As the elected leaders of a post-conflict state, the DRC government's top priorities must be to heal the wounds that have been inflicted on many Congolese by colonialism and civil wars in that country. Yav Katshung Joseph writes that: "Victims of serious human rights violations in the DRC are begging for justice and reparations. The new government should place this issue on its agenda in order to grant them reparations. It is true that reparation takes time. However, a step must be taken."

Introduction

Some outbursts of violence between soldiers of the presidential guards "DSSP" and the guards and private army of presidential contender Jean-Pierre Bemba marred the announcement of the election results in the DRC on 20 August. Two hours before the announcement by electoral officials that a runoff is to take place, soldiers from both rival contenders have been involved in a number of attacks. Since none of the 32 presidential candidates who contested in the 30 July elections won 50% plus of the vote, the DRC will hold a runoff election between Joseph Kabila (44.81% of the vote) and Bemba (20.03% of the vote). The fighting left at least 16 victims dead, with many more wounded, but the overall toll is not known and the two sides denied responsibility for the escalation in violence.

The need for unity must take account of the duty to remember and the right to justice necessary to all credible, lasting processes of reconciliation. Accountability for human rights violations is an important instrument in breaking the cycle of impunity, and is an indispensable component of the process of healing the wounds of grave violations committed in the DRC, reconciliation, reconstruction, and peace. It is also the foundation for post-conflict reconstruction based on the rule of law and respect for human rights.

As the focus on a national and international level is towards the post-election period in the DRC, we should also not forget the nightmare in which Congolese citizens have been living from the colonial period till today. The elected government must address the question of reparations for victims of human rights violations in the DRC.

To put this into perspective, over the last decade there have been intense debates internationally and locally about reparation for victims of gross and systematic human rights violations. Discussions arise in post-conflict situations regarding serious violations of human rights, such as genocide, crimes against humanity, war crimes, and other forms of injustices of the past. In the DRC, millions of people have been severely affected by the conflicts and violence of the past.

If we are to get over the past and build national unity and reconciliation, we must make sure that people who suffered gross human rights abuses are acknowledged by providing them with reparation. These measures cannot bring back the dead, nor can they adequately compensate for pain and suffering suffered, but they can improve the quality of life for victims of gross human rights violations and/or their dependants. However, one important question is posed: how does a nation like the DRC seek to repair harm, restore rights, and build trust when the number of victims runs to millions over the period from colonial times to the Mobutu regime, and the 1996-1997 Kabila-led war, and the 1998-2003 war and the continuing conflict in some parts of the country? [1]

The question of reparation in the DRC

The Congolese have had to deal with violence and conflict since the DRC's independence from Belgium in 1960 and even before independence. It is for this reason that the questions on when and how to repair the harm inflicted to victims should be put on the agenda. However, this has not been the case in this country and there appears little discussion on the possible processes available and appropriate to secure justice for the victims of the gross and systematic human rights violations.

To ensure that justice translates into accountability and punishment for perpetrators, and, on the other hand, reparation or redress for victims, is not simply a moral imperative. It is a political necessity to combat a culture of impunity stretching unbroken from colonial times through the Mobutu regime, till today. The elected government of the DRC should be pushed to break away from this culture of impunity.

Mechanisms of reparation in the DRC

In principle, at the national level, victims have two mechanisms through which to seek reparation: the judicial and non-judicial mechanisms.

Judicial mechanisms
The judicial reparation mechanism in the DRC is mostly based on reparation proceedings associated with the criminal prosecution of individual perpetrators, with victims participating and seeking reparation as civil claimants. The challenge here is that many victims of violence and atrocity may not have access to the courts or the resources needed to undertake lengthy and costly prosecutions that are not guaranteed to culminate in the payment of reparation.
The judicial reparation mechanism should be strengthened by the International Criminal Court (ICC). If not, the victims' prospects for achieving judicial remedy and reparation will remain minimal. The case of Thomas Lubanga Dyilo [2] proves this point. Dyilo, a founder and leader of the Union des Patriotes Congolais (UPC), was arrested and transferred on the 17 March 2006 to the International Criminal Court. He is accused of committing war crimes as set out in article 8 of the Statute. However, so far, no one else has been brought to justice for serious human rights abuses and war crimes perpetrated in DRC - a situation compounded by a shattered justice system.
We hope that the Court under article 75 of the Statute will provide reparation to the victims, if Dyilo is found guilty. [3]

Non-judicial mechanisms

There are a wide variety of non-judicial mechanisms and the Congolese Truth Commission is one of them. The work of a truth commission, when properly carried out, should automatically lead to some form of reparation. However, in the DRC, despite the fact that the truth and reconciliation commission was established in July 2004, it is unable to conduct investigations into human rights abuses. The Congolese TRC was not created and is not operated transparently in order to sustain democratic legitimacy and therefore, to work for reparation. There is a clear lack of citizen involvement in the creation and functioning of the TRC, and a lack of openness to ensure domestic legitimacy. Moreover, there are many criticisms because commissioners come from different factions previously or currently involved in the conflict and were not chosen by means of a transparent process which espoused a democratic spirit,practice.

Therefore, it seems that the purpose of such a commission, is to become a Truth Omission instead of a Truth Commission. As such it cannot satisfy the quest for reparation in the DRC.[4] There is also the question of source of funds, given the vast number of victims who may claim reparations.

Trends towards reparation in the DRC

The question arises: how should reparation be done? The whole process can become a difficult task especially when emerging from a protracted conflict, with ethnic divisions. It should be noted that not all perpetrators can be brought to book if such prosecutions both outstrip available resources and risk a dangerous frailty, further divisions, possible balkanisation and instability.

Also, one delicate question relates to contributions from foreign governments and individuals. How possible is it for foreign countries and individuals being held accountable for their roles in the civil war to pay reparation? For instance, in the recent judgement by the International Court of Justice (ICJ), Uganda was found liable to compensate the DRC for violations of public international law, international human rights law, and international humanitarian law. The amount of money to be paid in reparation is still to be determined through bilateral negotiations between Uganda and the DRC. It is unlikely that victims will benefit from it.

On a positive note, on 12 April 2006, the Military Garnison Court in Songo Mboyo [5] in the DRC sentenced seven military officers of the Armed Forces of the DRC (FARDC) to life imprisonment. This after the FARDC battalion based in Songo Mboyo(troops of the ex-Liberation Movement of Congo), rebelled against its commanders who they accused of withholding their army salaries, robbed almost all the houses in the villages of Songo-Mboyo and Bongandanga and then committed collective rape of at least 119 women and girls on 21 December 2003. Many of the women were less than 18 years old.
As a form of reparation, each victim's family will be paid compensation of 10,000 US dollars. The other victims who were raped will each receive 5,000 US dollars Compensations ranging between 500 to 200 US dollars are to be set aside for businessmen and villagers who were victims of robbery. This is the first sentence against military personnel of the FARDC for crimes against humanity. The same verdict stipulates that the Congolese state must ensure that the victims are compensated. This court's decision is a significant step that will help advance the fight against impunity and provide reparation. However, more still needs to be done.

Conclusion

Victims of serious human rights violations in the DRC are begging for justice and reparation. It is true that reparation takes time. However, the new government must take a step in the right direction by placing this issue on its agenda.

Erik Doxtader says that “in the face of a history that will not 'end', reparation requires close attention to the question of how to craft a present for the future. Much more than an ideal to be achieved in some vague time yet to come, its hope for transformation is a call to act right now. The fact that reparation can neither erase history's pain nor fully compensate for its losses is not a reason to conclude that what is past is past or that legacies imply an inevitability which defies correction. But, this is not to say that there are ready-made solutions. Much more that just a set of policy decisions or court judgements, the power of the reparative may reside in an attitude, a willingness to see historical deprivation and inequality as a common problem that demands the struggle for a future in which things can be made otherwise.” [6]

* Yav Katshung Joesph is a lecturer at the Faculty of Law, University of Lubumbashi, Democratic Republic of Congo and an Advocate at the LubumbashiBar Association. He is the Executive Director of CERDH, and Coordinator of the UNESCO Chair for Human Rights, Peace, Conflict Resolution and Good governance. He has published numerous articles on human rights, law and transitional justice in scholarly journals. For contact: [email][email protected] or [email][email protected]

* Please send comments to [email protected] or comment online at www.pambazuka.org

References:

[1] There is a debate in the DRC on the responsibility of Belgium for the barbarity and humiliation associated with the past oppression during the colonial period. Congolese civil society are demanding compensation from the Belgian government. As it is true in the world, there has been an increase in the incidence of claims for reparations related to injustice committed long time ago, including those related in colonialism.

[2] Thomas Lubanga Dyilo, a Congolese national, has been the president of the Union des Patriotes Congolais (UPC) since its inception in 2000. In September 2002, he established and led the Forces Patriotique du Congo (FPLC), a military group affiliated with the UPC and dedicated to carrying out its goals using violence. He is alleged to have enlisted and conscripted children to serve as soldiers in this organisation. The UPC/FPLC is based in the Ituri district of the DRC, one of the most violent regions in the country. During the war in 2000, Lubanga's organisation is alleged to have been responsible in part for many of the massacres and other abuses that took place in the Ituri region. More recently, his group has been involved in disputes to gain control over the mineral wealth of the region.

[3] The benefits of victims from reparations under the ICC may not be linked to finding a perpetrator guilty. The Court is yet to pronounce itself on this.

[4] "The relationship between the International Criminal Court and Truth Commissions: Some thoughts on how to build a bridge retributive and restorative justice", by Josephy Yav Katchung. Available at: http://www.iccnow.org

[5] In the northwestern province of Equateur, precisely at 600km northeast of the provincial capital Mbandaka.

[6] Erik Doxtader, "Reparation" in Charles Villa-vicencio and Erik Doxtader, Pieces of the Puzzle, 2004, p 32