The Democratic Republic of Congo at the Crossroads of Prosecutions, Truth Seeking and Reparations

Dr. Joseph Yav Katshung


Introduction

While people are again fleeing from their homes in North Kivu as tension and terror return to the border province in eastern Democratic Republic of the Congo (DRC), this article discusses the challenges and prospects for prosecutions in the Democratic Republic of Congo (DRC) after heinous crimes were committed during period of conflicts and still continued with the recent attacks which have been blamed on an array of rebel groups such as the Democratic Liberation Forces of Rwanda (FDLR); the Mai-Mai militia; and soldiers allied to Laurent Nkunda, who recently withdrew his men from the national army in violation of peace accords aimed at ending the violence in North Kivu. Fingers have also been pointed at government soldiers.

It is assumed that a significant step in fighting impunity and thus prevent future reoccurrence of gross violations of human rights in Africa is by bringing perpetrators of crimes to account. Although there is the duty to prosecute, there are also various other methods of accountability available. There are many ways to address gross human rights violations during a period of political transition. In the context of the DRC, the challenge is how to pursue these objectives in a situation where one is confronted with the realities of a weak justice system, a large number of perpetrators, a very large number of victims, and the need to consolidate a fragile peace process. There is a clear link between efforts to establish accountability and establish or re-establish the rule of law for the future. The serious shortcomings in the administration of justice and the impunity of human rights violators prevail today.
This article discusses the challenges and prospects for prosecutions, truth seeking and reparations in the Democratic Republic of Congo (DRC) after heinous crimes were committed and are still continued.

Background to the violent nature of the conflict in the DRC

The large-scale conflict in the DRC has resulted in one of the world’s worst humanitarian crisis with over 3.4 million displaced persons scattered throughout the country and an estimate of 3.9 million killed people as a result of the war.

During the war and after, all the parties to the fighting– the Mayi Mayi troops, the FARDC soldiers, the rebels troops (RCD, MLC, etc) and, foreign troops – were involved in gross and severe human rights abuses with innocent civilians as victims. These armed groups executed ordinary civilians and raped scores of women and girls. Some of the victims were targeted on the basis of their ethnicity or their perceived political loyalties. Soldiers and irregular forces on all sides committed rapes and killings of civilians, as well as widespread looting, during and after years of intense combat. That is true as the combatants have unlawfully killed unarmed civilians and subjected many others to torture and other forms of cruel, inhuman or degrading treatment

The obligation to prosecute these acts committed by all the parties in DRC either individually or with others is based from obligations under the Genocide Convention ; the obligation to prosecute at least “grave breaches” derives from the Geneva Conventions ; and the obligation to prosecute crimes against humanity arguably derives from customary international law. Thus, neither the international community nor any state nor group of states can validly negate the criminal responsibility of any individual who has committed international crimes.”

These atrocities, and countless others, have occurred in the DRC since war began. Most of those who died were civilians. This shows the changing trend in violent conflicts that have occurred in recent decades and that appear to produce more civilian victims. In fact, according to Wafula Okumu, “in all of the African conflicts, civilians have paid the heaviest prices - as pawns, hostages and objects of conflict, if not the deliberate targets of violence.” As conflicts continue in Africa, a common denominator is the prominent role played by the leaders, both in government and rebel movements.
The scale, number, and seriousness of human rights violations (war crimes, crimes against humanity, and other violations of international humanitarian and human rights law), which were committed during the war, together with their systematic nature, clearly amount to serious crimes under international law – crimes that the international community as a whole, has pledged to work together to prevent and punish. This was also confirmed in a judgement by the International Court of Justice (ICJ). The ICJ rendered its Judgment in the case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda). The DRC accused Uganda of invading its territory and massacring civilians. Several African states were involved in the war, which left more than 4 millions people dead. Uganda says its troops entered Congolese territory to pursue Ugandan rebels. DR Congo brought the case saying its sovereignty had been violated, and demanding compensation for plundered minerals and other resources.
On December 19, 2005, the Court ruled in a binding decision that Uganda must pay compensation to the DRC for invading, looting and being responsible for human rights abuses during the 1998-2003 war. The ICJ ruling follows an application of June 23, 1999 by the DRC instituting proceedings in the international court against Uganda for "acts of armed aggression perpetuated in flagrant violation of the United Nations Charter and of the Charter of the OAU".

Needless to explain this large-scale conflict has dramatically endangered the lives of civilians. The most pressing need to be addressed is the question of justice and accountability for these human rights atrocities. Who can be considered to be liable for the act?

Sharing responsibility for heinous crimes: Direct and indirect perpetrators

The war has spread swiftly - both in terms of the number of governments and armed groups involved in the fighting, and in terms of the devastating impact the conflict has had on the local population. All fighting parties to the conflict have been responsible for violations, either directly or through exercising control over groups that commit them. Among the worst violations are killings of civilians, destruction of villages, rape, and torture.

Just as it is the primary responsibility of States to ensure that the human rights of people within their jurisdiction are protected, so also is it their duty to ensure justice for victims. The responsibility of ensuring that impunity does not prevail in any society rests squarely on the shoulders of its leaders through its law enforcement agents; while the judiciary is to ensure that the law is applied correctly in dealing with identified perpetrators brought before it. However, one can say that there has been a blatant lack of will on the part of the leaders of the government and armed groups involved in the DRC war to prevent human rights abuses and a total disregard for their obligations under international law to prevent attacks on unarmed civilians. These leaders should be held responsible and brought to justice for the abuses their forces have committed, if it can be demonstrated that they have ordered, condoned or deliberately failed to prevent the abuses. Violations of international humanitarian law and human rights law which governs the humane treatment of unarmed civilians in a war situation have continued unchecked. Military and political leaders of the forces involved in these killings should take effective action to prevent further human rights abuses and bring those among their forces responsible for the abuses to justice. If not, impunity will thrive in many societies without caution.

Therefore, the acts allegedly committed by political and military leaders (those who bear the highest responsibility), either individually or with others, include: terrorising of the civilian population; unlawful killings; sexual violence; physical violence; conscription or enlisting children under the age of 15 years into armed forces; abductions and forced labour by enslaving civilian population; and looting of civilian properties.
Political and military leaders, while holding positions of superior responsibility and command over subordinate members of the Mayi Mayi troops, the FARDC soldiers and the RCD and MLC troops, and, or foreign fighters (Rwanda and Uganda), are individually criminally responsible for the crimes referred to above. They are also criminally responsible for the acts of their subordinates in that they failed to take necessary and reasonable measures to prevent their subordinates from perpetrating such crimes. Those leaders and those who participated in the joint criminal enterprise to commit crimes against humanity, war crimes (commonly known as violations of Article 3 common to the Geneva Conventions and of Additional Protocol II to the Geneva Conventions), and other serious violations of humanitarian law and the Congolese law are considered to be bearing the greatest responsibility for all the massacre that took place in DRC.

Which Path for Accountability Measures?

Despite the multitude of atrocities that resulted from the war in the DRC, and which have been widely decried, only little efforts have been undertaken in the DRC to enforce the violations of human rights and humanitarian law. Very few direct or indirect perpetrators were brought to account for their crimes against civilians.
This situation is reinforcing the reign of impunity. Thus, impunity arises from a failure by the DRC to meet its obligations to investigate violations, to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that they are prosecuted, tried, and duly punished, to provide victims with effective remedies and reparation for the injuries suffered, and to take steps to prevent any recurrence of such violations.

Bassiouni lists the following options: international and national investigatory commissions; truth commissions; national lustration mechanisms; civil remedies; and mechanisms for the reparation of victims. The following points will discuss the prospects for prosecutions, truth commissions, and reparations.

Prosecutions and Judicial responsibility

Ensuring justice is fundamental to redressing abuses of human rights and crimes under international law committed by all parties involved in the DRC conflict. There can be no genuine reconciliation in the DRC, unless perpetrators are held criminally responsible, the truth about human rights abuses is established and full reparations are provided to victims. However, what types of legal process could be pursued and who will be responsible to lead this process?

In recent years, the international community has played a leading role in devising systems and strategies to bring justice and reconciliation to victims of genocide, crimes against humanity, and war crimes in conflict areas around the world. National courts, ad hoc international tribunals, various hybrid courts, truth and reconciliation mechanisms and the International Criminal Court (ICC) are among the host of tools being used to provide a reckoning for those who commit these crimes, with varying degrees of success and lasting consequences.

In the DRC case, all those tools should be used and especially, national and international courts. It may also be fair to establish an ad hoc or special tribunal for the DRC in order to try crimes out of the scope of the ICC.
National/ military courts

Because the primary onus of accountability for the violations of human rights committed in the DRC rests with the Congolese government, domestic trials constitute an important potential mechanism for accountability. Indeed, beyond the moral and political obligations upon the Congolese government are legal obligations as well, most notably the requirement under international law to prosecute and punish perpetrators of gross violations of human rights. Moreover, national prosecutions will yield benefit only if the judicial system is generally fair and effective.

In other words, domestic legal systems remain the primary fora for holding individuals accountable for grave human rights violations. National courts have the principal responsibility for such trials, as part of a state’s duty to uphold the rule of law. Moreover, because such tribunals are closest to the scene, the perpetrators, and the victims of atrocities, they represent the starting point for considering accountability options. According to the law in DRC, both “jurisdictions civiles et militaires” civilians and military courts have jurisdiction over the heinous crimes committed in DRC or any crime against humanity, war crime or genocide. Article 156 of the DRC’s 2006 Constitution states that military courts may only hear cases involving army and police personnel. Military courts try military and related persons based on the military code which is more progressive as it incorporates the crimes against humanity, war crime and genocide. Another fact is that according to the Constitution, in time of war, civil courts seize to function and all the matters must be referred to the military jurisdictions.

However, national courts cannot exercise jurisdiction over all offences regardless of where they were committed. Rather, the jurisdiction of national courts is governed by the domestic law of the state concerned and by international law principles of jurisdiction. For serious violations of human rights, the universality principle permits a state to exercise jurisdiction over perpetrators of certain offences considered particularly heinous or harmful to mankind, regardless of any nexus the state may have with the offence, the offender, or the victim.

In the DRC, military courts are playing an important role in the quest for accountability. In fact, on 12 April 2006, the Military Garnison Court in Songo Mboyo in DRC has sentenced seven military officers of the Armed Forces of the DRC (FARDC) to life in prison. In the night of 21 December 2003 the FARDC battalion based in Songo Mboyo, which were actually the troops of the ex-Liberation Movement of Congo (MLC), committed collective rape of at least 119 Women and girls; many of them were less than 18 years old. The battalion rebelled against its commanders who are accused of keeping one part of army salaries. FARDC personnel then robbed almost all the houses in the villages of Songo-Mboyo and Bongandanga. They were accused of crimes against humanity.

A compensation of 10,000 US dollars is to be paid to the family of the victim. The other victims who were raped will each receive 5,000 US dollars. Compensations ranging between 500 to 200 US dollars are stipulated for businessmen and villagers who were victims of robbery. This was the first sentence against military personnel of the FARDC for crimes against humanity because of massive rape. The same verdict also condemned the Congolese state to assure the payment of compensations to the civilians, in case the FARDC personnel sentenced is unable to pay.

Moreover, almost four months after this first case, another military tribunal in the Democratic Republic of Congo's Ituri District has sentenced a militia leader to 20 years' imprisonment for crimes against humanity. Yves Panga Mandro Kahwa, the common-law chief of the Bahema Banywagi community in Djugu, where he also served as a "major" in the UPC, one of the militia groups that had been active in Ituri since 2003, had been charged with creating the Parti pour l'Unité et la sauvegarde de l'Intégrité du Congo (PUSIC) insurrection movement in 2002 in Tchomia. The tribunal ruled on 1st August 2006 that PUSIC was responsible for the destabilisation of the district.
The tribunal ruled that Kahwa's crimes against humanity date to 15 and 16 October 2002, when 10 people died after he set fire to a health-centre, schools and churches in the Zumbe and Bedu Ezekere localities, 10 km southeast of Bunia. Ituri has remained volatile due to militia activity, despite various Congolese political parties and rebel groups signing an agreement in 2002 that ended the civil war in most parts of the country. Kahwa had also been charged for the abduction, over two weeks in 2002, of Prof Ntuba Luaba, then minister for human rights. Another militia leader, Thomas Lubanga of the Union des patriotes congolais (UPC), has also been charged with complicity in the abduction. Lubanga is in the custody of the International Criminal Court in The Hague, awaiting trial for crimes against humanity, allegedly committed in Ituri.
The tribunal also directed that Kahwa pay 14 victims of his crimes between US $2,500 and $75,000 in compensation. This sentencing shows a fight for the rule of law and an end to impunity.
These two court's decisions are a significant step which will help advance the fight against impunity and provide reparation. However, more needs to be done. The DRC should guarantee the individual rights of all its citizens. The Congolese government is responsible for acts of torture or other human rights violations committed, and should come up with ways to provide reparation to the victims. However the question is: how should reparation be done? This is a difficult task especially when emerging from protracted conflict, with ethnic division, not all perpetrators can be brought to book, and such prosecutions both outstrip available resources and risk a dangerous frailty, division, balkanisation, instability, etc.

Also, one delicate question relates to contributions from foreign governments and individuals. How possible is it for foreign countries and individuals being held accountable to pay reparation? This is the case of Uganda and Rwanda due to their invasion of the DRC. In this regard, 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, which amount to be paid in reparation will be determined through bilateral negotiations between Uganda and the DRC. It is unlikely that victims will benefit from it.

International courts

Failure to provide justice at the national level for gross and systematic human rights violations does not mean that justice shall be denied. Prosecutions at an international tribunal would satisfy the goals of accountability in their fullest sense by prosecuting perpetrators of atrocities committed during the war. Certainly, the prima facie case of guilt for severe violations of international law is manifest enough to justify use of this mechanism. More importantly, the severe difficulties of domestic trials, in particular the clear prospect of their manipulation by domestic political forces, justify an international tribunal as the best forum for achieving fair and effective justice in the DRC case. This is in line of the ICC’s ‘principle of complementarity’. Under this principle, the International Criminal Court (ICC) will “act only when national courts are unable or unwilling to exercise jurisdiction. If a national court is willing and able to exercise jurisdiction, the ICC cannot intervene and no nationals of that State can be brought before it.

- The Call for an International Criminal Tribunal for the DRC

There is broad agreement in DRC that war crimes and crimes against humanity cannot go unpunished, and civil society and some in the former and new governments have called for the establishment of an international criminal tribunal of some type. Therefore, one solution for bringing the perpetrators of these heinous crimes to book in the DRC may be for the Security Council to establish a new ad hoc tribunal, modelled after the ICTY and ICTR. An international criminal tribunal for the DRC would satisfy the goals of accountability in their fullest sense by prosecuting perpetrators of atrocities committed during war. Certainly, the prima facie case of guilt for severe violations of international law is manifest enough to justify use of this mechanism. More importantly, the severe difficulties of domestic trials, in particular the clear prospect of their manipulation by domestic political forces and to some extent foreign forces, justify an international tribunal as the best forum for achieving fair and effective justice in this case. In this regard, in her report to the fifty-ninth session of the Commission on Human Rights, the Special Rapporteur on the human rights situation in the DRC has recommended the establishment of a special jurisdiction to investigate and prosecute those responsible for war crimes and crimes against humanity perpetrated by all parties in the DRC conflict. This will address the delay in delivery of justice.

However, prosecutions in an international forum face practical challenges. Alvarez argues that, “trials are undermined and not merely rendered more difficult the greater the distance between their venue and the location of witnesses and evidence.”
Even if such prosecutions are successful, their impact on national accountability may be diminished by their extraordinary international nature. Thus, it seems unlikely that the UN will be willing to establish another international criminal tribunal modelled on the ICTY and ICTR.

- The Option of a Special Court for the DRC

Another option might be to establish a more streamlined “mixed” tribunal or “hybrid” tribunal such as the Special Court for Sierra Leone, which operates under a strict time-line and at less cost. This Special Court will apply local as well as international law. It also has the advantage of being geographically close to the events it is trying and may be better placed to contribute to the rebuilding of the country’s own legal system. Essential for the success of any tribunal, however, is that it is truly independent, pursues responsible persons from all sides, and is viewed as impartial and legitimate in the eyes of the population.

Until systemic improvement is achieved, the only option for trials that might overcome the fundamental shortcomings of the judicial system in the DRC or other similar states would involve a special judicial process. This solution would demand significant international effort to achieve credibility inside and outside the DRC.
To implement such a plan, some mechanism would be required to ensure a fair and independent set of judges and prosecutors, free from political control or pressure.
This could entail the creation of a Special Congolese Court with foreign judges and prosecutors alongside, or instead of, local officials, as these jurists would offer the prospect of impartiality in a way that a purely Congolese Court might not and they could come from countries not associated with foreign involvement in the DRC’s conflict.

The benefits of such an approach would place the responsibility for accountability on the polity most concerned. Ordinary citizens could observe and even attend the proceedings, which would become part of their history. Equally important, the trials could have long-term benefits for the Congolese legal and political culture.
Citizens would witness how perpetrators of human rights atrocities including public officials can be held accountable in their own Courts for their misdeeds, thereby helping in a small way to break the cycle of impunity that still pervades the country.
The national component of the hybrid mechanisms offers the potential advantage that the trials will leave a more lasting legacy in the countries where the crimes occurred. In theory, the existence of national staff working alongside internationals with expertise in adjudicating complex criminal trials could over time enhance the capacity of national courts. The proximity of the court to the site of the crimes could make the trials more accessible to victims and those in whose name the crimes were committed.
Nonetheless, significant obstacles loom over such a plan. The international community might prove unwilling to make the necessary investment even in a Congolese trial, although the costs of such assistance would be for less than those of ICTY and ICTR. Also, the local component of these mechanisms also presents particular challenges. Security risks may be increased, local staff hired to work on these cases may be linked to past abuses, thereby re-traumatising victims and witnesses, and national staff may be subject to political interference or lack the expertise to ensure that cases are tried fairly and effectively.

Another option to bring perpetrators to account is through reparation measures. Reparation plays a major role in the justice process after a conflict. It brings perpetrators to account on the one hand, and it provides redress for victims on the other. Over the last decade there have been intense debates internationally and locally about reparation for victims of gross and systematic human rights violations.

Reparations and Truth Seeking

In the DRC, civilians have been severely affected by the conflicts and violence. 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 victims number in the millions over a period of many years? The recently adopted Bassiouni Principles (2006: A/RES/60/147) can be helpful to build a framework for a reparation plan for the DRC. According to these principles a reparation must take five forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. Restitution includes all the measures aimed at re-establishing the original situation before the human rights violation occurred. Examples include return to one’s place of residence or the return of property. Compensation is the payment of a sum of money for any economically assessable damage resulting from the human rights violation. Rehabilitation aims to restore the individual’s health and reputation after the human rights violation. It includes medical and psychological care as well as legal and social services. Satisfaction may assume the form of a public apology, commemoration, tributes to the victims and so on. And the guarantees of non-repetition are measures that contribute to the prevention of further violations, such as legislative reforms and human rights training for armed and security forces.

However, one could ask if the DRC government is serious about seeking to repair harm, restore rights, and build trust when in October 2006, two militia commanders have been appointed colonels in the army in a bid by the government to pacify the troubled northeastern district of Ituri.
The world is still reflecting on the paradox of peace and justice in the Northen Uganda case and yet, in the DRC, two militia leaders have been “rewarded for war” and appointed army colonels. In fact, in the name of peace, Peter Karim of Front des Nationalistes et Intégrationnistes (FNI) and Mathieu Ngudjolo of Mouvement des Révolutionnaires Congolais (MRC), both accused of killing, rape, and using child soldiers, have been appointed as colonels in the national army. This appointment authorized in a ministerial decree signed on 2 October 2006 has been publicly announced on 10 October 2006. What is shocking is the fact that the Peter Karim and Mathieu Ngudjolo cases are not the only ones in this regard. Several similar cases are to be counted. Indeed, in 2005 four ex-militia leaders were appointed generals in the national army.
It seems that impunity can be tolerated or preferred in the name of the peace process. In so doing, this appointment threatens to undermine future justice in term of accountability for those responsible for grave human rights violations. Are all these appointments helpful for peace and reconciliation in the DRC especially when the previous appointments did not bring peace in this area?
One should recommend that if the DRC wants a lasting peace, the country should not appoint individuals into the army when there is irrefutable evidence that those individuals have committed grave atrocities. But in the case of the last appointment, Adolphe Onusumba, the then Defence Minister, argued that the objective of these nominations is the pursuit of peace. The term of peace has a broad meaning, but in the context of a post-conflict situation such as the DRC, the term peace raises a couple of questions: What is peace? Does that mean peace for the woman who was raped? Does it mean peace for the man who saw his wife and/or daughter being raped? Where is peace for those who witnessed their families being slaughtered and their houses burnt to the ground?
It seems that for the victims of war in the DRC, ‘peace’ means positive peace, one in which justice is addressed, human rights are respected and people live without any fear (as opposed to a negative peace such as a ceasefire, which is negative because it stops the war but does not address other issues). And this ‘peace’ has to be based on the concept of justice. There is no peace without justice. But this justice has to be taken into the holistic sense. If the objective, however, is to protect war criminals from facing the law, then this strategy has to be condemned. It will send the wrong message to the victims of the war. It will further undermine any reconciliation between victims and their perpetrators, for the victims will feel betrayed by the government. Accountability for human rights violations is an important instrument in breaking the cycle of violence and impunity and is an indispensable component of the process of healing the wounds.
Mechanisms of reparation in the DRC

In principle, at the national level, victims have two mechanisms through which to seek reparations: 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 the fact that, many victims of violence and atrocity have not have access to the courts or the resources needed to undertake lengthy and costly prosecutions that may or may not culminate in the payment of reparation (financial constraint, lack of independence of the judiciary, corruption, etc). Also, satisfactory national prosecutions require sufficient capacity. The existing judicial system in the DRC has been heavily criticized. In one of the reports to the Security Council, the Secretary-General has even concluded that: The human rights situation is further aggravated by a justice system controlled at every level by the State, and unable to grant defendants the most elementary procedural guarantees.
Moreover, in the case of the DRC, the judicial reparation mechanism can also be strengthened by the International Criminal Court (ICC), as victims have a right to seek reparations under Article 75 of the Statute and the Trust Fund for Victims will implement such awards. However, pursuant to Rule 98 of the Rules for Procedure and Evidence, the resources of the Trust Fund may also be used “for the benefit of victims” of crimes “within the jurisdiction” of the Court. Moreover, a role for the Trust Fund can be foreseen in situations where it is impossible for the Court to make individual awards or where the number of victims and the scope, forms and modalities make a collective award more appropriate. In practice, these situations may arise quite often.
If not, the victims’ prospects for achieving judicial remedy and reparation will remain minimal. That is true because, before the latest arrest and transfer to the International Criminal Court of Thomas Lubanga Dyilo , a founder and leader of the Union des Patriotes Congolais (UPC) on 17th March 2006, who is alleged to have committed war crimes as set out in article 8 of the Statute, committed in the territory of the DRC since July 2002, no-one has ever been brought to justice for serious human rights abuses and war crimes perpetrated in DRC – a situation compounded by a shattered justice system.
It is hoped that the Court under article 75 of the Statute will provide reparation to the victims, irrespective of Lubanga’s guilt. The benefit of victims from reparations under the ICC may not necessarily be linked to finding a perpetrator guilty. The Court is yet to pronounce itself on this.
- Non-judicial mechanisms

One should note that there is no discussion of a national reparations program to be adopted by the new established Government. But, there is a wide variety of non-judicial mechanisms and the Truth Commission is one of them. In fact, truth commissions have been multiplying rapidly around the world and gaining increasing attention in recent years.

They are established to officially investigate and provide an accurate record of the broader pattern of abuses committed during repression and civil war. “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”. 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 learn from the horrific crimes of the past. But, 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 ICC (prosecutions).

The U.N. Commission on Human Rights, in a resolution that proclaimed the importance of combating impunity for all human rights violations that constitute crimes has also stressed not only the duty to “prosecute or extradite” but that truth commissions are complements to, not substitutes for, a justice process. UN Commission on Human Rights, Impunity, resolution 2002/79, para.10 “Welcomes in this regard the establishment in some States of commissions of truth and reconciliation to address human rights violations that have occurred there, welcomes the publication in those States of the reports of those commissions and encourages other States where serious human rights violations have occurred in the past to establish appropriate mechanisms to expose such violations, to complement the justice system”.

Despite their differences in mandate, scope and approach, "truth commissions" are generally viewed as a starting point for national reconciliation and reparative measures. It is notable that the work of a truth commission, when properly done, should lead to some form of reparation. That is true especially during the truth telling process and after the release of the report and its recommendations. In this regard, one should note that trough a well functioning TRC, victims may find satisfaction in the form of a public apology from the officials or individual perpetrators, commemoration, tributes to the victims and so on. This is the healing effect of Truth Commissions. It has been recognized that allowing victims to speak out and be heard, investigating and establishing the truth about violations, public acknowledgements (possibly combined with apologies or expressions of regret), memorials to victims and recommendations to reform public institutions - all are important aspects of a full reparation package. Other reparation needs of victims are at least partly dependent on some form of payment: analysis of a representative sample of statements before the South African Truth and Reconciliation Commission (TRC) revealed that deponents’ prime expectation of the TRC was financial assistance. The second most common request was for investigation of violations.
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, the Commission Vérité et Réconciliation (CVR), is one of the five transitional institutions: « S’agissant de nature juridique de la CVR, il y a lieu de rappeler qu’elle est une émanation de l’ancienne ‘Commission Paix et Réconciliation’ du Dialogue Inter Congolais tenu a Sun City en République Sud Africaine en 2002, et qu’elle fut instituée par la résolution DIC/CPR/04. La loi CVR a pour cadre juridique le point V de l’Accord global et inclusif qui prévoit la création pendant la Transition des Institutions d’appui a la démocratie ainsi que l’article 154 de la Constitution. La loi organique, telle que adoptée par l’Assemblée Nationale précise, en son article 1er que la CVR est un organisme de droit congolais, dotée de la personnalité juridique. Elle est reconnue autonome, neutre et indépendante d’action vis-à-vis des autres institutions de la république et exerce avec neutralité les pleins pouvoirs dans touts les matières relevant de sa compétence. La CVR est donc une institution de la Transition. Elle n’est pas une juridiction, mais plutôt une institution non juridictionnelle appelée, le cas échéant a collaborer avec les instances judiciaires tant nationales qu’internationales. L’article 4 de la loi organique précise que la mission de la CVR est de retablir la vérité, de promouvoir la paix, la justice, la réparation, le pardon et la réconciliation en vue de consolider l’unité nationale »

Although the Congolese TRC was established in the course of negotiations between the composantes during the Inter-Congolese Dialogue , it 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 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 process which tried to ensure a democratic spirit and practice, and transparency.
Therefore, it seems that the purpose of such a commission is to become a Truth Omission instead of a Truth Commission and cannot satisfy the quest for reparation in the DRC. There is also the question of source of funds, given the vast number of victims who may claim reparations.

There is a need for a discussion on reparation mechanism in the DRC. It is also important to note that from the Mobutu regime to the current government, except the commemoration of the “Martyrs of Independence Day”, there have been insignificant other types of reparation as outlined in the Van Boven Principles, such as apologies, memorials. Finally, although each country must formulate its own policy with respect to past human rights abuses and reconciliation, in the interest of Congolese victims, the government must put in place several measures aimed as symbolic reparations, including - the construction of a national monuments bearing the names of all of the victims of the conflict; - recognition of the good name of the victims and of the serious crimes of which they were victims; and - the institution of a national holiday in memory of the victims of the conflict and to serve as a symbol of national reconciliation.

Conclusion

It has always been said that there will be no peace without justice. Much as Truth and Reconciliation Commissions will be established for the purposes of telling the truth, forgiving and forgetting, there remains one important aspect in the whole spectrum of peace, justice and reconciliation - this is, the perpetrators of international crimes and gross violations of human rights and humanitarian law in armed conflicts will be punished and there will be justice for the victims of the armed conflicts. Fear of punishment typically deters criminal behaviour and in any case it stops the criminal from harming society while she or he is in prison. Deterrence is a justification for punishment when it produces more good than evil. Indeed, as Jeremy Bentham’s “utility theory of punishment” states: punishment should be severe enough that the trade-off is not worth it. More serious crimes should carry more severe penalties. Utilitarianism argues that the right act or policy is that which would cause "the greatest happiness for the greatest number;" meaning that punishment is aimed at satisfying the majority-as in this case of the victims of armed conflict. However, one can argue that this is not the case in the context of mass atrocities and the punishment model has not shown to be very effective in deterring war criminals from committing war crimes. In the case of DRC, it is difficult to punish all the perpetrators and relying on the Rwandan genocide case, it is impossible to trial all the genocidaires. Therefore, although justice is crucial after violations of human rights, it may not be possible or practical especially in the case of mass atrocities. 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”.