Strengthening the Rule of Law and Protection of Civilians in the Democratic Republic of the Congo

In recent years, approaches to the provision of support to the rule of law in conflict and post-conflict settings have evolved significantly. While in the past the provision of support to the justice sector was generally deemed to be most effective in post-conflict settings, recent experiences by peacekeeping missions have demonstrated that supporting the fight against impunity and the strengthening of the justice sector can be used to engage politically with key stakeholders and influence their behaviour, in both conflict and post-conflict settings, laying the foundations of a more sustainable peace, even before it is fully achieved. As such, it has increasingly been recognized that the provision of support for justice can be used as a key element of United Nations political engagement in the process of maintaining sustainable peace.

This experience has been particularly profound in the Democratic Republic of the Congo (DRC) over the course of the past decade. In 2008, armed group activity in the eastern DRC began to pick up again, and the commission of serious crimes against the civilian population became an increasing concern. In 2009, a large-scale integration of armed group elements into the Forces Armées de la République Démocratique du Congo (FARDC) took place without adequate vetting. While this succeeded in ending much of the fighting at the time, it also allowed some of those who had committed serious crimes against the civilian population to join the national army that was still fighting the remaining armed groups.

From late 2008 onwards, the United Nations Organization Mission in the Democratic Republic of the Congo (MONUC) had increasingly been mandated to support FARDC operations against armed groups as a means of contributing to the protection of civilians. Between 2008 and 2010, the Mission’s mandate evolved significantly, and an increasingly comprehensive approach to the provision of support to FARDC was developed. The United Nations would work jointly with the national armed forces in operations designed to deter and weaken armed groups that posed a real and present danger to civilian populations. However, the Congolese armed forces would need to respect international humanitarian, human rights and refugee law while conducting their operations. Here, a two-tracked approach was developed for the MONUC/United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO). First, a conditionality policy was developed, whereby elements of FARDC that committed violations against the civilian population in the conduct of their operations or as a result of indiscipline would not be eligible for support. Second, the Mission was mandated to provide assistance to the justice sector, in order to support the Congolese Government in its fight against impunity. Where armed groups and Congolese forces committed abuses, they would be held to account.

Combining prevention and accountability, this approach resulted in the establishment of a conditional provision of support to FARDC, which later became the foundation of the United Nations human rights due diligence policy, and allowed further strengthening of the military criminal justice chain. Priority would be placed on high-ranking military officers as a way of setting an example and ensuring that those who committed violations would be held accountable to the national judicial system and would not benefit from United Nations support. At the time, this was a pioneering approach for the United Nations, which until then had been wary of supporting military justice systems. In the DRC, however, this went hand in hand with the provision of support for a national army and provided a means for the Government and the United Nations to work together in the fight against armed groups, to advance the fight against impunity, and to strengthen the rule of law even while conflict was still ongoing in parts of the country. As such, this comprehensive approach to the support of the rule of law was a valuable political commitment, enhancing the engagement of the United Nations in the peace process in the DRC.

As United Nations efforts to implement this approach got underway, providing support to the prosecution of those who had committed serious crimes took on an increasingly central role. The absence of an effective justice system across remote areas of the DRC, where many of the violations took place, had been identified as an underlying cause of violence. Providing an effective means of administering justice and demonstrating that the State could hold perpetrators of serious crimes to account was essential for instilling confidence in State actors. In the DRC, violations committed both by armed groups and the national armed forces and the police fall under the authority of the military justice system. In this regard, MONUSCO identified the provision of support for the military criminal justice chain as the most effective entry point for strengthening a functional justice system, and in contributing to the fight against impunity.

The Mission therefore increasingly placed an emphasis on helping the Government of the DRC build accountability as a core function of its justice system and for its security forces. To ensure that the DRC had the right instruments to respond in an appropriate and effective manner to serious violations committed by armed groups and State actors, justice had to be administered with transparency. To achieve this, a holistic approach needed to be developed, focusing on the entire criminal justice chain. This was driven by the DRC authorities themselves, with the United Nations working to support the Government in key areas at the technical level, while engaging politically in raising awareness about the importance of the rule of law for underpinning the political process in the country. This approach was strongly supported by the Government and the military justice system, as it was understood that if the Government was able to hold its own forces accountable, it would be easier to hold armed groups accountable, too.

This comprehensive approach, which was adopted by the Mission, focused on three key areas: fighting impunity; establishing functioning justice institutions and prisons in areas affected by armed conflict; and launching judicial reform. In order to achieve these goals, MONUSCO introduced several mechanisms, including Joint Investigation Teams with DRC authorities, a network of international experts embedded at key points in the judicial process; Prosecution Support Cells (PSCs), advocating for the fair trial principle; and mobile courts.

Some of these innovations, as well as various tools and guidelines for the work of military justice, would prove key to the achievements of the approach overall. PSCs, for instance, were designed to advise on case prioritization, investigation planning, prosecutorial strategies and compliance with international jurisprudence practices. The United Nations Human Rights Office would also play a role in the protection of victims and witnesses before, during and after trial. The sensitive nature of many of the crimes, particularly those involving sexual violence, rendered this kind of protection particularly important.

Mobile courts were also essential, as they allowed for the hearing of cases in remote areas, which otherwise would not have had access to the justice system. This would also allow victims and witnesses to participate in proceedings and to testify, reinforcing a victim-centred approach towards justice. All the while, MONUSCO would work with the Government to ensure that justice was administered with respect for fair trial principles, which include the right to defence for victims and alleged perpetrators alike, as well as adherence to international standards.

In 2010, seven years after the formal end of the second war in the DRC and when much of this work started, few perpetrators of serious crimes were prosecuted, and basic justice services were still largely absent from vast swathes of the country’s east, with less than one third of the peace tribunals and half of the prisons operational. To this day, military justice authorities with jurisdiction over these crimes are often understaffed and lack resources, thus struggling to effectively investigate all cases and prosecute perpetrators. Yet, while the conflict continues in some parts of the country, and violations are still committed against the civilian population, progress, albeit fragile, has been made.

By March 2018, United Nations efforts in support of the Congolese authorities had resulted in the prosecution of over 1,200 accused, of whom 963 were convicted. Senior elements of the Democratic Forces for the Liberation of Rwanda (FDLR) and Mai Mai armed groups, FARDC officers, militia members and a provincial parliamentary deputy are among those who have been convicted and sentenced. The prioritization of 38 cases of war crimes and crimes against humanity in three provinces has helped draw due attention to atrocities and consolidate resources. Military justice officers often show more rigour in their investigations, upholding the fair trial principle of the prosecution process and routinely implementing measures to protect victims and witnesses. Congolese authorities have indicated that the threat of prosecution is the only credible deterrent to the commission of crimes within FARDC and the Congolese National Police (PNC).

In the long run, delivery of justice should rely on a civilian justice system. Therefore, MONUSCO has also worked alongside other actors to provide some support to the civilian criminal justice chain. With around 2,000 magistrates appointed in 2013, MONUSCO has rebuilt, refurbished or equipped 57 court and prosecution facilities in the eastern DRC, and provided training on court management and record-keeping to over 1,000 judicial staff. As the ability and resources to move prisoners are at times not in place, or prisoners cannot be moved due to a high risk of evasion, logistical support for at least 225 mobile court sessions in prisons has also been provided. This has only been a small contribution to the administration of civilian justice in a large country. The hope is, however, that over time these steps, which are catalytic in nature, can stimulate advancements in the administration of justice overall in the DRC.

As a part of its holistic approach to strengthening the criminal justice chain, MONUSCO has also focused on providing support to prisons. The prison system in the DRC has been characterized by underfunding, inadequate staffing, poor infrastructure and overcrowding, which encourages escape and leads to poor health and ultimately deaths of inmates. United Nations assistance has included the rehabilitation of 29 prisons. In support of the Government’s efforts to decongest prisons and make them safer, more secure and humane, MONUSCO organized training for 1,546 prison personnel, including 375 women. A reduction in the number of escapes from 1,331 in 2013 to 447 in 2016 has been recorded. Since 2016, the rise in political and security tensions has once again highlighted how fragile the system still is, with two mass escapes of almost 4,000 inmates in Kinshasa and Beni. The incidents emphasized the need to continue to invest in this sector. Recently, MONUSCO has oriented its support towards prison security and prison management, establishing a Joint Prison Task Force with the Government, thus assisting in stabilizing 14 high-risk prisons. This coordinated effort has resulted in the foiling of several attacks on prisons in five major cities in the eastern DRC. The United Nations has supported the DRC prosecution services in conducting regular inspections of detention facilities, which has resulted in thousands of illegally held detainees released over the years. The Organization also supports work related to upgrading prison facilities, updating databases and archives, and improving prison security procedures and personnel capacities.

At a more strategic level, the United Nations Development Programme and MONUSCO facilitated a national conference organized by the Congolese Ministry of Justice in 2015, provided assistance with justice reform in 2017, and, more recently, collaborated on the development of a justice reform action plan. Efforts have also been undertaken with the High Council of the Judiciary to improve accountability through supporting inspection missions to lower jurisdictions.

The progress that has been made to date despite these challenges remains fragile and will need to be consolidated further through structural reforms of the justice system, investments in infrastructure, securing regular and predictable financing, and strengthening the judicial administration. Nevertheless, our work demonstrates that justice has been better served for the people of the DRC, as grievances can now be addressed and reconciliation achieved, and the State can maintain stability and dispense justice for all, even in an ongoing conflict setting. The message that everyone is accountable for their actions, and that none are above the law, is a powerful one that can help move a society from conflict towards sustainable peace.

United Nations support for strengthening the rule of law in the DRC, even during times of ongoing conflict, has been first and foremost a political engagement and commitment to assisting the DRC authorities. It has served as a means of dialogue, demonstrating how the rule of law can be upheld, how the fight against impunity can be advanced, and how civilians can be better protected.

From its original focus on the military criminal justice chain, MONUSCO support is increasingly shifting to the civilian justice system. Our work has demonstrated how political engagement matched with technical and logistical support can contribute to the 2030 Agenda for Sustainable Development, enforcing laws that uphold justice and develop strong institutions for sustainable peace.