Reviewing the entrenched state of crisis engulfing the eastern DR Congo, Joseph Yav Katshung argues that it is only through strong political will that the conflict will begin to stem. As the author underlines, this is will on the part of a range of domestic and international actors, whose ability to articulate a clear strategy for enhanced civilian protection will ultimately determine whether vulnerable populations see the consequences of armed conflict reduced. Only on the strength of sustained political commitment, Katshung emphasises, can rhetoric translate into reality.

Yav Katshung Joseph argues that as truth commissions multiply around the world it is important to look at their relationship to prosecutions and justice in an immediate and historical sense. Are TRC's designed to generate more truth, more justice, reparations, and genuine institutional reform? Or are they designed to undermine the State’s and society’s legal, ethical and political obligations to their people?

INTRODUCTION

http://www.pambazuka.org/images/articles/354/46719truth.jpgTruth commissions have been multiplying rapidly around the world and gaining increasing attention in recent years. They are proposed for different reasons and driven by diverse motives. They can be used firstly, for the purpose of national reconciliation and in the interests of the society; secondly, sometimes they can be used to avoid accountability or prosecution and merely to shield an offender from justice. Following recent outbreaks of violence in the aftermath of Kenya's presidential election last December, stakeholders continue to make strides toward peace. Parties have agreed among other things to a Truth, Justice and Reconciliation Commission, which will be established through an Act of Parliament. The Commission will inquire into human rights violations, including those committed by the state, groups, or individuals. This includes but is not limited to politically motivated violence, assassinations, community displacements, settlements, and evictions. It will also inquiry into major economic crimes, in particular grand corruption, historical land injustices, and the illegal or irregular acquisition of land, especially as these relate to conflict or violence. Other historical injustices shall also be investigated. The commission will primarily focus on events dating back to independence, December 12, 1963 up to February 28, 2008. However, it will as necessary look at antecedents to this date in order to understand the nature, root causes, or context that led to such violations, violence, or crimes. This gives us opportunity to share views on adequate truth commissions and their relationship with prosecutions.

TENSIONS BETWEEN TRUTH COMMISSIONS AND PROSECUTIONS

Very often, when a country wishes to move from dictatorship to democracy or from war to peace, various ways may be tried and these include trials in an international or national court of law and non-punitive approaches such as truth commissions. Thus, “…a country’s decisions about how to deal with its past should depend on many things: the type of dictatorship or war endured, the type of crimes committed, the level of societal complicity, the nation’s political culture and history, the conditions necessary for dictatorship to reoccur, the abruptness of the transition, and the new democratic government’s power and resources [1].” One may adds the “interests” of the country.

Different countries have chosen widely different strategies to deal with the past including prosecutions in one hand and, truth commissions and other non-punitive approaches, in the other. Although justice is crucial after violations of human rights, it may not be possible or practical. International tribunals are useful, but they are not the full solution. They are hugely expensive and can try only a small group of perpetrators, the most “responsible”. Ironically, many times, those who are tried are not the most responsible but the most “available” in the country. Therefore, justice becomes extremely selective and seems to be the way of granting de facto amnesty to those who fled the country and those responsible. Then come the necessity of other non-judicial mechanisms such as truth commissions not as a panacea for all the challenges of transition, or an alternative, but as a complement way to be used by broken societies, in order to bring the benefits of justice to the victims and to the political culture.

However, this is challenging and there are always tensions between the requirements of the criminal justice system and those of non-punitive approaches to gross and systematic human rights violations. Rightly, Charles Villa-Vicencio pointed out that, “the tension between justice and reconciliation and revenge, prosecution and amnesty is grounded as much in principled debate as in a tug-of-war between deep emotions, unresolved memories and uncertain futures. It is a tension that is best not collapsed into an attempted neat synthesis of a complex set of contradictions. The contradictions need to be sustained. The demands of the one side need to impact on the other. It is through honest encounter that opposing groups stand the best chance of knowing that they need one another. It is then that new possibilities begin to be imagined-and sometimes realised [2].

DOMESTIC TRUTH COMMISSIONS AND PROSECUTIONS: REACHING FORWARD

Truth Commissions are established to officially investigate and provide an accurate record of the broader pattern of abuses committed during repression, civil war and unjust periods. There have been more than thirty truth commissions worldwide, including in Sierra Leone, DRC, Morocco, and more importantly South Africa. “Truth commissions today”, according to Jose Alvarez, Professor of International Law at Columbia University, “are inescapable tools in establishing the truth of past crimes and a means for victim recompense and instruments to promote peace and reconciliation.”

Most recently, the United Nations Secretary-General’s report on “The rule of law and transitional justice in conflict and post-conflict societies” praised them as “a potentially valuable complementary tool in the quest for justice and reconciliation” and in “restoring public trust in national institutions of governance [3]”. The increased interest in truth commissions is, in part, a reflection of the limited success in judicial approaches to accountability, and the obvious need for other measures to recognise past wrongs and confront, punish or reform those persons and institutions that were responsible for violations. Successful prosecutions of perpetrators of massive atrocities have been few, as under-resourced and often politically compromised judicial systems struggle to confront politically contentious crimes. With an eye on building a human rights culture for the future, many new governments have turned to mechanisms outside the judicial system to confront, as well as learn from the horrific crimes of the past [4].

However, a truth commission should at the same time never be allowed to circumvent international human rights law or, more specifically, to ignore the punitive demands of the criminal justice.

Related to the South African case, where there was a Truth and Reconciliation Commission (TRC) with a possibility to grant a conditional amnesty [5] in exchange of a full disclosure and shown remorse, could we say according to the Rome Statute that, the TRC decisions or proceedings were taken for the purpose of shielding the person concerned from criminal responsibility?

One should take into account and acknowledge that the South African TRC was democratic and genuine. The purpose was not to shift or to hide someone or a group from prosecution. It was in the interest of peace, reconciliation, etc. In my view and for many others, the South African TRC was not there to shield perpetrators but to seek the truth for national reconciliation. South Africa acted in good faith; the TRC was established by the best efforts of negotiators to end violations of human rights. This is justice, to my view and I may say in the interests of the entire country/society, not in the interest of prosecuting some few and not others, and still walk free as if they were granted de facto amnesty.

Emphasising this argument, Juan Mendez, stated that:

“In most parts of the world, the South African example stands out as an attempt to achieve reconciliation and forgiveness without impunity. Others decry the fact that most perpetrators of the worst crimes of apartheid did evade justice. In my view, however, the South African exercise with truth, justice and reconciliation is notable for its insistence on hearing the victims, consulting with all members of society, allowing participation by all stakeholders, and conducting the exercise in complete transparency. It is in this sense that the South African example continues to inspire all those who decide to turn a page in a country’s history without forgetting the plight of those who suffered [6].”

Therefore, we may pause with Naomi Roht-Arriaza that, if perpetrators appear before an independent and democratic truth commission that hears applications for conditional and accountable amnesty, they should not face prosecution by the ICC. In this case, amnesty (conditional) is granted for the purpose of domestic reconciliation and not to shield him/her/(the perpetrator) from criminal prosecution [7]. However, can all truth commissions have the same purpose of not shielding perpetrators? It is important to draw the line in order to avoid some contradictions between truth commissions and prosecutions. The next point will deal with that.

THE QUESTION OF ADEQUATE TRUTH COMMISSIONS IN ORDER TO COMPLY WITH INTERNATIONAL STANDARDS

We should ask ourselves if all truth commissions should be considered as genuine and serve the interests of the country. As we may know, in some countries the purpose of a truth commission may be not genuine and reasonable. This is challenging and it will be useful to deal at the case-by-case level. Rightly, Professor James Crawford of the University of Cambridge has said in relation to Article 17 of the Rome Statute:

“I think there is a question about truth commissions, because you can’t say a priori which ones are a reasonable response to the situation, and which ones are a cover-up. It’s going to require extreme care by the prosecutor. There may be some problem there with the capacity to subvert those processes if they are reasonable, and we’ll just have to hope that the institutions within the court take a sensible view about it. But complementarity extends to covering internal processes which don’t necessarily involve prosecutions of individuals, so there’s no reason why the principle of complementarity ought not to cover an appropriately constituted truth commission [8]."

Moreover, Charles Villa-Vicencio, talking about truth commissions states that: “… They demand fewer resources than courts and, if designed properly, can provide some accountability [9].” Using the words such as “if designed properly”, meant that we may find some not properly designed and therefore, the need for benchmarks in order to comply with international law. Can we say that the South African TRC was able to provide accountability and was consistent with international law?

Despite some few critiques, the South African TRC is internationally recognised, and has been favourably endorsed by numerous international human rights organisations and commentators. The TRC was passed pursuant to a valid Act of Parliament and imposes a form of public procedure and accountability for the actions of perpetrators. It was the country's decision in favour of peace. This is not impunity because there was political consensus in South Africa that getting as much of the truth out as possible and having fewer, but more effective prosecutions, was a just result. Given that, this was what the majority of the public wanted, that is not impunity.

In this line, speaking on the relationship between the prosecutorial mandate of the ICC and the amnesty administered by the South African TRC, the Secretary-General of the United Nations has observed:

“The purpose of the clause in the Statute (which allows the Court to intervene where the state is ‘unwilling or unable’ to exercise jurisdiction) is to ensure that mass-murderers and other arch-criminals cannot shelter behind a State run by themselves or their cronies, or take advantage of a general breakdown of law and order. No one should imagine that it would apply to a case like South Africa’s, where the regime and the conflict which caused the crimes have come to an end, and the victims have inherited power.

It is inconceivable that, in such a case, the Court would seek to substitute its judgement for that of a whole nation which is seeking the best way to put a traumatic past behind it and build a better future [10]”.

As noted, the South African TRC has been recognized and even endorsed as a valid means of dealing with crimes arising out of apartheid [11]. Moreover, state practice [12], international jurisprudence [13] and authors [14] confirm that the Rome Statute does not preclude a state from utilizing amnesty as an effective means of prosecution. However, what about the Congolese TRC?

In assessing if the Congolese TRC met some minimal requirements to approach legitimacy under international law, one can point out that the Congolese TRC was not created and operated transparently in order to sustain democratic legitimacy. There was a clear lack of citizen involvement in the creation and functioning of the TRC, and openness to ensure domestic legitimacy. There was no endorsement of the TRC and its work as a mechanism of transitional justice. Moreover, there are many critiques because commissioners came from different factions, and were not chosen by means of a process, which tried to ensure a democratic spirit and practice, and transparency. Therefore, it seems that the purpose of such a commission, was to be a “Truth Omission” instead of a “Truth Commission” and cannot encounter support by the international community [15].

In order for truth commissions to merit international legitimacy, Professor Crawford suggested that one possible test would be whether the procedure in question had been freely ratified by the successor regime, “so it’s not just a way that the generals can sign their amnesty on the way out of the door [16].” And for that, Charles Villa-Vicencio [17] helps us by saying that truth commissions needs at a minimum to incorporate the following:

- There needs to be convincing evidence that the majority of citizens endorse the provision as a mechanism of transitional justice;
- The disclosure of as much truth as possible concerning the gross violations of human rights;
- Accountability of those responsible for gross violations of human rights, recognising that this need not to be in the form of retributive sentencing by the state;
- A mechanism needs to be put in place to provide a form of relief or reparation to victims whose rights are suspended by a qualified amnesty provision;
- The suspension of prosecutions in a transitionary situation should not be a pretext for the abrogation of other requirements of international law;
- A forum in which victims and survivors may tell their stories and questions;
- Prosecutions should remain an option both during and after the TRC against those perpetrators who did not adequately participate in the process.

Although we agreed with Charles on these criteria, the last one seems not to be consistent. Truth commissions are not alternative to prosecutions, all are two sides of the same coin and should be used complementarily but sequencing for their success. Saying that “prosecutions should remain an option both during and after the TRC against those perpetrators who did not adequately participate in the process” seems to be too simplistic and could undermine the entire effort to heal the wounds of the nation and to fight against impunity.

In addition to satisfying the above minimum criteria for international legitimacy, a Truth commission should also be created and operated transparently in order to sustain democratic legitimacy. Citizen involvement in the creation of a truth commission, and openness to media coverage of its operations, are necessary to ensure domestic legitimacy [18]. And Juan Mendez put it clearly by saying:

“There are two conditions of legitimacy that we should insist upon for any program of transitional justice. First, transitional justice policy should be developed as part of an open, democratic debate, which includes consultation with and participation of the relevant stakeholders and full transparency of decisions. If decisions about how to reckon with the past are adopted exclusively by the parties to a conflict, without appropriate consultations with the victims of abuse or with society at large, the result will almost always generate dissatisfaction and rejection. Second, transitional justice policy should be contemplated in as comprehensive and holistic an approach as possible. This is not only because there will always be an ‘impunity gap’, meaning that many cases of abuse will not be resolved by trials, thus generating the need for a broader treatment of the universe of violations. It is also because the emerging principles in international law … establish that the obligations of the State are four-fold: to prosecute perpetrators, to unearth the truth, to offer reparations to victims, and to reform abusive public institutions [19].

CONCLUSION

In many transition periods two methods are used to establish record of grave human rights crimes following a conflict/war: prosecutions at national or international level and truth commissions with various names, which investigate situations and submits reports. Both of these two methods are not sufficient and therefore, the need to complement each other.

There is a growing demand for transitional justice mechanisms such as truth commissions, around the world. The problem however, it is to test if all those mechanisms imply good faith. Is the effort designed to generate more truth, more justice, reparations, and genuine institutional reform? If so, they are welcome. If the objective is to evade the State’s and society’s legal, ethical and political obligations to their people, they should be rejected. The answer should be found in the design of the process itself, but also in the degree of participation, consultation, and transparency that surrounds them (e.g. of South Africa).

Moreover, we should start by avoiding seeing truth commissions as an alternative to prosecutions. Even if many of them have been accompanied by grants of amnesty to the major perpetrators of human rights crimes, viewing truth commissions, as substitute for prosecutions is not a right way and can lead to contradictions. Therefore, we should try to consider truth commissions as complementary to national and international prosecutions, not to substitute them. They are two sides of the same coin: transitional justice. However, the processes must be sequenced in a way that one does not affect the effectiveness of the other. Accordingly, Scharf has said, “a country should not rush ahead with prosecutions at the cost of political instability and social upheaval or that every single perpetrator must be brought to justice, an impossible task in most countries that have experienced widespread human rights abuses. By documenting abuses and preserving evidence, a truth commission can enable a country to delay prosecutions until the international community has acted, or the new government is secure enough to take such action against members of the former regime [20].”

Furthermore, it may be useful to examine the utility of conducting prosecutions after Truth commissions as a means of uncovering more “truth” that was not revealed through the process. Because, like in the South African case, if those people who did not apply for amnesty or those whom the amnesty was refused, do not face trials, someone could say that there is de facto amnesty and therefore, the purpose of a TRC was just to shield some perpetrators. In this hypothesis, the process will violate the international law and will not be in the interest of justice (society as a whole). So, we should look on the possibilities to trials for those persons in order to avoid impunity, contradictions and allow the roots of a just society to take hold.

*Yav Katshung Joseph is a Human Rights lawyer and. Lecturer at the Faculty of Law, University of Lubumbashi, Democratic Republic of Congo.

**Please send comments to or comment online at www.pambazuka.org

Footnotes are available at the URL shown below

http://www.pambazuka.org/images/authors/Joseph-Yav.jpgThe exploitation of natural resources has played a central role in the conflict in the Great Lakes region and the DRC. Joseph Yav, offers a perspective on how to transform conflicts by using resources as “tools for reconciliation and and reconstruction in the Great Lakes region.

“I hope they don’t discover oil. Then we will be in real trouble”. [Blood Diamond]

Introduction

To adapt an old metaphor, one could say, when the Great Lakes Region of Africa sneezes, the entire world including Africa catch a cold. Several interconnected elements shaped conflicts in the Great Lakes region, including the interests of neighbouring countries, competition over natural and economic resources concerns over instability and lack of security, and ethnic chauvinism, to name but a few.

The oil prospects of the Great Lakes region appear at once more dangerous. Uganda and the Democratic Republic of Congo are sitting on what prospectors believe could be oil reserves of up to one billion barrels in the Albertine Basin which they share. At the time of writing, the oil region of the eastern DRC was the theatre of clashes culminating in killing of civilians and militaries by the Ugandan and Congolese armies. This is now leading to fears that the lake Albert conflict may spread and make a renewed cross-border conflict involving other negative forces and countries.

This may lead to another case of conflict over resources and well described in a recent movie named “ Blood Diamond” where the old man sighs: “I hope they don’t discover oil. Then we will be in real trouble”.

Yes, one could say that the old man of the above-mentioned movie is right; the Great lakes region of Africa is in real trouble. If realistic possibilities for conflict resolution and transformation are to be developed, concerns about oil and other resources will have to be addressed. This article will focus only on the issue of resources as a source of conflict or a resource for peace and reconstruction and will offer a perspective on how to transform conflicts by using resources as tools of reconciliation and reconstruction in the Great Lakes region.

History of conflict over resources in the Great Lakes Region

One of the most perplexing issues in the Great Lakes region of Africa and especially in the DRC conflict has been, and still is, that of the exploitation of the DRC’s natural resources. Illegal exploitation of the DRC’s mineral resources has been a constant feature in discussions about the war in general and especially in the eastern part of the country. There is a debate about whether the exploitation of mineral resources is a main aim for foreign intervention or whether mining initiatives is a way of financing the war effort. It has long been established that the exploitation of these resources, including ‘coltan’ (columbite-tantalite), gold, and diamonds in the eastern Congo, and diamonds, copper, cobalt, and timber in central DRC, contributed to and exacerbated the conflict in the country. Concerned with reports of pillaging of resources by the foreign forces, the UN Security Council mandated an independent panel to investigate these allegations.

In fact, in its presidential statement dated 2 June 2000 (S/PRST/2000/20), the Security Council requested that the Secretary-General establish a Panel of Experts on the illegal exploitation of natural resources and other forms of wealth of the DRC. The objective was to research and analyze the links between the exploitation of the natural resources and other forms of wealth in the DRC and the continuation of the conflict. In its four reports, the UN Panel of Experts has named senior Ugandan and Rwandese armed forces officers and senior government officials and their families, who are allegedly responsible for illegal exploitation of the DRC's natural resources and other abuses.

It has also proposed that measures be taken against the states, individuals and companies most implicated in the exploitation, including travel bans, financial penalties and reductions in aid disbursements. In January 2003, in response to complaints raised by companies and some governments, the Panel's mandate was extended to 31 October 2003. In its final report from October 2003 the Panel largely documented the nexus of economic exploitation, arms trafficking, and armed conflict, stating that illegal exploitation remains one of the main sources of funding groups involved in perpetuating conflict. The Panel of Experts also listed companies based in Belgium, China, France, Germany, Israel, Spain, the UK, and the United States, that were allegedly involved in the illegal arms trade in the DRC.

Regional actors have been accused of aggression and ‘foreign adventurism’ with regard to Congolese territory and natural resources. In other words, while parties to the conflict in the DRC may have been motivated originally by security concerns, their continued presence in the DRC can be attributed to economic gains derived from the DRC. The report further stated that criminal groups linked to the armies of Rwanda, Uganda and Zimbabwe and the Government of the DRC have benefited from such conflicts. This is critical to the peace process, because according to reports, these ‘groups will not disband voluntarily … they have built up a self-financing war economy centred on mineral exploitation’.

The rationale for intervention by neighbouring states became self-enforcing and the localised conflicts became regional. As such, the conflicts within and among the countries of the Great Lakes region require regionally based and targeted solutions, along with the cooperation of other, relevant neighbouring states.

Current situation: Oil wars in the Great Lakes of Africa?

Uganda and the DRC share Lake Albert, which has become an important new frontier in the search for oil on the continent. Lake Albert, also Albert Nyanza and formerly Lake Mobutu Sese Seko, is one of the Great Lakes of Africa. It is Africa's seventh largest lake, and ranks as the world’s twenty-third largest lake by volume. It is located in the center of the continent, on the border between the DRC and Uganda. It is the northernmost of the chain of lakes in the Great Rift Valley; it is about 160 km long and 30 km wide, with a maximum depth of 51 m, and a surface elevation of 619 m above sea level. In 1864, the explorer Samuel Baker discovered the lake; he named it after the deceased Prince Albert, consort of Queen Victoria. The late and former Congolese president Mobutu temporarily named the lake after himself.

http://www.pambazuka.org/images/articles/322/43557_oil.jpgConflict is arising over oil found in Lake Albert. Reserves are estimated at less than 100,000 barrels a day for about 10 years when production starts. Tensions began to rise at the end of July beginning of August when a unit of Congolese Armed Forces (FARDC), captured four Ugandan marines who had apparently strayed towards the Congolese west bank of Lake Albert. But on August 3, the situation grew serious. FARDC soldiers patrolling the lake attacked an oil exploration barge belonging to Canada's Heritage Oil Corporation and killed a British contractor working for Canada's Heritage Oil Corp. The Ugandan army retaliated and a Congolese soldier died in the short shoot-out while a Ugandan soldier was wounded.

Since then, tension has been mounting along that part of the Uganda-Congo frontier that runs north-south down the 160 kilometre-long lake - although the alignment of the border has never been precisely defined. Following the discovery of oil in the Albertine Basin, both the Ugandan and Congolese armies have been deploying heavily around the shores, with some observers saying there is now a threat of all-out war.

To ease the tensions, Congolese president Joseph Kabila and his counterpart, Ugandan president Yoweri Museveni, held a one-day summit meeting in Tanzania on September 8 in an attempt to sort out the border dispute. They signed an agreement to immediately pull back their troops 150 kilometers from the border to ease tensions over an oil-rich border lake. They agreed to work together to explore and exploit oil in the Lake Albert area and to lay a joint pipeline to distribute any oil and they signed the agreement in the presence of Tanzanian President Jakaya Kikwete, diplomats and journalists. They also agreed that a joint team will begin work to demarcate the contested area of the lake. Further, they agreed to meet once a year and to raise their diplomatic missions to ambassadorial level to help improve relations.

However, few days after the meeting and agreements another military clash erupted on the lake on September 24. Reuters reported that six civilians were killed when Ugandan soldiers opened fire on a Congolese passenger boat on Lake Albert. In a conflicting version of the shooting incident, Uganda's military reported two soldiers killed, one from each country, in what it said was a gunfight during a dispute over an oil exploration vessel working on the border lake.

There is therefore an urgent need of transforming resources from source of conflict to options for reconciliation and reconstruction in the Great Lakes region.

Concluding remarks: Transforming the Oil concern from the Source of Conflict to a Resource for Peace in the Great Lakes Region
Reconciliation and reconstruction are essential elements of peacebuilding. The key to transforming conflicts is to build strong, equitable relations where distrust and fear were once the norm.

In the Great Lakes region, as in many other African countries, violent conflict has become the ‘normal’ state of affairs. Control of economic resources has become an important factor in motivating and sustaining armed conflicts. Complex political economies, which often hide behind the outward symbols of statehood and national sovereignty, have been rooted in the pursuance of conflict. The challenge therefore is to transform regional and national political ‘parasite’ economies that rely on violent conflict into healthy systems based on political participation, social and economic inclusion, and respect for human rights and the rule of law.

Accordingly, any attempt at transforming conflicts to ensure reconciliation and reconstruction in the region requires stimulating positive developments in the region. Such developments will reassure the affected countries that their security and economic interests are better served through fostering stability and improving relations with their neighbours than through allowing their neighbours’ turmoil to deflect them from their objective of peace, reconciliation, democracy, and economic development.

Moreover, in terms of ensuring security, ignoring the tensions and misunderstanding among the DRC and Uganda will have far-reaching implications for the stability and socioeconomic development of the region because resources will be diverted from human and economic development to warfare. For this reason it is important for these countries to cooperate towards the restoration of peaceful dialogue and cordial interstate relations. In this regard, armed incursions and clashes can lead to rising tensions and full-blown interstate armed conflict which, if not promptly addressed, will affect the long-term well-being and socioeconomic development of both populations.

The Great Lakes region is rich in the natural resources that are at stake for many actors in the conflict. However, natural resources also harbour potential for post-conflict rehabilitation and development. Countries should therefore examine ways of limiting the exploitation of such resources -especially oil in this case- for the purpose of funding conflict. They should furthermore seek to identify and promote the means by which such resources can be safeguarded and managed in a way that will reduce conflict and ensure benefit to the population. Equally, there is a need to develop institutions and frameworks for the integration and transformation of the informal economy to a formal economy, governed by a reasonable rule of law, transparency and efficiency, without marginalising local and regional actors.

* Dr. Joseph Yav is a lecturer at the Faculty of Law, University of Lubumbashi, Democratic Republic of Congo. He is also the executive director of the CERDH (Centre d’Etudes et de Recherche en Droits de l’Homme, Democratie et Justice Transitionnelle/Centre for Human Rights, Democracy and Transitional Justice Studies.) and Coordinator of the UNESCO Chair for Human Rights. Email: [email][email protected] and [email][email protected]

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

Joseph Yav argues that poverty alleviation requires a holistic approach with cooperation and collaboration between all stakeholders including governments.

In light of the enormous challenges facing the global community to eradicate poverty, the international development community in 2000 adopted specific targets for poverty reduction, now known as the MDGs. The eight MDGs seek to achieve a number of goals: eradicate extreme poverty and hunger; achieve universal primary education; promote gender equality; reduce child mortality; improve maternal health; fight HIV/Aids, malaria and other diseases; increase environmental sustainability; and forge a global partnership for development. The overarching goal is to halve income poverty worldwide by 2015.

Despite the commitments contained in the MDGs, poverty and hunger is on the increase resulting in an ever-growing disparity between rich and poor, between and within nations. Africa exemplifies these particular challenges: the challenge of peace, the struggle against poverty and the struggle for development. It is not enough merely to recognise the fact that there are problems and challenges. The bigger issue is what can be done to respond to all of these challenges.

As many critiques have noted, among the shortcomings of the MDGs, it is always emphasized their insufficient coverage of human rights, gender and employment issues. This paper will address a shared commitment to promoting the interconnected goals of development, peace and security, and respect for human rights.

Human rights and poverty

Despite the international mandate for a human rights approach to poverty eradication, such an approach, though based on venerable antecedents, has tended to be neglected in justifications for the eradication of poverty.

From the human rights point of view, the ideal of free human beings enjoying freedom from fear and want can be achieved only if conditions are created whereby everyone may enjoy his or her economic, social and cultural rights, as well as his or her civil and political rights. In this regard, article 25 of the Universal Declaration of Human Rights stipulates that:

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, … or other lack of livelihood in circumstances beyond his control.

Therefore, the eradication of widespread poverty, including its most persistent forms, and the full enjoyment of economic, social and cultural rights and civil and political rights remain interrelated goals. Human rights may not only be used as an approach to attaining the goods entailed in the MDGs. They are entailed in the goals set by the MDGs themselves in so far as they seek the attainment of a certain minimum way of life for people.

Democratic Governance

Democratic governance is central to the achievement of the MDGs, as it provides the ‘enabling environment' for the realisation of the MDGs and, in particular, the elimination of poverty. The critical importance of democratic governance in the developing world was highlighted at the Millennium Summit of 2000, where the world's leaders made a solemn resolution – “[to] spare no effort to promote democracy and strengthen the rule of law, as well as respect for all internationally recognized human rights and fundamental freedoms, including the right to development." A consensus was reached which recognised that improving the quality of democratic institutions and processes, and managing the changing roles of the state and civil society in an increasingly globalised world must underpin national efforts to reduce poverty, sustain the environment, and promote human development.

Since then, more countries than ever before are working to build democratic governance. Their challenge however, is to develop institutions and processes that are more responsive to the needs of ordinary citizens, including the poor. African leaders should develop a greater capacity to deliver basic services to those most in need. CSOs should assist in doing this process.

Links between development, Peace and security

Peace and security are a prerequisite of poverty elimination. In fact, without peace and security there can be no lasting development and poverty reduction. The lack of, and failures in development can be seen as contributing to instability and the eruption of conflict. Experience demonstrates that poverty, hopelessness, inequity and marginalisation are often among the root causes of devastating conflict. In crisis situations, and in societies emerging from conflict, human rights are often violated. International support for governance mechanisms leading to the restoration of the rule of law is important for the protection of human rights.

Development and security are inextricably linked. A more secure world is only possible if poor countries are given a real chance to develop. In one hand, extreme poverty and infectious diseases threaten many people directly, but they also provide a fertile breeding-ground for other threats, including civil conflict. Even people in rich countries will be more secure if their governments help poor countries to defeat poverty and disease by meeting the Millennium Development Goals. If completed, it will half global poverty by 2015. Consequently, the international community should not only view ‘soft’ threats as part of the development agenda but also be an important component of the peace and security agenda.

On the other hand, with the “blood diamond” effect, one can say that "war has become profitable". People, who are making money out of war, have a financial interest to ensure that conflict continues. Such phenomena are not unique to Africa. Conflict prevention and resolution and people centred development therefore demands a striving for good governance, inter alia, respect for human rights and rule of law, promotion of transparency and accountability in government and enhancing of administrative and institutional capacity.

What is needed is a holistic approach to the peace and security agenda. The root causes for conflict – poverty, human rights abuses, lack of democracy – must be tackled. There is a need for enhancing focus on conflict prevention, which includes both sustainable social and economic development to prevent conflicts in the first place and post-conflict efforts to prevent them from reigniting. While it is often more easy to raise money for humanitarian efforts than longer-term development assistance, it could in fact be cheaper to prevent conflict than to pay for the damage done afterwards.

Conflict after conflict demonstrates the importance of good governance and viable government institutions. Unequal distribution of economic and political power causes conflict, and governance deficits make conflicts unmanageable. The development cooperation should now consciously gear towards contributing to peace building and conflict prevention.

Conclusion

Alleviating poverty is too daunting a task to be just left to government. It needs an integrated and holistic approach of all stakeholders to harmonise their activities at national and State levels for all the peoples of the world. In developing countries, implementation of the Millennium Goals must focus on mobilizing domestic resources, prioritising budget expenditure on the MDGs, and strengthening human rights, democracy and good governance as specified in the Millennium Declaration

We need to link the agenda of development, human rights and extreme poverty, as well as efforts to empower people living in poverty to participate in decision-making processes on policies that affect them.. We cannot have security amidst starvation and we cannot build peace without alleviating poverty and we cannot have either without a better environment. Only a peaceful society can work its way up to creating the institutions ripe for development and free itself from injustices and human rights abuses.

Suffice is to say, every year around the world millions of families' lives and livelihoods are endangered, and entire communities are displaced due to conflicts - over resources like land, water or oil, between ethnic or religious groups, or over political and social control. In many places, addressing issues of hunger, poverty, and suffering cannot begin until conflicts are resolved and peace established. At the same time, peace building efforts must be tied to the very causes of conflict itself – inequities – and result in improvements in people's everyday needs.

* Joseph Yav is a senior researcher at the Institute for Security Studies based in Addis Ababa, Ethiopia. He works with a network of African research institutes in support of the African peace and security agenda.

* Please send comments to or comment online at http://www.pambazuka.org/

As we approach the 13th anniversary of the Rwandan genocide we should not only remember the horrors that took place, but focus our attention on the failure to halt the developing genocide in Darfur.

April marks the 13th anniversary of the start of the genocide in Rwanda during which approximately 800,000 Tutsis and moderate Hutus were killed in 100 days. When celebrating the anniversary of this horrific tragedy let us take a moment to remember those who were slaughtered so unmercifully. More attention should be focused on how to prevent future heinous crimes to occur in Africa and elsewhere.

‘Never again’ – an international commitment or a rhetorical sound bite?

After the horrors of the holocaust, the international community drafted the UN Convention on the Prevention and Punishment of the Crime of Genocide and pledged 'never again' to such evil. The United Nations was founded with the objective that humanity should be spared the scourge of war forever. The pledge proved empty as numerous heinous crimes followed. In fact, civilians in Africa bear the heaviest brunt of acts of terror, civil wars, violent suppression of political opponents and criminal violence.

The most glaring and heinous examples of the failure of civilian protection in Africa are the genocide in Rwanda in 1994, the war in the DRC between 1998 and 2003, which resulted in one of the world’s worst humanitarian crises, with over 3,400,000 persons displaced from their homes and an estimated 4 million killed and, the Darfur conflict that started in 2003, with estimates of deaths ranging from 180,000 to 400,000. At least 2,000,000 people have been forced to flee from their homes and are displaced in Sudan or in camps in neighbouring countries. These cases are particularly relevant: they happened in our lifetimes and continue to happen now.

Never say never again?

They are a tragic part of Africa’s contemporary history. One may easily say that 'never again' has lost its meaning. While Rwanda was supposedly the scar on our conscience that would be the last incident of mass atrocities allowed to occur, it provided a foreshadowing of things to come. That is true especially in Africa where, despite leaders’ pledge to never let another Rwanda happen again, they have not demonstrated the will to exercise the African Union’s right to intervene to stem gross human rights violations in a concerted or consistent manner.

Even if there is controversy about the definition of genocide in Darfur, there is little doubt that despite the hair-splitting of the proper description of the unfolding tragedy, there is a developing genocide in Darfur which is being met by a similar reaction or lack of action from the world community. Equally, the current situation in Zimbabwe - where the state is oppressing its own people - is another case for the agenda of actions to end this cycle, and move us to finally realise the call of 'never again'.

As 7 April has been designated by the UN as 'international day of reflection on the genocide in Rwanda', the profound sense of 'never again' should be reflected in the prevention or action in the event of of heinous crimes and other violations of human rights. Prevention of such crimes through swift and effective action will send us a clear message. Maybe, thus inspired, we can someday make 'never again' more than a mere slogan.

In so doing, responses to protect civilians would immensely benefit from President Paul Kagame’s sagacious words:

'Never again should the international community’s response to these crimes be found wanting. Let us resolve to take collective actions in a timely and decisive manner. Let us also commit to put in place early warning mechanisms and ensure that preventive interventions are the rule rather and the exception.'

To achieve the broad goal here expressed will certainly take more than rhetoric. Political commitment must be expressed, not only in establishing the required mechanisms but also in triggering them to act when action is required.

The case of Darfur aptly demonstrates the futility of establishing legal regimes which cannot be effectively utilised. In providing for intervention in internal affairs of member states when massive human rights violations are perpetrated without action from the government concerned, or when the government itself is involved in such atrocities, the Constitutive Act of the African Union has codified an important principle of international law. This principle as holds that while states have the responsibility to protect their citizens in recognition of their sovereignty, the default responsibility falls upon the international community, in this case the AU, which can intervene to forestall atrocities.

The cases of Darfur and Zimbabwe are the latest in a string of similar situations to pose unanswered questions to our rhetorical commitments. It is one thing for the silence to be ruptured for lack of preventive mechanisms. But our deafening silence in the face of continuing atrocities is quite another. Empty diplomatic gestures without concrete action in places like Darfur long recognised as the world’s worst humanitarian crisis is a damning indictment of the international community, in particular the leading nations at global and continental levels.

As the world commemorates the commencement of the tragic events of 1994 in Rwanda, our leadership and those who shape opinion and policy must rethink our commitment to a world and continent free of human suffering, a continent committed to furthering the aspiration of a peaceful world, a world in which human life and dignity are embedded in state policy and interactions between nations. This would allow us, when necessary, to discard parochial notions of sovereignty and to act accordingly when another Rwanda or Darfur threaten.

To achieve this, we must bring together the institutions and collective powers we have established to construct a world in which ‘never again’ means what it should.

* Joseph Yav is a lecture at the Faculty of Law, University of Lubumbashi, Democratic Republic of Congo. He is also the executive director of the Centre d’etudes et de recherche en droits de l’homme, democratie et justice transitionnelle/Centre for Human Rights, Democracy and Transitional Justice Studies. Email: [email][email protected]

* Please send comments to [email protected]

On 2 March 2007, the issue of 'comfort women' was raised again by Japanese Prime Minister Shinzo Abe, who denied that the military had forced women into sexual slavery during World War II. He stated, 'the fact is, there is no evidence to prove there was coercion'. Before he spoke, a group of Liberal Democratic Party lawmakers also sought to revise Yohei Kono's 1993 apology to former comfort women.

2007 marks the 30th anniversary of International Women's Day. The day has been observed since the early 1900s, a time of great expansion and turbulence in the industrialised world that saw booming population growth and the rise of radical ideologies. In 1977 the United Nations General Assembly adopted a resolution inviting member states to proclaim a UN Day for Women's Rights and International Peace - International Women's Day - observed on 8 March.

This important day provides an opportunity to celebrate progress made to advance women's rights and to assess remaining challenges. International Women's Day should encourage us to bring about equality for women and girls in all their diversity, and to celebrate the collective power of women past, present and future.

Women's suffering arises as a direct consequence of their gender

We should all bear in mind that many problems faced by women arise as a direct consequence of their gender. Everyday, in countries around the world, women and girls, desperate for economic opportunity, and seeking to follow their dreams of a better life, are lured from home by promises of jobs and security. Sadly, they too often find themselves turned into prostitutes, imprisoned by employers, mistreated, sexually abused and often never seen nor heard from again. While entire communities suffer the consequences of armed conflict, women and girls are particularly affected because of their status in society.

More than 1 billion people in the world today, the great majority of whom are women, live in unacceptable conditions of poverty, mostly in developing countries. Women's lives continue to be endangered by violence which is directed at them, because they are women. Violence against women knows no class, race, or age barriers. It exists across all socio-economic groups, It is a daily phenomenon in the lives of women throughout the world.

'Comfort Women', at a glance in 2007

The recent statement by Japanese Prime Minister, Shinzo Abe, raising the issue of 'comfort women' strongly reinforces the suffering of women and girls today. He said that there was no evidence Japan coerced Asian women into working as sex slaves during World War II, backtracking from a landmark 1993 statement in which the government acknowledged that it set up and ran brothels for its troops. The 1993 apology was made by then-Chief Cabinet Secretary Yohei Kono, but was not approved by parliament. The recent Japanese Prime Minister’s denial came after several members of the US House of Representatives have drafted a non-binding resolution calling him to 'formally acknowledge, apologize and accept historical responsibility' for using 'comfort women' during the war. Supporters want an apology similar to the one the US government gave to Japanese-Americans forced into internment camps during World War II. That apology was approved by Congress and signed into law by President Ronald Reagan in 1988.

This development is regrettable and shows that the ghost of inequality and disrespect continues to haunt the women and women’s rights. In fact, 'comfort women' or 'military comfort women' is a euphemism for between 80,000 and 200,000 forced sex labourers, mostly from Korea and China, conscripted into military brothels in Japanese-occupied countries during World War II. Women were enslaved against their will and repeatedly raped, tortured and brutalised for months or years on end, exclusively for the benefit of Japanese military. Women were abducted or obtained by deception and in some cases, girls were purchased from destitute parents. The majority of victims were under the age of 20 and some girls were as young as 12.

The Japanese Government has vigorously defended its legal position on this issue and has persistently maintained that all issues of compensation were settled by post-war peace treaties. Japan’s apologies to the former ‘comfort women’ have been half-hearted and the government has refused to accept any legal liability. Japan’s answer to compensation has failed to meet international guidelines on reparation and compensation.

No more 'Comfort women'?

Can we say that after the World War II, there are no more comfort women? The answer is no, if we consider the number and cases of sexual abuses committed by military and paramilitary forces around the world and especially in Africa. It is even worse when 'peacekeepers' are also involved in these practices.

The experience of women during WWII is not unique. Women continue to suffer from systematic rape and assault in war and conflict. Women in Rwanda, Liberia, Somalia, Sierra-Leone, Burundi, DRC and Sudan have reported deliberate and systematic rape and abuse during conflict. These crimes are war crimes and human rights violations of grave magnitude.

Japan, other states and individuals should be taught that this system of forced sexual slavery is a crime against humanity that does not lapse with the passing of time. The denial of a just remedy for surviving former 'comfort women' is a human rights violation. Victims’ needs have to be at the core of any attempt to address past violations. So far, Japan’s actions have ignored their victims’ needs and actually compounded the initial human rights violations committed against them. It is well established in international law that where a state has committed gross violations of human rights and humanitarian law, as Japan did in the case of the 'comfort women'," the government is obliged to investigate such abuses, prosecute those responsible, provide adequate remedies to the victims and prevent future abuses.

Never again, the brutality of men at war!

These women deserve justice. It is vital that the surviving 'comfort women' as we are celebrating the International Women’s Day, are given back their dignity. Just remedy for the survivors of the comfort system will give hope to survivors and victims, as well as set a precedent for other women suffering today.

* Joseph Yav is a lecturer in law, at the Faculty of Law, University of Lubumbashi, Democratic Republic of Congo and is also the executive director of CERDH (Centre d’Etudes et de Recherche en Droits de l’Homme, Democratie et Justice Transitionnelle/Centre for Human Rights, Democracy and Transitional Justice Studies)[email protected]

* Please send comments to or comment online at http://www.pambazuka.org

The Sudanese government of Omar al Beshir continues to decline to cooperate with the Human Rights Council. This article argues that this defiance has implications for the concept of sovereignty and intervention when states are victimising their own citizens.

Sudanese President Omar al-Beshir on Friday rejected a UN peace force for Darfur and said he would not grant visas to UN rights monitors who want to visit the strife-torn region. He also said that the Geneva-based UN Human Rights Council, led by Nobel peace laureate and anti-landmines campaigner Jody Williams, would not be allowed to travel to Darfur because its members were biased.

While the international community is looking for ways to prevent further human rights abuses in Africa, especially in Darfur, the government of Sudan has declined to cooperate with the Human Rights Council by refusing to issue the necessary visas for the High-Level Mission to carry out its work inside the country in fulfilment of its mandate. Indeed, on the final day of an Africa-France summit gathering in the Riviera resort of Cannes, Sudanese President Omar al-Beshir justified that decision during a news conference, in the following terms: 'There are members of that delegation who in our view are not impartial therefore it is difficult to say that they will be honest and reflect reality.'

This refusal blatantly breaches the Council’s decision to establish the mission, which was adopted by consensus following intense consultations that included the participation of representatives of the Sudanese government. Under Decision S-4/101, adopted on 13 December 2006, the Human Rights Council established a High-Level Mission to assess the human rights situation in Darfur and the needs of Sudan in that regard. The Council asked the Mission to report to its fourth session, which will start on 12 March 2007.

This development is shocking, considering that such statements and decisions come from the head of an African state where at least 200,000 people have been killed and more than 2,500,000 displaced since 2003 as a result of fighting. Despite repeated pledges to stop the violence, the Sudanese government has utterly failed to do so and political negotiations have stalled. Reasonably, one can argue that the collective shame and regret expressed over the 1994 genocide in Rwanda, and the commitment of African states to the promotion and protection of 'human rights, the rule of law and good governance' on the continent as principles and objectives of the African Union have had little or no impact on the gross violations of human rights and mass killings committed with impunity in Darfur.

This case reflects a widely-held view of sovereignty: that allows governments to do essentially what they want within their own national borders. It should provide sufficient cause for a more serious and pragmatic assessment of the practicality of the principles of state sovereignty and intervention. In fact, having experienced genocide in Rwanda more than twelve years ago, what should the world do when a large number of people are victims of violence originating from within their own country?

Weak, failing, failed, and poverty-stricken states often use notional borders to preserve the fiction of effective sovereignty. This is certainly true in the case of Sudan and sets the context in which any discussion of intervention on the continent should be placed. Khartoum’s government is invoking sovereignty, firstly, as a veil to hide its brutal campaign against civilians; and secondly, as a shield to fend off calls for international action to protect its victims. While respect for the sovereignty of Sudan must be upheld as a core principle of international law, general principles of international law and the AU Constitutive Act itself provide for inherent limitations on the exercise of this principle, inter alia, where what is at stake is the protection of citizens from exposure to grave and massive violations of human rights in the absence of the willingness or ability of the state to protect. Therefore, Sudan should be taught that sovereignty, properly defined, is not a defence against demands for redress of breaches or gross violations of fundamental human rights.

The deteriorating situation in Darfur demonstrates how urgent it is for African leaders and the international community to move the debate of sovereignty versus intervention beyond semantics and to reach a consensus on when a defence of 'state sovereignty' is patently unacceptable.

* Joseph Yav Katshung is a human rights lawyer from Congo.

* Please send comments to or comment online at www.pambazuka.org

The Lord’s Resistance Army continues to demand that the indictments by the International Criminal Court against its leaders should be dropped. The Hague-based court had indicted Kony, Otti and fellow commanders Dominic Ongwen, Okot Odhiambo and Raska Lukwiya on charges of war crimes and crimes against humanity. According to IRIN news, last week Ugandan President Yoweri Museveni said the indictments should not be rescinded until the rebel leaders signed a peace deal. Joseph Yav Katshung argues that “…Not everybody welcomed these arrest warrants. On the one hand, proponents of prosecution argue that individuals who commit crimes against humanity should be punished for the sake of justice. They say that it would be unprincipled - as well as sending a dangerous message worldwide - for the prosecutor to submit to the demands of armed thugs who have been maiming, raping and killing with impunity. On the other hand, opponents of prosecution argue that the ICC should give peace a chance, as it is more important to save civilians than to judge perpetrators.”

Very often, when a country wishes to move from war to peace, various options may be tried, including trials in an international or national court of law as well as other non-punitive approaches with various names. In recent years, there has been a growing demand around the world for transitional justice mechanisms, such as truth commissions. Tina Rosenberg suggests that “…a country’s decisions about how to deal with its past should depend on many things: the type of war endured, the type of crimes committed, the level of societal complicity, the nation’s political culture and history, the conditions necessary for war to reoccur, the abruptness of the transition, and the new democratic government’s power and resources.” [1]One may add national “interests”.

Last year in October the International Criminal Court (ICC) issued warrants of arrest for Kony and four other Lord’s Resistance Army (LRA) commanders - Vincent Otti, Raska Lukwiya, Dominic Ongwen and Okot Odhiambo - accusing them of carrying out massacres, mutilating their victims and kidnapping thousands of children to be used as fighters and sex slaves. Now, a year on, it finds itself at odds with Uganda's government, which first referred the case to it, but is now offering the rebels amnesty and protection if talks succeed. [2] This paper examines this dispute and seeks to locate the debate about peace and justice in Northern Uganda.

Defining Justice

Defining justice is a difficult task. Is it justice in the narrow sense of criminal justice, or justice in the broader, restorative, sense? Talking about “justice”, one should note that it is a flexible concept. Justice in situations of transition is not self-defining. It is about what is required and what is possible in a given situation. There are different kinds of justice: retributive justice, deterrent justice, compensatory justice, rehabilitative justice, exonerative justice and restorative justice. [3] Each has a time and a place in a given situation and no one model of justice covers all needs.

Mato Oput as Restorative Justice

It is important to note that restorative justice views crime essentially as a violation of people and relationships between people. Its primary objective is to correct such violations and to restore relationships. As such, it necessarily involves victims and survivors, perpetrators and the community, in the quest for a level of justice that promotes repair, trust building and reconciliation. It draws attention to the need to create a milieu within which all those implicated in crime come to realise the need to uphold the principles of the law, co-operating in an endeavour to discern the best way to achieve this. [4] In other words, restorative justice is concerned with resolving crime and conflicts. It focuses upon the end result (harmonious community relations) and it is characterised by community participation that involves both the victim and the perpetrator, with a view to restoring rights that have been abused.

In fact, Mato Oput, which in the Acholi language literally means "to drink a bitter potion made from the leaves of the ‘oput’ tree" is one of the mechanisms for forgiveness and reconciliation among the Acholi people in Northern Uganda. The drinking of this bitter herb means that the two conflicting parties accept the bitterness of the past and promise never to taste such bitterness again. The payment of compensation follows the ceremony. The victim or his/her family is compensated for the harm done, for example, in the form of cows or cash. Is such kind of compensation is enough to satisfy people? It is believed by many Acholi that Mato Oput "can bring true healing in a way that formal justice system cannot.” [5] It doesn't aim at establishing whether an individual is guilty or not, rather it seeks to restore marred social harmony in the affected community.

The question of using Mato Oput for gross violations of human rights: The Kony’s Case

The referral of the Northern Uganda conflict to the ICC in December 2003 and the subsequent issue of warrants of arrest for Joseph Kony and other four high-ranking LRA commanders, [6] have sparked considerable controversy in Uganda and in the international sphere.

Not everybody welcomed these arrest warrants. On the one hand, proponents of prosecution argue that individuals who commit crimes against humanity should be punished for the sake of justice. They say that it would be unprincipled - as well a dangerous message worldwide - for the prosecutor to submit to the demands of armed thugs who have been maiming, raping and killing with impunity. On the other hand, opponents of prosecution argue that the ICC should give peace a chance, as it is more important to save civilians than to judge perpetrators.

Moreover, withdrawal by the ICC would not mean the end of accountability, they argue, but the beginning of indigenous justice processes. This group prefers traditional justice to the ICC, and argues that modern justice will have a negative impact on the peace process in Northern Uganda. For them, the arrest warrants would make further peace negotiations impossible.

This is a typical case of balancing peace and justice as the trend in Uganda now, is how to use the traditional form of justice named Mato Oput instead of the ICC. Barney Afako (2002) states that:

“The unacceptably high costs of civil war have caused Ugandans to re-assess approaches to resolving conflict. Among the Acholi of northern Uganda, the bitter experience of unending conflict has generated a remarkable commitment to reconciliation and a peaceful settlement of the conflict rather than calling for retribution against the perpetrators of serious abuses… This call for amnesty was underpinned by their faith in the capacity of the community and cultural institutions to manage effective reconciliation even against the background of serious offences.

Many conflicts yield meaningful distinctions between victims and perpetrators. Yet the majority of Acholi recognize that most combatants in the LRA were forcibly abducted and have themselves been victims. This generates the realization that anyone could be subjected to the conditions that produced the perpetrators of the crimes experienced in the conflict. Combined with a profound weariness with the war and the suffering it has caused, this creates a moral empathy with the perpetrators and an acknowledgement that the formal justice system is not sufficiently nuanced to make the necessary distinctions between legal and moral guilt. As a result, most Acholi have decided to promote reconciliation through traditional mechanisms, rather than a retributive understanding of justice, to create conditions to end the war and reintegrate the community.” [7]

However, there are always tensions between the requirements of the criminal justice system and those of non-punitive approaches to gross and systematic human rights violations. Therefore, one could ask if the Mato Oput is an attempt by Uganda to justify or disguise impunity? Answering to this question one should test if this Mato Oput mechanism implies good faith.

That is true because restorative justice employs integral responses that focus upon redressing the harm to the victims, holding perpetrators accountable for their actions and engaging the community in a conflict resolution process. It is highly participative, is forward-looking and is based on values of respect for all participants and community empowerment. Is the Mato Oput designed to generate more truth, more justice, reparations, and genuine institutional reform? If the objective is to evade the State and society’s legal, ethical and political obligations to their people, it should be rejected. If not, someone could say that the purpose of this Mato Oput mechanism is just to shield some perpetrators (Kony and others). In this hypothesis, the process will violate international law and will not be in the interest of justice (society as a whole).

Therefore, the answer should be found in the design of the process itself, but also in the degree of participation, consultation, and transparency that surrounds this Mato Oput mechanism.

How to conclude?

We conclude with a quote from Juan Mendez that “We need to be careful to counter attempts to disguise impunity with fanciful adjectives. ‘Restorative justice,’ for example, is a concept that in its proper setting is valuable and does have its place in a transitional justice policy. [8] Often, however, the term ‘restorative justice’ is used to advocate some alternative to criminal justice, to honest truth telling and full investigation of abuses. When used in such a way it is no more than an attempt to justify or disguise impunity.” [9]

Suffice it to say that the paradox between peace and justice is an open question that we should all try to answer.

* Yav Katshung Joseph is a lecturer at the Faculty of Law, University of Lubumbashi, Democratic Republic of Congo and an Advocate at the Lubumbashi Bar 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] Cell: +27724342896

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

[1] Tina Rosenberg, “Afterword: Confronting the Painful Past”, in Martin Meredith, Coming to Terms:South Africa’s Search for Truth, 1999, p 328

[2] The ICC has insisted that Kony and four other LRA leaders must face justice, but the Ugandan government says it will convince the Hague-based court to lift the indictment… See UGANDA: Balancing forgiveness with justice. At: http://www.ligi.ubc.ca/admin/Information/543/Roco%20Wat%20I%20Acoli-20051.pdf
[6] See The International Criminal Court, "Warrant of Arrest Unsealed Against Five LRA Commanders," ICC-20051014-110-En, 14 October 2005, available:http://www.icccpi.int/pressrelease_details&id=114&l=en.html
They are accused of committing war crimes and crimes against humanity in Northern Uganda since July 2002

[7] Barney Afako, Reconciliation and justice: ‘Mato oput’ and the Amnesty Act (2002), at: http://www.c-r.org/our-work/accord/northern-uganda/reconciliation-justice.php

[8] Miriam J. Aukerman, “Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice,” Harvard Human Rights Journal 15 (2002): 39-97; Pablo de Greiff, “The Role of Apologies in National Reconciliation Processes: On Making Trustworthy Institutions Trusted,” in The Age of Apologies, Mark Gibney and Rhoda Howard-Hassmann, eds. (forthcoming).

[9] Juan E. Méndez, “How to Take Forward a Transitional Justice and Human Security Agenda: Policy Implications for the International Community”, Cape Town, April 1, 2005

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

Strides have been made in securing peace and security for the DRC, writes Yav Katshung Joseph ahead of crucial July 30 elections, the first in 40 years. But threats remain to the electoral process from vested interested and rogue militia.

Violence and conflict have plagued the Democratic Republic of Congo (DRC) since its independence from Belgium in 1960. Forty-six years later, could we attempt to say that violence and conflict are no longer the normal state of affairs in the DRC? The DRC has travelled a long and difficult way. It has faced thirty-two years of authoritarian regime with Mobutu, followed by the 1996-1997 war led by Kabila and then the 1998-2003 war, with its international and regional aspects.

While the dynamics of conflict and violence in the DRC are complex, we should recognise that the country has made - with the assistance of the international community - considerable progress in consolidating the peace process. Warring factions signed a peace-accord in 2003 with the “famous” 1 + 4 power sharing formula, with mandate, among others, to organise elections, to promote peace, stability and security and, to integrate the former warring parties into a single national army. At this moment, significant strides have been made in achieving the above mandate, but several threats remain.

Currently in the DRC, there is an overwhelming commitment to peace and security on the part of all the stakeholders, including those who will not be participating in the electoral process such as Etienne Tshisekedi. All stakeholders agree that the Congolese have endured instability and violent conflict for far too long and therefore peace and stability are inevitable for sustainable development, not only for the DRC but for the region and the continent as a whole.

However, there is concern firstly with regard to insecurity in some parts of the country, particularly North and South Kivu as well as Northern Katanga; and secondly with regards the electoral climate, as the transition period that began with the establishment of transitional national institutions in July 2003 is moving towards its conclusion. The elections will lead to the end of the negotiated transition by setting up an elected government. Thirdly, there is concern about the re-integration of the former warring parties (yet to be completed) into a unified national army. There is the existence of armed combatants that are loyal to and under the control of some of the political contestants. In sum, the ghost of violence and conflict continues to haunt the DRC.

Postponed for the third time, the first round of presidential and parliamentary elections is scheduled for 30 July 2006. However, as the DRC prepares for its first nationwide elections in 40 years, several obstacles are undermining prospects for a successful poll. In order words, although necessary for peace following years of brutal warfare, these elections could create more instability. Currently on the ground these are some of the threats:

1. High levels of insecurity and human rights abuse continue in the eastern part of the country and there is a heightened risk of violence in the approach to national elections in July, as well as in the immediate post-election period;

2. Some armed factions appear to favour a continuation of violence as a means of achieving their political and economic objectives ;

3. Some leaders of political parties and presidential candidates are seen to be linked with the area’s bloody past, and therefore, are not willing to give up power;

4. In the unstable eastern Kivu, fearing to lose the elections, some leaders are rousing hatred against their communities or encouraging violence against rival ethnic groups in an attempt to derail the polls;

5. Some opposition groups (round 50 political parties and associations in the DRC) demand political talks to be held before elections.

The army unification process was considered an essential precondition to the staging of national elections. As part of the process of transition, the integration of the various armed factions into the new national military, the Armed Forces of the DRC (FARDC), referred to as brassage, was initiated early in 2005, and was intended to result in the creation of a unified, non-partisan, disciplined and efficient Congolese army that would address internal security problems, including the presence of foreign armed groups. The brassage process is complemented by the disarmament, demobilisation and reintegration programme which aims to demobilise those unfit or unable to join the new army and support their return to civilian life. For children under 18, a special programme has been put in place. However, we should note that, currently, this integration of the army is incomplete. It will (the army unification process) only be partly complete by the time of national elections scheduled for July, posing major questions for the security of the elections.

Moreover, a number of armed groups continue to resist unification, encouraged by leaders who fear losing control of the ethnically-configured armed groups which form the basis of their power. Some political and military leaders continue to show extreme reluctance to dismantle their military structures in favour of a unified national army, because these structures are the foundation of their power. In areas like the Ituri district, the Kivus and Katanga, some of the most notorious groups known for abuses against civilian population still refuse to join the army integration process and the disarmament, demobilization and reintegration programme. (Large parts of Katanga, especially the northern and central areas, are still under the control of various Mai-Mai groups who have remained outside the official disarmament, demobilisation and reintegration programme. On 12 May 2006, however, an important breakthrough was made when Kyungu Mutanga, a Mai-Mai leader also known as Gédéon, operating in Katanga Province, surrendered in Mitwaba. He was accompanied by more than 150 combatants, 76 of whom were children.) These dissident and non-aligned groups constitute a serious threat to stability and may obstruct the electoral process. Also, some communities, manipulated by their leaders, remain deeply suspicious of the army unification process - fearing the loss of protection by local armed groups.

Conclusion

Significant strides have been made in the DRC in achieving peace and security. However, more needs to be done for sustainable peace and security. There is still the danger of wider insecurity present in the country after elections. That is true because it has been established that one third of all civil wars in Africa are restarts. This will impact negatively on the precarious human security situation in the country. But the DRC will see democratic elections being held on 30 July 2006. The hope is to see peace and security prevailing in the country. The people of this country have suffered for far too long.

* Yav Katshung Joseph is a Lecturer in Law, at the Faculty of Law, University of Lubumbashi, Democratic Republic of Congo. He is also the Executive Director of CERDH (Centre d’Etudes et de Recherche en Droits de l’Homme, Democratie et Justice Transitionnelle/Centre for Human Rights, Democracy and Transitional Justice Studies), and Coordinator of the UNESCO Chair for Human Rights, Peace, Conflict resolution and Good Governance/University of Lubumbashi. He holds an LL.B and LL.M from the University of Lubumbashi; another LL.M from University of Pretoria, South Africa, and a Diploma in Transitional Justice from the Transitional Justice Fellowship Programme (ICTJ & IJR joint programme), South Africa. He is also an Advocate of the Court of Appeal of Lubumbashi. For contact: [email][email protected] or [email][email protected] Phone: +243 9 970 21 758 Fax:+1 501 638 4935

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