19 05 14 ICTI – Refusal to Pardon Serious Crimes Signals Justice Could be On the Way

The
decision resulted from peace negotiations between the M23 and the government,
which began late last year after the armed group surrendered to the Congolese
military.

The
Kampala Dialogue set the terms of the amnesty, which pardon acts of
insurrection, war, and political offenses on the condition that eligible
individuals submit a written commitment to refrain from committing these
acts.

Importantly, however, the amnesty law expressly excludes amnesty for perpetrators of more serious crimes such as genocide, crimes against humanity, war crimes, sexual violence, torture, or child conscription. It only provides amnesty for perpetrators of war related acts that are respecting the laws and customs of war.

By restricting the amnesty law to forgive only lower-level crimes, DRC has adhered to its commitments under law.

Additionally,
the law will not disrupt civil proceedings or reparations related to the crimes
committed and covered by the law.

Acts
of insurrection, also covered by the amnesty law, are confined to acts of
collective violence to rebel against authority to express a claim or discontent.
Pardons for political offenses are restricted to acts against public
authorities, illegal management acts or territory administration with a
political aim, as well as writings, images, and statements inciting rebellion
against public authority.

“ICTJ
joins Congolese civil society and international human rights groups in welcoming
the decision to limit the amnesty to lower-level crimes,” said Sofia Candeias,
ICTJ Criminal Justice Senior Associate. “However, without equal attention to the
prosecution of serious crimes, the amnesty will only serve to formalize
persistent and widespread impunity for crimes committed during
conflict.”

The
United Nations has hailed the law as a demonstration of the DRC’s commitment to
implement the Nairobi Declaration, the agreement which formally brought to an
end the M23 rebellion, and noted that the law falls within the framework of the
Peace, Security and Cooperation Framework for the DRC and the region
(PSCF).

“By
restricting the new amnesty law to a limited set of offenses, the DRC sends a
clear signal that it recognizes its obligations under international law that
serious crimes cannot be pardoned,” explained ICTJ Deputy Program Director Anna
Myriam Roccatello.

“While
this law will help facilitate reintegration of former combatants in society, we
must not forget that victims of atrocity crimes are still waiting for
accountability. DRC’s efforts to secure peace will falter if survivors’ calls
for justice are left to the wind.”

A
Slow March towards Justice

Between
August 1998 and April 2007, about 5.4 million people were killed during
successive wars in the DRC. Although a peace agreement was signed in 2002,
massive unemployment, land disputes, inter-ethnic tension and the country’s
abundant mineral wealth continue to drive conflict throughout the
area.

State
forces, national and foreign paramilitaries and armies have all targeted
civilians and engaged in gross human rights violations, including murder, sexual
violence, forced labor and forced displacement, and the recruitment of child
soldiers. Aside from a select number of prosecutions—including the conviction by
the International Criminal Court of warlord Thomas Lubanga Dyilo—most
perpetrators of serious crimes have enjoyed impunity.

"We must not forget that victims of atrocity crimes are still waiting for accountability. DRC’s efforts to secure peace will falter if survivors’ calls for justice are left to the wind."

Last month, the Ministry of Justice and Human Rights in the DRC made public the list of the first beneficiaries of the 2014 amnesty law passed in February by DRC President Kabila. To date, a total of 271 beneficiaries of the law have been announced. Among the list of amnesty recipients is René Abandi, who led the M23 delegation to the talks last year.

In
2012, the rebel military group March 23 Movement (M23)—who were once part of the
nation’s army—staged a rebellion against the DRC government that killed and
displaced large numbers of people. After the M23 surrender in 2013, the two
parties met for the Kampala Dialogue, resulting in the dissolution of the M23
faction.

Although
the DRC ratified the Rome Statute in 2002 and referred crimes for investigation
and prosecution to the ICC beginning in 2004, the government has yet to fully
implement the ICC Statute into domestic law. A new law passed in April
transferred jurisdiction of war crimes, crimes against humanity and genocide
from military to civilian courts, but this has yet to be implemented in
practice. Moreover, it does not incorporate definitions of international crimes,
or provide for victim participation or due process. There is a chance these
shortcomings will be addressed if current draft laws on a specialized chambers
and the implementation of the Rome Statute are ultimately
adopted.

“The
Congolese people have seen little action regards to international crimes and
other violations excluded from the scope of the 2014 amnesty law,” said
Roccatello. “In the same way the government has taken steps to forgive
lower-level crimes, we would like to see equally concrete steps for prosecutions
of serious crimes to move forward.”

ICTJ
continues to engage with government and civil society stakeholders on increasing
DRC’s domestic judicial capacity, including the development of the draft law on
the specialized mixed chambers, as well as the draft law on the implementation
of Rome Statute.

Photo:
MONUSCO Force Commander, Gen. Carlos Alberto dos Santo Cruz and MILOBS team
during an observation mission on Munigi Hill as FARDC conduct an attack on M23
rebel positions in Kanyaruchinya near Goma, the 15th of July 2013.
(MONUSCO/Sylvain
Liechti