M23 Militias

Transitional justice mechanisms aim to combat impunity and “to promote the dynamics for reform and reconciliation within societies recovering from armed conflicts or a period marked by large-scale abuses. They must also contribute to the prevention of further conflicts, the strengthening of democracy and the re-establishment of the rule of law, all of which must be supported by new consensual foundations. Transitional justice also seeks to restore dignity to the victims of human rights violations through the establishment of provisions for justice, truth and reparation for the wrongs they have suffered.” (991).  The UNMR listed 617 serious "incidents," most of which constituted mass crimes committed between 1993 and 2003 on the territory of the Democratic Republic of the Congo (DRC) which were pre-qualified as crimes against humanity, war crimes and even, in the case of the massacre of thousands of Hutu refugees, possible genocide. A decade later, almost none of these international crimes have been prosecuted, whether by a Congolese court, an international criminal court, or on the basis of universal jurisdiction. Two of the 167 incidents were prosecuted, the so-called Milobs and the Ankoro incident, were prosecuted before Congolese military courts. “A careful reading of the decision suggests a lack of impartiality and independence.”    The UNMR comments on the Congolese Criminal Justice system as follows: "One of the major weaknesses of the judicial system in the DRC has always been the lack of independence of the courts and tribunals from the executive, legislative and administration structures of the State. Interference and interference in judicial matters by political and military authorities is common and well known”. The UNMR found that the Congolese criminal justice system is too inefficient to do so. According to the UNMR, paragraph 1996, the scale of human rights violations in the DRC was too high to be remedied by a justice system that operates inadequately, and where there are hundreds of thousands of perpetrators and victims (United Nations Human Rights Office of the High Commissioner 2010b). As an alternative, there have been calls for the creation of an international special court or a hybrid judicial model embedded in the Congolese and international legal systems. Since its publication and despite its findings on the scale and serious nature of crimes and human rights violations, the perpetrators of those atrocities continue to enjoy impunity (Amnesty International 2011).

The International Criminal Court has jurisdiction over crimes committed since July 2002, not over the many prior violations (Aptel 2010). Therefore, there is an urgent need to consider different options to address the documented violations. The Congolese justice system is ill-equipped, and consequently is incapable of addressing the alleged crimes, citing frequent political interference and lack of independence. The creation of an international hybrid judicial system grounded on the model of the Extraordinary African Chambers in the Courts of Senegal (EACCS) is believed to be necessary to address all the crimes and human rights violations reported in the UNMR, and which were committed by non-Congolese actors.

The EACCS was created in February 2013 to trial the crimes committed by Hissène Habré, former Chadian President, for crimes committed in Chad between 1982 and 1990. The Chambers’ jurisdiction is suitable for the DRC because it can prosecute all the crimes reported in UNMR – such as crimes against humanity, war crimes, torture and genocide (Garrido 2020).

Transitional justice in reforming of security sector such as the police and the army, had not been implemented it allows for vetting measures aimed at ensuring that "state officials who are personally responsible for gross human rights violations, in particular those in the army, security services, police, intelligence services and judiciary, should no longer exercise their functions within state institutions”.

The United Nations is aware of the identity of the alleged perpetrators of some of the crimes listed in the Mapping Exercise which have been recorded in a confidential database of the project submitted to the High Commissioner for Human Rights as well as a database of the MONUSCO Profiling Unit, which is responsible for examining the past actions of members of the Armed Forces of the Democratic Republic of Congo (FARDC) concerning respect for international humanitarian law and human rights in the context of the UN’s "due diligence policy" and provision of UN support to non-UN security forces. The information contained in these databases are not used in a vetting process to ensure that senior FARDC officers who are alleged to have committed gross human rights violations are no longer able to remain in post neither is it used to launch criminal proceedings against them. In reality, there is no true "implementation process" of transitional justice under way in the DRC. The Congolese Society for the Rule of Law, the most active NGO on this question in Kasai, issued a statement in which it "continues to express serious doubts about the willingness of the government of the Republic to fight impunity.” The President during the last government reshuffle in March 2023 appointed 2 former warlords to the rank of Minister and Deputy Prime Minister, after having appointed, two years earlier, on August 7, 2021, a former member of the Rassemblement Congolais pour la Démocratie and leader of a militia, the Alliance de Libération de l’Est du Congo (ALEC), close to the M23 and Rwanda, as national coordinator of the Programme National de Démobilisation, Désarmement, Relèvement communautaire et Stabilisation (PDDRC-SS).

The international community has acted, most often through Security Council resolutions: "The genocides in the former Yugoslavia and Rwanda gave rise to ad hoc international courts that have indicted 250 of the worst criminals. The Special Court for Sierra Leone established in 2002 investigated the civil war that ravaged the West African country in the 1990s, and in 2012 it found former president Charles Taylor guilty of war crimes. A criminal court was established in 2003 in collaboration with international aid to prosecute the leaders of the Khmer Rouge who caused the deaths of more than 1.5 million people in Cambodia over four years during the 1970s."

There has been no willingness among the world powers to follow up on the work of this mapping report. The United States and the United Kingdom in particular have continued to support and protect Rwanda. Given the many challenges in the DRC, the report states that it is “crucial that a holistic policy of transitional justice be adopted, which will depend on the creation of diverse and complementary mechanisms, both judicial and non-judicial.”

The “frequently decisive role” played by foreigners in the conflicts in the DRC “poses a serious challenge to the implementation of certain global transitional justice measures… The process of seeking truth and finding facts, even more so the establishment of accountability, will be difficult in certain cases without the help and cooperation of third-party States or their citizens. . It will be more difficult to establish the extent to which foreign commanders, sponsors and those who gave orders are responsible without the assistance of the authorities in the relevant countries...” (999