Introduction

The armed conflict in the Democratic Republic of Congo (DRC), consisting of a number of armed conflicts with various participants, has been characterised by appalling, widespread and systematic human rights violations, including mass killings, ethnic cleansing, rape and the destruction of property.¹ At least six national armies and 21 irregular armed groups have been involved. The armed conflict varies from civil war to an outright war between national armies, the latter thus international in nature. Additionally, much of the conflict falls between these two categories due to the involvement of foreign troops in civil strife, as well as foreign rebel groups fighting their home government’s troops but on Congolese soil.

The most pressing need right now is to cease the hostilities and to address the appalling humanitarian situation in the DRC. Nonetheless, questions of justice and accountability, as well as broader issues relating to the rule of law will have to be addressed sooner rather than later in order to achieve a durable peace in the country and also in the Great Lakes region, in general. Since there are obvious links between different conflicts in the region — with the DRC being affected by most of them — a broader solution should preferably be found. However, such an aim in itself would add further complexity to an already difficult proposition and probably make any effort implausible. Instead, efforts limited to the DRC would be more feasible to strive for and, if reasonably successful, these could later lead to similar measures being taken in other conflict ridden countries in the region, thus together creating a greater whole.²

The purpose of this essay is therefore to discuss the available processes for justice. Various government institutions and non-governmental organisations (NGOs) have reported that violations of human rights and international humanitarian law were committed in the conflict. A survey and analysis of the violations fall outside of the scope of this essay, but the material clearly provides primary evidence that both general human rights and rules of international humanitarian law have been violated.

Trends against impunity

Justice and accountability, on the one hand, or impunity, on the other, are not new options for post-conflict societies. They have often been faced with the choice between declaring amnesty in the name of reconciliation, or punishing crimes in order to help those who have suffered to overcome the past and look towards the future. The answer in the past, out of political convenience or otherwise, has also often resulted in impunity even for the most horrendous atrocities.

Different schools view the options in a variety of ways. The liberal approach is that there will be no durable peace without justice, while the so-called realist approach is more sceptical of the ability of the law to play a productive role in international relations. The main arguments in favour of choosing punishment can be summarised as purging threatened leaders, deterring war criminals, rehabilitating former enemy countries, placing the blame for atrocities on individuals rather than on whole ethnic groups, and establishing the truth about wartime atrocities. All of these would promote peace and security, at least in the longer term. The risk, as held out by so-called realists, is that war crimes trials will perpetuate a war or destabilise post-war efforts to build a secure peace. Hence, the choice has been distinguished as one between peace and accountability or, in more practical terms, between justice and forgetting.

However, history shows that the choice is rather between justice and vengeance.³ A culture of impunity may in itself be a contributing factor to atrocities being committed. But individual responsibility may absolve the perception of collective guilt by one group against another in societies subjected to decades of incitement to ethnic hatred and violence.

Hence, it has been recognised in recent years that it is necessary to combat cultures of impunity in order to promote long-term reconciliation, peace and democracy. Traditional principles of international relations, such as state sovereignty and non-interference in internal affairs, are being undermined by values to which civil society attaches even greater importance. Quick results should not be expected, however, since the importance of law and courts in post-conflict transitions is a long-term proposition.

Trends in international law

International crimes

Traditionally, a distinction is made between human rights and humanitarian law. While the former are applicable both in peace and war (and not necessarily humanitarian), the latter is mainly aimed at war. There are important overlaps, however, and humanitarian law is currently also considered to encompass human rights of a humanitarian nature, for example, the ban on torture and the right to life, freedom and personal security. Furthermore, the trend against requiring a nexus between crimes against humanity and an armed conflict —such crimes can also be committed in peace time — is another example of a merger of the two fields of law.

General human rights treaties, such as the International Covenant on Civil and Political Rights, do not explicitly prescribe a duty to punish violations. Instead, such treaties entail obligations such as to "respect and ensure" or to provide "effective remedies". Conversely, some more specific human rights treaties, primarily the 1984 Torture Convention, both outlaw torture and require states parties to make violations punishable under domestic law and to take measures to establish jurisdiction over such crimes committed within its territory or when either the offender or the victim is a citizen of such a state. Additionally, it has been argued that states are also compelled under international customary law to punish other particularly serious human rights violations, such as extra-judicial killings and disappearances.

While international humanitarian law is primarily directed towards states, which are obliged to ensure that the rules are implemented and followed, it is also directed at individuals, who may be individually held accountable for violations of the provisions. Important treaties have been concluded in this regard.

The 1907 Hague conventions contain rules restricting the conduct of war, particularly between combatants in the field, while the 1949 Geneva conventions and their two additional protocols provide humanitarian protection for certain groups of persons who do not (or no longer) participate in the conflict, such as prisoners of war and - very importantly - civilians. The Geneva conventions explicitly oblige states to search for, prosecute or punish the offenders of certain crimes, so-called grave breaches. However, so-called other violations of the rules and customs of war, as well as all war crimes applicable in non-international conflicts do not fall within this category.

Hence, there is a distinction between international and non-international armed conflicts (civil wars), with the list of crimes more restricted in the case of the latter. This legal dichotomy complicates the application of the law and may lead to unsatisfactory conclusions with respect to civil wars. There is a trend to move away from this differentiation towards the much more compelling grave breaches regime operating regardless whether the armed conflict is international or internal. However, customary international law is probably not there yet. Nonetheless, the case law of the international criminal tribunals⁴ and developments in national jurisdictions have widened the scope of violations that can also be committed in civil wars.

Genocide is codified in the 1948 Genocide convention, which also explicitly obliges the states in the territory on which the crime was committed to prosecute the offender. The different acts that constitute the crime, which can be committed either in times of peace or war, are defined in the convention.

War crimes, genocide and torture are also considered as forming part of customary international law and are thus binding for all states irrespective of the state being a party to the convention or not. In respect of war crimes committed in a civil war, however, the status of at least some of the crimes set forth in the additional protocols is less certain.

More complex crimes, which have only recently been comprehensively codified, are the crimes against humanity.⁵ These crimes have long been considered crimes under customary international law, but their exact extent has been (and still is) disputed. Crimes against humanity which, among others, relate to acts against civilians such as murder, extermination, enslavement and torture, are applicable both in peace and war time. These generally have to occur to a significant extent in order to distinguish them from more ordinary crimes, and must form part of a greater campaign of atrocities.

No widely recognised formula for individual criminal responsibility for a ‘crime of aggression’ has yet been developed.

Enforcement

Today, the structure of constraining rules and principles is largely complete, although admittedly with varying degrees of clarity. The remaining and more arduous task is to ensure enforcement of these rules and principles. In general, the international procedural law imposing a duty to prosecute is more limited than the substantive law establishing international crimes.

The primary responsibility rests with states. International law permits each state to exercise jurisdiction over the above international crimes, but it does not necessarily compel them to do so. Genocide, torture and certain war crimes, those grave breaches committed in an international armed conflict, clearly fall within the category of crimes that every state is obliged to punish or, alternatively, to extradite the offender (aut dedere aut judicare). The trend is to view this obligation as applicable regardless of the nationality of the offender or the place where the crime in question had been committed (universal jurisdiction). However, the situation is less certain regarding the other crimes mentioned, but there is a definite trend towards extending the duty also to try to extradite violators of such crimes. For example, strong arguments have been made in favour of such a duty in respect of crimes against humanity.

In practice, however, impunity remained the rule and legal proceedings the exception. Hence, international enforcement mechanisms have been discussed. The Nuremberg and Tokyo tribunals set important precedents after World War II, but the Cold War hampered subsequent attempts to create a permanent international court. Today, however, international enforcement mechanisms in different parts of the world, for example, in the Balkans, Rwanda, Sierra Leone, Cambodia and East Timor, signify a trend against impunity for systematic perpetrators of atrocities. The trend indicates that the question is rather by whom and according to what standards prosecution of international crimes should be undertaken, than whether such measures should be taken at all. For example, the International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) were reactions by the international community to the horrendous crimes that were committed in two particular conflicts. They have paved the way for an International Criminal Court (ICC), which will enter into force when 60 states have ratified its statute.⁶

Besides various international initiatives, there is a growing state practice with regard to the national prosecutions of foreigners for international crimes committed abroad. This is based upon the principle of universal jurisdiction. The Pinochet extradition case in the United Kingdom represents a prime example that sets in motion a debate on the limits of the immunities of current and former heads of state. Other examples are the arrest in early 2000 in Senegal of Hissène Habré, the former head of state of Chad, and the international arrest warrant for "grave violations of international humanitarian law", issued by a Belgian judge against the DRC’s then Minister of Foreign Affairs, Mr Yerodia Adboulaye Ndombasi. The latter is now being challenged by the DRC before the International Court of Justice.⁷

Another modern trend in societies in transition to democracy or in the aftermath of civil war is the institution of truths-eeking mechanisms and institutions, such as formal truth commissions. The most elaborate example is probably the Truth and Reconciliation Commission in South Africa (TRC), but other prominent examples can also be found in different parts of the world.

The Security Council and the DRC

The UN Security Council has long been engaged with the conflict in the DRC. Already in November 1996, the Security Council concluded that the continuing deterioration of the situation in the eastern part of the country (then Zaïre) constituted a threat to international peace and security in the region and thus called for action under Chapter VII of the UN Charter.⁸ This conclusion, now extended to the situation in the whole of the DRC, was reiterated in April 1999.⁹ The Council specifically called upon all parties to protect human rights and respect international humanitarian law and for an international investigation into massacres and other atrocities to be conducted with a view to bring those responsible to justice.

On 10 July 1999, the DRC government and other parties to the conflict signed the Lusaka cease-fire agreement. The fighting nevertheless continued and, in August 1999, the Security Council authorised the deployment of UN military liaison personnel in the DRC.¹⁰ In November 1999, the United Nations Organization Mission in the Democratic Republic of Congo (MONUC) was authorised.¹¹

By the November 1999 resolution, the Security Council requested the Secretary-General to keep the Council regularly informed and to submit reports and recommendations on the situation in the DRC. So far, the Secretary-General has submitted seven reports, which have all referred to continued violations and abuses of human rights and international humanitarian law. The Security Council has taken note of this in a series of resolutions. The Council has also amended the mandate of MONUC. It is notable, however, that the mandate has not been extended to allow for assistance in any prosecution of the perpetrators of such crimes. Neither has any such move been recommended by the Secretary-General in his reports. Instead, MONUC has been tasked with human rights monitoring and humanitarian assistance.¹²

The Security Council has also repeatedly called for all parties to the conflict to protect human rights and respect international humanitarian law, bring to justice those responsible, and facilitate measures in accordance with international law to ensure accountability for violations of international humanitarian law. The Council has also reminded all parties of their obligations with respect to the security of civilian populations under the Fourth Geneva Convention (relative to the Protection of Civilian Population in Time of War) and stressed that "occupying forces should be held responsible for human rights violations in the territory under their control."¹³

In its latest resolution, the Council stressed "that those responsible will be held accountable."¹⁴ MONUC’s mandate was also expanded to include a civilian police component and an integrated civil-military section to co-ordinate operations relating to "disarmament, demobilisation, repatriation and reintegration," as well as an expanded civilian component to deal with, among others, the monitoring of human rights.

In conclusion, the Security Council has noted and condemned violations of human rights and international humanitarian law throughout the DRC conflict, but not yet indicated any international measures to curb the culture of impunity besides investigating the situation. No commission of experts or international commission of inquiry has been established, measures that have normally preceded initiatives for UN-sanctioned adjudication of international crimes. Instead, the Council has clearly indicated that the parties to the conflict have the primary obligation to institute the necessary measures to bring the violators to book. MONUC’s mandate for assisting in such a process is so far very modest.

Lusaka cease-fire agreement

On 10 July 1999, the DRC government and the other parties to the conflict signed the Lusaka cease-fire agreement. The main aspects of the agreement included the immediate cessation of hostilities, withdrawal of foreign forces, deployment of the UN peacekeeping force (MONUC), a new democratic dispensation in the DRC, the disarming, cantoning and documenting of all armed groups, and measures to hand over mass killers and perpetrators of crimes against humanity to the ICTR and to national courts.¹⁵

After initially being constantly violated, the cease-fire is now taking effect, foreign troops are withdrawing and the deployment of MONUC has begun. With the accession of Joseph Kabila as president of the DRC in January 2001, there is at present new hope for the implementation of the agreement. But violations of the cease-fire still occur.

Already in the preamble to the Lusaka agreement, the parties declare their determination to ensure respect for the 1949 Geneva conventions and the 1977 additional protocols, as well as the 1948 Genocide convention. The modalities of the implementation of the agreement are further specified in annex 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, the UN peacekeeping mandate and, important for the issue now at hand, what has been labelled ‘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:

"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, including the ex-FAR, ADF, LRA, UNRF II, Interahamwe, FUNA, FDD, WNBF, UNITA, 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.


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."

It is interesting to note that these provisions seem to address only armed groups other than those who are signatories to the agreement. Neither the DRC and the other states involved, nor the participating rebel groups — the Congolese Rally for Democracy (RCD) and the Movement for the Liberation of the Congo (MLC) — are explicitly mentioned. Together with the title of this chapter, one interpretation could be that the provisions, and thus accountability for crimes, are intended to apply only to non-signatory armed groups. However, such an interpretation would lead to illogical and unfair results. A better interpretation would be to focus on the expression "all armed groups in the DRC, including …" and thus to draw the conclusion that all armed forces should be covered.¹⁶

Furthermore, the provisions indicating punitive justice should be read in conjunction with other provisions on "national dialogue and reconciliation", particularly the Inter-Congolese Dialogue (ICD). These provisions are more general in nature and focus more on the modalities for the ICD than on the substance. While an important process in achieving sustainable peace, the provisions offer little explicit indications of justice as an element for reconciliation. Nevertheless, bearing the South African experience in mind, the task of elaborating a draft constitution, which shall govern the DRC after the holding of elections, could well entail negotiations on, for example, a truth and reconciliation commission.

What could be done?

The international community has traditionally taken different routes in responding to violations of human rights and international humanitarian law. The prevailing reaction has been to do nothing. As described above, however, there is a definite trend to move against impunity in an effort to provide long-term prospects of peace and democracy.

Other options on a national level are:

the institution of national prosecutions

the granting of amnesty; and

the creation of truth commissions.

In addition or as an alternative, international measures may be taken, such as:

assistance in national prosecutions; and

the creation of international tribunals.

Recently, combinations of different national and international measures have been developed and one interesting new option is the creation of hybrid tribunals with national and international elements.

These options will be examined with regard to the conflict in the DRC. In respect of the creation of international tribunals, the impact of the soon to be established ICC will be briefly discussed.

National prosecutions

The DRC and other states involved in the conflict are parties to a number of important international treaties. For example, the DRC is party to the 1948 Genocide convention, the 1949 Geneva conventions and additional protocol I relating to the Protection of Victims of International Armed Conflict, but not to additional protocol II relating to the Protection of Victims of Non-International Armed Conflict.¹⁷ Furthermore, the DRC is party to the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the 1984 Torture Convention, the International Convention on the Elimination of All Forms of Racial Discrimination, and the Convention on the Rights of the Child,¹⁸ as well as to the African Charter on Human and Peoples’ Rights.

Hence, the DRC is under international obligation to take legal action against many of the crimes that have been committed in the conflict. National laws are also available, in particular Law No 8-98 adopted on 31 October 1998 by the Congolese Transitional Council, which provides the basis to prosecute genocide, crimes against humanity and war crimes. The DRC and the other parties to the Lusaka agreement have explicitly stated that "mass killers and perpetrators of crimes against humanity" shall be brought before national courts (or, where applicable, the ICTR), while "other war criminals" might be dealt with differently.

However, satisfactory national prosecutions also require sufficient capacity. The existing judicial system in the DRC has been heavily criticised, in particular the Military Court of Justice (Cour d’ordre militaire). In one of the reports to the Security Council, the Secretary-General has even concluded that:

"The human rights situation is further aggravated by a justice system controlled at every level by the State, and unable to grant defendants the most elementary procedural guarantees."¹⁹

Accordingly, it is unlikely that reliance upon the national judicial system in addressing crimes that should be prosecuted would be a satisfactory option, at least not without substantive international support. The lack of independence suggests that this option would not only require new laws, additional resources and training, but also the establishment of a new judicial culture and maybe also a new breed of prosecutors and judges. Furthermore, it is likely that there are not a sufficient number of qualified defence lawyers available for trials, which is an essential prerequisite for providing fair proceedings.

Amnesties

The granting of amnesty as a political tool in a peacemaking process is commonplace. An offer of amnesty may be a necessary bargaining chip in a process where the violators are to relinquish power. South Africa and many Latin American countries are good examples. Additionally, amnesties for past abuses have been granted in countries such as Sierra Leone and Cambodia with the view to end rebellion.

Amnesty, which can be framed differently in legal terms, is intended to block prosecutions of past violations. It is not, however, necessarily equivalent with impunity, for example, foregoing accountability and redress. In both Haiti and South Africa, for example, amnesty has been tied to some kind of accountability process, albeit less intrusive than prosecution. The process may also be linked to prosecutions. In the words of Justice Albie Sachs regarding the South African TRC process:

"The fact is, it is not a choice between amnesty and prosecution. We had prosecutions in our country. Without the threat of prosecutions, no one would have come forward to ask for amnesty."²⁰

Much debating has occurred in recent years over the limits for granting amnesties for past human rights violations and crimes under international law. Particularly in respect of crimes such as genocide, crimes against humanity and war crimes, as well as torture, strong opinions have been expressed against amnesties. For example, the UN Secretary-General has expressed in many instances — also in respect of the DRC²¹ — that, while amnesties may be a necessary means to facilitate disarmament, demobilisation and the reintegration of former combatants into society, it is not an option for crimes like genocide and crimes against humanity.²² In the Burundi peace process, amnesty has been ruled out in respect of all acts of genocide, crimes against humanity and war crimes.

To what extent international law prohibits amnesty is debatable. It is clear, however, that there is a distinct move towards restricting the violations for which international law allows amnesty and that unconditional or blanket amnesty is no longer an acceptable option.

This development affects the legal status of amnesties. Even in countries where amnesty has been granted, the scope has subsequently been debated. Criminal investigations and even prosecution have sometimes followed irrespective of amnesties granted, for example, in Argentina and Chile. Linked to this is the extent to which domestic amnesties should also be recognised by other states, thus preventing crimes from being prosecuted and punished by foreign courts and international tribunals. National prosecutions have taken place in foreign states in spite of amnesty laws (Pinochet), and the ICTY has held that amnesties for torture are null and void and will not receive foreign recognition.²³ Thus, national amnesty did not hinder international prosecution. In Sierra Leone, the granting of "absolute and free pardon" for war crimes and crimes against humanity in the Lomé peace agreement has not barred the work of setting up a special tribunal. Realising this development, the South African TRC appealed in its final report of October 1998 to the international community to recognise the amnesty process regarding apartheid, also as a crime against humanity.

The DRC’s Lusaka cease-fire agreement foresees amnesty as a possible option, except for genocidaires. The compatibility of this provision with international law depends on how it is operationalised by the parties. Both the violations and the processes are here of importance.

Truth commissions

The most extensive example of a truth commission is probably the South African TRC, but good examples can also be found elsewhere. The task of such a body is to investigate a past history of human rights violations in a particular country and the process may be purely domestic or sponsored internationally. The purpose is to acknowledge the truth of the past conflict officially, to facilitate political transition, to improve human rights and practices, to reduce the risk of future violations, as well as to promote reconciliation. Preferably, reparations to victims are attached to the process. A truth and reconciliation process, however, must not necessarily be linked to the granting of amnesty, although this is commonly the case.

Truth commissions, which have been the focus of much political science and social research also have limitations. Commentators disagree about whether they help to promote national reconciliation or create further resentments and open old wounds. They have increasingly been the focus of political science and social research. Nevertheless, they have become increasingly popular and common in transitional and post-war societies.

A truth and reconciliation process may run parallel with international prosecutions. This is applicable in the case of the conflicts in Bosnia-Herzegovina, Serbia and Rwanda for which international tribunals have been established. Such commissions are furthermore on the table in Sierra Leone, Cambodia and East Timor where mixed international and national tribunals are, or may be established.

These domestic processes have been framed differently. The international community and legal commentators have also assessed them with various degrees of approval or disapproval. Issues that are important are popular approval, widespread participation, a broad mandate and broad powers, and the linkage between this process and other processes, such as prosecutions and institutions for investigation of the current human rights situation. It is obvious that a truth and reconciliation process should also be considered in the DRC, in particular, if amnesty is to be granted.

Assistance in national prosecutions

In recent years, the international response to armed conflicts and transitions to democracy has increasingly entailed assistance in the reconstruction (or establishment) of a national legal system. Rwanda, East Timor and Kosovo are prominent examples and different international organisations are developing their skills in reconstructing the legal systems. The aim is to enable the system to provide justice where this cannot be done in accordance with international standards. Often, this has to be done from scratch. One lesson is that the swift establishment of judicial arrangements, even if of an ad hoc nature, is important for the creation of the political stability necessary for the development of democratic institutions.²⁴ Other elements are the training of lawyers and the restoration of the correctional system.

The conclusion is that international assistance would be required to bring the perpetrators in the DRC conflict to book. However, even with international assistance, national prosecutions are a difficult proposition. Maybe the main obstacle is that substantial resources are needed for dealing with widespread atrocities and a large number of perpetrators. An example is Rwanda where numerous suspects are awaiting trial after the genocide and where the backlog of cases is such that the system will never have the capacity to deal with it. Thus, different measures have been taken such as plea-bargaining arrangements and, recently, a system of village courts (gacaca) without professional judges. While community involvement could promote reconciliation, concerns have been raised over due process rights and fairness for the accused. Additionally, the experiences of Rwanda also show that assistance, for example in the form of foreign lawyers in national proceedings, is a mixed blessing that has created tensions.

International tribunals

Ad hoc tribunals

A relatively recent reaction by the international community to serious atrocities is the establishment of so-called ad hoc tribunals. Only two such tribunals are in place and their jurisdiction is limited to very specific crimes against international humanitarian law committed in clearly defined conflicts. They do not have a mandate to address general human rights violations.

Bearing in mind that most armed conflicts today are not international (between states), but rather non-international (civil wars) or mixed (internationalised conflicts), the statutes of the tribunals also include crimes applicable in non-international armed conflicts. The establishment of an ad hoc tribunal is thus also a possible option when the conflict is not purely of an international character, as is the case in the DRC.

The tribunals were established by the Security Council under Chapter VII of the UN Charter. This offers the advantage of creating obligations binding on all states, which is particularly important since the tribunals lack a police force for making arrests and conducting investigations on site. The experience is, however, that in spite of the compelling obligations of states to co-operate with the tribunals, good faith efforts by states are necessary for their effective operation. Additionally, the tribunals are given primacy over national jurisdictions. When both the tribunal and a state therefore exercises jurisdiction over a crime, the former has preference. This is also applicable to extradition from a third state. Naturally, such a regime is likely to create tension and this has particularly occurred between the ICTR and Rwanda.

The way in which the ICTR was created, among other reasons, initially led to a negative attitude towards the tribunal among many African states. Nevertheless, the attitude has evolved into active support since the OAU Summit in Harare on 2-4 June 1997. The shift was an acknowledgement of the tribunal’s safeguards, independence and competence. This has also lead to repeated calls by the OAU Council of Ministers and other organs on states to ratify treaties of international humanitarian law and punish the violators, among others, hence, the necessary co-operation can today also be expected in Africa.

Accordingly, one solution for bringing the perpetrators of crimes against international humanitarian law to book in the DRC would be for the Security Council to establish a new ad hoc tribunal, modelled after the ICTY and ICTR. However, none of the resolutions on the DRC thus far have even hinted in this direction. On the contrary, the Security Council has consistently stressed the responsibility of the parties to the conflict to bring the violators to book. No new ad hoc tribunal has been established after the ICTR despite calls for such measures, for example, by Burundi. Instead, the trend has been to elaborate new types of special tribunals. The prospects for a new ad hoc tribunal for the DRC must therefore considered to be very bleak.

There is an obvious nexus between the 1994 genocide in Rwanda and the more recent conflict in the DRC. Thus, another hypothetical solution for addressing crimes against international humanitarian law in the DRC conflict could be to extend the present mandate of the ICTR to include war crimes and crimes against humanity committed in the DRC.²⁵ For many reasons, however, this would also not be a feasible way forward. Besides the political and legal difficulties involved in amending the mandate, the ICTR would need enhanced capacity to tackle such a task.

Irrespective of this, however, the warring parties have committed themselves, through the Lusaka agreement, to hand over "mass killers and perpetrators of crimes against humanity," and thus to co-operate with the ICTR.

International Criminal Court

Ideally, the ICC would be operational and competent to address the serious crimes against international humanitarian law committed in the DRC. As a permanent and global institution, the ICC would have the legitimacy and tools to do so. The ICC will have jurisdiction over genocide, crimes against humanity and war crimes, and in future, possibly also over crimes of aggression. In addition, the reliance upon a single court would enhance coherence in the development of international law by jurisprudence and avoid the potential problem stemming from the proliferation of international courts and tribunals. However, the statute of the ICC has not yet entered into force and even if it had, this court will not be competent to try crimes committed before the entry into force of the statute.²⁶

It is important to note that the ICC is not intended to substitute national courts. The ICC will not have concurrent jurisdiction with national courts or primary jurisdiction over them, which is a major difference when compared to the ICTY and ICTR. This is called the principle of complementarity and means that the court shall act only when bona fide investigations and prosecutions are not carried out by states. Hence, the Rome statute does not exclude the possibility of national prosecutions. Instead, it presupposes that such action takes place and that the states have a duty and responsibility to exercise its criminal jurisdiction over those responsible for international crimes. Furthermore, the ICC’s jurisdiction is limited to some of the most serious crimes against international law, while the obligation of states to protect human rights goes much further.

Mixed international and national tribunals

The latest attempt by the international community to address international crimes in a particular conflict is the creation of mixed national and international criminal tribunals. In addition, there are parallel discussions concerning truth and reconciliation processes.

Cambodia

In 1999, a UN Expert Group proposed that an international criminal tribunal for Cambodia, similar to the ICTY, should be established and placed outside of the country. The Cambodian government rejected the proposal and questioned why foreign judges outside of Cambodia should deal with Cambodian perpetrators and victims. Instead, a mixed model was discussed where judges and prosecutors both from Cambodia and from other countries would be used and the proceedings would take place in the country. No formula that satisfies both the Cambodian government and the UN has been reached so far with concerns relating particularly to the risk of the tribunal being hi-jacked by the Cambodian authorities.

Instead, a Cambodian law has unilaterally been elaborated and adopted on 2 January 2001, which establishes so-called extraordinary chambers within the existing domestic court structures.²⁷ The subject matter jurisdiction of the extraordinary chambers covers genocide, crimes against humanity, grave breaches of the Geneva conventions, destruction of cultural property during armed conflict pursuant to the 1954 Hague convention, and crimes against internationally protected persons pursuant to the 1961 Vienna Convention on Diplomatic Relations. Additionally, the chambers have jurisdiction over certain crimes under the domestic penal code of Cambodia: homicide, torture and religious persecution.

Besides the location of the trials in Cambodia and the risk of witness safety therefore being compromised, the major criticism of the chambers relates to the organisation of the model. The chambers and the prosecution consist of both Cambodian and international (foreign) officers (judges and prosecutors). However, the chambers would have a majority of Cambodian judges on all levels. Two so-called co-prosecutors, one Cambodian and one international, will be appointed and a complicated formula has been introduced for settling disagreements between them. Another serious concern is that Cambodian judges and prosecutors lack training and independence from the executive powers.

East Timor

A mixed model is already in place as part of the reconstruction process in East Timor. So-called panels of judges with exclusive jurisdiction over serious criminal offences, established by the United Nations Transitional Administration in East Timor (UNTAET),²⁸ consist of both international and national judges. The panels are located in one district court and in the Court of Appeal. They have jurisdiction over genocide, war crimes and crimes against humanity, as well as murder, sexual offences and torture, which are defined in the regulation or in the applicable penal code in East Timor. The regulation provides for universal jurisdiction for war crimes, genocide, crimes against humanity and torture, and exclusive jurisdiction over murder and sexual offences committed during a specified period.

Unlike in Cambodia, international judges will here be in the majority. The appointment process is also different. The regulation does not entail any special provisions on prosecutors.

Sierra Leone

In August 2000, the Security Council expressed its deep concern about the serious crimes committed in Sierra Leone and the prevailing situation of impunity. It requested the Secretary-General to negotiate an agreement with the government of Sierra Leone to create an independent special court.²⁹ This resulted in a draft statute for a special court for Sierra Leone and a draft agreement between the UN and Sierra Leone.³⁰ The Secretary-General has not signed these yet, since the funding for the court has not been secured.

Instead of special panels or chambers in the ordinary domestic courts, the Sierra Leone special court is a new extraordinary institution, restricted to trying:

"those who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law … including those leaders who, in committing such crimes, have threatened the establishment of the peace process in Sierra Leone."

Crimes under the court’s jurisdiction include crimes against humanity, violations of article 3 of the Geneva conventions and additional protocol II (in civil wars), other serious violations of international humanitarian law, as well as certain crimes under domestic law (abuse and abduction of girls, and arson). A hotly debated issue is the age limit for criminal responsibility before the court.

The court will have primacy over the national courts of Sierra Leone. With a Chapter VII mandate, it would have primacy over national courts in other jurisdictions, which would enable it to secure arrests and transfers from other countries. Regarding investigations and prosecutions against international peacekeepers and related personnel, the sending state will have primary jurisdiction. However, the Security Council may authorise the investigation or prosecution of a peacekeeper.

A particular difficulty has been the amnesty for crimes committed before 7 July 1999 pursuant to the Lomé peace agreement. This amnesty has not been considered as applicable to violations of international law, only to crimes under Sierra Leonean law, and the draft statute prescribes that amnesty shall not bar prosecution of the former crimes.

The special court will also have a mixed bench of local and international judges. Like the East Timorese panels and contrary to the Cambodian extraordinary chambers, the majority of the judges - both in the trials chamber and the appeals chamber - will be international and appointed by the Secretary-General. Furthermore, the prosecutor will be appointed by the Secretary-General and a deputy prosecutor will be a Sierra Leonean appointed by the government of Sierra Leone (after consultations with the other party in each case). The Secretary-General will also appoint the court’s registrar. Hence, this court is more similar to the ad hoc tribunals than to either the East Timorese panels or the Cambodian extraordinary chambers with stronger international components. In Sierra Leone, the domestic legal system also lacks the capacity to conduct such investigations, prosecutions and trials.

In addition, a truth and reconciliation process is envisaged in Sierra Leone and a Bill for The Truth and Reconciliation Commission Act, 2000, has been introduced to the Sierra Leone parliament.³¹ This is in line with article 26 of the Lomé peace agreement. The commission will consist of both citizens and non-citizens of Sierra Leone, all appointed by the president upon recommendations of, among others, the UN High Commissioner for Human Rights (UNHCHR). Participation of both victims and perpetrators is contemplated and certain powers are vested in the commission, excluding the granting of amnesty. A report with recommendations will be submitted to the president when the commission has concluded its work. The recommendations will be implemented faithfully and as soon as possible by the government, which will be monitored by a special body. The co-ordination between the commission and the special court requires further consideration and the UNHCHR is at present dealing with these issues.

Concluding remarks

The DRC and other states involved in the conflict are obliged under international law to prosecute crimes such as genocide, crimes against humanity, war crimes and torture. That such prosecutions indeed occur is important for long-term peace and stability.

However, whether national, international or mixed, prosecutions have obvious limitations in their peacemaking capacity. Criminal trials will never be truth-finding to the extent necessary for achieving the aims of a truth and reconciliation process. Neither national courts, nor an international tribunal would have the capacity to try all perpetrators. International tribunals should primarily aim at those who are most responsible of the worst crimes. In all criminal proceedings, only a limited number of victims will be heard. Furthermore, a criminal trial cannot fully analyse the historical, political, sociological and economic causes for the war in which the crimes were committed, but only review such issues to the extent necessary for establishing whether the person accused should be held criminally responsible as an individual.

Additionally, many of the violations that need to be addressed will not necessarily call for individual criminal responsibility. Others, correctly under international law, may be subject to amnesty, with or without any conditions.

Besides prosecutions, there are therefore strong reasons for the establishment of a truth and reconciliation process in the DRC. Recent developments suggest that justice and reconciliation, or put differently, prosecutions and truth commissions, do not exclude but rather supplement each other. Both types of mechanisms should therefore be explored.

An appropriate forum for this very difficult task would be the Inter-Congolese Dialogue. However, it is evident that international assistance is needed in these efforts. In respect of criminal justice, purely international proceedings seem unlikely and national proceedings alone insufficient. Instead, mixed international and national solutions should be explored. One useful precedent is the proposed special court for Sierra Leone. Concerning a truth and reconciliation process, mixed solutions could also be chosen. Here, experiences from other countries, not the least South Africa, are very useful.

Whatever the solution, it is important that crimes committed during the conflict are investigated as soon as possible, maybe by an international commission of inquiry. Furthermore, if different processes are chosen, these will have to be carefully co-ordinated with one another. This is a challenging task, indeed, but as shown in other countries, both necessary and possible to carry out.

Notes

This article is published under the auspices of the Traning for Peace project, sponsored by the government of Norway. The views expressed are those of the author alone and does not necessarily reflect the views of the Swedish government. The author would like to thank ISS researcher, Phenyo Keiseng Rakate, for valuable research assistance.

Report of the Secretary-General on the UN Preliminary Deployment in the DRC of 15 July 1999, (S/1999/790), paragraph 13.



In the Burundi peace process, for example, consideration is given to call upon the Security Council to set up an International Judicial Enquiry Commission and an International Criminal Tribunal, as well as instituting a National Commission on Truth and Reconciliation; see Protocol I of the Arusha Accord for Peace and Reconciliation in Burundi; see also Burundi: Neither war nor peace, ICG Africa Report 25, 1 December 2000.



G J Bass, Stay the Hand of Vengeance — The Politics of War Crimes Tribunals, Princeton University Press, Princeton and Oxford, 2000, p 304.



The decision on jurisdiction of 2 October 1995 in the Tadic case and following decisions by ICTY. See, for example, The prosecutor v Busko Tadic case W-IT-1-T.



See article 7 of the 1998 Rome Statute for the International Criminal Court.



As of 17 July 2001, 37 ratifications have been obtained and a total of 139 states, including the DRC, Angola, Namibia, Uganda and Zimbabwe, have signed the Rome Statute.



DRC v Belgium (Arrest Warrant of 11 April 2000), ICJ press release 2000/32, 17 October 2000.



Resolution 1080 (1996), 15 November 1996.



Resolution 1234 (1999), 9 April 1999.



Resolution 1258 (1999), 6 August 1999, and extended by Resolution 1273 (1999), 5 November 1999.



Resolution 1279 (1999), 30 November 1999.



Resolution 1291 (2000), 24 February 2000.



Resolution 1341 (2001), 22 February 2001 and Resolution 1355 (2001), 15 June 2001.



Resolution 1355 (2001).



See the Lusaka Cease-Fire Agreement, chapter 8, paragraph 8.2.2.



The explicit mention of non-participating groups with this interpretation would only indicate that the scope of the provisions is not limited to the parties to the agreement.



On the other hand, Namibia, Rwanda, Uganda and Zimbabwe are all all also all to additional protocol II. Angola is party only to the Geneva conventions and additional protocol I.



In May 2001, the DRC also signed the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict.



Third Report of the Secreatry-General on the United Nations Organization Mission to the DRC, S/2000/566, 12 June 2000, paragraph 48. See also the various reports by the Special Rapporteur, Mr Roberto Garretón, E/CN.4/1998/65, paragraph 32-37, E/CN.4/1999/31, paragraph 17, E/CN.4/2000/42, paragraph 32-33 and 125, and E/CN.4/2001/40, paragraph 48 and 88-91.



A Sachs, Truth and Reconciliation, Southern Methodist University Law Review 52(4), 1999, p 1577.



Report of the Secretary-General on the UN Preliminary Deployment in the DRC, S/1999/790, 15 July 1999, paragraph 24.



Regarding war crimes, additional protocol II to the Geneva convention explicitly provides room for amnesties in internal conflicts.



Prosecutor v Furundzija, IT-95-17/1-T, 10 December 1998.



See H Strohmeyer, Collapse and reconstruction of a judicial system: The United Nations missions in Kosovo and East Timor, American Journal of International Law 95(1), 2001, p 60.



In fact, this solution has been suggested by the UN Committee on the Elimination of Racial Discrimination, Decision 1 (52) of 19 March 1998, UN Doc. A/53/18, paragraph IIA1.



Article 24 of the Rome Statute.



The Law on the establishment of extraordinary chambers in the courts of Cambodia for the prosecution of crimes committed during the period of Democratic Kampuchea, ie from 17 April 1975 to 6 January 1979 when Pol Pot and the Khmer Rouge were in power.



UNTAET Regulation No 2000/15, 6 June 2000 (UNTAET/REG/2000/15).



Resolution 1315 (2000), 14 August 2000.



Attached to the Secretary-General’s report to the Security Council, S/2000/915, 4 October 2000. See also, M P Scharf, The Special Court for Sierra Leone, ASIL Insight 53, October 2000 <www.asil.org/insights/ insigh53> (8 July 2001); M Frulli, The Special Court for Sierra Leone: Some preliminary comments, European Journal of International Law 11(4), 2000, pp 857-869; R Cryer, A ‘Special Court’ for Sierra Leone, International and Comparative Law Quarterly 50(2), 2001, pp 435-446.



Supplement to the Sierra Leone Gazette 81(9), 2000.