Impunity in the DRC: One Step Forward, Two Steps Back?
Impunity in the DRC: One Step Forward, Two Steps Back?

JURIST Guest Columnists Stefaan Smis, Derek Inman and Pacifique Muhindo of Vrije Universiteit Brussel, discuss the violations of human rights and international humanitarian law in Democratic Republic of Congo and urge for the change in national priorities in order to stop impunity and injustice in the country…

Over the last two decades the Democratic Republic of Congo (DRC) has been confronted with a series of major political upheavals coupled with various internal and trans border conflicts intertwined with ethnic and regional outbreaks of violence causing massive human rights violations and the death of millions. There is no doubt that a vast number of these violations qualify as international crimes. Official reports [PDF] refer to war crimes committed in the framework of the internal or international armed conflicts and crimes against humanity characterized by a widespread and systematic attack against a civilian population. There is also indication that the elements of the crime of genocide have been met.

Even though the situation in the country has to a great extent stabilized recently, with open conflicts seemingly contained, in the two Kivu provinces, the north of the Katanga province and the Ituri district, thousands of people continue to be forcibly displaced [French], civilians are regularly massacred, rape continues to be reported almost daily, schools continue to be destroyed, houses are burned and property is looted. Unfortunately the crimes committed by the NDC group of Sheka Ntabo Ntaberi, as highlighted by the recent report of Human Rights Watch, are far from isolated facts.

The state does not yet have full control of its territory and approximately 40 national and foreign armed groups are operating in the Eastern region of the DRC, the most important being: M23, Democratic Forces for the Liberation of Rwanda (FDLR), Democratic Forces for the Liberation of Rwanda/Union Rally for Democracy (FDLR-Rud), FDLR-Soki, FDLR-Foca, Mandevu FDLR, Mai Mai Hilaire, Union for the Restoration of Democracy in Congo (URDC), Raia Mutomboki, Mai Mai Sheka (Nduma Defence of Congo-NDC), Mai Mai Kifuafua, Busumba Local Defense Forces (LDF), Defense Front of Congo (FDC), Union of Congolese Patriots for Peace (UPCP/FPC), Action Movement for Change (MAC), Popular Movement for Self-Defense (MPA), Mai Mai Morgan, Mai Mai Simba, Allied Democratic Forces (ADF-NALU), Lord’s Resistance Army (LRA), National Liberation Forces (FNL), Mai Mai Yakutumba, Mai Mai Nyatura, Defence Forces Interests of the Congolese People (FDIPC), Alliance of Patriots for a Free and Sovereign Congo (APCLS), Coalition of Armed Groups in Ituri (COGAI)/PRGF, Patriotic Resistance Forces in Ituri (FRPI), Kata Katanga, National Defense Forces (FDN) and M18.

Notwithstanding the arrest warrant that has been issued against him on January 6, 2011 for crimes against humanity, the militia leader Sheka Ntabo Ntaberi has still not been arrested. Not hampered by the pending charges, he ran for the parliamentary elections of November 2011, conducting his election campaign publicly in the Walikale territory.

Moreover in July 2011 he was seen in Goma where he sought health treatment. Sadly Sheka Ntabo Ntaberi is not an isolated example of a suspected war criminal whose arrest warrant does not hinder him from freely moving around in the region. It is rumored that Sheka Ntabo Ntaberi and other rebel leaders are regularly informed of military operations. They can trade natural resources obtained by exploiting regions under their control and have received arms and ammunition via former members of armed groups who have recently become army officers following the various amnesty and demobilization programs.

The lack of political will to prosecute international crimes, the complicity of state authorities and armed forces, the numerous foreign interests in the region, the vast array of criminal networks, the persistent ethnic tensions, the illegal and uncontrolled exploitation of natural resources and the disputed claims over land constitute a fertile environment for armed violence.

Considering the massive number of international crimes that have been committed during the last decades, it is remarkable that to date only a few cases have made their way through the Congolese court system. The egregious level of impunity, as it relates to the adjudication of international crimes, remains extremely high and notably absent is the reactions by the Congolese justice system and the Congolese authorities.

Although the DRC has signed and ratified of the Rome Statute on the International Criminal Court since 2002, national implementation legislation remains elusive [PDF, French]. The transitional government in power at that time never discussed a legislative bill introduced in 2005 to “Modify and Complement in application of the Statute of the International Criminal Court certain Provisions of the Penal Code, the Code of Judicial Organization and Competence, the Military Penal Code.” In March 2008, Nyabirungu and Mutumbe, two members of Parliament, tabled their proposal to “Modify and Complement in application of the Statute of the International Criminal Court certain Provisions of the Penal Code, the Code of Judicial Organisation and Competence, the Military Penal Code” and this has also proven to be unsuccessful.

While awaiting reform of the Penal Code, military tribunals have been the sole judicial bodies permitted to prosecute war crimes, crimes against humanity and genocide. In contrast to the ordinary Penal Code, the Military Penal Code defines these crimes and outlines appropriate punitive measures. The so-called Law-Ordinance 72/060 of 25 September 1972, which established a Military Code of Justice, was the first legislative instrument that affixed international crimes into the domestic legal order, with Articles 501-505 of Title IV providing for the adjudication of military offenses, most notably war crimes and crimes against humanity. On November 18, 2002, the DRC legislature expanded upon this, promulgating Law 024/2002 [PDF, French], which gave the military justice system the power to adjudicate war crimes, crimes against humanity and genocide as long as the crimes were committed within the borders of the DRC.

The exclusive competence of military tribunals to address international crimes has been criticized [PDF, French] by many [PDF, French] for numerous reasons. Some critics pointed to the nature of military tribunals, which more often tended to obedience and adherence to military discipline rather than guaranteeing the rights of the parties involved. In response the DRC legislature promulgated Law 13/011-B [French] of April 11, 2013, which attributed to the 12 provincial Courts of Appeals (Cour d’Appel) the competence to hear cases concerning war crimes, crimes against humanity and genocide. However the legislature neglected to adopt the required implementation legislation designed to affix provisions of the Rome Statute and to amend the DRC’s (ordinary) Penal Code. With the lack of recognition of international crimes under national law, the principle of legality prevented the Courts of Appeals from hearing these cases.

In an effort to effectively address war crimes, crimes against humanity and genocide prior to the entry into force of legislation implementing the Rome Statute proposals have also been made for the DRC to establish temporary, specialized mixed tribunals, such as the Extraordinary Chambers in the Courts of Cambodia. To this end a bill was introduced in the DRC Parliament in August 2011 but for unknown reasons it never received the attention it required by the Members of Parliament and was rejected on several occasions, the last time being in April 2014.

Also of grave concern, to date no investigations have been opened for crimes committed before the entry into force of the International Criminal Court despite a large majority of the crimes having been committed prior to 2002. All of this indicates that the DRC authorities do not consider the effective prosecution of war crimes, crimes against humanity and genocide as a main priority. Until this changes, impunity in the DRC will continue and justice will not be achieved.

Stefaan Smis is a professor at the Vrije Universiteit Brussel (Belgium) where he lectures on international law, international human rights law and international dispute settlement. He is also a Reader at the School of Law of the University of Westminster (United Kingdom) and teaches the law of internal armed conflicts at the Belgian Royal Higher Institute for Defense. Derek Inman is a Researcher and PhD Candidate at the Faculty of Law and Criminology of the Vrije Universiteit Brussel, a Member of the Fundamental Rights and Constitutionalism Research Group, Vrije 
Universiteit Brussel and a Member of the Global Challenge of Human Rights Integration Research Network (hrintegration.be). Pacifique Muhindo Magadju is a PhD Candidate at the Faculty of Law and Criminology of the Vrije Universiteit Brussel, a Public Prosecutor with the Office of the Prosecutor of Bukavu (DRC), and an assistant at the Law Faculty of the Catholic University of Bukavu.

Suggested citation: Stefaan Smis, Derek Inman and Pacifique Muhindo, Impunity in the DRC: One Step Forward, Two Steps Back?, JURIST – Academic Commentary, Feb. 12, 2015, http://jurist.org/academic/2015/02/muhindo-inman-smis-impunity-drc.php.


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