Open Letter to President Joseph Kabila

Sultani MakengaAccording to research by UN human rights investigators and Human Rights Watch, troops under Makenga’s command were responsible for an ethnic massacre in Buramba, recruitment of children and summary executions of deserters while a commander of the National Congress for the Defence of the People (CNDP) armed group in 2007-2008; Zimurinda is allegedly responsible for ethnic massacres at Kiwanja and Buramba while a CNDP officer in 2007-2008 and at Shalio while a Congolese army officer in 2009, as well as rape, torture, and child recruitment; Ngaruye is allegedly responsible for a massacre at Shalio in 2009, as well as child recruitment, rape, and other attacks on civilians in North Kivu between 2008 and 2011; and Kayna is allegedly responsible for ethnic massacres and child recruitment in Ituri in 2003-2005 and massacres, killings, and rapes in the Ndorumo and Lukweti area in 2009. Kayna was arrested after the Ituri violence, but was released from prison in Kinshasa in early 2009, apparently for health reasons, while he was awaiting trial for alleged crimes against humanity committed in Ituri. Following his release, he was deployed to the Kivus where he served as a senior commander in military operations before joining the M23.

PRESS RELEASE

His Excellency President Joseph Kabila Kabange

Gombe, Kinshasa

Democratic Republic of Congo

Re: Ending Impunity for Grave Human Rights Abuses

Your Excellency,

We are writing to you with concerns and recommendations regarding the human rights situation in eastern Democratic Republic of Congo and the importance of ending impunity for grave human rights abuses. We recognize that violence and abuses continue, but we are hopeful that the Congolese government, with international support, can make real progress along the path towards greater respect for human rights and justice in the coming months.

The new Framework Agreement signed in Addis Ababa on February 24, 2013, the appointment of Mary Robinson as the United Nations Special Envoy for the Great Lakes region, and the upcoming deployment of the Intervention Brigade – an African-led force within the UN peacekeeping mission in Congo, MONUSCO – present a number of important opportunities. Human Rights Watch is calling for sustained international pressure to ensure that all military support from Rwanda or Uganda to the M23 or other abusive armed groups active in Congo ceases immediately. Those responsible for such support should be held accountable and subject to sanctions.

The regional and international commitments enshrined in the Framework Agreement can succeed only with significant engagement from the Congolese government and real commitment and progress towards implementing crucial national reforms.

We are encouraged by your clear statements over the past year that the Congolese government will not provide an amnesty to M23 leaders who are on UN sanctions lists or who are sought on arrest warrants for war crimes or crimes against humanity, nor will it reintegrate them into the Congolese army. For far too long, the policy of integrating abusive warlords into the army and giving them senior ranks and influence has only served to perpetuate Congo’s cycle of impunity, effectively rewarding the use of violence.

Bosco Ntaganda’s recent surrender and transfer to The Hague was a significant step forward in the fight against impunity for the most serious crimes in eastern Congo. Human Rights Watch believes that your insistence over the past year that Ntaganda face justice played a critical role in this development. We hope that others with records of serious human rights abuses – including M23 leaders Baudouin Ngaruye and Innocent Zimurinda (who are currently in Rwanda), Sultani Makenga, and Innocent Kayna – will also be arrested and brought to justice. These individuals are all on United Nations and United States sanctions lists.

For these measures to have a lasting effect, however, the Congolese government should not make deals with any abusive warlords, regardless of their political, ethnic or other affiliations. The M23 is not the only such group. To end impunity, the government should adopt a consistent and even-handed approach towards all armed groups responsible for serious abuses, and should not promote one-sided justice or double standards. A number of militia groups, as well as some members of the Congolese army, have also been responsible for horrific attacks on civilians over the past year. They include the Raia Mutomboki, the Democratic Forces for the Liberation of Rwanda (FDLR), the Nyatura, Mai Mai Sheka, the Patriotic Alliance for a Free and Sovereign Congo (APCLS), the Mai Mai Yakutumba, the Ituri Patriotic Resistance Front(FRPI), and Mai Mai fighters in Katanga. Hundreds of civilians have been killed and dozens of villages burned to the ground by these groups in the past year. Those responsible should not be rewarded, but instead arrested and brought to justice.

The deployment of the Intervention Brigade comes with a number of risks, but it also presents a unique opportunity to arrest rebel leaders responsible for some of the worst atrocities. The brigade should focus on targeted, well planned arrest operations and take all feasible precautions to minimize harm to the civilian population, evident in past large-scale military operations that resulted in massive displacement and human rights abuses.

In areas in which the Intervention Brigade takes control, it will be crucial for the Congolese government to play a proactive role and, together with MONUSCO, ensure that plans are in place to hold and secure these areas and re-establish credible government institutions and services. Civilian protection should be a priority. A strategy for dealing with opposition combatants who lay down their weapons should be developed and implemented before the start of military operations, and should avoid the failings of past disarmament programs.

As part of the government’s national reform program, and to follow through with other commitments made in the Framework Agreement, we urge you to take the following steps:

· Suspend, investigate, and appropriately prosecute Congolese security force members implicated in war crimes, crimes against humanity, and other serious human rights abuses, regardless of rank.

· Assure that the government does not provide military support to foreign or Congolese militias or armed groups that are responsible for widespread or systematic abuses. Civilian officials or military personnel implicated in providing support to such groups should be suspended from their positions, investigated, and appropriately prosecuted.

· Implement a vetting mechanismfor the army and police to exclude those found responsible for involvement in grave human rights abuses.

· Establish specialized mixed chambers or a specialized mixed court within the Congolese justice system, with the involvement of international prosecutors, judges, and other personnel, to hold trials, in accordance with international law, of war crimes and crimes against humanity committed in Congo since 1990.

· With the support of the United Nations and donors, urgently develop and implement a new Disarmament, Demobilization, and Reintegration (DDR) program and strategy for dealing with armed groups. Such a strategy should ensure that: those responsible for serious human rights abuses are excluded from the army and instead investigated and appropriately prosecuted; children are immediately separated and handed over to child protection agencies; former combatants who integrate into the army or police are properly trained to function in compliance with international human rights and humanitarian law, and are then deployed to parts of the country other than where they operated as militia fighters; and former combatants are given realistic alternatives to military service, including long-term civilian employment opportunities.

· Ensure that former combatants who are integrated into the army or police, or who join civilian life, are not discriminated against or subjected to torture or other ill-treatment because of their former allegiances. A system could be set up to monitor equal treatment within the security forces and to encourage people to report instances of discrimination or mistreatment. Officials responsible for such actions should be investigated and appropriately disciplined or prosecuted.

Finally, we urge you to involve civil society organizations, particularly human rights and women’s rights groups, in the development of your national reform programs as well as the follow-up mechanisms.

The concerns and recommendations summarized here are explained in more detail in the annex to this letter.

Human Rights Watch is greatly encouraged by the Congolese government’s position that it will not award an amnesty or reintegrate into the Congolese army those M23 leaders who are on United Nations sanctions lists or who are wanted on Congolese or international arrest warrants for war crimes, crimes against humanity, or other serious human rights abuses.

A recent major development in breaking the cycle of impunity and abuse was M23 leader Bosco Ntaganda’s surrender to the United States embassy in Kigali in March and his transfer to The Hague, where he is set to face trial before the International Criminal Court (ICC) for using child soldiers, murder, rape, sexual slavery, and ethnic persecution in eastern Congo in 2002 and 2003. This is a victory for justice and for the people of eastern Congo, who for the past decade have lived in fear as Ntaganda, one of the region’s most brutal rebel leaders, moved from one armed group to another, commanding forces that terrorized civilians. Ntaganda’s arrival in The Hague also sends a strong message to other militia leaders and warlords that they will not be rewarded for their involvement in killing and raping, and that eventually justice will prevail.

Human Rights Watch believes that the Congolese government’s firm position for the past year that Ntaganda would not be rewarded or reintegrated into the army helped create the conditions for him to turn himself in.

As talks between the Congolese government and the M23 continue in Kampala and the Intervention Brigade begins its deployment, we urge you to follow through on commitments not to reintegrate or reward other M23 leaders with records of serious human rights abuses, including Innocent Zimurinda, Baudouin Ngaruye, Innocent Kayna (aka “India Queen”), and Sultani Makenga. These individuals have well-known histories of atrocities committed over the past decade in eastern Congo including ethnic massacres, recruitment of children, mass rape, killings, abductions, and torture. They are also all on UN and US sanctions lists.

According to research by UN human rights investigators and Human Rights Watch, troops under Makenga’s command were responsible for an ethnic massacre in Buramba, recruitment of children and summary executions of deserters while a commander of the National Congress for the Defence of the People (CNDP) armed group in 2007-2008; Zimurinda is allegedly responsible for ethnic massacres at Kiwanja and Buramba while a CNDP officer in 2007-2008 and at Shalio while a Congolese army officer in 2009, as well as rape, torture, and child recruitment; Ngaruye is allegedly responsible for a massacre at Shalio in 2009, as well as child recruitment, rape, and other attacks on civilians in North Kivu between 2008 and 2011; and Kayna is allegedly responsible for ethnic massacres and child recruitment in Ituri in 2003-2005 and massacres, killings, and rapes in the Ndorumo and Lukweti area in 2009. Kayna was arrested after the Ituri violence, but was released from prison in Kinshasa in early 2009, apparently for health reasons, while he was awaiting trial for alleged crimes against humanity committed in Ituri. Following his release, he was deployed to the Kivus where he served as a senior commander in military operations before joining the M23.

More recently, these individuals have also been implicated in war crimes committed by M23 rebels, including summary executions, rapes, and forced recruitment of children. Since March 2013, we have documented an increase in forced recruitment activities by the M23, including of children, as well as several cases of summary executions.

Congolese Army

The Congolese army has also been responsible for serious abuses before and since the start of the M23 rebellion. As army soldiers fled the M23′s advance on Goma, they went on araping and looting rampage: at least 76 women and girls were raped by army soldiers in and around the town of Minova, South Kivu province, between November 20 and 30, 2012 according to Human Rights Watch research. We welcome the progress in the investigation conducted by Congolese judicial officials, leading to the suspension in early April of 12 senior army officers allegedly responsible for the rapes. We urge you to ensure that they and others allegedly responsible for the rapes are promptly arrested and prosecuted in fair and credible trials.

We are also concerned about army abuses in the town of Kitchanga, North Kivu province, where soldiers from the 812th regiment, allied with a Tutsi militia they had armed, clashed with the primarily ethnic Hunde armed group, the Patriotic Alliance for a Free and Sovereign Congo (APCLS),from February 27 to March 4, 2013. At least 25 civilians died in the fighting and dozens of homes were burned to the ground, according to Human Rights Watch research. Most of the civilians killed were Hunde, and many appear to have been deliberately targeted by army soldiers because of their ethnicity.

The APCLS had received instructions from senior army officers to deploy to Kitchanga in January, after the group’s commanders made commitments that the APCLS would integrate into the army. The army’s 812th regiment is made up primarily of Rwandophone soldiers who used to be part of the Rwanda-backed CNDP, commanded by Col. François Mudahunga Gasaza, a Hutu, with Col. François Semusaza Muhire, a Tutsi, as his deputy.

We understand that the 812th regiment has since been transferred to Kananga, Kasai Occidental province, but to our knowledge, no soldiers or officers have been arrested for the Kitchanga violence. We urge you to ensure that those responsible are arrested and prosecuted in fair and credible trials.

Rise of Militia Activity and Interethnic Violence

Other parts of eastern Congo have also seen a rise in interethnic violence over the past year, as the government and army focused on the M23 rebellion and left a security vacuum that violent and abusive militia groups sought to fill. Hundreds of civilians were killed and dozens of villages burned to the ground in ethnically motivated attacks by a number of different militia groups, according to Human Rights Watch research. Many of the victims were women and children, hacked to death by machete or burned alive in their homes. Women and girls were often raped during the attacks, and children were forcibly recruited into the militias’ ranks.

Many of the worst ethnically motivated attacks were carried out by the Raia Mutomboki (“Outraged People” in Swahili), a loosely organized network of former militia fighters, demobilized soldiers and youth who armed themselves largely with machetes and spears supposedly to protect local populations from the Democratic Forces for the Liberation of Rwanda (FDLR), a largely Rwandan Hutu armed group, some of whose members participated in the genocide in Rwanda. The Raia Mutomboki often avoided direct clashes with the FDLR, and instead focused their attacks first on the FDLR’s dependents and Rwandan Hutu refugee women and children, and later on the Congolese Hutu population. This group has killed at least 314 civilians since April 2012 in Kalehe, Walikale, and Masisi territories, according to Human Rights Watch research. Nearly all of the victims were Hutu.

As the Raia Mutomboki phenomenon spread in 2012, the FDLR together with the Nyatura, a largely Congolese Hutu militia group, stepped up attacks on civilians from the Hunde, Tembo, and Nyanga ethnic groups. At least 158 civilians were killed by the FDLR and Nyatura in Kalehe, Walikale, and Masisi territories since April 2012, dozens of women and girls were raped, and hundreds of homes were burned to the ground, according to Human Rights Watch research.

Few efforts have been made to curb these abuses or to investigate, arrest, and prosecute those responsible. Instead, government officials have started negotiations with some of these militia groups with no Disarmament, Demobilization and Reintegration (DDR) program or a clear strategy for dealing with human rights abusers. The Congolese army has in some cases collaborated with and provided support to armed groups before they officially integrated into the army or went through any form of vetting or training.

Ending the Cycle of Impunity and Abuse

Role of the Intervention Brigade

The new Intervention Brigade could play a key role in assisting in the arrests of leaders of armed groups allegedly responsible for serious human rights abuses, through well-planned, targeted arrest operations, in close collaboration with national and international judicial officials, and in full respect of international law. If these arrest operations succeed, the Intervention Brigade could contribute to ending abuses by armed groups in the longer term and support efforts to bring to justice those responsible for some of the worst atrocities in eastern Congo.

Safeguards should be put in place to avoid the risk of the Intervention Brigade repeating the failings of past military operations that put civilians at unnecessarily greater risk. Under international humanitarian law, all sides to an armed conflict have an obligation during military operations to take constant care to spare the civilian population and civilian structures, and take all feasible precautions to minimize civilian harm. These considerations need to be taken into account before undertaking operations that risk massive displacement and large-scale abuses.

It will also be crucial for the government and the security forces to secure areas from which the Intervention Brigade has taken effective control to avoid a security vacuum in which armed groups could return and punish the civilian population for alleged collaboration with “the enemy” – another failure of past military operations. We urge the Congolese government, together with MONUSCO, to make clear plans – in advance of any operation – for well-organized deployments of Congolese army and police to areas that have been cleared of armed groups and to make sure that soldiers and police are well-trained, including in their obligations to protect the population.

Establishment of a Specialized Mixed Jurisdiction

Human Rights Watch believes that the establishment of specialized mixed chambers or a specialized mixed court under national jurisdiction would be a crucial step in the fight against impunity for serious crimes committed in Congo. Such a mechanism could help ensure that individuals alleged to be responsible for serious abuses are held to account in fair and credible trials.

The specialized chambers or court would be a national institution, embedded within the Congolese justice system, and have a mandate to prosecute war crimes and crimes against humanity committed in Congo over the past two decades. The new jurisdiction should be created within the civilian judicial hierarchy and staffed by Congolese and non-Congolese prosecutors, judges, and other personnel, with non-Congolese staff being phased out as the chambers or court gains legitimacy, credibility, and independence. Congolese civil society organizations widely support this proposal, and it was a key recommendation of the 2010 United Nations Mapping Report, which documented serious human rights violations committed in Congo between 1993 and 2003.

The involvement of non-Congolese personnel with relevant experience would help bolster both the new jurisdiction’s expertise to investigate complex crimes and the independence of national judicial staff. The UN and many donors support the creation of this new judicial mechanism and would thus bear some responsibility for ensuring that it receives the cooperation it needs, including with regard to arrest warrants for foreign nationals. The international component would give the specialized chambers or court additional credibility to seek the extradition of high-level suspects currently living outside the country, such as former CNDP leader Laurent Nkunda, who has been under house arrest in Rwanda since January 2009, M23 commanders who fled to Rwanda in March 2013, and FDLR leaders living in other countries.

Because of their mixed national and international composition, and through their interaction with domestic courts that would retain jurisdiction over cases of lesser gravity, the specialized mixed chambers or court would benefit the Congolese judicial system over the longer term by building national capacity and expertise to deal with grave international crimes. The chambers could therefore contribute to the government’s broader efforts to reform and strengthen the Congolese judicial system.

Recommendations:

As part of its national reform program and to follow through with other commitments made in the Framework Agreement, we urge the Congolese government to take the following steps:

· Suspend, investigate, and appropriately prosecute security force personnel, regardless of rank, implicated in war crimes, crimes against humanity, and other serious human rights abuses. This should include those responsible for abuses in Kitchanga in February and March 2013 and the mass rapes in and around Minova in November 2012.

· Assure that the government does not provide military support to foreign or Congolese militias or armed groups responsible for widespread or systematic abuses. Civilian officials or military personnel implicated in providing support to such groups should be suspended from their positions, investigated, and appropriately prosecuted.

· Urgently implement a vetting mechanism for the army and police as a key initial component of security sector reform. Such a mechanism should ensure that officers, soldiers, and police implicated in war crimes, crimes against humanity, and other serious human rights abuses are suspended from their positions, arrested, and appropriately prosecuted. New recruits or former combatants should be vetted for their involvement in past abuses before being recruited into the army or police and should be properly trained to function in compliance with international human rights and humanitarian law before deployment.

· Establish specialized mixed chambers or a specialized mixed court within the Congolese justice system, with the involvement of international prosecutors, judges, and other personnel, to hold trials in accordance with international law of war crimes and crimes against humanity committed in Congo since 1990.

· With the support of the United Nations and donors, urgently develop and implement a new Disarmament, Demobilization, and Reintegration (DDR) program and strategy for dealing with armed groups active in eastern Congo. Such a strategy should include the following elements:

1. Former combatants and armed group leaders implicated in war crimes, crimes against humanity, or other serious human rights abuses should not be integrated into the Congolese army or police, but should be investigated and appropriately prosecuted.

2. Children in armed groups should immediately be separated and handed over to child protection agencies.

3. Former combatants who are integrated into the army or police should be properly trained to function in compliance with international human rights and humanitarian law, and then deployed to units in parts of the country other than where they operated as militia fighters. Individual army and police units should not be made up primarily of former combatants from one particular armed group.

4. Former combatants should be given realistic alternatives to military service, including long-term civilian employment opportunities. Consideration should be given to the availability or existence of equivalent opportunities for civilians so that former combatants are not seen to be rewarded with opportunities that are unavailable for civilians.

· Ensure that former combatants who are integrated into the army or police, or who join civilian life, are not discriminated against or subjected to torture or other ill-treatment on the basis of their former allegiances. A system could be set up to monitor equal treatment within the security forces and to encourage people to report instances of discrimination or mistreatment. Officials responsible for such actions should be investigated and appropriately disciplined or prosecuted.

Yours sincerely,

Kenneth Roth

Executive Director

CC:

His Excellency Augustin Matata Ponyo Mapon, Prime Minister

Her Excellency Wivine Mumba Matipa, Minister of Justice and Human Rights

His Excellency Alexandre Luba Ntambo, Minister of Defense

His Excellency Raymond Tshibanda, Minister of Foreign Affairs

His Excellency Richard Muyej, Minister of the Interior

His Excellency Léon Kengo wa Dondo, President of the Senate

His Excellency Aubin Minaku,President of the National Assembly

Lieutenant General Didier Etumba Longila, Chief of the Armed Forces

General FrançoisOlenga, Chief of Staff of the Land Forces

General Charles Bisengimana, Commissioner-General of the Police

Human Rights Concerns in Eastern Democratic Republic of Congo and Opportunities for Ending Impunity M23