The 'African World War' and challenges to the enforcement of redress for victims of violations of Human Rights and International Humanitarian Law

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Jurisdiction	South Africa
Citation	(2008) African Yearbook on International Humanitarian Law 137
Pages	137-162
Date	22 August 2019
Author	Phebe Mavungu Clément
Published date	22 August 2019

The ‘African World War’ and

Challenges to the Enforcement of

Redress for Victims of Violations of

Human Rights and International

Humanitarian Law

Phebe Mavungu Cle´ment*

1INTRODUCTION

Within the last decade the Democratic Republic of the Congo (‘DRC’) has

been engulfed in what some scholars have referred to as ‘Africa’s World

War’.

This multifaceted and never-ending conflict has involved eight for-

eign armies and numerous Congolese and several foreign and local militias,

and has turned out to be the globe’s most deadly conflict since the Second

World War.

State services and the rule of law have collapsed and, in an

ironically cruel twist of history, the Congo – potentially, one of world’s

richest countries

– has become one of the poorest. The country now has

* PhD Candidate at Oliver Schreiner School of Law (Wits University), LLM (Pretoria

University), LLB/BA (Kinshasa University). This article is based on the author’s LLM

dissertation, ‘For effective implementation of the victims’ reperations: the case study of

Sierra Leone, and lessons for the DRC’, submitted to the University of Pretoria in

November 2006, and on research he is currently undertaking for the second chapter of

his doctoral thesis. Thanks to Professor Garth Abraham for his encouragement, his

insightful comments on the earlier draft and his continual guidance and support. E

mail: phemach2002@yahoo.fr.

See for instance G Prunier Africa’s World War: Congo, the Rwandan Genocide, and

the Making of a Continental Catastrophe (2008).

The combined five studies conducted by International Rescue Committee have revealed

that between August 1998 and April 2007, Conflict and humanitarian crisis in the

Democratic Republic of Congo have taken the lives of 5.4 million people and continue

to leave as many as 45,000 dead every month. These figures do not include the number

internally displaced, refugees, child soldiers, rape and sexual abuse survivors, as well as

other survivors. See IRC ‘Mortality in the Democratic Republic of Congo: An ongoing’.

Available at congomortalitysur

vey.pdf> (accessed on 14 December 2008).

DRC natural resources range from gold, diamond, tin, copper, oil, cobalt, fertile soil,

seven lakes and more than 100 rivers. See W Makonero ‘Background to the Conflict and

Instability in the African Great Lakes,’ in Denis Kadima & Claude Kabemba (eds)

Whither Regional Peace and Security? The Democratic Republic of Congo After the

War (2000) 73.

137

(2008) African Yearbook on International Humanitarian Law 137

a stark legacy of gross violations of human rights and international huma-

nitarian law – the war strategies that have been employed include horrific

attacks on civilians, forced recruitment and use of child soldiers, wide-

spread and systematic rape and sexual abuse.

While a number of transitional justice initiatives have been undertaken

with a view to addressing legacies of the violent conflict and preventing

patterns of future egregious abuses,

the plight of victims has been ignored

for political reasons.

This encapsulates Bottiglero’s complaint about the

dichotomy arising from the fact that victims of ordinary crimes – such as

theft, robbery, assault or murder – find it easier to obtain redress, while

those of the most serious violations – such as war crimes, genocide and

crimes against humanity – receive less attention.

Yet, most contemporary

legal systems guarantee the basic principle that ‘victims of harmful acts are

or should be entitled to some form of redress.’

The principle of redress for victims of serious violations is amongst the

most established legal principles; indeed, it is deeply rooted in general

international law, international humanitarian law and international

human rights law.

However, its domestic enforcement in the particular

case of victims of human rights and international humanitarian abuses in

the Congo faces manifold challenges that this article intends to consider.

While analysing the challenges facing the enforcement of victims’

redress, this article puts forward the argument that the Congo’s legal and

political environment has not been conducive to the enforcement of repara-

tion for victims of war, which in the short, medium and long run will

continue to obstruct the enforcement of victims’ reparation. The article

starts by analysing the principle of reparation under international law;

thereafter, the challenges of its enforcement in the Congo are explored.

The article then discusses options and challenges relating to an effective

enforcement of victims’ redress. Before embarking on the task, however, it

In general terms transitional justice mechanisms include the following steps: the

prosecution or accountability of perpetrators, whether in a domestic, a hybrid

internationalized, or an international court; the establishment of a Truth Commission

or another similar institution; the development of victims’ remembrance initiatives and

the adoption of vetting measures. See Alex Boraine ‘La justice traditionnelle: un

nouveau domaine’, Colloquium ‘Re´parer les effets du passe´. Re´parations et transitions

vers la de´mocratie’, Ottawa, 11 March 2004. Available at

S/10899187131Discours d’Alex Boraine.doc> (accessed on 11 December 2008); Marc

Freeman and Dorothee Marotine (International Centre for Transitional Justice)

‘Qu’est ce que la justice transitionnelle ?’ Available at

7/5/752.pdf> (accessed on 11 December 2008).

MC Bassiouni Post conflict justice (2002) 7.

I Bottigliero Redress for Victims of Crimes Under International Law (2004) 1.

Ibid.

For example, UDHR (art. 8); ICCPR (art 2 (3), art 9(5) and art 14(6)); CERD (art 6);

CRC (art 39); CAT (art 14), GC I (art1 51 & 51); GC II (art 50); GC III (art 129); GC IV

(art 146); common art 1 of GCs; API (art 1(2)); and the Rome Statute of the ICC (art

75). It is also enshrined in regional instruments, eg European Convention on Human

Rights (art 5(5), art 13 and art 41); ACHR (arts 25, 68 and 63(1)); ACHPR (art 21(2)).

138 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

is necessary briefly to set out the background to the violations of human

rights and international humanitarian law.

2THE ‘AFRICAN WORLD WAR’ AND THE PLIGHT OF

VICTIMS

2.1 A panoramic look at the ‘African World War’

Ever since its pre-independence period, the history of the Congo has been

plagued by gross and systematic human rights violations.

After over three

decades of dictatorship and poor governance, the DRC has had to confront

regional and civil wars that have caused unprecedented human tragedy.

The colonial legacy that resulted in the contested citizenship of the Banya-

mulenge

– the consequences of the Hutu-Tutsi conflict in both Rwanda

and Burundi

– and external covetousness for Congolese natural

resources,

might be identified as the main causes for these conflicts.

The immediate causes are the Rwandan genocide and the ethnic conflict

in Burundi, which resulted in the influx of approximately one million

Rwandan refugees into the Congo’s Eastern provinces. The ex-Rwandan

Over five million Congolese died as a result of colonialism. Others had their hands

chopped off, genitals severed, men tortured and women raped. See LB Ekpebu Zaire and

African Revolution (1989) 89. After independence, rebellions, secessions and dictator

ship related human rights abuses resulted in over 500,000 deaths (See Act n

˚/04/018 of

30 July 2004 Establishing the Truth and Reconciliation Commission, preamble, para 1).

Put aside the 1996 1997 war that overthrew Mobutu, armed conflicts in the DRC have

caused from 1998 to date over five million deaths. See also R Brennan ‘How many

innocent Congolese have to perish before the world starts paying attention?’ Available at

(accessedon 26 Octo

ber 2008).

IRC op cit note 2.

The term ‘Banyamulenge’ refers to those of the place called Mulenge in the Eastern

part of the DRC. They are not ethnic group, neither are they Congolese indigenous, but

are made up of Tutsi people who remained in the Congo following the Berlin

conference of 1884 1985, and every wave of immigrants includingthose who came as

a result of the Rwandan genocide in and ethnic conflict in Burundi. They were denied

Congolese citizenship for a long time. See C Kabemba ‘Whither the DRC? Causes of the

Conflict in the DRC, and the Way Forward’, available at

execsumm/pia1.htm> (accessed on 08 October 2008).

Griggs ‘Geostrategies in the Great Lakes Conflict and Spatial Designs for Peace’.

Available at 1.html> (accessed on 08 October 2008).

Several reports from DRC Parliament, NGOs and the UN have shown the extent to

which mineral smuggling led to a self financed war in the Congo. See ‘Report of the

Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of

Wealth of the Democratic Republic of the Congo’; D Barouski ‘Blood Minerals in the

Kivu Provinces of the Democratic Republic of Congo’ Global Policy 2007. Available at

(ac

cessed on 12 December 2008).

THE ‘AFRICAN WORLD WAR’ 139

armed forces (‘ex-FAR’)

and the Interahamwe,

who escaped reprisals by

the Tutsi regime in power, settled as refugees in eastern DRC. They soon

started harassing the Banyamulenge,threatening to launch attacks against

Rwanda,

and thus causing unbearable insecurity that the then Zairian

state was not able successfully to address. As a result, many local autho-

rities created their own militias known as the Mayimayi,

while the Banya-

mulenge in alliance with Uganda, Rwanda, Burundi, Angola and Eritrea,

formed the Alliance of Democratic Forces for the Liberation of Congo

(‘AFDL’).

It was this force, under the command of Laurent De´sire´ Kabila,

which overthrew the Mobutu regime on 17 May 1997. Following President

Kabila’s accession to power, Uganda and Rwanda were granted substantial

benefits in the DRC military, political and economic fields.

It was on 2 August 1998 that the second wave of the conflict erupted,

following Laurent Kabila’s decision gradually to reduce the influence of its

allies over the DRC’s political, military and economic spheres. He called for

the withdrawal of foreign troops from Congolese territory and decided to

step over the agreements signed in the course of the anti-Mobutu war.

Rwanda and Uganda launched a military offensive against the DRC by

backing two rebel groups, respectively the Congolese Rally for Democracy

and the Movement for Liberation of the Congo.

To organise its defence,

the ruling regime relied upon the military support of Zimbabwe, Angola,

Namibia, Chad and Sudan. Until the final ceasefire agreement, signed in

Sun City on 19 April 2002, the Congolese people have experienced ‘Africa’s

The former Hutu dominated Rwandan army, which carried out the Rwandan genocide

in 1994 and fled to the eastern region of the DRC. See Griggs op cit note 12.

A Hutu militia originally organised as youth wings of Hutu political parties and then

became a militia group trained by the presidential guards and other members of the

Rwandan army for the specific purpose of terrorising Tutsi and committing genocide.

See J Sarkin ‘The Necessity and Challenges of Establishing a Truth and Reconciliation

Commission in Rwanda’ (1999) 21 Human Rights Quarterly 781.

Griggs op cit note 12.

The term has been used to describe indigenous militia involved in a number of

uprisings in the Great Lakes since the colonial era. It includes members of Hutu,

Tembo, Nande, and Nyanga in North Kivu, and Fulira and Bembe ethnic groups in

South Kivu. They often undergo traditional initiation rites, which are intended to make

them invulnerable to bullets and other weapons. See M Mamdani ‘Preliminary

Thoughts on the Congo Crisis’, in Mandaza Baregu (ed) Crisis in the DRC (1999) 47

48.

H Solomon & M Kwezi ‘Towards Conflict Transformation in the DRC with Specific

Reference to the Model of Kumal Rupesinghe’ (2000) 22 Strategic Review for

Southern Africa 24 29.

Amnesty International ‘DRC: A long Standing Crisis Spinning Out of Control’ (2004)

32. Available at (ac

cessed on 08 October 2008).

H Weiss War and Peace in the Democratic Republic of Congo (2000) 3.

140 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

First World War’ and the deadliest conflict since the end of the Second

World War.

The signing of the July 1999 Lusaka cease-fire agreement, supervised by

the United Nations Observer Mission in Congo (‘MONUC’)

did not lead

to its full implementation due to violation by all parties. Following Laurent

Kabila’s assassination in January 2001, his successor, Joseph Kabila, con-

tinued peace talks, which resulted in the signing of an agreement commit-

ting Rwanda to withdraw its troops from the DRC and Kinshasa to address

Rwanda’s security concerns in the DRC. This development launched the

Inter-Congolese Dialogue (‘DIC’), which resulted in the so-called ‘Global

and All Inclusive Agreement’ signed in Pretoria on 17 December 2002. The

agreement was to be binding on the ruling regime, the Mouvement pour la

Libe´ration du Congo (‘MLC’), the Rassemblement Congolais pour la De´mo-

acie (‘RCD’), the political opposition, the civil society, the Mai-Mai, the

Rassemblement Congolais pour la De´mocracie (‘RCDML’), and the Ras-

semblement Congolais pour la De´mocracie-National (‘RCD-National’) (the

last two being splinter groups of RCD). The agreement allowed for the

unanimous adoption of a transitional constitution on 1 April 2003 in

Sun City, South Africa. The main feature of the transitional constitution

was the introduction of a ‘1+4 presidential system’,

which system was

charged with the task of laying down the legal and institutional framework

that would lead to the adoption of a new constitution

and the organisa-

tion of multiparty legislative and presidential elections.

Despite the formal withdrawal of foreign troops,

intermittent armed

conflicts have continued to erupt in the Kivu, Ituri, Katanga,

See IRC op cit note 2. In a matter of ten years, the world lost a population equivalent to

the entire country of Ireland, Congo Brazzaville or the city of Los Angeles. See also

Brennan op cit note 9.

Authorised under the Security Council Resolution 1291 (2000) of 24 February 2000

with about 5 537 military personnel, MONUC turned out to be the world’s largest ever

United Nations peacekeeping operation with 19 815 military personnel increased

under Resolution 1856 (2008) of 22 December 2008. Available at

www.un.org/Depts/dpko/missions/monuc/mandate.html> (accessed on 12 December

2008).

System in which the government comprises one president and four vice presidents,

with cabinet members from the five main components of the DIC and parliamentar

ians appointed by those components for a maximum period of three years.

Constitution of the Democratic Republic of Congo adopted by referendum on 18

December 2005 and promulgated on 18 February 2006.

‘Les presidents Kabila et Kagame se sont entendus a` Abuja’, Le Monde, 28 06 2004.

That was a bilateral agreement signed by Rwanda and DRC in July 2002, which finally

led to the withdrawal of Rwandan troops from the DRC territory.

Of particular mention is the Kilwa incident that resulted in more than 100 summary

executions and acts of looting, extortion and illegal detention carried out by

government troops, with an alleged logistical support from the Australian company

Anvil Mining, while trying to dislodge a badly organised and poorly armed

insurrection movement which had occupied the mining locality of Kilwa on October

14 15, 2004 October 2004 in Katanga province. See Monuc ‘Report on the conclusions

THE ‘AFRICAN WORLD WAR’ 141

Kinshasa

and Bas-Congo

regions. Of these, the deadliest conflict arose

out of the suspension of Nkunda and Mutebusi – two dissident generals

formerly commanders in RCD, who refused to join in the military reinte-

gration process and took up arms against the national army.

This led to

the creation of a new Rwanda-backed rebel movement – the Conseil

National pour la De´fense du Peuple (‘CNDP’) – that obstinately carried

out several atrocities in Eastern DRC before and after the international

community-sponsored elections. Whereas several peace talks in Kivu

(Amani peace process) and Nairobi failed to bring about peace, undisclosed

agreements led to joint Rwanda-DRC military offensives against Rwandan

Forces De´mocratiques pour la Libe´ration du Rwanda (‘FDLR’) in Kivu and

joint Uganda, Sudan-DRC offensives against Ugandan Lord’s Resistance

Army (‘LRA’) and Sudanese Mbororo in Ituri. After being ousted from

CNDP’s leadership, Nkunda was arrested by Rwandan authorities, while

CNDP unilaterally declared the cessation of hostilities, which was echoed

by that of other Kivu and Ituri-based militias. All armed groups have

availed themselves for reintegration in the national army. To date, these

various conflicts have been witness to ghastly violations of human rights

and international humanitarian law.

of the Special Investigation into allegations of summary executions and other

violations of human rights committed by the FARDC in Kilwa’. Available at

www.abc.net.au/4corners/content/2005/MONUC report oct05.pdf> (accessed on

10 December 2008).

On 22 25 March 2007, violence erupted in downtown Kinshasa when Jean Pierre

Bemba refused his personal protection force to be dissolved and integrated into the

Congolese army. This resulted in several days of a tense stand off between presidential

body guards and Bemba’s. Heavy weapons such as mortars and rocket propelled

grenades were used by both sides, and Government forces deployed tanks and engaged

targets with tank fire. See Monuc Human Rights Division ‘The Human Rights Situation

in the Democratic Republic of Congo (DRC)’. Available at

downloads/Report January June 2007 English.pdf> (accessed on 10 December

2008).

Violent military repressions were carried out in February March 2008 against

members of Bundu Dia Kongo (‘BDK’), a semi political, semi religious whose vision is

to promote the renaissance of the African people and their spiritual, cultural, moral

and social values; the re appropriation of resources in the geographical region defined

by the BDK as the Kongo Kingdom, as well as the reunification of the Kingdom’s

people; and the establishment of a decentralized political and administrative system

which would give the Kongo people more control over their political and economic

destiny. The clashes resulted in several arbitrary executions, massacres and other

serious human rights violations against the BDK and innocent civilians. See MONUC

Human Rights Division ‘Special inquiry into the Bas Congo events of February and

March 2008’. Available at Bas

Congo.pdf> (accessed on 10 December 2008).

See HRW ‘DR Congo: War Crimes in Bukavu’ (June 2004). Available at

www.hrw.org/legacy/english/docs/2004/06/11/congo8803.htm> (accessed on 7 De

cember 2008).

142 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

2.2 Exploring the Violations of Human Rights and

International Humanitarian Law

The Congolese conflict has been characterized by appalling, widespread

and systematic violations of human rights and international humanitarian

law. Many, if not all, sides to the conflict have regularly used the tactic of

murdering, raping, maiming and terrorising civilians. International and

Congolese organizations have reported that most rebels were recruiting

child soldiers, were practicing acts of cannibalism and mutilation, were

burying alive human beings, and were illegally exploiting, and trafficking

in, the natural resources of the DRC.

It is estimated that millions of unarmed civilians have been arbitrarily

and deliberately killed and massacred by combatants belonging to the

Rwanda, Uganda, Burundi and DRC armed forces and other armed

groups.

Further, thousands of Hutu and Tutsi refugees – comprising

women, children and men who were too weak to flee – were arbitrarily

and deliberately killed by the Alliance des Forces De´mocratiques pour

Libe´ration du Congo (‘ADFL’) combatants and their allies in different

camps in the Kabare, Bukavu, Masisi, Walungu, Ituri and Rutshuru

regions.

Other refugees were forced to flee into the forests where many

Of the numerous reports documenting human rights violations in the DRC, some of

the most important are: Human Rights Watch (‘HRW’) ‘War Crimes in Kisangani: The

Response of Rwandan backed Rebels to the May 2002 Mutiny’ (20 August 2002) and

‘The War within the War: Sexual Violence Against Women and Girls in Eastern Congo’

(20 June 2002), both available at

congo4226.htm> (accessed on 8 December 2008); Amnesty International ‘DRC on

the precipice: the deepening human rights and humanitarian crisis in Ituri 20 March

2003’, available at

n&of=ENG COD> (accessed on 8 December 2008); ‘Situation of human rights in the

DRC E/DEC/2003/240’, available at

ge e.aspx?m=81> (accessed on 8 December 2008); ‘Report of the joint mission

charged with investigating allegations of massacres and other human rights violations

occurring in eastern Zaire since September 1996’, available at

www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/bb0a99b02d16ddd2802567240

05e2200?Opendocument> (accessed on 8 December 2008); ‘Interim Report of the

Special Rapporteur on the situation of human rights in the DRC’, available at

daccessdds.un.org/doc/UNDOC/GEN/N03/580/40/PDF/N0358040.pdf?OpenEle

ment> (accessed on 8 December 2008); ‘Final report of the Panel of Experts on the

Illegal Exploitation of Natural Resources and Other Forms of Wealth of the DRC’,

available at (accessed on 8

December 2008); ‘Report of the Secretary General on children and armed conflict

in the DRC Doc S/2006/389, 13 June 2006’, available at

repsc.htm> (accessed on 8 December 2008); ‘He´ritiers de la Justice, Crimes against

humanity being committed in the Eastern part of the Congo and ethical concerns over

aid provided to the countries involved in this conflict’, available at

129.194.252.80/catfiles/1842.pdf> (accessed on 26 November 2008).

Ibid.

Approximately 200 000 Hutu refugees that fled to DRC lost their lives or disappeared

in an arbitrary manner, as a result of a deliberate strategy of gradual extermination of

a portion of the Rwandan population from 1998 2000. See Amnesty International

‘Great Lakes Thousands of Civilians Victims of Atrocities in the DRC’, available at

(accessed on 09 De

cember 2008).

THE ‘AFRICAN WORLD WAR’ 143

died of illness, hunger and exhaustion. Those captures were subject to

forced labour and torture.

The methods of torture employed include:

severing of genitals, detention in waterlogged pits, amputation of limbs,

hanging of men by their genitals, prohibiting detainees from urinating and

defecating, and whippings.

Away from the Eastern provinces, massacres,

torture, extra-judicial killings and unlawful killings were common to the

uprising that broke out in the Kilwa, Kinshasa and Bas-Congo incidents.

Of particular concern have been the endemic and barbaric acts of rape

and other sexual assaults committed as a weapon of war against civilians –

women, men, girls, and boys – who range from four months to 84 years of

age.

Sexual violence was particularly used to subdue, punish, or take

revenge upon entire communities. Attacks have included individual

rapes, gang rapes, mutilation of genitalia and rape-shooting or rape-stab-

bing combinations, sometimes undertaken in the presence of relatives tied

up and forced to watch.

These atrocious tactics have been common to all

of the armies, militias and gangs involved in the conflicts, including local

bands and police forces as well as United Nations peacekeepers.

All the violations seriously offend human life, dignity and physical integ-

rity, and are, in the context of armed conflict, in violation of peremptory

norms of international law. One of the consequences has been the attempt

on the part of the International Court of Justice, at least regarding the

armed activities of Uganda, to find ‘grave violations of international

human rights and humanitarian law, particularly the provisions declara-

tory of international customary law.’

More eloquent are the findings of

the African Commission on Human and People’s Rights, which articulate

the grossness of the violations attributed to Rwanda, Uganda and Burundi

by using adjectives such as ‘flagrant’, ‘barbaric’, ‘reckless’.

Besides, the

various reports issued on the Congo have emphasized not only the serious-

ness of the violations committed, but also the cruelty of manner in which

See ‘Rights and Democracy, International Centre for Human Rights and Democratic

Development’, available at

tions/congoeng/html> (accessed on 08 December 2008).

Amnesty International op cit note 32.

See Monuc op cit notes 26, 27 & 28.

‘Sexual Terrorism: Rape as a Weapon of War in Eastern Democratic Republic of Congo

An assessment of programmatic responses to sexual violence in North Kivu, South

Kivu, Maniema, and Orientale Provinces January 9 16, 2004’, USAID/DCHA

Assessment Report (2004) 7.

See HRW op cit note 30; Amnesty International op cit note 30.

‘The new world disorder: UN ‘‘peacekeepers’’ rape women, children’ WorldNetDaily

(24 December 2004), available at

p?ARTICLE ID=42088> (accessed on 8 December 2008).

See ‘Armed activities on the territory of the Congo’ DRC v Uganda (19 December

2005) at paras 219 220, available at

icoframe.htm> (accessed on 07 December 2008).

See Communication 227/99, DRC v Burundi, Rwanda and Uganda 20th Activity

Report at para 87.

144 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

they have sometimes being committed. All those violations automatically

imply victims’ redress under human rights and international humanitarian

law.

3REDRESS FOR WAR VICTIMS UNDER HUMAN RIGHTS

AND INTERNATIONAL HUMANITARIAN LAW

3.1 Delineating the principle of victim’s redress

It is a generally accepted legal principle that a violation of one’s right

calls for action to remedy the injury. Roht-Arriaza clearly understands this

principle when he states: ‘That violations should be redressed, that repara-

tion should be made to the victims of an offense is among the most vener-

able and most central of legal principles.’

At the broader level of

international law, principle has been translated primarily in inter-state

relations in that ‘any violation by a state of any obligation, of whatever

origin, gives rise to state responsibility.’

The international responsibility

for an internationally wrongful act obliges the wrongdoing state to make

full reparation for the injury caused.

This explains why international

human rights instruments set forth guarantees for adequate and effective

remedies for victims of human rights violations, which states have a pri-

mary duty to ensure and enforce.

In trying to capture the very meaning and legal basis of the principle of

reparation, one may easily realize that it has a fairly broad meaning.

It is

interchangeably used as ‘redress’ and, particularly in international human

rights law, as ‘remedy’. Black’s Law Dictionary

defines it as ‘payment of

any injury; redress for a wrong done. Payment made by one country to

another for damages during war.’ It then defines redress’ as: ‘[s]atisfaction

for an injury or damages sustained . . . [d]amages or equitable relief.’ The

most interesting meaning is the one given to ‘remedy’, referred to as ‘the

means by which the right is prevented, redressed, or compensated . . . or

any remedial right to which an aggrieved party is entitled with or without

resort to a tribunal.’

The latter meaning appears more interesting since it

Roht Arriaza Impunity and Human Rights in International Law and Practice (1995)

17.

Rainbow Warrior case (New Zealand v France) (Arbitral Tribunal Decision) 26 ILM

1346 (1987), cited in DJ Harris Cases and materials on international law (1991) 910.

Chorzow Factory Germany v Poland (1928) PCIJ Ser A/17 p 29. See also art 1 & 31 of

the Draft Articles on the Responsibility of States for Internationally Wrongful Acts,

adopted by the International Law Commission in 2001, UN Doc A/CN.4/L.602/Rev.1

(26 July 2001).

D Shelton Remedies in International Law (2001) 15.

Reparation is a term of wide import. See Shelton ibid 4, noting that it is used as a

generic term for the various methods available to a state for discharging itself.

Black’s Law Dictionary (1990).

Ibid.

THE ‘AFRICAN WORLD WAR’ 145

conceives of reparation, to borrow Shelton’s terms, to include ‘the range of

measures that may be taken in response to an actual or threatened viola-

tion of human rights.’

It also indicates that these measures may be of a

judicial or non- judicial nature, the most important being that they effec-

tively achieve victims’ healing. Reparation should therefore ‘wipe out all the

consequences of the illegal act and re-establish the situation which would,

in all probability, have existed if that act had not been committed.’

Reparation should therefore impact on individual victims and the wider

affected communities, by refocusing on the restorative, in addition to the

retributive aspect. In the context of mass atrocities, reparation has an

important role to play in rebuilding war-torn societies.

3.2 The principle of victims’ reparation under international

human rights law

The current developments in international law have shown that human

rights constitute an intrinsic part of the legal rules governing armed con-

flicts and their aftermath.

The principle of victims’ reparation and its

correlative obligation to avail redress to victims of human rights and inter-

national humanitarian law violations are embodied in several international

human rights instruments,

which instruments guarantee both the proce-

dural right of effective access to a remedy and the substantive right to a

remedy.

These sources range from the universal to regional human rights

instruments. The Universal Declaration on Human Rights (‘UDHR’), to

start with, stresses that reparation should be an enforceable right before

the competent national tribunals.

Although it is a mere resolution, and as

such soft law, UDHR remains one of the most influential international

human rights instruments as it has paved the way for most of the others.

Most of these instruments link the right to reparation to various

Shelton ‘Subsidiarity, Democracy and Human Rights’, in D Gomien Broadening the

Frontiers of Human Rights (1993) 4.

See Corfu Channel case (UK v. Albania) (ICJ judgement of 09 April 1949) ICJ Reports

(1949) 5; Military and Paramilitary Activities in and against Nicaragua case

(Nicaragua v. USA) (ICJ judgement of 24 June 1986) ICJ Reports (1986) 14;

Reparations for Injuries Suffered in the Service of the United Nations (ICJ advisory

opinion of 11 April 1949) ICJ Reports (1949) 184; United States Diplomatic and

Consular Staff in Tehran case (USA v Iran) (ICJ judgement of 24 May 1980) ICJ

Reports (1980) 33.

See L Doswald Beck and S Vite´ ‘International humanitarian law and human rights law’

293 (1993) IRRC 94.

See note 8.

Shelton op cit note 36 at 14.

Article 8 reads: ‘Everyone has the right to an effective remedy by the competent

national tribunals for acts violating the fundamental rights granted him by the

constitution or by law.’

146 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

substantive rights, or encompass it into the general obligations provi-

sions.

Drawing on UDHR, the International Covenant on Civil and Political

Rights (‘ICCPR’) provides for an individual right to a remedy,

irrespective

of the seriousness of the violation. This means that gross violations com-

mitted in wartime require even more strongly victims’ redress. In several

cases in which serious human rights violations have been considered by the

Human Right Committee,

the basic principle laid down in article 2(3) of

the ICCPR was comprehensively reaffirmed. Concerning the nature of

reparation, Nowak argues that ‘the decisions made exclusively by political

and subordinate administrative organs do not constitute an effective

remedy within the meaning of this provision.’

This view may be under-

stood as a plea for prioritizing judicial remedies, as pragmatism in dealing

with gross and systematic violations would welcome any of the measures

cited by ICCPR insofar as they can effectively heal victims.

Such a prag-

matic approach has subsequently been adopted by the African Commis-

sion, which defines an effective remedy as the one that offers a prospect of

success.

Following ICCPR various specialized human rights instruments

have also guaranteed the right to effective remedies. The Convention

Against Torture (‘CAT’), the provisions of which are well-established

norms of jus cogens,

constitutes one of the pillars in the codification of

victims’ right to reparation. A similar principle is set forth in the Conven-

tion on Elimination of All Forms of Racial Discrimination (‘CERD’),

the

Genocide Convention (‘GC’),

the Apartheid Convention

and the Con-

vention on the Rights of the Child (‘CRC’),

as well as International Labour

For instance arts 7(1) & 2(2) African Charter on Human and Peoples Rights, which

respectively provide for recourse to national tribunals for human rights violations and

compensation for spoliation of natural resources. Art 10 of ACHR expressly guarantees

the right to compensation for miscarriage of justice. Arts 7 ACHR and 9(5) ICCPR (on

the right to freedom and security of the person and the prohibition of arbitrary arrest

and illegal detention provides for a right to remedies such as compensation where this

right is infringed.

Art 2 (3) ICCPR.

See note 27. See also Communication No. 124/1982, Tshitenge Muteba v Zaire UNHR

Committee (30 June 1982) UN Doc CCPR/A/39/40 (1982).

M Nowak The Inter Relationship between the Covenant on Civil and Political Rights

and the European Convention on Human Rights, cited in Bottigliero op cit note 6 at 116.

This approach transpires from Communication 821/98 Chonwe v Zambia (09

November 2000) UN Doc CCPR/C/70/D/821 (1998).

Dawda Jawara v The Gambia (2000) AHLR 107 (ACHPR 2000).

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment arts 5(2), 7, 8; 13 & 14.

Art 6 of Convention on Elimination of All Forms of Racial Discrimination.

Arts 4 and 5 of Convention on the Prevention and Punishment of the Crime of

Genocide.

Art 1 of Convention on the Suppression and Punishment of the Crime of Apartheid.

Art 37 of Convention on the Rights of the Child; which also adds that recovery and

reintegration shall take place in an environment which fosters the health, self respect

and dignity of the child.

THE ‘AFRICAN WORLD WAR’ 147

Organisation Convention No 169 (as far as the worst forms of child labour,

including in the context of armed conflicts, are concerned).

At the regional level, the American Convention on Human Rights

has

established far-reaching provisions and prescribes some modalities for

adequate redress for gross human rights violations in a number of

cases.

In the Velasquez case, particularly, the Court held:

‘It is a principle of international law, which jurisprudence has considered ‘even a

general principle of law’, that every violation of an international obligation which

results in harm creates a duty to make adequate reparation.’

The American Court further emphasised that the enforcement of victims’

reparation are not subject to modification, suspension or limitation at the

domestic level.

In similar vein, the European Court on Human Rights

brings out more clarity regarding the nature and extent of reparation by

indicating that victims’ reparation lies in a thorough and effective investi-

gation capable of leading to the identification and punishment of culprits,

regardless of whether compensation is awarded by judicial bodies, domes-

tic compensation schemes or other compensation plans.

Even though the

African Charter on Human Rights (‘ACHR’)

is not expressive regarding

the right to reparation, its Protocol on the Court (‘PACHPR’) clearly makes

provision for it.

Furthermore, the African Commission on Human and

Peoples’ Rights (‘ACHPR’) has addressed the lacuna by reading the repara-

tion principle into the general obligation to ‘give effect to’, provided for in

Article 1 of the Charter. This obligation has been interpreted as requiring

effective remedies for human rights violations, which constitute the main

ILO Convention No 169 Concerning the Prohibition and Immediate Action for the

Elimination of the Worst Forms of Child Labour, GA Res 87/182 (17 06 1999), Arts

15(2) & 16(4).

American Convention on Human Rights (‘ACHR’), 22 November 1969, 1144 UNTS

123, see arts 25 & 63.

For a more comprehensive and elaborated analysis of victims’ redress in the Inter

American System, see JM Pasqualucci ‘Victim Reparations in Inter American Human

Rights System: A critical Assessment of Current Practice and Procedure’ (1996) 5

Michigan Journal of International Law 583.

See Velasquez Rodriguez v Honduras IACHR (21 July1989) Ser. C/ 4.

See Aloeboetoe & alii v Suriname IACHR (10 September 1993) Ser C/15, which

clarifies the implications for the reparation regime of art 63(1) of IACHR and

reiterates that the obligation to provide reparation in case of breach of an

international obligation ‘is universally accepted by international law in all its aspects:

scope, nature, forms, and determination of beneficiaries, none of which the

respondent state may alter by invoking its domestic law’.

See Aksoy v Turkey ECHR (18 December 1996); Aydin v Turkey ECHR (25 September

1997); Mentes & Others v Turkey (1997) EHRR 98.

African Charter on Human and Peoples’ Rights OAU DocCAB/LEG/67/3/Rev.5 (1982)

(entered into force, 21/10/1986).

Protocol to the African Charter Establishing the African Court on Human and People’s

Rights. Its art 27 specifically provides for reparations or compensation and other

appropriate remedies, which may include the prosecution of perpetrators of violations

of human rights and international humanitarian law.

148 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

objective of the individual complaint procedure.

This constitutes the

ground on which Mauritania was ordered to provide reparation by ‘paying

compensation to the victims, prosecuting the perpetrators and eradicating

slavery.’

By setting the test of effectiveness, sufficiency and availability

as necessary to remedies to which victims of violations are entitled, the

ACHPR has significantly contributed to advancing international standards

on victims’ reparation. Beyond its guarantee in international human rights

law, the reparation principle is also deep-rooted in international humani-

tarian and customary law.

3.3 Victims’ reparation under international humanitarian and

customary international law

International humanitarian law recognises that victims’ reparation plays a

critical role in improving compliance with human rights law and interna-

tional humanitarian law. Gillard better explains this statement when she

argues that in each individual case, in addition to addressing the conse-

quences of a violation, reparation has a significant role to play at a more

general level in that it strengthens enforcement and deters future viola-

tions.

That is why the principle of victims’ redress has been enshrined in

the Hague Convention Regarding the Laws and Customs of Land War-

fare,

the Hague Regulations

annexed to it and the Geneva Conven-

tions.

In more precise terms, the first Additional Protocol to the

Geneva Conventions even indicates that compensation should be the

form that reparation to victims should take.

In the same vein, as far as the prosecution of the core crimes are con-

cerned, the Rome Statute provides that ‘the Court may make an order

directly against a convicted person –specifying appropriate reparations

to, or in respect of, victims, including restitution, compensation and reha-

bilitation.’

Recognizing victims’ reparation as an inalienable right, the

Rome Statute states that ‘nothing shall be interpreted as prejudicing the

See Free Legal Assistance Group and Others v Zaire (2000) AHRLR 74 (ACHPR

1995).

Malawi African Association & Another v. Mauritania (2000) AHRLR 149 (ACHR

2000).

Dawda Jawara case op cit note 46.

EC Gillard ‘Reparation for violations of international humanitarian law’ (2003) 85:851

IRRC 530.

Art 3 reads: ‘A belligerent Party which violates the provisions of the (. . .) Regulations

[respecting the Laws and Customs of War on Land] shall, if the case demands, be

liable to pay compensation . . .’

See art 41.

Arts 50 & 51 GC I; arts 51 & 52 GC II; arts 68, 130 & 131 GC III; arts 55, 147, 148 GC IV.

See art 91.

Rome Statute of the International Criminal Court, UN Doc A/Conf. 183/9th (17 July

1998), Art 75 (2).

THE ‘AFRICAN WORLD WAR’ 149

rights of victims under national or international law.

This instrument –

because of its bold confrontation of impunity for serious crimes such as

genocide, war crimes and crimes against humanity – is thus one of the

greatest developments regarding victims’ reparation.

It displays the

utmost commitment to combat impunity by ensuring that serious human

rights violations do not go unpunished.

While the treaty law is an impor-

tant source for victims’ reparation, it should be noted however that the

enforcement of this principle does not necessarily depend on it being

spelled out in conventions – to the extent that victims’ redress is viewed

as an automatic result of an unlawful act.

This is what is evidenced in various studies and reports on the rights of

victims of atrocities, which elaborate treaty provisions and customary law.

The UN Basic Principles on Victims’ Reparation

outlines important

aspects of victims’ rights, including the requirement that the state ‘shall

ensure that adequate legal or other appropriate remedies are available to

any person claiming that his or her rights have been violated.’

Similar

provisions are contained in the Joinet Report,

the Declaration of Basic

Principles of Justice for Victims of Crime and Abuse of Power,

the Report

of the Working Group on Enforced and Involuntary Disappearances

and

the United Nations Standard Minimum Rules for the Administration of

Juvenile Justice.

Though they are part of soft law, these instruments

constitute a comprehensive charter on victims’ rights and may be relied

upon as customary law since they constitute a codification of universal

standards regarding gross and systematic violations.

If it is agreed that customary international law is a set of international

law norms that – by virtue of state practice (usus) and belief in their

binding force (opinio juris) – give rise to obligations upon states and

Ibid at art 75 (6).

Rome Statute note 8 at art 5.

Preamble of the Rome Statute note 81 at para 4. See also W Schabas Introduction to

the International Criminal Court (2003) 7.

See Gillard op cit note 76 at 532.

Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims

of Gross Violations of International Human Rights Law and Serious Violations of

International Humanitarian Law. Adopted and proclaimed by GA Resolution 60/147

of 16 December 2005 (Basic Principles).

Ibid at art 4.

The Administration of Justice and the Human Rights of Detainees, Question of the

Impunity of Perpetrators of Human Rights Violations (Civil and Political), revised

final Report prepared by Joinet pursuant to Sub Commission decision 1996/119 UN

Doc E/CN4/Sub.2/1997/20/Rev1 (02 August 1997).

Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, GA

40/34, annex, 40 UN GAOR Supp. (No 53) at 214, UN Doc A/40/53 (1985).

Report of Working Group on Enforced or Involuntary Disappearances, E/CN4/1997/

34 (13 December 1996).

See Rule 11(4).

Nowak op cit note 44.

150 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

bind them regardless of their consent,

then, because of the embodiment

of the principle of victims’ reparation in various international binding and

declaratory instruments, whether universal or regional, as well in the con-

sistency of jurisprudence,

it might be argued that there is strong evidence

of sufficient uniformity of state practice to hold that the principle of vic-

tims’ reparation is binding as a customary norm.

Furthermore, it is incontestably recognized that the norms related to

genocide, crimes against humanity, prohibitions on torture, summary

execution and arbitrary execution are part of customary international

law.

Similarly, the prohibition of discrimination, which lies at the core

of the rules applicable to armed conflicts, has also achieved the status of

customary international law.

From this obvious fact, it is arguable that

victims’ reparation arising from a breach of a peremptory norm

is also

part of jus cogens. While the principle of victims’ redress can be said to

have a solid and imperative legal stand, it remains to specify the various

forms under which it can be implemented.

3.4 Exploring the various forms of reparation

Victims’ redress can be implemented in various forms including restitution,

compensation, rehabilitation, satisfaction, guarantee of non-repetition and

even offenders’ accountability. Though some conventions indicate expres-

sis verbis the form of remedy that should be provided to victims,

the

extent of reparation to be ordered has been left to the discretion of a

specific judicial or non-judicial, domestic or international body dealing

with victims’ redress. Forms of reparation can be classified into civil, social

and criminal mechanisms.

Civil mechanisms of reparation consist of restoring the victim’s indivi-

dual personality to its status before occurrence of violations. They include

various forms that aim at addressing the harm suffered in order to undo

the offense. Restitution (restitutio in integrum) constitutes the standard

See A Cassese International Law (2001) 120, 119 200.

See for instance rulings in Tshitenge Muteba case op cit note 43; Vela´ squez case op cit

note 55; and Papamichalopoulos v Greece ECtHR. (1995) Serial A, No 330 B.

N Roht Arriaza Impunity and Human Rights in International Law and Practice

(1995) 17; Bassiouni Crimes against Humanity in International Law (1992) 503.

See South West Africa case (Ethiopia & Liberia v South Africa) (ICJ judgment of 18

July 1966) ICJ Reports (1966) 6 at 57. See also General Comment 18 (Human Rights

Committee) (1989) para 1.

Roht Arriaza op cit note 52 at 43, making specific reference to the Torture Convention.

For instance prosecutions, compensation and rehabilitation in CAT; rehabilitation in

the CERD; prosecutions with other forms in GC and AC; reintegration in CRC;

Compensation in ILOC no 169 and MWC ; indemnity in Art 3 of The Hague

Convention; compensation in Art 68 GCIII and Art 55 GC IV; rehabilitation and

compensation in Art 63 ACHR and compensation in Art 27 of PACHPR.

THE ‘AFRICAN WORLD WAR’ 151

form of reparation in this regard.

Restitution is also meant to include

restoration of liberty, legal rights, social status, family life and citizenship;

return to one’s place of residence and restoration of employment and

return of property.

100

The challenge is that it is not always possible to

restore victims to the original situation that prevailed before the violations

occurred, particularly when having regard to gross and systematic atroci-

ties.

Where the right cannot reasonably be restored in integrum, compensa-

tion is needed as a response to redress the damage suffered. It particularly

suits any economically assessable damage resulting from crimes, including

‘physical or mental harm, including pain, suffering and emotional distress;

lost opportunities, including education; material damages and loss of earn-

ings, including loss of earning potential; harm to reputation or dignity; and

costs required for legal or expert assistance, medicines and medical ser-

vices, and psychological and social services.’

101

Civil mechanisms may need

to be complemented by other social mechanisms to achieve victims’ healing

in a wider social context.

Social mechanisms of reparations seek to address the victims’ harm by

taking care of their social personality. The aim is to provide moral healing,

which can secure a sustainable social reconciliation and reintegration.

Social mechanisms may in practice include victims’ rehabilitation through

medical and psychological care as well as legal and social services.

102

Vic-

tims may also be healed though mechanisms of satisfaction and guarantees

of non-repetition, which may take the form of truth seeking and revealing,

acceptance of responsibility as well as public acknowledgment of abuses

and apologies. As a social mechanism of reparation, the usefulness of

apology to an effective victims’ healing has been acknowledged.

103

In addi-

tion, search for the disappeared and identification of remains, restorations

of the victims’ dignity through commemoration and other means aiming at

social education and prevention of future violations contribute to healing

the victims.

104

The serious nature of some abuses would, however, impose

measures going beyond mere civil and social mechanisms of reparation.

While measures targeting victims have undisputed healing power, the

wrongdoers’ accountability is an important component of victims’ repara-

tion, especially when the violations committed entail criminal responsibil-

ity. In fact, it is accepted in international human rights law that the

prosecution of perpetrators constitutes a victims’ right, which becomes

In Chorzow Factory case, op cit note 31, it was held that ‘reparation must, as far as

possible, wipe out all the consequences of the illegal act and re establish the situation

which would, in all probability, have existed if that act had not been committed’.

100

See Basic Principles note 73 at para 19.

101

Ibid at para 20, 21 & 22.

102

Ibid at para 24.

103

Ibid at para 22(e).

104

Ibid at para 23.

152 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

even more entrenched when the criminal acts suffered by victims consti-

tute breaches of jus cogens. Thus, beyond civil and social forms of repara-

tion, prosecuting and punishing perpetrators of gross and systematic

violations, is a fundamental human right that cannot be taken away from

a victim or waived by a government.

105

This is well understood by Aldana-

Pindell when he contends that the framing of prosecution as a victim’s right

has emerged primarily from ‘the interpretation of treaty provisions estab-

lishing the right of access to justice, the right to fair trial, and the right to an

effective remedy.’

106

Whether gross violations entail a criminal responsibility or not, a variety

of disciplinary sanctions may also be enforced especially if the perpetrators

are members of a disciplined force such as an army or militia with a

command structure. These measures can include suspension or loss of

employment benefits. Though such administrative measures might not in

themselves meet the yardstick of effectiveness, they can impact on victims’

psychological healing and contribute to strengthening guarantees of non-

repetition of similar violations.

In the aftermath of gross violations of human rights and international

humanitarian law, the enforcement of victims’ redress may face the chal-

lenge of prioritizing peace over justice. However, the peremptory nature of

the norms relating to victims’ redress should always supersede in order to

ensure the achievement of the overall objectives of preventing, to the extent

possible, the recurrence of the violations and repairing the damage that

they have caused.

107

Particularly when dealing with legacies of interna-

tional crimes, respect for the rule of law would unconditionally impose

that wrongdoers be prosecuted as one of the responses for victims’ redress.

Even if every post-conflict society may be shaped its own problems, jus

cogens norms prescribe common standards that the enforcement of the

victims’ redress should always comply with.

108

The DRC situation can be

confronted with the principle of victims’ redress.

4ENFORCING REDRESS FOR VICTIMS IN THE CONGO:

OPTIONS AND CHALLENGES

4.1 Congo’s international commitments on victims’ redress

Having inherited the monist tradition from Belgian Colonial law, the Con-

105

JM Dyke ‘The Fundamental Human Rights To Prosecution and Compensation’

(2001) 29 Denver Journal of International Law & Policy 77.

106

R Aldana Pindell ‘In vindication of justiciable victims’ rights to truth and justice for

state sponsored crimes’ (2002) 35 Vanderbilt Journal of Transnational Law 1402.

107

J Zalaquett ‘Confronting Human Rights Violations Committed by Former Govern

ments: Principles Applicable and Political Constraints’, in Aspen Institute (ed) States

Crimes: Punishment or Pardon (1989) 29.

108

Bassiouni op cit note 5, stating that the peculiarity of transitional societies cannot

exclude the application of the existing international binding norms.

THE ‘AFRICAN WORLD WAR’ 153

golese legal system gives direct effect and primacy to international law,

109

which entails that the international standards on victims’ reparation pre-

viously discussed stand on the top level of the Congolese legal architecture

and override any competing relevant domestic laws.

110

The DRC has indeed

ratified and published all major human rights and international humani-

tarian law treaties, including ICCPR, ACHPR, CERD, CEDAW, CRC and its

Optional Protocol on the Involvement of Children in Armed Conflict, CAT,

the GCs of 1949 and their Additional Protocols of 1977, as well as the Rome

Statute.

111

Furthermore, the DRC constitution contains a Bill of Rights set

to bind the state and private individuals.

112

Relevant to the enforcement of

redress for victims of violations of human rights and international huma-

nitarian law are a set of core rights – including the right to a remedy –

defined by the constitution as non-derogable, even in times of war or public

emergency.

113

While constitutional provisions and international commit-

ments lay down the cornerstone for the enforcement of victims’ redress, the

real enforcement can only be achieved through mechanisms of civil liabi-

lity, criminal responsibility and psycho-social initiatives.

4.2 The Civil liability regime and victims’ redress in the Congo

Victims of any offense – whether qualified as a crime or a mere tort – have

locus standi to claim for damages before Congolese courts during civil or

criminal proceedings.

114

As far as violations of human rights and interna-

tional humanitarian law are concerned, the regime of tort liability is the

first framework claimants can invoke to obtain a remedy for damages

suffered. This regime is covered by the Congolese Civil Code Part III,

115

109

D Zongwe, F Butedi and C Phebe ‘The Legal System and Research of the Democratic

Republic of Congo (DRC): An Overview’ (2007) Globalex Hauser Global Law School

Program, NYU School of Law, available at

Democratic Republic Congo.htm> (accessed 24 April 2008).

110

Article 215 of the DRC Constitution provides that duly ratified international treaties

acquired, upon their publication, a binding force that overrides domestic laws.

111

The chart of ratification by DRC of the major human rights instruments is available at

(accessed on 22

December 2008). The international humanitarian law treaties are accessible at

(accessed on 22 December

2008). See also Case concerning armed activities on the territory of the Congo op

cit note 39 at paras 217 219.

112

See art 60, which reads in french: ‘Le respect des droits de l’homme et des liberte´s

fondamentales [. . .] s’impose aux pouvoirs publics et a` toute personne’.

113

Those rights are: the right to life; the freedom from torture, inhumane, cruel and

degrading treatment; freedom from slavery and servitude; the principle of legality of

offences and sentences; the rights to a defence and to a remedy; the prohibition of

imprisonment for non payment of debts; and freedom of thought, conscience and

religion. See art 61.

114

Zongwe et al op cit note 109.

115

Enacted under the July 30, 1888 Act, it constitutes Part III of the Congolese Civil

Code deals with the obligations arising from contracts, quasi contracts and tort. Part I

and Part II enacted at different times and under different acts deal respectively with

persons and things.

154 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

which provides for civil reparations to a victim of an offence, whether the

latter results from fault,

116

negligence or imprudence.

117

It also covers the

possibility for a superior to repair damages caused by persons under his

responsibility,

118

and underscores an aspect of the mechanism of vicarious

responsibility. This mechanism becomes particularly relevant when dealing

with the violations committed by child soldiers and low-ranking comba-

tants, which violations might automatically be attributed to the comman-

ders or superiors under whose control they acted.

While the civil liability regime has been successfully resorted to in a

number of cases involving violations of human rights and international

humanitarian law,

119

it becomes ineffective in cases where the offender is

not identified or, if identified, he has insufficient means to pay victims

reparation. Further, while the classical tort liability regime can be used

against individual members of armed forces, rebels or militias, it does

not cover the civil liability of the Congolese state, which is regulated by a

specific law dealing with damages arising from unrest.

120

This law absolves

the state from any civil liability resulting from violations committed by

rioters and insurgents.

121

Even with respect to the violations committed

by national armed forces, the state can be held accountable only where the

violations took place outside the perimeter of intervention and if the victim

is a third person.

122

This clearly narrows down the scope of liability of the

state and leaves out of its ambit violations committed by national armed

forces within the perimeter of intervention; those committed by rioters and

insurgents, as well as foreign armed forces as a result of state failure to

protect its citizens; and those suffered by its armed forces under duty from

their colleagues or commanders.

In addition to these substantive legal obstacles, several intrinsic factors

considerably limit, if not impede, victims’ access to justice. These range

from mismanagement and corruption in the administration of the judi-

ciary, lack of fair trial standards and of rights of the accused, lack of

adequate investigative capacity of the judiciary to lack of independence

116

Civil code Part III, art 258 reads: ‘Any individual’s act which causes harm to a third

party obliges the individual by whose fault the harm occurred to redress it.’

117

Ibid at art 259.

118

Ibid at art 260 (3).

119

See for instance Ituri Military Prosecutor v Blaise Bongi Massaba, RMP no 018/

2006; Mbandaka Military Prosecutor v X, RMP no 086/05, (12 January 2005); Ituri

District Military Prosecutor v Kahwa Panga Mandro Yves, RMP No227/PEN/2006

(2 August 2006).

120

See Ordinance Law no69 044 of 1 October 1969 on Damages Arising from Riots,’

Moniteur Congolais no19 of 1 October 1969. It set forth a mechanism of vicarious

liability, which derogates from the classical one enshrined by art 260 of the Civil code

Part III.

121

Ibid at art 1(1).

122

Ibid at art 1 (2).

THE ‘AFRICAN WORLD WAR’ 155

of the judiciary.

123

Further, recourse to judicial procedure in the Congo is a

costly business that most traumatized victims of violations of human rights

and international humanitarian law would hardly risk undertaking. Lack of

sufficient information exposes any legal action to failure, which would

eventually expose victims to counter-claims based on the abusive and per-

secutory character of the legal action likely to result in the original defen-

dant being entitled to redress.

124

The few existing legal aid and access to

justice programmes are those recently set up by MONUC and some NGOs

to provide limited legal aid to victims of human rights abuses in a few

areas.

125

These laudable initiatives are however bound to achieve less

because of their very limited scope and the substantive and procedural

judicial obstacles they usually face. As a result, civil action becomes a

toothless tool to be used by victims to obtain redress.

4.3 Criminal Prosecutions and victims’ redress in the Congo

When violations of human rights and international humanitarian law fall

with the ambit of criminal law, retributive justice – particularly with regard

to those chiefly responsible for and the perpetrators of the most egregious

crimes – becomes necessary, not only to ensure respect for the rule of law

but also to enforce the victims’ right to have their offender punished. It is in

that spirit that delegates at the DIC recommended that a request be made

to the UN Security Council by the transitional government with a view to

establishing an international criminal court for the DRC, endowed with the

necessary jurisdiction over crimes of genocide, crimes against humanity,

war crimes and mass violations of human rights committed, or presumed

committed, since 30 June 1960, as well as those committed, or presumed

committed, during the two wars of 1996 and 1998.

126

In response, on 17 January 2003, the transitional government addressed

a letter of request to the Security Council,

127

which letter has since been

123

See M Kodi Corruption and Governance in the DRC During the Transition Period

(2003 2006) (2008) 32. See also ‘Democratic Republic of the Congo: Confronting

Impunity’, Human Rights Watch Briefing Paper, January 2004, available at

www.hrw.org/legacy/english/docs/2004/02/02/congo7230 txt.htm> (accessed on

22 December 2008).

124

See Ordinance Law no 82 020 of 31 March 1982 on Judicial Organisation and

Competence, arts 138, 139 & 140.

125

See United Nations, Office of the High Commissioner for Human Rights ‘OHCHR in

Democratic Republic of the Congo (2008 2009)’. Available at

chr.org/EN/Countries/AfricaRegion/Pages/ZRSummary0809.aspx> (accessed on 22

December 2008).

126

See Final Act of Inter Congolese Political Negotiations, Resolution No ICD/CPR/05

Relating to the Establishment of an International Criminal Court for the DRC.

Available at (ac

cessed on 18 December 2008).

127

Borello A few first steps: The Long Road to a Just Peace in the Democratic Republic

of the Congo (2004) 33. Available at

115.pdf> (accessed on 22 December 2008).

156 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

followed up by other renewed requests,

128

for the establishment of an

international criminal tribunal to investigate crimes committed in DRC.

Several NGOs have also called the creation of an international tribunal for

the DRC that could model itself on those set up in Sierra Leone or Cam-

bodia.

129

Despite a lapse of seven years, however, the request has attracted

no interest from the United Nations. The reason, suggests Borello, is

because the Congo requested the creation of an international tribunal for

crimes committed in Ituri only, not in the whole territory of the DRC; and,

further, the temporal jurisdiction proposed is already within the jurisdic-

tion of the International Criminal Court (‘ICC’).

130

What may reasonably

hold is an international criminal jurisdiction that would be empowered to

deal with serious crimes committed in the whole territory of the DRC, for

the whole duration of the ‘African world war’.

For its part, the ICC has shown an interest to prosecute criminals with

the cooperation of the Congolese Government.

131

Even though the handful

of prosecutions initiated by the ICC may constitute a tangible determina-

tion to combat impunity for the most egregious serious crimes, for a num-

ber of reasons, they mean very little for victims. First, several crimes and

perpetrators fall totally out of the ICC temporal jurisdiction, given the fact

that the atrocities were committed before the entry into force of the Rome

Statute will, thus, never be investigated.

132

Secondly, by its very nature, the

ICC is set only to prosecute a selectively limited number of criminals –

generally those bearing the greatest responsibility for the atrocities. The

DRC situation shows however that several ‘big fish’ have continued to enjoy

senior military and government positions,

133

whereas ICC prosecutor’s

attention has only been directed at leaders of former militia groups, rather

than those from the Congolese army, foreign armies and former rebel

movements. Furthermore, remoteness of criminal proceedings does not

128

President Joseph Kabila’s Address to the General Assembly on 24 September 2003

UN General Assembly Document, A/58/PV10, at 1. On 18 March 2004, the Minister

of Human Rights also mentioned the goal of the creation of an international tribunal

in her address at the 60th session of the Commission on Human Rights. See Borello

ibid.

129

Amnesty International, ‘the Democratic Republic of Congo: Addressing the present

and building a future’, AFR 62/050/2003, at 22. Cited in Borello op cit note 127 at 37.

130

Ibid at 33.

131

The situation in the DRC was referred to the Prosecutor of the ICC on 19 April 2004.

Up to date, three cases are being heard before the relevant Chambers: The Prosecutor

v Thomas Lubanga Dyilo, ICC 01/04 01/06 ; The Prosecutor v Bosco Ntaganda, ICC

01/04 02/06; and The Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui,

ICC 01/04 01/07. While two latter cases are at the pre trial stage, the proceedings

against Thomas Lubanga are at the trial stage. Available at:

cases/RDC.html> (accessed on 12 December 2008).

132

The ICC has jurisdiction only over crimes committed after the entry into force of its

Statute. See art 11(1) of the Rome Statute.

133

See Human Rights Watch Renewed Crisis in Kivu (2007) 59. Available at

www.hrw.org/en/reports/2007/10/22/renewed crisis north kivu> (accessed on 22 De

cember 2008).

THE ‘AFRICAN WORLD WAR’ 157

facilitate effective participation of victims, neither can it impact on their

healing process.

While recourse to international criminal justice might be more empow-

ering to an alleged victim in circumstances where the domestic criminal

justice system is unable or unwilling to prosecute, domestic prosecutions

remain indispensable. The reasons are numerous: easier accessibility to

and participation of victims; the principle of primacy of domestic criminal

justice; a greater impact on victims; the empowerment of the domestic

judiciary and the political pride for a sovereign state being able to address

domestic outbreaks through domestic mechanisms.

This is why a number of domestic prosecutions have already taken place

in Bunia, Kisangani, Lubumbashi, Mbandaka and Matadi.

134

However,

most of these instances have been isolated cases. Criminal prosecutions

cannot be said to be part of a comprehensive prosecutorial strategy meant

to tackle the gravest crimes committed during the ten-year war. More

challenging are mismanagement and corruption in the administration of

the judiciary, lack of fair trial standards and rights of the accused, lack of

adequate investigative capacity of the judiciary, and lack of independence

of the judiciary

135

– all of which would fatally compromise most domestic

criminal proceedings and result in a parody of justice.

136

In addition, several obstacles still have to be addressed at the level of

substantive criminal law before the most serious crimes might adequately

be punished before Congolese courts. In fact, despite the Congo’s ratifica-

tion of the Rome statute,

137

the effective prosecution of the core crimes has

long been waiting for the adoption of a domestic implementing legislation

meant to readapt procedural technicalities of the prosecution of interna-

tional crimes,

138

since they are not addressed in the existing Codes of

Criminal Procedure and of Judicial Organisation and Competence. Mean-

while, only the Military Criminal Code is resorted to for the prosecution of

crimes against humanity, war crimes and genocide, regardless of whether

134

See prosecutions in the Kilwa and Bundu dia Kongo incidents (see note 35); Blaise

Bongi case, Kahwa Panga case op cit note 119.

135

See Kodi op cit note 123.

136

The Kilwa Trial for instance has been denounced as a denial of justice due to delays

and intimidations, political interference with the prosecutor’s and seating judges’

activities as well as pressure on witnesses and victims’ lawyers. See ‘Kilwa: Denial of

Justice’. Available at library detail.php/560/

en/kilwa trial a denial of justice> (accessed on 22 December 2008).

137

By virtue of Ordinance Law No 00/3/2000 of 30 March 2002, the DRC ratified the

Rome Statute on 11 April 2002 and thereafter published it in the national gazette. See

Journal Officiel de la RDC, 43e`me Anne´e, Nume´ro Spe´cial, 5 De´cembre 2002 at 169.

138

Following a year long drafting process that involved the participation of magistrates,

law professors, bar associations and the NGO community, the ‘Project de Loi de Mise

en Oeuvre du Statut de la Cour Pe´nale Internationale’ was drafted in July 2003 by the

Commission Permanente de Re´forme du Droit Congolais, but has never been debated

in Parliament up until now.

158 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

the suspect has a civilian or military status.

139

Here again, putting aside the

general objection that military justice meted out for civilians fails to meet

the test of basic fair trial standards, the fundamental problem has been that

the Military Criminal Code falls short of the elements of war crimes and

crimes against humanity under both the Rome Statute and the Geneva

Conventions.

140

Even where military courts decided to apply directly international crim-

inal treaties - a task that most of them do not usually undertake - the poor

training of military judicial staffing members does not enable them to

handle subtleties of international crimes.

141

Lastly, domestic criminal pro-

secutions would not escape the criticism of being ‘victors’ justice’, given

that the appointment of military judges and prosecutors does not usually

escape political interference of the ruling regime,

142

which has been pro-

tecting loyal military and government officials. As a result of these com-

bined factors, the DRC justice system provides almost no prospects for

effective prosecution of the most serious crimes committed in DRC. An

international criminal tribunal modeling itself after the Special Court of

Sierra Leone would possibly go some way in addressing the weaknesses

suggested in respect of both the ICC and Congolese domestic criminal

justice.

4.4 The truth seeking and reconciliation mechanisms and

victims’ redress in the Congo

The creation of a truth seeking and reconciliation setting originated from

the DIC,

143

which specifically recommended the establishment of a Truth

and Reconciliation Commission (‘TRC’). Provided for in the transitional

constitution as one of the democracy supporting institutions,

144

the TRC

was effectively set up by an organic law,

145

which determined its mandate,

organisation and the modalities for its functioning. Since the current con-

stitution does not list it among democracy supporting institutions, the

Congolese TRC was dissolved de jure with the installation of the new

parliament.

146

Though the latter had the constitutional power to set up a

139

See Military Criminal Code, Act no 024/2002 of 18 November 2002, from arts 161 to

175.

140

In the Kahwa Panga case (op cit note 119) for instance, the Court audaciously

resolved to apply the relevant Rome Statutes’ provisions, tough in violation of Art 153

(4) of the DRC Constitution.

141

See Borello op cit note 127.

142

See note 136.

143

Final Act of Inter Congolese Political Negotiations, Res No 20/DIC/2002.

144

See Transitional Constitution of the DRC, arts 154 160.

145

See Act n/04/018 of 30 July 2004 relating to the Establishment of the Truth and

Reconciliation Commission.

146

See Constitution of the DRC, art 222.

THE ‘AFRICAN WORLD WAR’ 159

similar institution,

147

it did not reconfirm the TRC, which in fact did not

effectively fulfill its mandate.

The TRC was composed of eight members proposed by all parties to the

DIC and thirteen additional members appointed from religious institu-

tions, academic institutions, associations of women and other associations

whose activities are related to the objective of the TRC. The TRC was vested

with the mandate of investigating human rights violations as well as pre-

venting and resolving conflict through mediation between war-torn com-

munities. As far as the amnesty granting process is concerned, it also had

the power to suggest to the competent authority to accept or reject any

individual or collective amnesty application for acts of war, political crimes

and crimes of opinion. Concerning victims’ redress, the TRC had the man-

date to recommend in its final report the most appropriate reparation and

rehabilitation measures to be afforded to victims.

148

Further, it was

empowered to play a mediating role between identified perpetrators and

victims for any amicable settlements capable of achieving social reintegra-

tion.

149

After a three-year existence, the Congolese TRC was not successful in

archiving its mandate,

150

especially regarding truth seeking and social

reconciliation. The TRC engine was blocked due particularly to the fact

that the institution was made up of delegates from the former warring

factions, expected to investigate and tell the truth about the abuses for-

merly committed by their members. Within such a framework, it is under-

standable why, apart from a few conflicts mediation initiatives and on-site

visits carried out in Kivu and Kisangani,

151

the TRC shifted its efforts to

solving conflicts between Congolese musicians and politicians. Though

conflict prevention is one of the top priorities in a war-torn society –

particularly the DRC where institutional conflicts were inherent to the

1+4 regime – such a business does not conceptually and operationally

constitute the core mandate of Truth and Reconciliation Commissions.

152

The TRC stopped operating in 2008 and its final report has not been

made available to Congolese citizens. Yet, truth on past gross and systema-

tic human rights abuses is an sine qua non for the realization of healing and

reconciliation for victims. It, too, is an effective tool in preventing an

unresolved past from returning to haunt citizens.

153

Therefore, the Con-

golese parliament would better consider setting up a new independent and

147

Ibid.

148

See Act n/04/018 op cit note 145 at art 51.

149

Ibid at art 45.

150

See Interview of the third vice chairman of the DRC TRC by Digital Congo Journal.

Available at (accessed on 22 December

2008).

151

See Borello op cit note 127.

152

Ibid.

153

Sarkin op cit note 135.

160 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

civil society-driven truth and reconciliation commission, which would

readdress the shortcomings of its predecessor and recommend effective

reparation measures for victims. Even if it is likely that the Congolese

government would lack the means needed for victims’ redress, at least

national acknowledgement of the plight of victims and public apologies

would contribute to the healing process.

Finally, while a national truth and reconciliation mechanism is very

critical in addressing legacies of a violent past, the particular situation of

the ‘African World War’ would suggest a parallel regional or sub-regional

initiative meant to reconcile the regional states and communities formerly

involved in the hostilities. The need for a regional truth and reconciliation

setting would provide solid grounds for an everlasting peace, not only in

the DRC but also within the Great Lakes region. In that regard, the African

Union, through its Peace and Security Council,

154

would be the most appro-

priate entity to convene a regional truth and reconciliation mechanism for

the atrocities committed during the ‘African World War.’ The acknowl-

edgements and apologies which could possibly arise from this regional

initiative would incontestably be the threshold for regional peaceful coex-

istence.

5CONCLUDING REMARKS

Redress for victims of gross violations of human rights and humanitarian

law committed during the ‘African world war’ is legally grounded on per-

emptory norms of international law – most violations committed in the

DRC fall within jus cogens norms. Redress further finds its basis in the

Congolese constitution and civil and criminal laws that, although affected

by some substantive and procedural lacunae, set domestic reparation

options and avenues that can prove successful if interpreted in light of

the Congo’s international commitments. This implies that the enforcement

of the victims’ right to redress, whether at the international or the domestic

level, leaves no room for derogation or restriction whatsoever and is to be

guided by the internationally established requirements of promptness,

adequacy and effectiveness.

After thorough confrontation of responses to the steps taken so far with a

view to addressing the violations of human rights and international huma-

nitarian law, this paper suggests the enforcement of redress for victims has

continued to face several challenges that, if not addressed, will continue to

make redress for victims more of a rhetorical ideal than a palpable reality.

First, while the handful of criminal prosecutions carried out by the ICC fall

short of securing victims’ redress, the crimes committed before the entry

154

The African Union Peace and Security Council has inter alia the responsibility to

promote peace and security in Africa, to anticipate and prevent conflicts in Africa and

to promotion and implement peace building and post conflict initiatives. See Protocol

relating to the Establishment of the Peace and Security Council, art 3.

THE ‘AFRICAN WORLD WAR’ 161

into force of the world criminal judicial body are likely to enjoy impunity.

Secondly, the convictions recorded at the domestic level deserve the criti-

cisms of being victors’ justice and bias justice due particularly to political

interference and lack of political will. Thirdly, civil reparation mechanisms

are infested by lacunae in substantive tort law, political interference in, and

corruption of, the judiciary and the dependence of civil claims criminal

convictions. Lastly, looking at social rebuilding mechanisms, the truth and

reconciliation process got stuck, failed to achieve its mandate and died with

unfinished business.

The effective enforcement of redress for victims of violations of human

rights and international humanitarian law in the Congo would be secured

only if plucky reforms, particularly of the judicial system, are undertaken.

Such reforms should particularly aim to free the Congolese judiciary from

political interference, to set dissuasive measures against corruption and to

ensure that access to justice is not prohibitive, at least for the most vulner-

able. The reform should also ensure that national tort laws are amended.

As far as the investigation and prosecution of atrocities committed in the

DRC from 1996 up to date are concerned, a special tribunal for the DRC

would be the better forum to guarantee due process, fair trial, proximity of

justice, effective redress for the victims and, importantly, the re-empower-

ment of the Congolese judiciary. On the social side, an independent and

civil society-driven TRC, paralleled by a regional truth and reconciliation

mechanism, would ensure that reconciliation and truth initiatives target all

domestic and regional communities formally involved in the ‘African world

war’ with a view to achieving sustainable peace and guaranteeing non-

repetition of past atrocities.

Put together, these measures can effectively achieve redress for the vic-

tims of violations of human rights and international humanitarian law in

the Congo. Above all, a golden opportunity is presented for the interna-

tional community to honour the victim’s right to benefit from remedies and

reparation, to hold its commitment to keep faith and human solidarity with

victims, survivors and the future of human generations, and – not simply to

affirm – to enforce the international legal principles of accountability,

justice and the rule of law.

155

See Basic Principles op cit note 73 at para 10 of preamble.

162 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

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