities are toolimited for it to take on more than a handful of cases. Consequently, only national courts are in aposition to bear the brunt of the fight against impunity and thereby contribute to the rebuilding of thenation. However, to date, civilian courts have not yet prosecuted any of the serious crimes committedduring the wars, partly due to the fact that there is no legislation ‘domesticating’ the Rome Statutewhich defines such crimes, which is to say that there is no law to integrate the crimes falling within thejurisdiction of the ICC into national law and grant national courts jurisdiction in their regard.[25] Thus,these serious crimes are only be prosecuted by military courts, since the adoption in 2002 of themilitary criminal code, which includes the crimes stipulated in the Rome Statute.The performance of military justice, however, has been mediocre. Only a very limited number of theinternational crimes perpetrated in the DRC over the last decade have been prosecuted, and few ofthose have led to criminal convictions. A recent study by the organisation ‘Avocats sansFrontières/Lawyers Without Borders’ was only able to list 13 cases involving serious crimes that wereeffectively prosecuted in military courts.[26] Furthermore, these cases were heard in a handful courts,mostly the garnison courts of Mbandaka and Bunia, and, to a lesser extent, those of Bukavu andKipushi. This state of affairs reflects the lack of a consistent prosecution policy and betrays theopportunistic approach that has characterised both prosecutions in military courts and donor support forsuch prosecutions.
  9. 9. Moreover, the spectacular escapes of certain convicts have considerably reduced the impact, in thepopulation, of the judgments handed down, as their confidence in the justice system was alreadyprecarious. The judicial system has shortcomings and requires a genuine reform of the sector and thestrengthening of its capacities. The steps taken by the military courts have only been possible with thedecisive role of the international community (MONUC, European Union, and various NGOs),particularly in Ituri.4.3. The Congolese Truth and Reconciliation Commission: A “Truth Commission” or “TruthOmission”?A truth commission, the Commission Verité et Réconciliation (CVR), was established as one of the fiveinstitutions in support of democracy encompassed in the Pretoria power-sharing agreement that wassigned in December 2002. It was proposed by members of the Inter-Congolese Dialogue (ICD) as partof the peace negotiations. It should be noted however, that it inclusion in the peace agreement waslobbied for by Congolese civil society groups and the ICD meeting in Sun City, South Africa, adopteda resolution on a Truth and Reconciliation Commission, which goes into great detail into the proposedinstitution.[27] The commission operates from July 2003 to February 2007 but one can easily say thatby law, its started to operate one year later as per article 160 of the Transitional Constitution, whichstipulates that the specificities of the truth commission would be determined by an organic law. Untilmore than a year after the establishment of the commission, it was operating without such a law. OnJuly 30, 2004, the mandate (Organic Law No 04/018) was enacted by President Kabila.According to articles 154-160 of the Transitional Constitution 155 and article 5 of the Organic Law No04/018, the TRC was tasked with a 10-point ambitious set of goals, including to establish truth andpromote peace, justice, reparation, forgiveness and reconciliation, with the view of consolidatingnational unity. The commission was set up to examine the political, economic, and societal conflictsbetween the country’s independence in 1960 and the conclusions of the peace agreement in 2003. Itwas then responsible for investigating political crimes and human rights violations, which took betweenthat period.[28] The commission was also expected to contribute to the compensation of victims.[29]The commission had twenty-one members, and eight of them were “Members of the Bureau” whichwere selected to represent each of the parties of the Inter-Congolese Dialogue and were approved bythe National Assembly. The other members were religious leaders, representatives of scientificassociations, women’s organizations and other civil society groups with objectives similar to thecommission. It should be noted that the selection of the Commissioners, while inclusive andrepresentative of the political forces involved in the peace negotiations, was criticized because some ofthe commissioners had informal ties with those who were implicated in the crimes. MONUC explainedthat the UN mission would only support the truth commission if there were sufficient guarantees of itsindependence from the executive branch. International observers called for a follow-up truth-seekingmechanism because of the lack of political will and resources for the Truth and ReconciliationCommission.[30]In assessing if the Congolese TRC met some minimal requirements to approach legitimacy underinternational law, one can point out that the Congolese TRC was not created and not operatedtransparently in order to sustain democratic legitimacy. There was a clear lack of citizen involvement inthe creation and functioning of a TRC, and openness to ensure domestic legitimacy. In fact, the TRC,with all its far-reaching aspirations, was born out of an elite (and perhaps morally questionable)consultation in which victims did not participate broadly, with potential consequences of disconnectingparts of the country from the embryonic process. There was no endorsement of the TRC and its work as
  10. 10. a mechanism of transitional justice. Moreover, many critiques have been made because commissionerscame from different factions, and were not chosen by means of a process, which tried to ensure ademocratic spirit and practice, and transparency. In fact, the selection of commissioners wasproblematic, who ideally should be widely respected persons of unparalleled morals chosen through anopen process. This was clearly mentioned in the ICD resolution stating that the commissioners shouldbe “Congolese of great moral and intellectual probity and possessing the necessary skills to carry outthe mandate of the commission,” selected “by consensus from the ranks of the components accordingto the criteria established by the Dialogue: moral probity, credibility….”[31] Despite these provisions,the commissioners were nominated by their political parties with no regard for the ICD criteria or theconsensus described in the truth commission resolution.Therefore, it seems that the purpose of such a commission, was meant to be a “Truth Omission”instead of a “Truth Commission” and could not encountered support by the international community.In this line, Nahla Valji stated that “a good example of a commission set up in bad faith to avoid justiceand perpetuate impunity would be the truth commission in the DRC, which did not hear a single casefrom victims - and whose commissioners included representatives of the warring factions responsiblefor atrocities. Given their susceptibility to the broader political context there is always the danger thattruth commissions are held hostage to the balance of power and political manipulations”.[32]Although the appropriate non-judicial mechanism, the Truth and Reconciliation Commission (TRC)was well established in DRC, truth-telling had not happened. The TRC was unable to undertakeinvestigations of human rights violations and put together victims and perpetrators to facilitatereconciliation. As it can be noticed, in this case it is difficult to imagine a face-to-face process betweenperpetrators and their victims, as the TRC was not even able to identify the crimes committed.[33]Instead, it has focused its work on conflict-mediation activities.In its recommendations, the commission asked the international community for financial support toenhance transitional justice in the DRC. Moreover, given the limited involvement of victims, witnesses,and perpetrators, the commission recommended a public awareness campaign to pave the floor for afuture truth commission initiative. Civil society members are seeking this as the Constitution providesthe window to establish if needed any necessary democratic institution. There is then an occasion tolobby for the establishment of a new TRC with clear mandate, well funded and transparent. For that,there is need to ensure that truth commission is well adapted to the local context and local populationsneed to be consulted as their input and support is critical.However, there is widespread debate in DRC since last year about whether the particular transitionaljustice strategy developed entails a choice between peace and justice. Some argue that whileinternational and national criminal trials promote justice, they can exacerbate divisions and may hinderthe achievement of peace. Those who face the potential for prosecution may be reluctant to lay downarms. Others argue that transitional justice can simultaneously produce peace and justice. It seems thatefforts should be made to devise a comprehensive strategy that incorporates various mechanisms andapproaches that can complement one another – and that can provide the greatest voice to survivors anddeliver the greatest impact to local communities.Also, the views of Congolese citizens have been expressed by Thierry Kambere, a Global RightsProgram Officer in Kinshasa, as he put it clearly that “ because DRC has a new constitution, which wasapproved by the Congolese people and promulgated in February 2006, it is now possible to think aboutjustice. The preamble to the Constitution focuses, among other things, on combating impunity andensuring political change. The Congolese people have a contradictory view of justice in their country.
  11. 11. On the one hand, they want justice, but on the other hand, they doubt that justice will be done. This isbecause they have seen a lot of inconsistencies between the written law and the reality on the ground…Justice has a role to play, not only in combating impunity, but also in Congo’s democratic process. TheCongolese people want justice that doesn’t amount to silence, that doesn’t function on the basis ofpower struggles between parties to a conflict, that doesn’t live off the backs of people who wantjustice. They want justice to provide a space in which people can express themselves and be free, theywant a justice that can be enforced, that is close to the Congolese people. The Congolese people areconvinced that justice is a value that should not be compromised…”[34] This is a clear quest for justiceand truth telling.V. The implementation and mechanisms to monitor the implementation and outcomeIt was clear that concerning the conflict resolution process the African Union has been involved andcontinues to some extent to monitor the situation on the ground. In fact, the AU by its formerChairperson of the Commission played a role in the DRC peace process.[35] In fact, as member of theInternational Transition Support Committee and of the Technical Committee established by theInternational Community to backstop the electoral process, the African Union actively supports thetransition process, alongside the United Nations, the European Union, representatives of the PermanentMembers of the Security Council based in Kinshasa and other African and foreign partners of the peaceprocess. Through the AU Special Representative in the DRC, Martin Bongo, the AU participated in allthe CIAT and Technical Committee meetings.The AU also participates in many missions within the country, carried out by those two internationaltransition support organs. For instance, the AU Office was part of a Joint Mission, comprisingrepresentatives of the UN, the Transitional Government, the Embassies of France, Belgium and Spain,the UNDP and the European Union, which visited Bunia, Ituri, at the end of February 2004. During thevisit , the delegation had a working session with the leaders of the armed groups, who pledged toresume dialogue with the Government to find a solution to the instability in the Region. The delegationinaugurated the town’s new Prison, Court and Police Station. In general and via its Liaison Office, theAfrican Union maintains regular contacts both with the Congolese players in the peace process and thecountry’s external partners in the process. Upon the signing of the Lusaka Ceasefire Agreement in July1999, the OAU, in concert with the Parties, established the Joint Military Committee (JMC) to ensurecompliance with the Ceasefire. The JMC played a decisive role in that regard, prior to the deploymentof MONUC.As far as the transitional justice mechanisms are concerned, it should be noted that little or merenothing has been done to ensure the monitoring of the process and there is need for action. That is trueas the international observers called for a follow-up truth-seeking mechanism in DRC because of thelack of political will and resources for the Truth and Reconciliation Commission.[36]Nothing was done to monitor the impact of the adopted strategy of power sharing without vetting grosshuman rights violators coupled with little more than hypothetical accountability measures reflected thenegotiating parties primary interest in achieving an immediate peace. As Jason Stearns, concluded, “…In contrast with peace processes elsewhere, justice and reconciliation have ranked low on the list ofpriorities in Congo.”[37]VI. Recommendations for the possible continued role of AU and sub-regional bodies in TJdevelopments in the DRC and other countries
  12. 12. The issue of justice was raised in DRC to respond to the question of the extremely grave crimescommitted. The conflicts affected, in particular, the civilian populations, victims of numerous acts ofsexual violence, used as weapons of war, the recruitment by all the armed groups of children, numerousmassacres, displacements of population, and other abuses – murder and mutilation, and acts ofcannibalism. However, peace efforts have resulted in the integration of former rebel factions into thearmy and police services, the adoption of a series of amnesty laws, and the nomination of suspectedwar criminals into leading positions of the security sector without any prospects for vetting them as partof comprehensive security system reform. That is true as the price paid for the comprehensive peaceagreement was impunity for those most responsible for atrocities. Rather than risk derailing the shakypeace process by aggressively prosecuting human rights abusers, the strategy of the transition was topurchase stability by distributing lucrative and powerful positions in the government to armed groupsregardless of their human rights record. This is however still continuing even presently and it mayeasily be said that impunity has become the normal state of affairs in the DRC. Something need to bedone to change the situation and the important thing now is to look at the challenges in addressingimpunity for the horrific crimes that have been committed in the DRC before July 2002 and even afterthat if the ICC is not dealing with them. If not, the impunity for these atrocities will sends the messagethat such crimes may be tolerated in the future and the ghost of impunity continues to haunt the DRC.In full consultation all the stakeholders (Government, CSOs, AU and the international community)need to find a framework within which the past can be properly addressed and those responsible forcrimes under international law and other grave human rights abuses may be held accountable. In orderto ensure that these objectives are achieved, there is need to develop a comprehensive anti-impunityprogramme, supported by the stakeholders.Furthermore, it has been noticed that peace agreement and power sharing arrangements are sought forat regional or sub-regional levels to restore peace and create stability among former belligerents anddealt with them as legitimate parties, despite obvious links to war crimes and economic plunder.Transitions in this context lack legitimacy and have little chance of producing lasting democracy orpeace. It’s necessary to frame within the peace agreement or power sharing arrangements theappropriate mechanism of transitional justice to be undertaken by the country in order to ensureaccountability and reconciliation. This is true, as the 2010 have been declared “year of peace” and theAfrican Union and other sub-regional organisations should start to work on the link betweentransitional justice and peacebuilding.Discussing the relevance of Transitional Justice for the African Union: The way forward!From this paper and other literatures, it is clear that transitional justice is a field that lies at theintersection of human rights and conflict resolution. While the field cannot be completely subsumedwithin a peacebuilding framework, given that transitional justice also encompasses legacies of abusethat have nothing to do with armed conflict (e.g., transitions from periods of dictatorship), there is aclear recognition among peacebuilders of the added value of transitional justice in restoring publicsecurity and contributing to long-term reconciliation.As seen in the DRC case and in other experiences, there are several stakeholders at the national,regional, and international levels who can impact transitional justice processes and have the potential tocreate fertile ground for positive, sustainable coexistence in societies emerging from violent conflict.These include government in transition, local civil society, truth seeking bodies, national andinternational judicial systems, the international community, and regional bodies such as the African
  13. 13. Union, all of whom have a role to play in the design, enactment, and follow-up of transitional justiceprocesses.From the AU statute and other relevant treaties and documents, we can easily state that TransitionalJustice is coherent with the mandate of the AU. The adoption of an array of strategies by the AU,including the more recent strategy on post-conflict reconstruction and development (PCRD) haveacknowledge that issues of democratic security sector governance are a prerequisite for successfultransition from conflict to sustainable peace.[38] Taking this example of the PRCD only, although itdoes not explicitly use the phrase “transitional justice”, its six indicative elements (including security,humanitarian/emergency assistance, political governance and transition, socio-economic reconstructionand development, human rights, justice and reconciliation, women and gender) are key ingredientswhen dealing with legacies of violence. Thus, the Constitutive Act of the African Union and othertreaties of the union and from its building blocks, places the entire institution, at the centre oftransitional justice processes on the continent. The AU has consequently a role on conflict resolutionand it has a huge potential to ensure greater coherence in integrating transitional justice inpeacekeeping and peacebuilding agendas, and to push for consistent policies in implementation at fieldlevel.In this regard, it will be important to identify what the AU’s role in the area of transitional justiceshould logically be in broad terms. Key questions have to be asked in this respect. They include thefollowing: what is the opportunity for the AU in the area of transitional justice? How can it play auseful flanking role and not duplicate efforts undertaken in other institutions or arenas? Broadlyspeaking, the AU has a chance to play a leading role in transitional justice standard- setting. This isespecially true given the number of countries within the AU where legacies of abuse and reconciliationprocesses remain on domestic political agendas. The DRC being one of them.There are several entry points for transitional justice to be taken up in the work of the AU, at the policyas well as the operational level. An AU policy framework on transitional justice together with measuresto strengthen AU institutions with transitional justice expertise should enhance the future work of theorganization on this important matter as there is a general consensus among scholars and practitionersthat a sustainable peace is meant to be built as a result of different transitional justice mechanisms.[39]In other words, addressing the legacies of past violence and human rights abuse is necessary forfostering sustainable peace especially during this year. In fact, the AU has declared the Year 2010 theAfrican Year of Peace[40], reiterating its commitment to further push the peace process in Africa,where millions of people are killed and displaced due to civil strife. As the plan of action of the Year ofPeace and Security includes launching new initiatives for the promotion of peace and security, it is themomentum for the African people and leaders as well as African institutions in partnership with theinternational community, to embrace Transitional Justice Mechanisms in order to Make Peace ‘Really’Happen in Africa.
  14. 14. Selected Bibliography 1. Assefa, H., and G. Wachira (eds) 1996, Peace Making and Democratization in Africa: Theoretical Perspectives and Church Initiatives; Nairobi, Kampala: East African Educational Publishers. 2. 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, March 2009. 3. Benjamin Coughlan et al., (2006). Mortality in the Democratic Republic of Congo: A Nationwide Survey, 367 The Lancet 44 4. Borello, Federico and International Center for Transitional Justice (2004); A First Few Steps: The Long Road to a just Peace in the Democratic Republic of Congo. Available at http:// www.ictj.org/images/content/1/1/115.pdf 5. Bosire, Lydiah, 2006, Overpromised, Underdelivered: Transitional Justice in Sub-Saharan Africa, ICTJ Occasional Paper 6. Cecile Aptel, Domestic Justice Systems and the Impact of the Rome Statute, Discussion Paper prepared for the Consultative Conference on International Criminal Justice , September 9 – 11, 2009, United Nations Headquarters, New York. http://www.internationalcriminaljustice.net/experience/papers/session7.pdf 7. Håkan Friman, The Democratic Republic of Congo Justice in the aftermath of peace? In African Security Review, Vol 10 No 3, 2001 8. Inter-Congolese Dialogue, Resolution No. DIC/CPR/05, March 2005.
  15. 15. 9. International Center for Transitional Justice (ICTJ) “Amnesty Must Not Equal Impunity”,Focus: 2009 DRC Amnesty Law10. International Rescue Committee, Fifth Mortality Report on the DRC, January2008. http://www.theirc.org/resources/2007/2006-7_congomortalitysurvey.pdf11. Jason K. Stearns, Congo’s Peace: Miracle or Mirage?, 106 Current Hist., 203(2007). Also available at http://www.crisisgroup.org/home/index.cfm?id=4799&l=1.12. Kasongo Kamwimbi Theodore, The DRC Elections, Reconciliation, andJustice, Pambazuka News, July 27, 200613. Kuye Ndondo Jean-Luc, “Exposé De Monseigneur Jean-Luc Kuye Ndondo,Président de La Commission Vérité et Réconciliation”, Kinshasa, 2004.http://democratie.francophonie.org/IMG/pdf/IV.A.4.pdf14. Magnus, K “Introduction to the UN and Human Rights in Africa” in Heyns,C.H. (ed) 1 Human rights Law in Africa 2004 Leiden: Nijhoff, 4–59 (With the establishment ofthe ICC future ad hoc tribunals might be avoided).15. Mallinder, Louise (2007), Can Amnesties and International Justice beReconciled? The International Journal of Transitional Justice 1 (2) : 208-23016. Nahla Valji, Trials and Truth Commissions: Seeking Accountability in theAftermath of Violence., http://www.humansecuritygateway.com/documents/CSVR_T_Se.pdf17. Patricia Dalley (2006): Challenges to Peace: conflict resolution in the GreatLakes Region of Africa; Third World Quarterly, Vol 27, No2 pp309-31918. Paul Van Zyl, “Promoting Transitional Justice in Post-Conflict Societies”, inSecurity Governance in Post-Conflict Peacebuilding, eds. Alan Bryden and Heiner Hanggi(Geneva: Geneva Center for the Democratic Control of Armed Forces, 2005), 20519. Peace and Security Council, “Report of the Chairperson of the Commissionon the situation in the DRC”, Fifth Session, Addis Ababa, Ethiopia, 13 April 2004.20. Punungwe, 1998, “Towards a Ceasefire and the Resolution of Conflict in theDemocratic Republic of Congo (DRC): The Role of the Southern African DevelopmentCommunity (SADC) Organ on Conflicts, Defence and Security”, Harare Workshop on the Crisisin the DRC.21. Rachel Kerr and Eirin Mobekk, (2007): Peace and Justice: SeekingAccountability after War ; Cambridge, UK: Polity Press22. Report of the Special Rapporteur on the human rights situation in the DRC tothe fifty-ninth session of the Commission on Human Rights. See: http://www.un.org
  16. 16. 23. UN Security Council press release (2005) Security Council Notes Decision in Democratic Republic of Congo to Extend Transitional Period Until End of 2005, SC/8430, Available at: http://www.un.org/News/Press/docs/2005/sc8430.doc.htm 24. Yav Katshung Joseph, 2009: The International Criminal Court and Truth Commissions: Two sides of the same coin? , ISBN-10: 1449518079 - ISBN-13: 978-1449518073, Ed. UniBook, Spuurs, Belgium 25. Yav Katshung Joseph, 2007 : Greasing the wheels of reconciliation in the Great Lakes region. African Security Review, vol 16 n 3, September 2007 26. Yav Katshung Joseph, 2006 “Prosecution of Grave violations of Human Rights in Light of Challenges of national Courts and the International Criminal Court: the Congolese Dilemma,” Human Rights Review 7: 5-25.20[1] Yav Katshung Joseph (2007) : Greasing the wheels of reconciliation in the Great Lakes region. African SecurityReview, vol 16 n 3[2] Including Rwandan FDLR, the LRA and the Angolan UNITA[3] Patricia Dalley: Challenges to Peace: conflict resolution in the Great Lakes Region of Africa; Third World Quarterly,Vol 27, No2 pp309-319, 2006; Read also: Benjamin Coughlan et al., Mortality in the Democratic Republic of Congo: ANationwide Survey, 367 The Lancet 44 (2006). Also read: International Rescue Committee, Fifth Mortality Report on theDRC, January 2008. Available at http://www.theirc.org/resources/2007/2006-7_congomortalitysurvey.pdf[4] South Africa and Mozambique provide us with good examples of success in the process of implementing peaceagreements. In South Africa the Peace Agreement was signed after peace negotiations between the ANC movement and theBoer Government. The two parties had been engaged in violent conflicts during the war of armed liberation carried out bythe ANC and other movements. A transition period was set and democratic elections were successfully held in April 1994.In Mozambique the Peace Agreement was signed in 1992 between the FRELIMO government and RENAMO, a rebelgroup. The to parties had been engaged in a protracted civil war for nearly 17 years. The peace negotiations were carried outin Rome, Italy mediated by a religious NGO called Saint Edigio (Romano, 1998). After a successful transition period thefirst democratic elections were held in October, 1994. A good example of cases of unsuccessful implementation of peaceagreements is Rwanda. The Peace Agreement for Rwanda was signed in Arusha in August 1993 between the HabyarimanaGovernment and the RPF rebel groups with its military wing, the RPA. From August 1993 to April 1994 no serious stepswere taken to implement the agreement. The end result was genocide of April to July 1994 costing between 800,000 and amillion lives. It appears that the then Government was not committed to the implementation process.
  17. 17. Read, Assefa, H., 1996, Peace and Reconciliation as a Paradigm: A Philosophy of Peace and its Implications for Conflict,Governance and Economic Growth. In: Assefa, H., and G. Wachira (eds) Peace Making and Democratization in Africa:Theoretical Perspectives and Church Initiatives; Nairobi, Kampala: East African Educational Publishers.[5] Mbendi information for Africa “Democratic republic of Congo- Overview”http://www.mbendi.co.za/land/af/zr/p0005.htm[6] Punungwe, 1998, “Towards a Ceasefire and the Resolution of Conflict in the Democratic Republic of Congo (DRC):The Role of the Southern African Development Community (SADC) Organ on Conflicts, Defence and Security”, HarareWorkshop on the Crisis in the DRC.[7] For instance, in the light of his alliance with Kabila, President Mugabe of Zimbabwe promoted an approach based onthe view that the rebels were at fault in the ongoing conflict and that the SADC member states should come to aid Kabila’sregime, under a Defence agreement signed shortly thereafter.[8] UN Security Council press release (2005) Security Council Notes Decision in Democratic Republic of Congo to ExtendTransitional Period Until End of 2005, SC/8430, Available at: http://www.un.org/News/Press/docs/2005/sc8430.doc.htm[9] See the Lusaka Cease-Fire Agreement, chapter 8, paragraph 8.2.2.[10] Inter-Congolese Dialogue, Resolution No. DIC/CPR/05, March 2005.[11] Joseph Yav Katshung, 2006 “Prosecution of Grave violations of Human Rights in Light of Challenges of nationalCourts and the International Criminal Court: the Congolese Dilemma,” Human Rights Review 7: 5-25.[12] Report of the Special Rapporteur on the human rights situation in the DRC to the fifty-ninth session of theCommission on Human Rights. See: http://www.un.org[13] Magnus, K “Introduction to the UN and Human Rights in Africa” in Heyns, C.H. (ed) 1 Human rights Law in Africa2004 Leiden: Nijhoff, 4–59 (With the establishment of the ICC future ad hoc tribunals might be avoided).[14] Bosire, Lydiah, 2006, Overpromised, Underdelivered: Transitional Justice in Sub-Saharan Africa, ICTJ OccasionalPaper[15] Read: Mallinder, Louise (2007) Can Amnesties and International Justice be Reconciled? The International Journal ofTransitional Justice 1 (2):208-230[16] Håkan Friman, The Democratic Republic of Congo Justice in the aftermath of peace? In African Security Review, Vol10 No 3, 2001[17] Read: The International Center for Transitional Justice (ICTJ) “Amnesty Must Not Equal Impunity”, Focus: 2009DRC Amnesty Law,[18] The International Center for Transitional Justice (ICTJ) “Amnesty Must Not Equal Impunity”, Focus: 2009 DRCAmnesty Law,[19] See: Cecile Aptel, Domestic Justice Systems and the Impact of the Rome Statute, Discussion Paper prepared for theConsultative Conference on International Criminal Justice , September 9 – 11, 2009, United Nations Headquarters, NewYork.Available at: http://www.internationalcriminaljustice.net/experience/papers/session7.pdf[20] Yav Katshung Joseph, (2009): The International Criminal Court and Truth Commissions: Two sides of the same coin?, ISBN-10: 1449518079 - ISBN-13: 978-1449518073, Ed. UniBook, Spuurs, Belgium
  18. 18. [21] The DRC ratified the Rome Statute on March 30, 2002[22] Thomas Lubanga is the subject of the ICC’s first trial, which began on Jan. 26, 2009. He is charged with two counts ofwar crimes for enlisting and conscripting children younger than 15 and using them actively to take part in hostilities.Lubanga was arrested and detained on March 19, 2005, pursuant to an arrest warrant that Congolese military prosecutorsissued for charges of genocide and crimes against humanity under Congolese law.[23] The trial of Germain Katanga and Mathieu Ngudjolo Chui began on Nov. 24, 2009. They are charged with threecounts of crimes against humanity (murder, rape, and sexual slavery) and seven counts of war crimes (willful killings, rape,sexual slavery, pillaging, destruction of property, directing an attack against civilians, and using children younger than 15 toactively participate in hostilities).[24] On June 15, 2009, the Pre-Trial Chamber confirmed two charges of crimes against humanity (murder and rape) andthree charges of war crimes (murder, rape, and pillaging) against Bemba alleging his responsibility as a militarycommander.[25] A comprehensive draft ICC Implementing Legislation was drafted and deposited in Parliament by two Members ofParliament in March 2008. This bill differs from the 2005 Bill deposited by the Transitional Government in that it does notinclude the death penalty for genocide, crimes against humanity and war crimes. The 2008 Bill is also more in line with theRome Statute with respect to defences and superior orders. The Bill was tabled for the parliamentary session beginning onSeptember 15, 2009, but was not discussed due to competing issues in the agenda of Parliament. At the Parliamentarians forGlobal Action (PGA) regional Kinshasa Conference on Justice and Peace in the Great Lakes region, held on 10-12December 2009, impressive public endorsements for the adoption of the Legislation by the Speaker of the Lower House, theMinister of Justice, top MPs from majority and opposition, as well as Madame Jaynet Kabila were manifested. PGAMembers have now taken up the initiative to reproduce and deposit the existing legislative text in the Senate in order tobenefit from a more speedy treatment and adoption of the bill which is stalled in the lower chamber.[26] Avocats Sans Frontières, Etude de Jurisprudence : L’application du Statut de Rome de la Cour Pénale Internationalepar les Juridictions de la République Démocratique du Congo, March 2009.[27] Resolution DIC/CPR/04, available at: www.drcpeace.org/docs/finalreport1_1.pdf[28] See DIC/CPR/04, id. at para. 6; See also Constitution de la transition, Articles 154–160, where the TRC is listed asone of the institutions supporting democracy, alongside an independent electoral commission on ethics and anti-corruption.[29] Jean-Luc Kuye Ndondo, “Exposé De Monseigneur Jean-Luc Kuye Ndondo, Président de La Commission Vérité etRéconciliation”, Kinshasa, 2004.http://democratie.francophonie.org/IMG/pdf/IV.A.4.pdf (accessed May 17, 2010).[30] Read: Borello, Federico and International Center for Transitional Justice. A First Few Steps: The Long Road to a justPeace in the Democratic Republic of Congo 2004. Available at http://www.ictj.org/images/content/1/1/115.pdf (accessedMay 3, 2010).[31] See DIC/CPR/04, supra note 62, at para. 10.[32] Nahla Valji, Trials and Truth Commissions: Seeking Accountability in the Aftermath of Violence.http://www.humansecuritygateway.com/documents/CSVR_TrialsTruthCommissions_SeekingAccountability_AftermathViolence.pdf[33] Theodore Kasongo Kamwimbi, The DRC Elections, Reconciliation, and Justice, Pambazuka News, July 27, 2006[34] See Thierry Kambere, Prospects for Justice in the Democratic Republic of Congo: A Global Rights DiscussionForum, April 3 2006, available at www.globalrights.org/site/DocServer/DRC_April_06.pdf?docID=5023[35] Peace and Security Council, “Report of the Chairperson of the Commission on the situation in the DRC”, FifthSession, Addis Ababa, Ethiopia, 13 April 2004.
  19. 19. In the contrary read a interview made in November 2008 on Deutsche Welle, a Germany’s international broadcaster, anexpert named Ulrich Delius responding to a question on the possible involvement of the AU to try and solve the conflict inDRC stated that “There are certainly many foreign ministries in the European Union which might favor broaderinvolvement of the African Union in the Congo conflict. But on the other hand theyre also aware that the Congo conflict isalso an African conflict involving many countries, not just the Congo and Rwanda. So many countries are involvedmilitarily or politically in this struggle at the moment. But its extremely difficult to get the African Union involved as aneutral party, and right now only neutral parties can be effective. Regarding the inefficiency of the African Union and itspeace commitment in Darfur, its really not a good idea to invite the AU to be more involved in the Congo because theCongo conflict is much more complex and much more difficult to solve than the Darfur conflict. They are failing in Darfurand they would be guaranteed to fail in the Congo…”Read: Germany Should Step in to Solve Conflict in the Congo, http://www.dw-world.de/dw/article/0,,3772585,00.html[36] Read: Borello, Federico and International Center for Transitional Justice. A First Few Steps: The Long Road to a justPeace in the Democratic Republic of Congo 2004. Available at http://www.ictj.org/images/content/1/1/115.pdf (accessedMay 3, 2010).[37] Jason K. Stearns, Congo’s Peace: Miracle or Mirage?, 106 Current Hist., 203 (2007).Also available at http://www.crisisgroup.org/home/index.cfm?id=4799&l=1.[38] See: Report Of Proceedings Experts Meeting On Post-Conflict Reconstruction And Development (PCRD) In Africa ,6-7 February 2006, Addis Ababa, Ethiopia, p. 6&7. Also see: Report On the Elaboration of a Framework Document onPost Conflict Reconstruction, EX.CL/274 (IX), 25-29 June 2006, Banjul, The Gambia, p. 2.[39] Read: Paul Van Zyl, " Promoting Transitional Justice in Post-Conflict Societies”," in Security Governance in Post-Conflict Peacebuilding, eds. Alan Bryden and Heiner Hanggi (Geneva: Geneva Center for the Democratic Control ofArmed Forces, 2005), 205.; Also read: Rachel Kerr and Eirin Mobekk, Peace and Justice: Seeking Accountability after War(Cambridge, UK: Polity Press, 2007), 3-4.[40] In the Tripoli Declaration on the Elimination of Conflicts in Africa and the Promotion of Sustainable Peace adoptedby the Special Session of the Assembly of the Union, held on 31 August 2009, the Assembly decided to proclaim 2010 asthe Year of Peace and Security in Africa.

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