Helping to fight impunity for sexual crimes in DRC

Helping to combat impunity for sexual crimes in DRC: An evaluation of the mobile gender justice courts

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COPYRIGHT STATEMENT Š OSISA, 2012 This publication was funded by the Open Society Initiative for Southern Africa.

Copyright in this article is vested with OSISA. No part of this report may be reproduced in whole or in part without the express permission, in writing, of OSISA. It should be noted that the content and/or any opinions expressed in this publication are those of the author and not necessarily of OSISA.

Contents

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Introduction

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Objectives and Scope of the Assessment

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Methodology

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Contextual Setting of the Gender Justice Mobile Courts

Helping to combat impunity for sexual crimes in DRC: An evaluation of the mobile gender justice courts

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Overview of the ABA/ROLI Gender Justice Mobile Court Project

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Detailed Analysis of the Gender Justice Mobile Courts

This evaluation of the mobile gender justice court project in South Kivu Province in the east of the Democratic Republic of Congo was commissioned by the Open Society Initiative for Southern Africa (OSISA), which funds the project. Judge Mary McGowan Davis, who was an acting Justice of the Supreme Court of New York and is active with several organisations focusing on human rights and transitional justice, was invited to assess the project and write this report. Along with a desk review of relevant material and numerous interviews, Judge Davis travelled to eastern Congo to witness one of the mobile gender justice courts in action.

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Effectiveness of the Gender Justice Mobile Courts

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Conclusions

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Afterword

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List of partners that Judge Mary interviewed in Bukavu and Kamituga

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Endnotes

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References

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CENTRAL AFRICAN REPUBLIC

SUDAN

CAMEROON

UGANDA

GABON

REPUBLIC OF THE CONGO

KENYA

DEMOCRATIC REPUBLIC OF CONGO

RWANDA

BURUNDI

TANZANIA

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ZAMBIA ANGOLA MOZAMBIQUE MALAWI

ETHIOPIA

SOMALIA

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1.

INTRODUCTION

Male Sgt A: To diminish [rapes] you need punishments, it has to be severe punishments…and public trials. If a soldier at Zeta [military camp in Kinshasa] rapes a woman, he should be judged there. They should expel him from the army there, take off his uniform, put him in the car [which transports him away] and everybody should be there to watch.

Male Sgt. B: That will give a lesson to all the people that are there to watch him.1

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The American Bar Association/Rule of Law Initiative (ABA/ ROLI) is currently mid-way through a two-year grant cycle that supports the operation of gender justice mobile courts in South Kivu Province in the Democratic Republic of Congo (DRC). The project represents an innovative and targeted approach to the “immediate problem”2 of impunity for crimes of sexual violence that is all too often the prevailing imperative in South Kivu. The mobile courts – which operate within the structure of the DRC’s justice system – travel to remote areas

of South Kivu and afford victims of gender based violence and other crimes a forum in which to hold their assailants accountable for abuses that have reportedly made eastern Congo “the worst place in the world” to be a woman or child. 3 I was invited by the Open Society Initiative for Southern Africa (OSISA) and the Open Society Justice Initiative (OSJI) – which designed and fund the ABA/ROLI mobile court initiative in South Kivu – to conduct an assessment of the effectiveness of the mobile court project at this mid-way point and to prepare a report addressing the performance of the mobile courts themselves. Specifically, I was charged with evaluating whether implementation of the project is actually advancing the goals initially articulated by the sponsors, whose ambition is nothing less than to tackle head-on the pervasive impunity for crimes of violence against women and children in South Kivu and to punish those found responsible.

As documented below, my conclusion is that, despite the many challenges and frustrations that inevitably attend a project of this magnitude, the gender justice mobile courts

“The project represents an innovative and targeted approach to the ‘immediate problem’ of impunity for crimes of sexual violence.” operated by ABA/ROLI have unquestionably delivered on their undertaking to bring justice to the remote reaches of eastern Congo. Their work is notable for concrete, tangible results that demonstrate to the host communities that actions have consequences, that crime will be punished, or as Male Sergeants A & B of the FARDC4 put it more colloquially in a further extract of the interview quoted above: Male Sgt. A: Yes, it has to be public trials: “Today it is the trial of Corporal X” [they should say to him] “Do you know that you took somebody’s woman by force…?” “Yes, my commander, I know [he answers].” “Do you know that this is forbidden in the law?” “Yes, I know.” “Ok, we will give you the death penalty.”

Maria: But that is too much maybe?

Male Sgt. A: [Laughing] It is just an example.

Even 50 or 5 years. His wife will start to cry, his children will start to cry: “Ahh, Papa.” Then, the other people who are watching will understand, they will start to be afraid: “Ahh, so that is the way it is.”

of a mobile court session in Kamituga in April, “It frightens me. These men are going to spend years in jail, five years, fifteen years. No prisoner can pay back the money they have been assessed. It’s an example for others. This is what can result if you commit the same crimes.”7

Male Sgt. B: But the punishment also has to be severe, even 20 years. Then the people will fear it. 5 The soldiers in this interview were speaking hypothetically because as the report’s authors note, “[w]hen our research began in 2006, there was almost total impunity. The preceding quote was merely a recommendation, and what it described had not yet been put into practice.”6 The genius of the ABA/ROLI-supported gender justice mobile courts is that they have significantly transformed the prevailing discourse. Now, punishment is no longer theoretical: as Jean Papy Saliboko, age 20, reportedly said at the conclusion

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objectives and scope of the assessment

The Terms of Reference (TOR)8 for my assignment were specifically to conduct a “detailed review, analysis and assessment” of the gender justice mobile court project operated by ABA/ROLI in South Kivu. The project period initially was for fourteen months – namely from October 2009-December 2010 – but OSISA recently extended the grant through 2011.

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One of the purposes of the assessment was to evaluate whether the original goal of the programme – ‘to address the extensive number of gender violence cases that had taken place (and continue to take place) in South Kivu’ – remains relevant today and if so, whether “there is room for improvement under the circumstances [now] existing in the country.”

Further, in evaluating the effectiveness of the project’s stated purpose to end impunity for crimes of gender based violence in South Kivu, I was to consider how the ‘current implementation and approach’ of the mobile courts contribute to their effectiveness and attempt to answer the following questions:

“One of the purposes of the assessment was to evaluate whether the original goal of the programme remains relevant today.”

• Are the goals still relevant?

• Is the project implemented in the fashion originally foreseen (and explain if not)?

• Is the project being implemented in a fashion likely to promote the goals as currently understood?

Ideally, my answers should identify obstacles to achieving the project’s aims; provide a narrative of the features that are particularly successful; and include recommendations as to where the project should go from here.

Finally, as set forth in the TOR, this report is likely to play a role in determining the project’s long-term future and whether the gender justice mobile courts of South Kivu offer a model to be replicated on a broader scale in South Kivu itself – and more widely in other regions of eastern Congo, where judicial institutions remain conspicuous by their absence.

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methodology

My assessment of the mobile court project – although comprehensive – does not claim to be exhaustive given the relatively short time I was on the ground in the DRC (April 11-16, 2011). I am pleased that I was able to attend two full days of the mobile court in Kamituga on April 12-3, during which time the Tribunal completed not one but two rape trials from start to finish (apart from announcement of the judgments which followed a few days later). I have reviewed the written judgments delivered in both of these cases, and I have also read the judgment rendered in the celebrated Fizi trial of February, 2011, which preceded my visit to the DRC. I have spoken with many of the lawyers and judges who participated in the mobile courts organized by the ABA (a full list of the interviews I conducted, in both English and French, in Kamituga and Bukavu appears in the Appendix) and I have also benefited from a teleconference in Paris with sexual violence survivors in Bukavu, when I heard first-hand from women who have testified at mobile court proceedings. The local ABA staff members in Bukavu were generous with their

“ABA/ROLI commendably keeps detailed reports on each of the mobile court sessions it has organized.” time, and I also received important information about the project’s goals and history from staff at OSISA and OSJI during preliminary meetings in Johannesburg.

As for the document review, there is a whole industry of NGOs that file studies with respect to sexual violence and military justice issues in the DRC, and I have read widely on these topics. ABA/ROLI commendably keeps detailed reports on each of the mobile court sessions it has organized, with relevant data as to the number of convictions, acquittals, sentences, types of crimes, age of victim, etc., and I have also studied carefully the quarterly reports, training modules and other materials the ABA has generated in connection with this project. I have set forth in the appendix the many documents and books I have consulted in preparing this report and commend them to those who wish to comprehend more fully the circumstances presently challenging the justice sector in the DRC.

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Finally, I note that insofar as I can be labelled an “expert” whose views OSISA and OSJI have solicited with respect to how well the gender justice mobile courts in South Kivu are functioning, it is because of my background as a former American trial judge and federal prosecutor rather than because of any skill or experience I possess in organizational management or financial matters.

A further caveat: although I am familiar with the unique difficulties of prosecuting and trying cases of sexual violence in New York and more generally in the international criminal tribunals, I am not particularly well versed in the procedures that govern trials under an inquisitorial system – such as obtains in the DRC. That said, I have benefited from the insights that my husband – a member of the New York and Paris bars – and his French colleagues have supplied in response to my inquiries about the instruction and trial phases of civil law systems and how they differ from common law practice. Not surprisingly, given my interest in fair trial 08 standards and the substantive content of criminal trials, I have paid particular attention to inquiring into the quality of justice that the ABA-sponsored mobile courts have delivered to date and how the courts can build on this foundation to make their allegiance to international and national constitutional fair trial standards even more robust.

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Contextual Setting of the Gender Justice Mobile Courts “levels of sexual violence and rape in the DRC are simply the highest in the world.”

Sexual Violence in the DRC As Jason Stearns – formerly a UN investigator in the DRC – puzzled in his recent and illuminating book on the conflict in the Congo: How do you cover a war that involves at least twenty different rebel groups and the armies of nine countries, yet does not seem to have a clear cause or objective? How do you put a human face on a figure like “four” million when most of the casualties perish unsensationally, as a result of disease, far away from the television cameras? 9 The answer to the questions Stearns poses is that when describing the pervasive violence that has rendered life in Eastern Congo unbearably difficult for its citizens – particularly the women and children – during years of interminable armed conflict, writers invariably resort to hyperbole.

Indeed, the massive scale of sexual assaults in the DRC – which are notorious for their gut-wrenching brutality and viciousness – have eclipsed attention to the widespread violence and abuse suffered by all elements of the civilian population, as an alphabet soup of rebel groups, militias, and government forces battle each other for control of the country’s precious natural and mineral resources.

Countless news articles and NGO and UN reports strain for a vocabulary that accurately conveys to the outside world the enormity of the human catastrophe that has engulfed the DRC since a conflict began there in 1996, which has thus far claimed the lives of over five million people.10 Characterizations such as “the monstrosity of the century”;11 “systematic pattern of destruction toward the female species” and a “femicide”;12 one of “the great human cataclysms of our time”;13 sexual violence of “unbearable proportions and cruelty”;14 a war that is being fought “on [women’s] bodies”;15 are typical of efforts to depict the epic scale of the unspeakable tragedy unfolding in the DRC. Indeed, one study has noted that “the ways in which outsiders have rendered survivors’ testimonies have frequently been characterized by a pornography of violence,” as observers try to outdo each other in drawing the world’s attention to the plight of sexual assault survivors in the DRC.16 Suffice it to record, for purposes of comprehending the context in which OSISA and OSJI in partnership with ABA/ROLI have designed and operated the gender justice

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mobile courts, that years of armed conflict have resulted in an exponential increase in the incidence of sexual violence in the DRC, and that the survivors have been victimized several times over: “once when the crime is committed, again when they are rejected by their family and community, and yet again because of the neartotal impunity enjoyed by the perpetrators of these crimes.” 17

There are several themes touched upon in the above paragraphs that will reappear as leitmotivs throughout my narrative and are relevant to evaluating the impact of the ABA-operated mobile courts:

Indeed, despite the resources brought to bear in recent years to combat and contain this epidemic of violence, it is notable that even as I write this assessment, today’s newspaper reports that the levels of sexual violence and rape in the DRC “are simply the highest in the world.” 18 On an average day, the article continues, 1,152 Congolese women are raped.

• Rape by civilians is becoming a routine feature of daily life as the “normalization” of sexual violence takes hold in the community, even as rapes by soldiers decline. 22

A study published in May, 2011 in The American Journal of Public Health estimates that nearly two million women have been raped in the Congo, with women victimized “at a rate of nearly one every minute.” 19 This study further concludes that women have reported “alarming” levels of sexual abuse in areas of the DRC that are far from the war- torn east. “There are two big surprises in the study” according to Anthony Gambino, mission director for USAID in the DRC in 2001-4: “First, the magnitude of the problem – rates of rape that are much higher than seen elsewhere. And second, that these alarming, shockingly high rape statistics are found in western Congo as well as northern and eastern Congo.”20

• “Militarized” brutal sexual violence is one of the defining characteristics of the continuing armed conflict in South Kivu. 21

• Increasingly it is young girls who are at risk for rape and sexual assault by those who betray positions of trust in the family or community – such as relatives, teachers, police officers, and priests.

• Cultural taboos and the stigma of rape have far-reaching economic, social and psychological consequences that add to the survivors’ trauma and health problems.

• A culture of impunity has made rape “horrifyingly commonplace”23 cross the country because the perpetrators believe, correctly in most instances, that they can get away with it.

Finally and most critically, years of economic and political decline have led to the nub of the current crisis, which is that the government’s presence “has essentially disappeared” from

many areas of the DRC. 24 As Adalbert Mwehu Nzuzi, a Congolese priest in Ubungu, eastern Congo, lamented in 2004,

There is just no law here. That is what we need more than anything. A sense of the law and the sense that there is someone to enforce it. Without that, there is chaos. 25

Current conditions for prosecuting crimes of rape and sexual violence in the DRC Analyses of the misery that afflicts the population of the Congo after years of war and misrule usually comment on the irony that the country has a vast wealth of natural and mineral resources – gold, diamonds, coltan, uranium, timber, tin – if only it had a functioning government that could take advantage of these riches for the benefit of the people. A comparable analogy applies to the legal system, which is in a “deplorable”26 state notwithstanding the fact that the DRC has solid legal traditions and many excellent and well-trained jurists. The “chaos” caused by the breakdown of the justice system, of which Father Nzuzi complained, is attributable not to bad laws or incompetent staff; rather it results from “the total abdication by the State of its own responsibilities” to protect its citizens and to supply the services expected of modern governments. 27

Rather than belabour the huge barriers to ending impunity for crimes of violence in a country where the state has essentially externalized responsibility for its internal affairs to international and nongovernmental organizations28 – barriers that will loom large in the detailed discussion, infra, of the challenges the ABA organizers have confronted on the ground – I first wish to emphasize the considerable advantages the gender justice mobile courts can draw upon from the national legal system in which they are firmly embedded.

1. The DRC’s Legal Resources Notably, there exists a significant corpus of legal rules and penal statutes – under both international and domestic law – that provide a solid jurisprudential basis for prosecuting crimes of sexual violence. Indeed, the DRC has ratified the Rome Statute and virtually all of the international human rights conventions, and it is a monist state, which means that its international legal commitments take precedence over domestic laws and that these treaties are directly applicable in national courts.

Moreover, a new Constitution – which came into force in 2006 – provides for the independence of the judiciary (Art. 149) and establishes important principles with respect to fair trial rights, principally that no one can be removed or diverted against their

will from the court assigned to them by law (Art. 19); the right to a defence at all stages of a criminal proceeding (Art. 19); the right to a public hearing (Art. 20); the obligation of judges to give reasoned decisions in writing and the right to appeal against such ruling (Art. 12); the non-retrospective nature of criminal law and the legality of sentences (Art.17); and the presumption of innocence (Art. 17).

Additionally, in the context of prosecuting international crimes, the defence of “following orders” is excluded; Art. 28 stipulates that “no one is required to implement a manifestly unlawful order.” 29 The arsenal of tools a Congolese prosecutor has to work with also includes a revised – and progressive – sexual violence law passed in 2006 that clearly defines rape and specifically criminalizes such acts as inserting an object into a woman’s vagina, sexual mutilation and sexual slavery. Further, the law defines as statutory rape any sexual relation with a minor under the age of 18. Penalties range from five to twenty years in prison, but can be doubled given aggravating conditions like gang rape and violence committed with use or threat of a weapon. A separate procedural law provides for expedited proceedings in rape cases and offers greater protection to victims. Among these protections are that the survivors have the right to be seen by a doctor and a psychologist, and that their security and well-being must be guaranteed – including by taking their testimony in camera.

These laws are applied by civilian and military jurisdictions alike. 30 Congolese domestic legislation also defines war crimes, crimes against humanity and genocide – and although the prohibitions are not explicitly in line with comparable definitions in the Rome Statute, they are sufficient to permit prosecution and punishment of the most serious violations of human rights and international humanitarian law. 31 A drawback of the present framework is that military courts are the exclusive forum for prosecution of international crimes. A bill implementing the Rome Statute into Congolese law – that would shift the responsibility for adjudicating these crimes to civilian courts and away from the military – has been pending since 2003, but it continues to languish in the legislature, apparently because it has garnered opposition from important elements of the military. 32 Rounding out the resources on which the gender justice mobile courts can rely is the excellence of many experienced judges and lawyers, who have been trained in accordance with sophisticated and modern legal traditions that are a positive legacy of the otherwise discredited colonial era. And, perhaps counter-intuitively given that soldiers are the principal perpetrators of sexual violence, the military justice system has shown that it can, when sufficiently supported with resources and personnel, effectively deliver justice to those victims who are able to access its courts.

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“A drawback of the present framework is that military courts are the exclusive forum for prosecution of international crimes.”

2. Impediments to Delivering Justice

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The negatives off-setting these positive attributes of the criminal justice system in the DRC are staggering. (Not to put too fine a point on it, the United Nations Organization Mission in the Democratic Republic of Congo, or MONUSCO, has characterized the current legal and judicial apparatus in the DRC as a shambles). 33 The manifold problems will figure in the discussion of the major challenges to implementation of the gender justice mobile courts that follows, but they include: widespread corruption of judges and other actors; political interference in prosecutorial and judicial decision-making; dilapidated prisons from which prisoners regularly escape and where the in-mates are dependent on their families and local NGOs for food; rugged terrain and dense jungle that render many regions of the DRC impassable; and lack of vital infrastructure such as roads, prisons, court facilities and health care centres, which accentuates the remoteness and impenetrability of rural communities. Given these deficiencies, rape victims lack access both to

the doctors who must certify that they have performed the medical examination necessary to initiate a court case; and to the prosecutors, lawyers and judges who can bring the attackers to justice.

Further, in the context of military courts, there are particular issues of concern. While many NGOs and international observers give special plaudits to the accomplishments of military tribunals – whose judges appear less subject to corruption than civilian judges and are relatively disciplined in the manner in which they adjudicate cases – it is a feature of Congolese military justice that a soldier can only be tried by a presiding judge whose rank is greater than his or her own, which is a bar to holding commanders and top officers accountable for crimes they or (under the theory of command responsibility) their subordinates commit. Additionally, military institutions are fundamentally compromised because in the post-2002 effort to integrate rebel groups and militias into a “new” national army (a policy called brassage), many of those who were personally responsible for rape and

pillage were given positions of authority. A further difficulty is the broad scope of the military courts’ personal jurisdiction; while it is sufficient to cover most perpetrators of international crimes, civilians are routinely subject to judicial process in military tribunals, in violation of international standards. 34 Finally, in terms of situating the ABA/ROLI-supported mobile courts within the Congolese justice system, it is important to recall that the Congolese government itself highlighted the lamentable capacity of its judicial apparatus to address the monumental crisis overwhelming the country’s legal institutions when it called upon the International Criminal Court (ICC) to prosecute armed leaders for international crimes committed on the territory of the DRC. Indeed, in a recent statement to the ICC, the Congo’s General Prosecutor “described widespread insecurity, lack of witness protection, and lack of expertise in investigating mass crimes and gathering evidence as obstacles to justice in Ituri [Eastern Congo], and concluded “the situation has not improved since [2008].”35

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Overview of the ABA/ROLI Gender Justice Mobile Court Project “This shows that justice is beginning to work in the Democratic Republic of Congo, and people are watching and listening.”

These mobile courts are very good. It is a matter of changing the behavior of soldiers and police officers towards women and children and other people. They have never been tried or sentenced like this before. People like these, captains and colonels, thought they were above the law. This shows that justice is beginning to work in the Democratic Republic of Congo, and people are watching and listening.

the only tribunals in the region whose primary business is to adjudicate crimes and legal issues of particular importance to women. As detailed below, ABA/ROLI has largely delivered on the ambitious goals it set for itself when the mobile courts project was first announced.

However, given intractable realities on the ground, it has wisely and painstakingly tweaked and fine-tuned its programme for the second phase of its activities.

– HANSEN KASEKI, 35 YEARS OLD, KAMITUGA, APRIL, 201136

Proposal for the Pilot Phase of the Project

ABA/ROLI’s gender justice mobile courts project boldly confronts head-on the current justice crisis in the DRC by fixing on a particular area of Eastern Congo – South Kivu province – and by focusing on the needs of a specific population, namely South Kivu’s women and children.

Although itinerant courts have been mounted in other areas of eastern Congo by REJUSCO37 and NGOs such as Avocats Sans Frontieres (ASF), the ABA/ROLI courts are

Following an exploratory visit to the DRC in 2008, OSJI and OSISA determined to collaborate with a partner organization, ABA/ROLI, in establishing an itinerant court tasked to bring justice to victims of sexual violence and other crimes in the remote regions of South Kivu, where an armed conflict has been raging since 1996. The proposed project was detailed in a paper prepared by OSJI in 2008, which articulated the following goals:

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• The court would specialize in gender issues and specifically, in “sexual violence related to the conflict.” But the court’s jurisdiction could also extend to women’s issues more generally – including topics related to family law, property rights, and inheritance laws.

• The court would have jurisdiction over military as well as civilian justice issues, and would be authorized to hear both civil and criminal cases.

• The court’s focus on trying crimes of sexual violence would “complement” ICC prosecutions underway in The Hague – given its mandate to try crimes committed against women and children in South Kivu on a massive scale related to persistent and continuing armed conflict there.

• The court would be positioned squarely within the structure of the DRC justice system, which has long provided for itinerant courts that travel to remote communities lacking courthouses of their own.

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• The court’s staff – judges, lawyers, police investigators – would be trained in international criminal law and would be introduced to the specific provisions of the Rome Statute, consistent with the project’s “complementarity” aims. Additionally, judges, lawyers and court staff would receive instruction in the domestic laws proscribing rape and other forms of sexual violence and

would be counselled on how to handle these cases in a victims’-rights-based, gendersensitive manner.

• Given the focus on gender issues, efforts would be made to attract female judges and lawyers to the roster of court personnel.

• During the pilot phase, the court would work with other organizations in South Kivu to support a media campaign heightening public awareness of the 2006 sexual violence law; sensitizing local communities to the importance of reporting crimes of sexual violence; and emphasizing that the shame and stigma of sexual assault should be upon those who perpetrate, and not upon those who suffer from, such crimes.

• The court would handle “dozens of cases a month” and for each of ten months during the grant period would spend approximately four weeks on the ground in a remote community.

• International mentors would be recruited to assist judges, prosecutors, and lawyers for a month at a time. The mentors would themselves receive training in international human rights and humanitarian law at a twoday workshop in Brussels or The Hague before traveling to the DRC. • To assist lodging court personnel, if feasible, facilities would be constructed in several of

the host communities, which “guest houses” would be donated at the conclusion of the grant period together with the cars and computers purchased by the project.

In short, consistent with the perceived criteria of the ICC’s “complementarity” regime, this ambitious project proposal addressed both the immediate need for knowledgeable and experienced judges to travel to remote reaches of South Kivu to try cases of sexual violence having a nexus to the on-going conflict there, and the long-term goal of enhancing the capacity of national courts to prosecute and adjudicate issues of particular importance to women and children, including – but not limited to – international crimes. At the end of the pilot phase, the organizers expected that the government of the DRC would be able to “take over” the mobile court operation and would provide for additional itinerant courts to alleviate the justice crisis in Eastern Congo. 38

Accomplishments of Phase 1 In this part of the report I will briefly describe and summarize the highlights of Phase 1; later sections will be devoted to a detailed “drill down” examination of the mobile courts in action, with a particular focus on the actual audiences I attended in Kamituga in April 2011 and the nowcelebrated Fizi trial that took place at Baraka in February 2011.

During Phase 1 of this project, OSISA approved a grant of $844,000.00 to ABA/ROLI “to establish a pilot project which will travel throughout remote areas of South Kivu to provide gender justice to women who are victims of sex crimes or who need other forms of judicial redress.”39 The contract between OSISA and ABA/ROLI stipulated that the funding would be delivered in three tranches and that reports detailing progress and accounting for the funds actually expended for each component of the project would be required on Jan. 1, 2010, June 30, 2010, and December 31, 2010. A project director was appointed, who reported to the ABA/ROLI office in Goma, and it is widely agreed that the individual who held this post until recently brought singular energy, enthusiasm, and dedication to getting the mobile courts up and running quickly and effectively.

Indeed, during the pilot phase – from October 2009-December, 2010 – the mobile courts project made great strides towards the ABA’s expressed objective to meet the “on the ground urgent need to bring justice closer to the citizens” 1) by holding nine sessions in hard-to-access areas of South Kivu; 2) by raising public awareness as to the importance of reporting and prosecuting crimes of sexual violence; and 3) by training various justice sector officials with respect to best practices for investigating and adjudicating gender based crimes.

The performance of the courts in the first year of their operation (2010) was impressive.

Altogether nine sessions of the itinerant courts

heard 186 cases: of these dossiers, as they are called in French, 94 resulted in convictions for rape and 41 in convictions for other offenses for a grand total of 135 convictions. There were 22 acquittals in rape cases and 18 acquittals related to other offenses. Sentences imposed for rape convictions ranged from 3 to 20 years and there were significant financial penalties assessed as well. Notably, of these nine court sessions, six were conducted by military tribunals and three – at Kamituga and Baraka in July, 2010 and at Shabunda in November, 2010 – were held in civilian courts. The courts generally operated on the ground for a period of two weeks at a time and on average tried 20 accused during this two week period.

The training component of the project was equally formidable. Trainings of judicial police at Uvira, Bukavu, and Shabunda each recorded 50 participants for a combined attendance of 150 investigators. Two workshops for advocates in Bukavu in April and October, 2010 respectively attracted audiences of 50 and 30 lawyers, and 30 magistrates turned out for a similar workshop in Bukavu in July, 2010. Altogether, 260 law enforcement personnel benefited from professional training organized by ABA/ROLI in 2010. A table recording the breadth and depth of the topics presented at the trainings appears in the Appendix.

Suffice it to note here that the programmes were well-considered and well-attended and covered an impressive range of relevant topics – including fair trial principles, the many ways in which a lawyer

can support victims of gender based violence, professional ethics, and the role of military jurisdictions in international crimes.

The final aspect of the project proposal – namely a campaign to sensitize the community with respect to the importance of reporting cases of rape and sexual violence – got underway relatively late in the process. The ABA engaged an independent expert in May 2010 to assist in formulating a plan of action for this outreach component, but there were only two “sensitization” sessions conducted in calendar year 2010. A day-long event at Walungu in December attracted an audience of 150 students and civil society representatives (36 of whom were women). Community leaders (inter alia professors from the University of Bukavu, a Police Commissioner, the Deputy Director of the ABA/ROLI Mobile Court project) discussed such issues as the prevalence of rape in South Kivu; the applicability of the 2006 law on sexual violence; efforts of the national police to combat gender based crimes; the gender justice mobile courts project; and measures taken by NGOs to improve access to justice for survivors of sexual assault. A similar session was conducted with members of the community in Shabunda in November.

Plans for Phase Two of the Pilot Project In September, 2010, ABA/ROLI submitted a grant proposal40 seeking additional funding from OSISA for the mobile courts initiative and

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detailed plans to build upon the successes of Phase 1 of the project. The over-arching goals articulated for the second phase were largely identical to those described in the original pilot proposal: namely 1) to increase access to justice for victims of gender based violence through continued deployment of itinerant courts and by providing free legal aid and psychological counselling to survivors; 2) to promote public awareness of gender based violence; and 3) to increase the capacity of the DRC’s justice sector so that it can more effectively end impunity for gender based crimes. At the time of my visit to Bukavu in late April, 2011, OSISA had announced the award of a second grant to ABA/ROLI of US$944,000, which would be retroactive to February 1, 2011 – the official opening date for Phase 2.

With respect to the specific ambitions of Phase 2, there are some notable departures – which evince “lessons learned” from round one of the pilot project. Specifically, the revised goals include: 16

• Organizing six, rather than nine, mobile courts in remote areas of South Kivu. It is expected that four of these will be military tribunals and two will be civilian courts. There are fewer sessions contemplated during Phase 2 in order to assure better preparation for each court session. The preponderance of proposed military courts is in part attributable to the fact that ASF is supporting other civilian mobile courts active in

the region, and in part to ABA/ROLI’s emphasis on prosecuting crimes against humanity and war crimes over which military tribunals alone exercise jurisdiction.

• The new grant proposal seeks funding for two Legal Aid clinics – in Bukavu and Uvira – which ABA/ROLI itself will operate. These clinics, to which victims will be referred by local hospitals or NGOs, will provide pro bono legal services and will enable the ABA to directly oversee preparation of dossiers for the mobile courts, thus ensuring the high quality of the preliminary investigative and legal work. The lawyers will continue to represent victims to whom the court has awarded reparations in a concerted campaign to make headway against the prevailing failure of the State to pay its share of apportioned damages or to otherwise assist in executing civil judgments.

• Plans for an extensive and intensive media and outreach campaign in South Kivu will increase public awareness of gender based violence, familiarize the community with the laws protecting victims, and offer information about where survivors can go to receive help. The goal is to build support for the new ABA/ROLI Legal Aid clinics and to create an atmosphere of “zero tolerance” for gender crimes in South Kivu.

• Trainings for police, magistrates, prosecutors and judges will build on prior measures to increase capacity of the justice sector to

prosecute and adjudicate crimes of sexual violence. Particular focus will be expended on training judicial police in proper investigation techniques; there will also be a joint initiative with Physicians for Human Rights to encourage collaboration between lawyers and medical personnel in developing forensic proof of sexual violence crimes to bolster and corroborate victims’ testimony at trial.

• Efforts will be made to secure the appointment of more female magistrates and judges and ABA/ROLI will hold training sessions for women’s groups and civil society offering suggestions as to ways in which to lobby more effectively for gender parity in the justice sector.

• Fortifying this effort, the ABA aims to offer internships for female law students at its Legal Aid clinics, in conjunction with OSF’s Higher Education Support programme – which will consider, in 2012, providing inancial support to ten women studying law at two universities in Eastern Congo.

• Finally, the public will be educated with respect to the victim’s right to be treated with sensitivity and respect when s/he reports crimes of sexual violence to the local authorities, and the need for judges to impose appropriate penalties on convicted rapists so as to discourage traditional methods of settling these matters between families (often by marrying the victim to her assailant).

As noted above, there are several significant distinctions between the goals announced for the pilot project and those currently envisioned for Phase 2. First, there is no mention now of international mentors – who would come to “handhold” their Congolese counterparts after receiving training themselves in international criminal law. This apparent disinterest in international resources – and concomitant focus on Congolese lawyers and judges – acknowledges the enthusiasm with which the mobile courts project has been embraced by the wider community on account of its “local” character, and reflects the project’s commitment to “complementarity” in its true sense, which is to enhance the resources of national judicial institutions.

Other prior goals that are conspicuous for their absence in the most recent proposal include the number and 30 day duration of the mobile court sessions; the construction of guest house facilities; and the ambitious but overly optimistic notion that the DRC government would be able to “take over” and build on the operation of the courts after completion of the 14 month pilot phase.

Equally note-worthy is the Phase 2 proposal’s pronounced emphasis on gender based violence and the relative dearth of assertions that the courts will address non-criminal issues of general concern to women – like matters related to family, inheritance and property laws. This change of tone is perhaps related to the preponderance of military tribunals relative to civilian courts announced for round

“the public will be educated with respect to the victim’s right to be treated with sensitivity and respect when s/he reports crimes of sexual violence.” two. Alternatively, it may be connected to the changing profile of rape victims in the DRC; although instances of mass sexual violence still occur – viz. brutal uprisings by soldiers in Fizi in January and apparently in June, 2011 – increasingly it is young girls who are the new face of rape in the DRC. The urgent need to address this “normalization” of rape, which crime is now predominantly committed by civilian actors, appropriately demands that ABA/ROLI’s resources be concentrated on adjudicating the disproportionate number of gender crimes that continue to be a feature of daily life in South Kivu.

Finally, I should mention the organizational changes that will characterize operation of the mobile courts under Phase 2. I arrived at an awkward time for ABA/ROLI, given the recent departure of the

director of the mobile courts programme who had launched the programme with such verve and such success. There is a new team in place, the capable former Deputy Director has been promoted to the top post and plans are underway to put additional managers in place under her. Thus in Phase 2 there will be a programme director for each of the project’s three over-arching initiatives: the mobile courts, the capacity building trainings aimed at lawyers, judges, and police officers, and the sensitization campaign to educate communities more widely and effectively about the need to combat impunity for crimes of sexual violence. In addition, ABA staff will run the new Legal Aid clinics in Bukavu and in Uvira. As with any new management team, it is likely to take a few months until things get sorted satisfactorily, but there is every reason to expect that the new team members will work together smoothly and efficiently.

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6.

Detailed Analysis of the Gender Justice Mobile Courts

“the perception in the local communities is that the courts are performing at a high level.”

This section of the report will examine how the mobile courts operate and will draw from my own visits to two sessions of an audience foraine in Kamituga in April. My review is guided by the firm conviction that, notwithstanding the considerable attention paid to capacity building, community outreach, and “complementarity” in the project proposals, in the final analysis the effectiveness of the gender justice mobile courts depends primarily on their ability to accord fair and impartial trials to all parties who come before them.

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That said, these newly instituted gender justice courts are obviously a work in progress and cannot be expected to meet stringent international due process standards immediately given the significant constraints under which they operate.

Despite this caveat, the perception in the local communities is that the courts are performing at a high level and, with ABA/ROLI’s support, are ably filling the void created by the Congolese government’s abdication of its own responsibility to maintain a functioning justice system. That in itself is a significant accomplishment. Moreover, in view of the

seriousness and diligence with which the judges and lawyers approach their mission, there is a sound basis for optimism that future sessions of the courts will successfully build upon this auspicious beginning.

Organization of Visits by the Mobile Court ABA/ROLI works with local partner organizations in preparing for sessions of the mobile courts. Typically, victims are referred to the Congolese authorities by NGOs or Legal Aid clinics, such as those the ABA will operate in Bukavu and Uvira during Phase 2 of the project. One victim with whom I spoke mentioned that she had made her way to local officials in Kamituga with the aid of a local lawyer who was known to her family; other victims attributed their success in finding support and assistance in pursuing justice to the fortuitous intervention of local NGOs and/ or to the Legal Aid clinic at the celebrated Panzi hospital in Bukavu (which is funded by OSISA).

ABA/ROLI is keen to get its own proposed Legal Aid clinics up and running in Bukavu and Uvira so that victims will benefit from legal counsel from the very first moment they leave a medical centre or otherwise take steps to seek help. This early involvement of ABA lawyers will not only provide continuity of representation throughout the legal process, but will assure that careful attention is given to overseeing preparation of the dossier or file by experienced practitioners who are specially trained to represent victims of sexual violence.

Once a sufficient number of dossiers accumulate in a given location (approximately 12-15) ABA representatives contact the President of the Tribunal to discuss organizing a mobile court. The requests also flow in the other direction; often the President will alert the ABA that a locality has a sufficient backlog of ready cases and will instigate preparations for a court to travel to the community. Central to this process is that the tribunal’s request must document the number of sexual violence dossiers that are ready for trial and identify the number and military rank if the accused is a soldier. In arranging for legal counsel to represent both the victims and the accused, the President of the Military Tribunal communicates directly with the head of the Bar Association in South Kivu (le Batonnier), who actually selects the attorneys who will accompany the courts to the countryside.

Compilation of the dossier – i.e., gathering the evidence – is the responsibility of the judicial

or military police. First, the alleged assailant must be located and interviewed. The various documents that make up the file – e.g., sworn witness statements (proces- verbaux) and the requisite medical certificate – are then transmitted to the military or civilian prosecutor for review and trial if appropriate. There are strict time limitations for this process under Congolese law; thus the police have two days in which to hand the file over to the prosecutor, the prosecutor is then accorded a month to investigate, and the court must thereafter adjudicate the matter within three months. Not surprisingly, given the considerable challenge of preparing these cases outside the large cities, these deadlines are generally honoured in the breach, particularly when lawyers have not been assisting victims from the outset.

ABA/ROLI insures that all the conditions necessary for organizing a mobile court are present before it agrees to send a court out on circuit. Thus there must be alleged perpetrators in custody, the action must be supported by some kind of evidence in the dossier, and there should be a number of cases awaiting resolution before the considerable resources and energy of the ABA are brought to bear on making the necessary arrangements for a mobile court visit.

Once agreement has been reached with the Tribunal on the dates, the locality, the number of days the court will be in session, the number of dossiers that await resolution, etc., the ABA staff

makes preparations to facilitate organization of the court. The usual practice is to send a preliminary team to the site – usually consisting of a project lawyer and a court bailiff. The purpose of this advance team is to sensitize the community to the presence of the tribunal; to meet with local authorities so as to alert them of the court’s imminent arrival and enlist their support; and to make contact with prospective victims and witnesses and their families.

As for the mobile court itself, it follows the same procedures as a fixed court. The military courts include one judge, four assessors (members of the military who are selected for their probity and good character but who do not have any legal training), one military prosecutor and a bailiff. The civil courts have a bench of three members (one judge and two assessors); in addition there are a prosecutor and a bailiff.

All victims and accused are represented by members of the South Kivu Bar Association or by lawyers from other organizations that partner with the ABA. Further, in terms of ABA/ROLI’s concrete contribution to facilitating the itinerant courts, it offers financial support to the lawyers representing both the victims and the accused, as well providing a daily supplement to the judges and to police officials who are responsible for security during court sessions. Transportation, lodging, and security arrangements for all participants are likewise supplied by the ABA.41

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Trials before the Mobile Courts I attended two trials at the mobile court in Kamituga in April, 2011, which were conducted before Maj. Joseph Bulukungu, President of the Military Tribunal for the Garrison of Uvira, and four assessors. The “courtroom” consisted of a large tent pitched on a hillside that was open on three sides to allow bystanders a full view of the proceedings within. A banner behind the judges, who were seated at a long table, announced that the Military Tribunal “in Partnership with the American Bar Association, is Holding Trials Before a Mobile Military Court at Kamituga from April 11 to April 22 Everyone Welcome.” Since this was a military tribunal, there were soldiers bearing arms positioned on both sides of the tent to provide security. Throughout the sessions I attended a large crowd stood attentively – for hours in the hot sun, under threatening thunderheads, and long into the evening – and it was clear that members of the audience were riveted on every word of the proceedings that transpired under the tent.42 As is the case before all the mobile court 20 sessions, a preparatory mission had preceded the arrival of the court in Kamituga. The purpose of this advance team was to make contact with tribunal authorities in order to discuss some of the particular legal and practical challenges presented by the dossiers at hand and to study them carefully in preparation for trial. There were fourteen files awaiting action by the court, of which ten involved charges of rape; the four other

“He sent the younger sisters off to hunt for grass in a different area of the bush, then grabbed hold of the 10 year old.” dossiers concerned purely military infractions.

The preliminary report prepared by Maitre Romain Kisibo Nganga, a lawyer affiliated with ABA/ROLI, noted that the pending rape charges (nine of which involved alleged attacks on minors) all concerned crimes under the Congolese penal law and did not implicate international law. The alleged rapes were not committed during armed conflict – although several incidents occurred in so-called military “operational zones”.

The preparatory mission’s report contained a summary of the cases on the court’s docket and included two pieces of additional information: namely that two dossiers relating to charges of crimes against humanity were under investigation by the military prosecutor in Uvira and that one of the suspects, a lieutenant, had already been arrested. The second observation was that, unlike in the preceding year, in 2010 there had been no escapes from the military prison in Uvira.

1. Trial of Justin Paluku The accused in this case – an officer of the Congolese national police – was charged with

attempting to rape a 10 year old girl on August 10, 2010. The prosecution alleged that the young complainant, together with her two younger sisters, had been in a field behind the police camp gathering grass to feed their guinea pigs when the accused approached and asked the girls to cut grass for his own guinea pigs, promising to pay them 500 CF. He sent the younger sisters off to hunt for grass in a different area of the bush, then grabbed hold of the 10 year old, clapped his hand over her mouth, pulled down her underwear, and threw her on the ground. When he removed his hand from her mouth in an effort to lower his own underwear, she screamed, her sisters returned, he let them go, and they immediately reported the attempted attackto a relative.

The accused protested that although he had indeed solicited the girls’ assistance in collecting grass for his guinea pigs, for which service he paid them 200 CF, he had thereafter gone to church to sing in the choir and that any accusation of rape was obviously fabricated by the complainant’s father – with whom he had had a prior dispute.

There were several aspects of the trial that particularly caught my attention: • The young girl herself gave her evidence openly in front of the community. Apparently she was given the chance to appear before the judges in camera, but her father – who as the civil party in his minor daughter’s stead was an interested participant in the proceedings – counselled her to give her testimony in public. She did so stoutly and confidently and did not waver in her depiction of the events at issue.

• The audience crowded around all sides of the tent and listened with attention and respect, but it did interrupt the proceedings many times by reacting noisily and sometimes incredulously to the testimony. The presiding judge noted that the crowd’s occasionally disruptive behavior “could have an influence on the victim’s testimony,” given “her age and her frame of mind,” but he was not notably energetic about insisting that the crowd remain quiet. The accused’s apparently contradictory stories invited particular derision from the audience.

• The presiding judge’s demeanour was professional and courteous throughout the long day of testimony. Although the lawyers’ energetic interrogation of the witnesses (there were three, the young girl herself, the accused, and the girl’s father) sometimes verged on argument, for the most part the questions were relevant and the judge allowed full development of the issues:

What colour was the accused’s underwear?

How could he hold a hand over her mouth and undress her at the same time? Why did the accused increase his usual fee for grass collection from 50 CF to 200 CF? A sign of affection? (laughter from the crowd).

• The defence attorneys requested time to call additional witnesses – first the friends with whom the accused claimed he was playing cards at the time in question and who allegedly saw the accused give the girls 200 CF; at another juncture the defence requested an adjournment to call a psychologist noting, “perhaps the civil party is correct that the accused has psychological problems.” Counsel complained that is hard to get witnesses to come to court and noted that they had only had 20 minutes in which to examine the dossier before the trial began. The court, invoking Articles 242 and 249 of the military procedure code, denied the request for additional witnesses: “We don’t need other witnesses, we have heard enough…the victim herself is here.”

Summations were delivered the following day.

All in all, the tribunal heard argument from three attorneys for the civil party, two defence lawyers, the military prosecutor, and counsel for the DRC, which was named in the civil action. After one hour and 25 minutes or so of summations, the court then invited rebuttal summations – during which time the President typed away on his computer so as to summarize each of the proffered arguments. Although he announced

sternly that he would limit the defence attorneys’ summation time – to their great consternation – he did not act on this threat, and every one had ample opportunity to address the court.

During the two hours or so of the summations, the accused remained standing before the court.

The court interpreter had translated the trial testimony and questions from French into Swahili and vice versa until the point when summations began, but there was no interpretation for this last stage of the trial. That said, the President did question the accused at the close of argument: “Did you follow this? What did the civil party ask for?” What did the public prosecutor ask for?”

Defendant had the last word and denied the charges: “All lies.”

Notably, the President was quite exercised at one of the defence counsel’s summation arguments (perfectly familiar and acceptable to my American ears) – to the effect that the attempted rape charge was fabricated and was a retaliatory act on the part of the accused, who had a testy relationship with the girl’s father. The President reprimanded the lawyer for making this kind of argument: “Do not argue that someone is using sexual violence as revenge, as bad faith. If they are acting in bad faith, the Tribunal will find it.

The Tribunal has had an impact. Sexual violence is serious, this crime is committed less frequently because of the impact of this Tribunal.” This observation was met by respectful silence from the audience.

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“The accused was found guilty of attempted rape and was sentenced to 5 years in prison and to pay a penalty of 200,000CF.”

The tribunal rendered judgment a few days later.

The accused was found guilty of attempted rape and was sentenced to 5 years in prison and to pay a penalty of 200,000CF, in addition to the court costs, on the criminal charge. With respect to the civil action, the court decreed that the accused and the DRC were jointly liable to the girl’s father in the equivalent in Congolese francs of US$3,000.

The written judgment carefully set forth the procedural history; elucidated the facts presented at the trial; analysed the applicable law; determined that guilt had been proven conclusively in the criminal case; and that causality had been established for the wrong inflicted on the girl’s father in the civil matter, for which the state was partially responsible.

Indeed, in rejecting the State’s claim that it lacked responsibility for the accused’s conduct, the court noted that the defendant was wearing his uniform at the time of the attack in the vicinity of the police camp; that he was accountable for the security of the community; and that the State should not have hired him in the first place!

22 In concluding that the complaining witness’s testimony was “consistent and persistent,” the Tribunal cited to precedent from the Mbandaka tribunal noting that a person who charges another with rape has a lot to lose, given the pressure and stigma from family and society, and that accordingly s/he usually makes a “superb” and credible witness; and to a prior case of its own

emphasizing that generally speaking, men and women do not ever forget the person with whom they have had non-consensual sexual relations.

2. Trial of Abuku Wandango The accused in this case – a sergeant from the rebel Mai Mai group – was charged with the rape of a 13 year old girl. He was a relative and lived in the same family compound as the victim and her guardian. On the night in question, the young girl was sleeping alone when the accused entered her room, overpowered her, and completed the act of rape.

He threatened to kill her if she reported the rape to anyone and promised to buy her some beauty cream and a skirt if she kept quiet. She did not mention the attack for several days, but when she sought medical attention for vaginal pain a few days later, she said that her injuries were caused by the violence the accused had inflicted upon her. The nurse noted in her report of the visit that the young girl – who was accompanied to the clinic by the accused as well as by her guardian – was “unable to stand up” and suffered from a “perforation of the hymen” and “damage to the vagina.” Shortly thereafter the accused was arrested by members of his Mai Mai group and turned over to the military authorities in Masisi.

There was heated argument during this trial with respect to several key issues: • At the outset of the proceedings, the accused’s lawyers challenged the military court’s jurisdiction to hear the case. While acknowledging that

their client had at one time been a member of the Mai Mai armed rebel group (and thus subject to the jurisdiction of a military court if he committed the crime during the time of such membership), counsel claimed that the accused had left the group in 1997 and had resumed his vocation as a farmer. Thus he should be tried before a civilian court. A lawyer for the victim’s guardian, the civil party in this case, pointed out that the civilian tribunal in Uvira had already decided the issue: it concluded that the accused did belong to an armed rebel group and that therefore a military court must hear the case. The President agreed that the tribunal had competence to try the accused and upheld its exercise of jurisdiction.

• There was considerable confusion about where the 13 year old complainant was and why she was not present to give testimony in court. Defence counsel made repeated requests for the young woman to appear: “She is a witness whose testimony is critical for the defence, our client risks 20 years in prison, if the trial is to be fair the witness must appear.” The civil party’s lawyers argued that this is a “premature” request; the Tribunal has not found any irregularities in the prior statements she gave to the police; there is considerable evidence in the dossier that supports the victim’s claims; and the defence is simply seeking to delay the proceeding. The military prosecutor argued that under the military procedure code, the court can read her affidavit and judge the content of her testimony: “Defendant knows her, he has seen her, she is sick and lives far away.”

• The President invoked Art. 249 of the military code providing that if the complainant does not come to court, the judges can rely on her prior statement. “There is a big problem. We are at Kamituga. If she is alive, she lives 600 kilometres from here, too far. If she is dead, we don’t know. To get a relative to come and give us necessary information would take too long given the great distances involved and the fact that we are here for only 14 days.”

• There was also a problem with the medical certificate offered to prove the rape.Under the strict letter of the law, a medical doctor must complete this certificate. In this case, however, the person attesting to the victim’s injuries was a nurse. The military prosecutor urged the court to accept the certificate simply as “information,” not as a statement of an expert witness, given that it is frequently impossible in the DRC to find a medical doctor in the village where a crime takes place. Other difficulties included the fact that there was no date certain when the attack took place and no proof of the complainant’s age at the time of the alleged rape.

Summations in this trial followed immediately upon the summations delivered in the Paluku case and again, consumed the better part of two hours. I was impressed that the counsel for the civil party cited to international law when urging that the victim’s statement to the judicial police made out a case of rape.

He invoked Akayesu – a decision of the International Criminal Tribunal for Rwanda – for the proposition

“He threatened to kill her if she reported the rape to anyone and promised to buy her some beauty cream and a skirt if she kept quiet.”

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that the accused’s threat to kill the complainant amounted to the requisite ‘coercion’, and the ruling of the ICC pre-trial chamber in the Bemba case to emphasize that a victim’s failure to make a prompt outcry is not fatal to bringing a rape prosecution.

The military prosecutor argued that the accused, as a member of the Mai Mai group, worshiped fetishes and believed he was immortal and untouchable if he had sex with a young girl. (Notably, no such evidence was produced during the trial). The defence countered that there had been no proof of rape, and that no document properly attested to the time or the fact of a rape. The Tribunal should require the parties to produce information specifying the time and place of the girl’s death if they claim she is dead. Finally, they argued that the accused had left the Mai Mai in 1997, when he was demobilized, and that his former colleagues had had him arrested simply because he refused to fight anymore.

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The educational impact of these impassioned summations, with their frequent invocation of legal authority and impressive elocution, had to be significant – at least for those in the large crowd who spoke and understood French. The attorneys were eloquent yet respectful as they spoke about the law, about the value of Congolese lives, about the importance of security to their communities, while the patient audience – which included many young people – listened attentively and nodded in agreement.

The court delivered the judgment a few days later. The accused was convicted of rape and was

sentenced to 20 years in prison and to payment of a penalty in the amount of 200,000 CF. Since he was a member of a rebel group and was not acting on behalf of the Congolese state, he alone was found responsible for damages and interest in the civil case, which resulted in an award of the equivalent in Congolese francs of US$10,000 to the victim’s guardian.

The written decision – like the Paluku judgment – set forth the facts, the applicable law, and its analysis as to why the accused’s testimony should not be credited. Although no mention was made of the circumstances of the victim’s failure to appear, the tribunal noted that the victim had given consistent statements to her guardian, to the nurse at the medical clinic, and to the police in the proces verbale. By contrast, the accused sought to put blame on another person, even as he contradicted himself about whether the victim had been raped.

Even more damning in the court’s view was the fact that he had accompanied her to the medical clinic, which the court analogized to a criminal’s returning to the scene of a crime so as to shake off suspicion that he is the perpetrator. The accused stayed by the victim’s side, opined the court, so as to make sure she would not denounce him.

The judgment did address two procedural claims raised by the defence. With respect to the argument that the victim initially spoke with the Mai Mai judicial police – who were incompetent to receive a complaint under the military code of procedure and thus no official affidavit by the victim exists – the

tribunal noted that the defence did not raise this claim at the time it first contested the court’s jurisdiction.

The court refused to permit such a procedural challenge at the end of the trial. And it rejected the defence contention that the medical certificate was insufficient to prove that a rape had occurred, concluding that the nurse fit within the category of medical personnel whose expertise the legislature deemed necessary to establish the offense and, in any event, the defendant himself was present when the victim sought medical assistance so should not be heard to complain now.

3. The Fizi Trial Although I was not privileged to attend the proceedings in Baraka in late February, 2011, the importance of this joint trial requires special mention. Before Fizi, all the defendants tried in mobile courts in South Kivu had been middle level officers, but the breakthrough development at Baraka in February was that a commander was held to account, together with eight of his subordinates, for widespread rape and pillaging that took place in the town of Fizi on New Year’s Day, 2011. All told eleven soldiers were brought to trial within six weeks of the attacks; one was acquitted of all charges and one case was transferred to a civil court because the accused was a minor.

Lt. Col. Kibibi Mutare, who was charged with ordering his troops to attack the village of Fizi in retaliation for the death of a soldier after an altercation with a local resident, was convicted of crimes against humanity and sentenced to 20 years in prison. One victim – who like the other rape survivors gave evidence in

SUDAN

CENTRAL AFRICAN REPUBLIC CAMEROON

Gemena

Isiro

UGANDA Kisangani

REPUBLIC OF THE CONGO

Mbandaka

KENYA

GABON

Bandundu

Bukavu

RWANDA

BURUNDI

Liebo

KINSHASA Boma

DEMOCRATIC REPUBLIC OF Kindu CONGO

Fizi

Kikwit Matadi

Kananga

Mbuji-mayi

Kalemie

TANZANIA

25

Lubumbashi

ZAMBIA

ANGOLA MOZAMBIQUE MALAWI

“Although the women of South Kivu fear the soldiers – who remain in the vicinity – they have been inspired by the support of the wider community.” closed sessions under a pseudonym – testified that he had raped her for 40 minutes; thus Kibibi was held accountable for committing rape himself in addition to being convicted, under a theory of joint criminal enterprise, of, at a minimum, looking the other way while those under his control raped, pillaged, and unlawfully detained individuals who had the misfortune to find themselves in the vicinity of the rampaging soldiers.

The following aspects of this trial are of particular interest:

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• The mobile court at Baraka was organized by ABA/ROLI in partnership with MONUSCO and several NGOs. The trial attracted the attention of local and international media and was followed closely by the population in Eastern Congo.

• Forty-nine women testified as to the violence they had suffered on New Year’s Day. Shortly after the verdicts were announced, 86 more victims in the region came forward and indicated their intent to bring criminal charges against their rapists, notwithstanding the strong stigma

associated with crimes of sexual violence in the DRC. Although the women of South Kivu fear the soldiers – who remain in the vicinity – they have been inspired by the support of the wider community. One victim, a 36 year old named Nyota, emphasized: “This tribunal is good. It is this kind of process that will bring peace in the Congo.”43 • Notably, the military tribunal applied international law in holding nine accused accountable for “widespread and systematic” attacks against the people of Fizi. The 43 page judgment thoroughly discusses the applicability of the Rome Statute to the crimes at issue, noting that the DRC’s constitutional framework mandates that international treaty law trump domestic legislation.

In justifying its reliance on the Rome Statute, the court underscored that the statute’s definitions of crime are more exact than the relevant domestic law provisions; and that it offers more favourable protection to the rights of both the accused (there is no death penalty) and the victims.

• The court paid careful attention to procedural rules. For example, it rejected a defence

argument that the instruction, or investigation, was deficient on the ground that this claim was not raised before trial. The court observed that it would violate the principle of the independence of the prosecutor to prescribe how his office should conduct an investigation.

The judgment is notable for its thoroughness – although a couple of the court’s conclusions are questionable. First, despite the care with which the tribunal examined the issue of witness protection – and invoked Article 68 of the Rome Statute to warrant permitting witnesses to testify using pseudonyms and in closed session – the title page of the judgment actually named each one of the 55 civil parties who are identified only by number in the substance of the opinion that follows.

I also found unpersuasive the court’s decision to convict one of the accused of the crime against humanity of “engaging in other inhuman acts” and of terrorism, under a theory of joint criminal enterprise, given the court’s acknowledgement that the defendant “says he did not rape or steal and no one says he did.”44 Apparently the court believed it sufficient proof of guilt that the accused was simply present during these events “at the least as an approving onlooker.” Even should this conclusion be warranted, it was unclear why this individual, who was acquitted of rape as a crime against humanity and of forced detention as a crime against humanity, received the same 20 year sentence as Lt. Col. Kibibi, who allegedly orchestrated the rampage and was convicted on four counts of crimes against humanity and one of terrorism.

7.

Effectiveness of the Gender Justice Mobile Courts “not only is there rape, there is robbery, and extortion, and bribery and all the other ills that commonly plague war-torn societies.”

As charged by the TOR, I will now consider whether the original goals of the gender justice mobile courts project “remain relevant” today and if so, “whether there is room for improvement under the circumstances [now] existing in the country.”

In evaluating the courts’ effectiveness, I will touch first on the positive impact the project has had in the DRC and identify the particular strengths of the programme implemented by ABA/ROLI. I will then propose ways in which the mobile courts can surmount – or at least grapple with – the considerable challenges they face in what is, at heart, an ambitious effort to galvanize the Congolese State itself to take up the mission of restoring a justice system that has undeniable human and statutory resources, but for want of financial means and political will has fostered the persistent climate of impunity that is remarked upon by all who ponder the current conditions in Eastern Congo.

A. Impact of the Gender Justice Mobile Courts [Kibibi] violated the law. He failed to fulfil his military mission.

He was sent to Fizi to secure people and property. He did the opposite, and he was tried, convicted, and sentenced. As a result, many soldiers are now afraid to rape, though some of them smoke dope and forget their fear. Civilian men are even more afraid than the soldiers, now that the mobile court comes.

– ARMY CAPTAIN MATATA NSANDA, BAS-CONGO45 The impact and success of the mobile court at Baraka in February, 2011 – which convicted Lt. Col. Kibibi of crimes against humanity and sentenced him and eight other soldiers to significant prison terms – would be hard to overstate. The wide attention paid by both national and international media to the conduct and outcome of the trial capitalized on the national outcry for justice, for an end to the carte blanche soldiers had seemed to enjoy while committing crimes of unspeakable violence. Not only did the court swiftly hold to account those accused of committing mass rape and other crimes against women, but

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the greater Fizi community found redress for the entire range of criminality its members suffered at the hands of the soldiers on the night of January 1, 2011. Victims of pillaging, arbitrary detention and other indignities joined forces with sexual violence survivors to speak out against the regime of terror that for years has rendered life in the Eastern Congo hopelessly chaotic. This time – thanks to timely intervention by ABA/ROLI’s itinerant court – their cries for justice were heard.

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The Fizi trial was a game-changer of sorts, and ABA/ ROLI is justifiably proud of that mobile court’s success in trying international crimes under the glare of media attention. But my own view is that the daily work of itinerant courts that operate beneath the radar screen – such as those at Kamituga and Wulungu – are of equal, and perhaps, greater value: they offer redress for the victims of ordinary crimes of violence, of the kind that beset every community, not just in the DRC. Thus, victims who were attacked by a relative in the bedroom, or while gathering grass from a field behind the police station, now have the opportunity to insist that those to whom they look for security must answer for violations of that trust. As was repeatedly made clear during my recent visit to the DRC, it is these violent crimes – by intimates and civilians – that predominate today, as the portrait of the rapist no longer requires that he be wearing a military uniform.

In launching the mobile court project, ABA/ROLI made some critical choices that, happily, have been vindicated by the general acclaim the courts have generated:

• First, the ABA’s emphasis on positioning these gender justice courts squarely within the Congolese justice system and on fortifying Congolese judges and lawyers, who are visibly carrying out their law-enforcement responsibilities while the community looks on approvingly, is key to the programme’s acceptance and explains why it was able to get off the ground so quickly. ABA/ROLI was quite right to jettison the notion of international participants. In contrast to the mobile courts operated by ASF and earlier by REJUSCO, which rely heavily on international staff, the gender justice mobile courts are wholly local: the judges, prosecutors, police, project lawyers, etc., are all Congolese and they are fully invested in the effort to bring a semblance of governance back to the region.

• Given the wholly Congolese cast to the project, the value of the ABA mobile courts in the context of the complementarity provisions of the Rome Statute is considerable. In a country whose foundering government admittedly is “unable” and/or “unwilling” to bring the perpetrators of international crimes to justice and has had to call upon the resources of the ICC, ABA/ROLI’s commitment to building the capacityof judges, lawyers, police investigators, and court personnel so as to begin to redress decades of impunity for crimes both large and small in the DRC is commendable. The modules that have formed the basis for trainings are impressive and cover a wide

range of topics – both under international and domestic law – that add heft to the experience of legal professionals in the field, consistent with the aims of the complementarity regime.

• The commitment to gender justice is, of course, a special feature of the ABA/ROLI courts.

Apparently there was initially some resistance on the part of local civil society to the notion of focusing on gender based violence. The DRC is understandably averse to being known as the “rape capital of the world,” and local NGOs complain that the international community has been so preoccupied with the rampant sexual violence in the DRC, it has failed to acknowledge and address problems stemming from the break-down of society as a whole: not only is there rape, there is robbery, and extortion, and bribery and all the other ills that commonly plague war-torn societies. The gender justice courts – while having jurisdiction of crimes and matters other than those relating to issues of special pertinence to women – nonetheless have taken a clear stand to support women’s claims to equality and justice, and this resolve to promote women as important to the economic and social well-being of the community has had measurable benefits.

• As Madame Kabeba, a 49 year old widow and nurse in Kamituga and a mother of four daughters, explained after a session of the mobile court in April: “[B]ecause of the mobile court, women don’t have to hide themselves

away any more. They are learning to go to the hospital to be checked. They are learning to go to the police to press charges. Sensitization is continuing, on the radio, on television, in the churches, before groups of women learning about health and rights…It is important to come to watch. If such a thing were to happen in my own family, I will know what to do.”46 • Moreover, while I sympathize completely with ABA/ROLI’s effort to attract more women to the law – and the bench – it is apparent that there is a widening pool of gender-sensitive males in the legal community in the DRC, which is a significant achievement. I had interviews with judges and lawyers connected with the gender justice courts – most of them male – whose understanding of the issues and compassion for sexual violence victims was palpable. Yes, it is good for rape survivors to see women in the hospitals and on the bench because our institutions should reflect the make-up of society at large, but the mobile courts have had influence in shaping male attitudes and that is formidable. When I inquired of the victims with whom I spoke by teleconference whether they had encountered any female lawyers or judges during their interface with the mobile courts, most said no. Yet all reported that they had been treated sensitively and fairly by male police officers, lawyers and judges, who encouraged them to seek justice and listened sympathetically while they told their respective stories.

• According to Col. Freddy Mukendi, the President of the Military Court of South Kivu who delivered the judgment in the Fizi case, if that trial had been held in Bukavu, rather than in Baraka, it would not have had the same visible impact on the community. Not only did the court convict a commander and his soldiers for international crimes committed only six weeks earlier, but the fact that the court travelled to the very region where the acts took place, and that the judges and lawyers and court personnel lived under the same conditions experienced by the local residents themselves, spoke volumes about the court’s commitment to the rule of law and proved “that justice is not impossible to achieve in the DRC.”47 • Indeed, the courts have a real pedagogical impact in rural areas. Customs that were previously sanctioned by the community – like the marriage of minors and sexual relationships with girls younger than 18 – are no longer legal under the 2006 sexual violence law, and one important feature of the sensitization discussions that are prompted by mobile court sessions is to spread knowledge of the law to communities that are without access to this information. “We do sensitization about rape and the new law. We usually choose a place in town, have a pastor or a priest call people together, and use bullhorns to deliver a message. We explain the new law on rape. We explain that, once someone knows the law, he should not break it.”48

• Notwithstanding the dire state of prisons in the DRC and the fact that escapes are all too frequent – whether because bribes are paid or because security is lax – it is notable that ABA/ ROLI is keeping tabs on all of the prisoners who have been convicted and sentenced to prison by the gender justice courts, and as of my visit to Bukavu in April, all remain in prison.49 This is obviously critical to the success of the courts, and the fact that the ABA can account for the whereabouts of all those who have been sent to prison by the tribunals it supports is a sign of their effectiveness.

• Finally, and counter-intuitively given the so-called “best practices” calling for sexual violence survivors to give their testimony in a closed chamber and under an assumed name if possible, in this society where rape is believed to leave a lasting social stigma on the survivor, young women are speaking out at mobile court sessions without shame and are putting the onus for this crime on the perpetrators, where it belongs. Not only did I hear a 10 year old testify confidently before the tribunal and the assembled crowd in Kamituga, but the other victims I spoke with by teleconference likewise chose not to exercise their option to whisper about their experiences in closed court sessions. These three ladies were extraordinary: the first, a 28 year old, told me that she chose to testify in public because she wanted to teach the soldiers a lesson before the court. She lives in Kamituga,

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the rape took place there, and she was eager for everyone in the community to see the soldier convicted, because soldiers are considered to be “untouchable” in Kamituga.

The second young woman, who was 18 years old and appeared before the mobile court in Walungu in March 2011, said she testified publicly because she “had nothing to hide.”

The third young woman, age 25, testified in camera before the court in Minova, but when she appeared before the appellate court in Walungu, after her attacker was convicted in the trial court, she wanted the whole community to know what had happened to her and demanded to be heard in public. 50

Indeed, perhaps the most telling indicator of the impact of the gender justice mobile courts was simply hearing the voices of the young survivors themselves – laughing and speaking volubly and unhesitatingly about their experiences before the tribunal. When I inquired whether they believed 30 they had been accorded a measure of justice, one young woman answered: “Thanks to the mobile court at Kamituga I am beginning to believe that there is justice.”51 The ladies agreed that they were pleased with the outcome of their cases before the mobile courts; they had supposed that soldiers would get away with their crimes; and it was good that “they are now in prison because if they are released, they will come and kill us.”52

Current Challenges and Obstacles to Achieving the Project’s Aims In identifying some of the challenges that confront ABA/ROLI in the second year of the mobile courts project, I am relying in part on comments offered by judges and lawyers who know the business of the tribunal first-hand. These individuals have strong views, concerning both the imperative for the mobile courts to continue on their established trajectory, since they provide the only visible face of justice in the DRC, and the need to bolster the courts’ effectiveness in order to deliver more fully on their demonstrated promise.

Before detailing some of these difficulties, it is important to acknowledge an issue that the ABA/ ROLI staff members themselves have highlighted.

Specifically, ABA/ROLI has discovered that there is a tension between the ABA’s undertaking to facilitate the sessions of the mobile courts – by providing the financial and logistical support to transport, lodge and supplement the daily allowance of the participants – and the heightened expectations this foundational support raises in the wider community. Inevitably, perhaps, ABA/ROLI has become the focus for occasional complaints about the imperfect implementation of court procedures or the failure to guarantee execution of the courts’ judgments, and it finds itself hard-pressed to explain that it is not actually an actor within the criminal justice system, that it does not enforce the law in the DRC. Rather, it is the responsibility of the courts and lawyers and

“Thanks to the mobile court at Kamituga I am beginning to believe that there is justice.” police officers themselves to deliver satisfactory substantive results – to start court sessions on time, to silence disruptive onlookers, to deal with interpreters whose translations from Swahili to French may be imperfect, to draw up writs correctly, and to mete out sentences that are proportionate and fair.

That said, it bears repeating that the point of departure in assessing the impact of the gender justice mobile courts in South Kivu is that the Congolese State itself completely lacks the resources and the will to deliver justice. Time and time again, the judges and lawyers with whom I spoke heatedly complained about the total failure of the State to provide them with the basic tools (“les moyens”) to do their jobs properly. These tools include:

• Decent roads so that courthouses, prisons, and medical centres can be constructed in remote communities in Eastern Congo, some of which can be reached only by air. Today it is extremely difficult for victims and witnesses – who are scattered widely throughout the countryside – to gain access to lawyers and doctors, and many cases are discontinued because victims and witnesses have relocated or are otherwise unavailable to investigators.

• Computers, printers, and writing paper are necessary to enable judges and court officials to keep track of cases and produce written judgments as the law requires.

• Secure means of transport must be provided for the judges and court personnel themselves, and for the prisoners who appear before the tribunal (an attack on a military transport carrying prisoners from Uvira to Bukavu in March ended in the killing of a prisoner, a prison guard, and a civilian).

• Suitable and secure lodging is needed for the court participants when they are on circuit.

• A sufficient daily subsistence allowance is required, so that lawyers who leave their law practices for weeks at a time and donate their services to represent victims and accused before the courts will continue to be motivated to take on these assignments.

• Basic forms of written records customarily supplied by State authorities are wholly lacking – such as birth and death certificates. As a result, courts approximate age, by comparing children to each other, or, as in the Wandango case, simply avoid deciding whether or not the victim is alive or not, or how old she was when the alleged crime occurred. Further, there is a lack of forensic capability: rape kits are unknown, and investigators lack basic tools and knowhow that would expand the range of physical evidence presently produced to support charges of sexual violence.

In addition to the above grab bag of serious difficulties, there are two circumstances that present particular challenges to the gender justice mobile courts – although they are not unique to the ABA/ROLI-operated courts.

First and foremost, it is universally the case in the DRC that the penalties and reparations levied against convicted defendants – and awarded to the victims or civil parties – are never paid. There is huge frustration at the State’s complete failure to pay its share of indemnities assessed in cases where the court holds it jointly responsible for the actions of soldiers or police officers in its employ. And there is further concern that the State currently offers no assistance whatsoever in executing civil judgments.

There is no procedure for the forced seizure of goods from convicted defendants, nor do court authorities or the police evince any interest in assisting parties, who have been awarded financial recompense, to collect the payments they are owed. (A further complication is that the law prohibits forced execution of judgments against the state).

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“The local soldiers just came and killed people. They looted and they raped, and they made us suffer. We wanted the government to pay back what we have lost...”

As one victim explained to OHCHR representatives, “The judgments came out and we won the case. We had done nothing.

The local soldiers just came and killed people.

They looted and they raped, and they made us suffer. We wanted the government to pay back what we have lost...They said they would give us reparations but until today nothing

has happened. We have gone to MONUC. We have gone to the Provincial Assembly.

We have gone to the Governor, and we have gone all over the town of Mbandaka seeking interventions, so that we can be repaired.

Nothing has happened.” 53 There is, accordingly, a certain cynicism expressed by many victims who believe that – notwithstanding the fact that their attacker may be serving a prison term – they have not received their due share of justice from the court absent payment of reparations. As the recent OHCHR report on the needs of victims in the DRC emphasized, “Their concept of justice equally encompassed punishment of perpetrators and compensation for victims.” 54 The deep anger expressed by these victims explains why many women do not even bother to report the crimes from which they have suffered. “There is no point in making an accusation,” said [one woman], as nothing will come of it.” 55

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The second challenge is purely hypothetical at the moment – but lingers on the radar screen and ABA/ROLI must engage it. That is the prospect that hybrid courts – part national/ part international -- may soon be introduced in the DRC to try international crimes, dating back to 1993, which took place in the Congo or were committed by Congolese nationals.

These mixed courts are being championed by international donors and NGOS, and they

may – if ultimately established – also ride circuit like the gender justice mobile courts do now. The idea is that Congolese judges, prosecutors, and lawyers will work alongside international counterparts who have special expertise in prosecuting and adjudicating international crimes, and the judges will apply international law to decide the cases before them. These mixed courts are touted as an aspect of “complementarity – since they aim to hold accountable those whose responsibility is second only to the ring leaders whose cases are currently pending before the ICC – and it is hoped and expected that the courts will bring significant resources to bear on the huge number of crimes that have been committed during the years of armed conflict in the region.

I support the concept of hybrid courts in principle (anecdotally, it appears that the Congolese government has yet to give the green light to these courts because it does not really endorse the international admixture), and am confident that entry of another wellresourced player on the justice scene in the DRC would not render the ABA/ROLI courts irrelevant or redundant. Indeed, international expertise in mapping command structures so as to hold leaders responsible for the actions of subordinates, or in exhuming mass graves and developing sophisticated forensic proof would build on the emerging capability of Congolese investigators and prosecutors to

take on the huge tasks inherent in handling cases involving massive rape and other crimes against humanity.

Certainly the mobile courts have shown that they can be very effective in meeting the challenges of trying highly visible international crimes – particularly when they are of recent vintage as in the Fizi case. But equally important, the ABA/ROLI courts perform a singular service in addressing the changing pattern of violence against women in Congolese communities today, where increasingly civilians are committing rape in circumstances that do not implicate international law. It will be in the interest of judges and lawyers on all courts in the DRC to coordinate their respective agendas and priorities, and NGOs will be wise to synchronize training sessions, lessons learned, etc., should a system of hybrid courts ultimately be introduced in the DRC. That said, given the strong Congolese identity of the ABA/ROLI courts and the critical pedagogical role they currently play in bringing redress to women and children in South Kivu, I believe the need for the discrete, localized justice they afford is more vital than ever, and strongly endorse replication of the ABA/ROLI model on a much wider scale in the DRC. Indeed, in view of reports that the “alarming” incidence of civilian rape is no longer confined to eastern Congo, it is evident that mobile courts are needed in localities in northern and western Congo as well.

Suggestions for Ways to Improve Implementation of the Project in the Short Term Returning to my central theme – that crucial to the long-term success of the ABA/ROLI mobile courts is the quality of the trials they conduct – I offer the following suggestions for building on the successes of the project to date: • First, the judges and lawyers with whom I spoke in Bukavu and Kamituga uniformly recommended that the sessions should last longer than the current dozen or so days currently allocated for mobile court visits. ABA/ROLI staff indicated that the original proposal – that mobile courts spend approximately 30 days in a given community was deliberately scaled back in light of concerns that the tribunals might not have sufficient business to conduct during such an extensive period. It is far better, in the ABA’s view, to organize ten working day court sessions that are “effective and efficient” than to give money to people so that they “can stay for 45 days and accomplish relatively little.” 56 I respectfully suggest that there is a middle way here and that the ‘either/or’ options ABA/ROLI identifies are misleading. Indeed, most participants suggested adding days rather than weeks to

each sitting of the courts, so rather than 30 or 45 days, we are really talking about court visits of 14-16 working days or thereabouts.

• It is all well and good to aim for “efficiency” but there is a danger that the trials have become too streamlined; that the quality of the proceedings is being sacrificed on the altar of expeditiousness. Notably, the lawyers representing the accused complain that given the accelerated pace of the investigation (“vite vite instruction”), they lack sufficient time to study the dossiers so as to prepare for trial (often they are handed the file only 20 minutes before the trial begins). This lack of preparation time also affects their ability to produce witnesses themselves. As one veteran of an ABA/ROLI mobile court put it, “[T]he time is too short and the work conditions pose difficulties that result in injustice.” Indeed, lawyers for both sides cite the curtailed trial schedule as an obstacle to fully and fairly representing their clients: “We are too rushed now.” 57 • The judges are equally burdened by the cursory preparation time. Normally in a fixed

court, the judges have three months in which to adjudicate a case involving charges of sexual violence. On circuit, the court often tries a case a day and the burden to produce judgments under such constraints puts a premium on quick resolution of issues rather than on according the parties – particularly the defence – the opportunity to mount an effective case. “The time we are on the scene is very limited, fourteen days on average, we already do too much. We do not have the means to prolong our stay, it is important to complete each case, if not we would have to start all over again on a separate visit.” 58 • Particularly telling was a judge’s comment that “We are not positioned to deal well with uncertainty.” 59 As a former trial judge I know well that trials are inherently “uncertain,” there are issues with witness availability and unexpected issues surface during preparation of a case that require postponing the trial – or certain testimony – for another day. Notably, during the mobile court sessions I witnessed no defence request to produce witnesses was granted. I fully understand the challenge of avoiding unnecessary delay – and that the

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parties often seek advantage by requesting additional witnesses – but I am concerned that the current emphasis on “celerity” does affect the fair trial rights of the accused. This was particularly evident in the Wandango case – where the court simply sailed ahead on schedule and never bothered to determine whether or not the complaining witness was dead or alive. Granted that, as one observer noted, “This is not a culture of calling witnesses.”60 But the problem she characterized as providing “justice at two velocities” – referring to resentment already prevalent about the international attention to sexual violence at the expense of addressing theft, fraud and other common crimes – risks becoming “justice at three velocities” as the mobile courts process rape cases on a track that collapses the allotted procedural limits from three months to 24 hours. One judge noted that when the court is in “normal” session at Uvira or Bukavu, “we are able to obtain the witnesses we wish to hear.”61 This is emphatically not the case with the mobile courts.

• Judges and lawyers also advocated scheduling mobile court visits more regularly and more predictably. Thus lawyers complain now that

they may be contacted by the head of the South Kivu bar on a Friday and asked to go out on circuit the following Monday – which leaves them very little time to prepare their legal practice for their absence. Likewise, I suspect if court sessions were less haphazardly arranged – e.g., when a pile of dossiers accumulates – and there was a concerted attempt to regularize repeat visits of the court to a given locality, this would enhance the opportunity for the courts to “deal with uncertainty;” and the perceived burden of postponing a case would not appear so daunting.

• Study of the mix of cases adjudicated by the mobile court sessions in 2010 and 2011 raised questions in my mind as to whether ABA/ROLI’s resources are being maximized to address issues of moment to women. I fully concur that ABA/ROLI is the facilitator of court sessions and is not responsible for how a prosecutor should do his or her job, or for micro-managing the manner in which court proceedings are carried out – apart from being accountable in the final analysis for the quality of justice on offer. That said, I have concerns about the kinds of cases that are being disposed of by the military mobile

courts in particular. Specifically, it appears that the military courts handle a number of disciplinary infractions that strictly relate to military life and are not properly within the purview of the gender justice courts. Notably at Baraka in July, 2010, almost half of the cases heard by the Military Tribunal for the Garrison at Uvira involved such offenses as desertion, refusal to obey an order, waste of ammunition, loss of a gun, etc. At Kamituga in April, four of the fourteen dossiers pertained to military infractions. Although some courts do appear to be handling matters that are either of interest to women (e.g., the civilian court at Baraka in July, 2010 ordered remedial action for failure to register or replace lost birth certificates in 30 cases), or to the wider community (e.g., the civilian court at Shabunda in November heard, in addition to eighteen rape cases, nine dossiers involving charges such as assault, defamation, false sstatements in writing, failing to help a person in danger, etc.), the primary aim of military justice is to restore discipline among the ranks. This agenda – while vital to instilling discipline within the FARDC – is not directly germane to the business of the gender justice courts.

• A related issue concerns the nature of the rape cases themselves. Again, while it is clear that ABA/ROLI is not primarily responsible for determining which dossiers are actually brought before the court, arguably it has a role in specifying what the project’s over-all priorities should be, and I question whether the statutory rape cases that are increasingly turning up on the courts’ dockets represent the best use of the mobile court project’s resources. Yes, sexual relationships with persons under the age of 18 are now against the law, but query whether the courts do not better serve their educational function by spreading the word about the new law’s prohibition on consensual sex with minors than by punishing these mostly ill-informed, hapless offenders at this juncture. There were at least two such cases prosecuted at Kamituga in April. Venerated traditions and customs die hard, particularly when the population is illiterate and is ignorant of the law – and while it is up to the local authorities to set policy with respect to prosecutions, these household dramas would not appear to be a priority for a country in which there are so many other pressing justice needs.

• Finally, in an effort to augment the dockets of the gender justice courts – by including, for example, crimes involving domestic violence or civil matters relating to divorce – I recommend that ABA/ROLI work more closely with Col. Honorine Munyole, Commandant of the sexual violence police unit of South Kivu. Col. Munyole – who is something of a local legend given her pioneering efforts to pursue and prosecute sexual offenders – is underutilized by the project at present, although she did turn up to lead at least one training session. I fully understand that ABA/ROLI does not begin to put together a mobile court until the dossiers have reached the level of the local prosecutor, at which point the police role in the investigation is largely over. Still, I think better use could be made of Col. Munyole’s wide-ranging knowledge and experience when it comes to addressing issues of interest to sexual violence survivors, particularly when it comes to shaping the courts’ dockets.

“... it appears that the military courts handle a number of disciplinary infractions that strictly relate to military life and are not properly within the purview of the gender justice courts.”

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Suggestions for Ways to Improve Implementation of the Project over the Long Term The prior section proposed several concrete ways in which ABA/ROLI can fine-tune its current agenda right now to improve upon the quality of the justice delivered by the mobile courts. The suggestions that follow are more problematic; they depend upon circumstances beyond ABA/ROLI’s power to control – namely the resources and political will of the Congolese State; thus they represent more of a wish list than a practical guide for ways in which the project can develop and further expand. Nonetheless, given the vehemence with which my interlocutors reiterated their views as to the importance of these points, I encourage ABA/ROLI to join with other collaborators in the local NGO community to develop advocacy around these topics:

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• First, the importance of the compensation issue cannot be overstated. ABA/ROLI has already explicitly undertaken to assist victims in pursuing civil judgments that have been awarded to them by the mobile courts and this component of the new grant is absolutely vital to the credibility of the tribunals themselves.

(All too often the view is expressed that the ABA itself should pay reparations to victims if the Congolese State is unable to do so). While the lawyers themselves recognize the odds they face in obtaining any measure of compensation

for their clients – either from the State or from the attackers themselves – they believe that the emotional and financial toll on their clients resulting from the complete collapse of the reparations regime is significant and that this is a fight worth engaging.

• Therefore, in addition to providing legal representation to victims from the initial point of intake and continuing into the enforcement of judgment stage, ABA/ROLI must join with other national and international actors in pushing the Congolese government to set up an indemnification fund for victims; or take other credible steps to insure that the cynicism with which victims now view the criminal justice system as a whole does not undermine the mobile courts project’s on-going effort to provide a measure of redress. As previously noted, this compensation issue is not unique to the mobile courts, but it does colour the attitude of the community as a whole with respect to the value of the effort, and it threatens to obscure the real gains the courts have made in holding offenders accountable for their crimes.

• Finally, and crucially, ABA/ROLI must advance the campaign – gradually but inexorably – to shift responsibility for delivering justice onto the

Congolese State so that it will begin to supply the security and the resources that diligent and competent Congolese judges and lawyers require in order to perform their jobs. The persistent theme of the State’s complete collapse, and its shameful neglect of the duty to supply basic services, whether by fulfilling its obligation to provide legal assistance to the indigent or to maintain secure prisons where inmates are given daily meals, was sounded in unison by all of the legal professionals with whom I met.

• As one judge poignantly observed: “These mobile courts restore the authority of the State, we could do nothing without them, there is fear in the countryside but these courts offer a good example, that justice can be delivered. The State is finished in this part of the Congo, where the rule is that the strongest are in charge, the law of the jungle prevails, this is an effort to restore and rehabilitate the State. The government is talking about a Special Court that will have international participants. The government should give the means to Congolese judges, to pay us and supply us with the MEANS to do our job. We are pleased that the ABA and USAID offer support to the justice system, that these courts permit the system to function. But we want to do the job ourselves.”62

8.

conclusions “young women are speaking out at mobile court sessions without shame and are putting the onus for crimes of sexual violence on the perpetrators, where it belongs.”

Mindful of the TOR – and the questions posed about the relevance of the project goals today and whether they are being successfully implemented – my conclusions are straightforward:

• Implementation of the project – while tweaked in significant ways from the grant proposal that supported Phase 1 of the project – directly and concretely promotes the goals as currently understood and redefined.

• The gender justice mobile courts operated by ABA/ROLI have unquestionably delivered on their undertaking to bring justice to the remote reaches of the Eastern Congo.

• The mobile courts are performing at a high level to deliver impartial trials in remote communities in Eastern Congo and are ably filling the void created by the Congolese government’s abdication of its own responsibility to maintain a functioning justice system.

• The goals of the project – which were to address the huge number of gender violence cases in South Kivu and end impunity for crimes against women and children – remain relevant today.

As documented in the body of the paper, the DRC continues to register levels of rape and sexual violence that are the “highest in the world” and the Congolese State remains conspicuous by its absence from large regions of the DRC.

• The ABA’s emphasis on positioning these gender justice courts squarely within the Congolese justice system and on fortifying Congolese judges and lawyers, who are visibly carrying out their law enforcement responsibilities before local communities, is key to the programme’s effectiveness.

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• Given the wholly Congolese cast to the project, the value of the mobile courts in the context of the complementarity provisions of the Rome Statute is considerable. The training modules are impressive and cover a wide range of topics – both under international and domestic law – that add heft to the experience of legal professionals in the DRC, consistent with the aims of the complementarity regime.

• The commitment to gender justice is a special feature of the ABA/ROLI courts.

While these courts have jurisdiction of crimes and matters other than those relating to issues of special pertinence to women, they have taken a clear stand to support women’s claims to equality and justice. This resolve to promote women as important to the economic and social wellbeing of the community has had measurable effects.

• Notwithstanding social mores that stigmatize rape, young women are speaking out 38 at mobile court sessions without shame and are putting the onus for crimes of sexual violence on the perpetrators, where it belongs.

• Those who have testified before the ABA/ ROLI courts concur that they have been treated courteously by the judges and consider that they have been accorded a

measure of justice. As one young woman said: “Thanks to the mobile court at Kamituga I am beginning to believe that there is justice.”

• Given the strong Congolese identity of the ABA/ROLI courts and the critical role they currently play in bringing redress to women and children in South Kivu, the discrete, localized brand of justice they afford is more vital than ever – particularly in view of the changing profile of crimes of sexual violence in the DRC. There is accordingly ample room for the ABA-sponsored courts to continue to thrive in the event that hybrid courts should be established to try international crimes dating back to 1993.

• Finally, in view of recent reports that the “alarming” incidence of civilian rape is no longer confined to Eastern Congo but is occurring in other regions of the country, I strongly endorse widespread replication of the ABA/ROLI gender justice mobile court model. Since mobile courts are a familiar – indeed, essential – feature of the Congolese criminal justice system, and since the ABA/ROLI courts are wholly staffed by Congolese judges and lawyers, if and when the faltering State is ready to assume its fundamental responsibility to deliver justice to its people, transition to full government control should be relatively seamless.

9.

afterword

“today’s news reminds us that the goal to end the culture of impunity requires a long term commitment.”

Even as I put the finishing touches on this assessment, there are disturbing rumours of new violence in South Kivu.

Apparently the UN has received “several worrying reports about incidents of an unknown number of alleged rapes and looting” in two villages outside Fizi.63 News organizations report that renegade soldiers plundered the villages of Nakiele and Abala on June 10-12. In addition to stealing medicine and goats, motorcycles and cell phones from the villagers, rebels said to have recently deserted the FARDC reportedly raped and assaulted more than 170 women, as young as 17 and as old as 90. It is particularly disheartening that the alleged leader of the rebels is purported to be the same military commander whose troops were responsible for the mass rape in Fizi earlier this year.64 Should these reports be verified, they confirm the necessity for redoubling sustained efforts to bring

the Rule of Law to Eastern Congo. The Congolese government is said to be “actively” hunting the rebel leader and his men; 65 if and when they are apprehended and past experience is any guide, ABA/ROLI is likely to deploy an itinerant court to the scene and once again to conduct trials near Fizi that will hold those responsible for these horrific crimes accountable for their actions.

Indeed, the expectation that a court will intervene promptly is novel and is a telling measure of the ABA/ ROLI project’s successes to date. Although today’s news reminds us that the goal to end the culture of impunity requires a long term commitment and will not be achieved in a matter of weeks or months, each mobile court session represents a building block to a future where accountability will be a matter of course and where victims and accused alike will find justice.

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List of partners that Judge Mary interviewed in Bukavu and Kamituga NUM

40

NOM ET POST NOM

FONCTION

ORGANIZATION

LIEU D’ENTRETIEN

1.

Maurice Namwira

Secrétaire Exécutif

ONG <<héritiers de la justice>>

Bukavu

2.

Alfonso

Chargé de programme

ONG <<héritiers de la justice>>

Bukavu

3.

Laurent Kitungano

Coordinnateur

ONG <<Cadhom>>

Bukavu

4.

Me Jerry Ntondo

Avocat

ONG <<cadhom>>

Bukavu

5.

Delphin Subeya

Responsible d’antenne Bukavu

ONG <<arche d’alliance>>

Bukavu

6.

Ephrem Zihalirwa

Coordonnateur

ONG <<Ajiv>>

Bukavu

7.

Prosper Banyana

Secrétaire administratif

ONG <<acpd>>

Bukavu

8.

Major Joseph Bulukungu

Président Tribunal Militaire

Tribunal Militaire de garnison d’Uvira

Kamituga

9.

Major Banyongi

Auditeur Militaire

Auditorat Militaire de garnison d’ Uvira

Kamituga

10.

Me Romain Nganga

Avocat

ABA

Kamituga

11.

Me Olivier Mbasha

Avocat

ABA

Kamituga

12.

Me Claude Bagayamukwe

Batonnier

Barreau de Bukavu

Bukavu

13.

Me Therese Kulungu

Avocat

Barreau de Bukavu

Bukavu

14.

Me Mariamu Safi Régine

Avocat

Barreau de Bukavu

Bukavu

15.

Colonel

16.

Colonel Honorine

Commandant PELVS Sud

PELVS Sud Kivu

Bukavu

17.

Immaculéé Bigondo

Directrice

ONG <<Foundation

Bukavu

18.

Juge Vicky Tshibola

Juge á la Cour d’Appel

Cour d’Appel du Sud Kivu

Bukavu

1er Président

OBSERVATION

Cour Militaire Sud Kivu Honorine a été promue

Additional interviewees (not on list prepared by ABA/ROLI)

Endnotes Chapter 1 1. Baez and Stern, The Complexity of Violence in the Congo, SIDA

• Dr. Kelly Dawn Askin, Senior Legal Officer, OSJI • Germaine Balitalike, ABA/ROLI Project Director, Bukavu, April 15, 2011 • Sofia Candelais, Coordinator, UNDP Access to Justice Program in the DRC, Bukavu, • Guy Charles Makongo, ABA/ROLI Country Director, Bukavu, April 15, 2011 • Sisonke Msimang, Executive Director, OSISA, Johannesburg, April 9, 2011 • Louise Olivier, Program Director, OSISA, Johannesburg, April 9, 2011 • “BB”, “C”, and “N”, Telephone Interview, June 20, 2011

working paper, p. 38 2. Human Rights Watch, Soldiers Who Rape, Commanders Who Condone: Sexual Violence and Military Reform in the Democratic Republic of Congo, 2009, p. 11 3. Ibid. p. 36, fn. 10 4. Forces Armees de la Republique Democratique du Congo (formerly the FAC, national army of the DRC) 5. Baez and Stern, supra n.1, p. 386 Ibid. p. 39 6. Ibid. p. 39

News Articles, Press Releases • AFP: “UN says 170 may have been raped in DR Congo attacks” (June 25, 2011).

• AFP: “DR Congo says looking for colonel suspected of mass rape” (June 25, 2011) • Amnesty International “New Mass Rapes in DRC are Result of Horrific Failure of Justice” (June 23, 2011) • BBC News, “DR Congo mass rape in Fizi: 170 attacked’’ (June 24, 2011) • Katrina Bennhold, “Afghan Women Most Imperiled, report finds,” International Herald Tribune (June 15, 2011).

• Jody Clarke, “Rebels suspected of over 100 rapes and beatings in east DRC,” Irish Times (June 24, 2011) • CNN.com, “Attackers rape more than 170 women in raids on Congo villages,” June 24, 2011 • Jeffrey Gettleman, “Congo Study Sets Estimate for Rapes Much Higher,” New York Times, May, 11, 2011 • Guardian, “Congo army colonel guilty of ordering mass rape on New Year’s Day,” Feb.21, 2011 • Johnny Hogg, “About 100 women raped in Congo: MSF, radio,” Reuters (June 23, 2011).

7. Quoted in Chuck Sudetic, “The First Verdicts,” http://blog.soros. org/2011/04/congo- justice-the-first-verdicts/

Chapter 2 8. Agreement between OSISA and Judge Mary Davis, April 27, 2011, pp. 8

Chapter 4 9. Jason K. Stearns, Dancing in the Glory of Monsters (Public Affairs, 2011), p. 5 10. Ibid. p. 4; Now, the World is Without Me: An Investigation of Sexual Violence in Eastern Democratic Republic of Congo, A Report by the Harvard Humanitarian Initiative with Support from Oxfam America (2010), pp. 1, 4 11. Press release for Lisa Jackson’s film “The Greatest Silence” quoted in Baez and Stern, supra n. 1, p. 7, fn. 1 12. Ibid. p. 7, fn. 2 quoting Eve Ensler 13. Stearns, supra n. 9, p. 5 14. OHCHR, Report of the Mapping Exercise documenting the most serious violations of human rights and international humanitarian law committed within the territory of the Democratic Republic of the

41

Congo between March 1993 and June 2003 (Unofficial translation

36. Quoted in Chuck Sudetic, “Congo Justice: The First Verdicts,”

49. ABA/ROLI document, Statistiques des Condamnes en Detention

from the French original), August 2010, p. 309

http://blog.soros.org/2011/04/congo-justice-the-first-verdicts/

aux Prisons Centrales de Bukavu et d’Uvira

15. HRW, Soldiers Who Rape, supra n. 2, p. 13

37. European Union Programme for the Restoration of Justice in

50. Telephone interview with “BB,” “C”, and “N”, June 20, 2011

16. Baez and Stern, supra n. 1, p. 12

Eastern Congo

51. Ibid, “BB”

17. OHCHR, Mapping Report, supra n. 14, p. 318

38. Project Proposal, Gender Justice in the Democratic Republic of

52. Ibid. All three interviewees are in agreement with this

18. Katrin Bennhold, “Afghan Women Most Imperiled, report finds,”

Congo Pilot Project for a Mobile Gender Justice Court, OSJI (2008)

sentiment

International Herald Tribune, June 15, 2011, http://www.nytimes.

39. Terms of Grant from OSISA to ABA/ROLI, p. 1 (Sept. 2009)

53. OHCHR, Report of the Panel on Remedies and Reparations for

com/2011/06/15/world/europe/15iht- women15.html?src=rechp

40. ABA/ROLI Gender Justice in the Democratic Republic of Congo,

Victims of Sexual Violence in the Democratic Republic of the Congo

19. Jeffrey Gettleman, “Congo Study Sets Estimate for Rapes

Pilot Project for a Mobile Gender Justice Court, Phase 2 (submitted

to the High Commissioner for Human Rights (March 2011), p. 31

Much Higher,” NY Times, May 11, 2011, http://www.nytimes.

Sept. 20, 2010)

54. Ibid. p. 31 55. Ibid. p. 32

com/2011/05/12/world/africa/12cong.html 20. Ibid

Chapter 6

56. Interview with Guy Charles Makongo, ABA/ROLI Country

21. HHI, Now, the World is Without Me, supra n. 10, pp. 2, 33

41. E-mail from Guy Charles Makongo to Dr Kelly Askin, Jan. 29,

Director, Bukavu, April 15, 2011

22. Ibid. p. 56

2011, describing organization of the mobile courts

57. Interview with Me Therese Kulumgu, Lawyer at the Court of

23. Ibid. p. 55

42. For a vivid account of the mobile court sessions in Kamituga in

Appeal, Bukavu, April 15, 2011

24. Jeffrey Gettleman, NY Times, supra n. 19

April, 2011 see Chuck Sudetic’s blog series, “Justice in the Congo,”

58. Interview with Col. Freddy Mukendi, President, Cour Militaire,

25. As quoted in Tim Butcher, Blood River (Grove Press 2000), p. 237

http://blog.soros.org/series/Congo+Justice The detailed accounts

South Kivu, Bukavu, April 15, 2011

26. Leandro Despouy, Special Rapporteur for the Independence of

of the Paluku and Wandango trials are based on my own notes

59. Ibid

judges and lawyers, as quoted in OHCHR, Mapping Report, supra

43. As quoted in Louise Olivier, “Fizi Diary,” http://blog.soros.

60. Interview with Sofia Candelais, Coordinator, UNDP Access to

n. 14, p. 412

org/2011/04/fizi-diary- justice-comes-to-the-rape-capital-of-the-

Justice Programme in the DRC, Bukavu, April 14, 2011

27. Ibid. p. 413

world/

61. Interview with Maj. Joseph Bulukungu, President of the Military

28. Ibid. p. 419

44. Jugement, Justice Militaire, Cour Militaire du Sud-Kivu, Bukavu:

Tribunal Garrison of Uvira, Kamituga, April 13, 2011

29. Ibid. pp. 390-1

RP 043 Lt. Col

62. Interview with Judge Vicky Tshibola Kabala, Conseiller a la Cour

30. HRW, Soldiers Who Rape, supra n. 2, p. 15

Kibibi Mutare Daniel, et al (Feb. 21, 2011), pp. 19, 22

d’Appel, Bukavu, April 15, 2011

32. OHCHR, Mapping Report, supra n. 14, pp. 433-4

Chapter 7

Chapter 9

33. HRW, Soldiers Who Rape, supra n. 2, p. 26; OHCHR, Mapping

45. As quoted in Chuck Sudetic, “Congo Justice: The Fizi Trial,”

63. Martin Nesirky, a spokesman for UN Secretary General Ban

Report, supra n. 14, pp. 412-3, 442

supra n. 43

Ki-Moon, “Attackers rape more than 170 women in raids on Congo

46. As quoted in Chuck Sudetic, “Congo Justice: The First Verdicts,”

villages,” CNN.com (June 24, 2011)

http://blog.soros.org/2011/04/congo-justice-the-first-verdicts/

64. Ibid

34. AfriMAP and OSISA, The Democratic Republic of Congo:

47. Interview with Col. Mukendi, Bukavu, April 14, 2011

65. “DR Congo says looking for colonel suspected of mass rape,”

Military Justice and Human Rights – An urgent need to complete

48. Claudine Tabena-Isima Mikongo, APIDE, Mwenga, as quoted

AFP (June 25, 2011)

reforms (2010), pp. 51-2

in Chuck Sudetic: “Congo Justice: Sick in their Hearts,” http://blog.

35. As quoted in HRW, Soldiers Who Rape, supra n. 2, p. 33

soros.org/2011/04/congo-justice-sick- in-their-hearts/

31. Ibid. p. 15

42

Chapter 5

References

‘Common Position’ on the Establishment of a Specialised Mixed

Other

Court for the Prosecution of Serious International Crimes in the • UN Reports

Democratic Republic of Congo” http://www.hrw/org/node,98066

• ABA/ROLI reports and data documenting mobile court deploy-

• OHCHR , Report of the Panel on Remedies and Reparations for

• Michael Kavanagh, “100 Raped or Beaten in Eastern Congo At-

ments, training, sensitivity sessions, and summarizing activities for

Victims of Sexual Violence in the democratic Republic of the Congo

tacks Over Two Days, MSSSSF says,” Bloomberg (June 23, 2011)

2009, Jan-June, 2010, and Jan-Mar. 2011.

to the High Commissioner for Human Rights, March, 2011 • OHCHR, Report of the Mapping Exercise documenting the most

Books and Magazine Articles

serious violations of human rights and international humanitarian

• ABA/ROLI Gender Justice in the Democratic Republic of Congo, Pilot Project for a Mobile Gender Justice Court, Phase 2 9submitted September 20, 2010)

law committed within the territory of the Democratic Republic of

• Butcher, Tim, Blood River (Grove Press 2008)

• Judgment, Tribunal Militaire de Garnison d’Uvira: RP 165, Paluku

the Congo between March 1993 and June 2003 (Unofficial trans-

• Hochschild, Adam, “Blood and Treasure: Why One of the Richest

Justin (April 16, 2011)

lation from the French original, August, 2010

Countries is also one of its Poorest,” Mother Jones, March-April, 2010

• Judgment, Tribunal Militaire de Garnison d’Uvira: RP 168, Wan-

• “Gender Justice in the Democratic Republic of Congo, Pilot

• Hochschild, Adam, “The Trial of Thomas Lubanga,” The Atlantic,

dangu Kabuku Musema Pascal (April 16, 2011)

Project for a Mobile Gender Justice Court,” OSJI, 2008

Dec. 2009

• Judgment, Justice Militaire, Cour Militaire du Sud-Kvu, Bukavu: RP

• Kelly, Jocelyn, Rape in War: Motives of Militia in DRC, United

• Hochschild, Adam, “Rape of the Congo,” NY Review of Books,

043 Lt. Col.Kibibi Mutare Daniel, et al. (Feb, 21, 2011)

Institute of Peace (June, 2010)

Aug.13, 2009

• Project Proposal, Gender Justice in the Democratic Republic of

• Kippenberg, Juliane, Protecting Child victims in Sexual Violence

• Stearns, Jason K., Dancing in the Glory of Monsters: The Collapse

Congo Pilot Project for a Mobile Gender Justice Court, OSJI (2008)

Trials in the Democratic Republic of Congo: Suggestions for the

of the Congo and the Great War of Africa (Public Affairs, 2011)

• Terms of Grant from OSISA to ABA/ROLI (Aug., Sept, 2009)

Way Forward, Human Rights Watch (2009)

• “War’s Overlooked Victims”, The Economist, Jan.18, 2011

• Terms of Reference, Agreement between OSISA and Judge Mary

• Making Kampala Count: Advancing the Global Fight Against Im-

• Wrong, Michela, In the Footsteps of Mr. Kurtz-Living on the Brink

Davis, April 27, 2011

punity at the ICC Review Conference, Human Rights Watch (2010)

of Disaster (Fourth Estate 2000)

• Now, the World is Without Me: An Investigation of Sexual Violence in Eastern democratic Republic of Congo, A Report by

Blogs

the Harvard Humanitarian Initiative with Support from Oxfam America (April 2010)

• Askin, Dr. Kelly Dawn, “Fizi Diary” (entire series) http://blog.

• Putting Complementarity into Practice: Domestic Justice for

soros.org/2011/fizi-diary

International Crimes in DRC, Uganda and Kenya, OSISA, OSJI, and

• Askin, Dr. Kelly Dawn, “Justice from the Ground Up”

OSIEC (Open Society Foundations 2011)

• http://blog.soros.org/2011/04/justice-from-the-ground-up/

• Soldiers who Rape, Commanders Who Condone: Sexual Violence

Olivier, Louise, “Fizi Diary” http://www.blog.soros.org/2011,02/

and Military Reform in the Democratic Republic of Congo, Human

fizi-diary-justice-comes-to-the-rape-capital-of-the-world/

Rights Watch (2009)

Sudetic, Chuck, “Congo Justice” (entire series)

• The Democratic Republic of Congo: Military Justice and Human

http://blog.soros.org/series/Congo-Justice

Rights-An urgent need to complete reforms, AfriMAP and the Open Society Initiative for Southern Africa (2009, 2010) • Human Rights Watch, “Strengthen Plan for War Crimes Trials,

43

Notes

AUTHOR OF THE ASSESSMENT Judge Mary McGowan Davis was an acting Justice of the Supreme Court of New York and Assistant US Attorney for the Eastern District of New York.

She is a member of the managerial board of the International Association of Women Judges and active with several organisations focusing on human rights and traditional justice.

The Open Society Initiative for Southern Africa (OSISA) is a growing African institution committed to deepening democracy, protecting human rights and enhancing good governance in southern Africa. OSISAâ&#x20AC;&#x2122;s vision is to promote and sustain the ideals, values, institutions and practice of open society, with the aim of establishing a vibrant southern African society, in which in which people, free from material and other deprivation, understand their rights and responsibilities and participate democratically in all spheres of life. www.osisa.org

Helping to combat impunity for sexual crimes in DRC: An evaluation of the mobile gender justice courts

The American Bar Association/Rule of Law Initiative (ABA/ROLI) is currently co-ordinating the operation of gender justice mobile courts in South Kivu Province in the Democratic Republic of Congo (DRC). The project represents an innovative and targeted approach to the “immediate problem” of impunity for crimes of sexual violence that is all too prevalent in South Kivu. The mobile courts – which operate within the structure of the DRC’s justice system – travel to remote areas of South Kivu and afford victims of gender based violence and other crimes a forum in which to hold their assailants – both military and civilian – accountable for abuses that have reportedly made eastern Congo ‘the worst place in the world’ to be a woman or a child.

Judge Mary McGowan Davis was invited by the Open Society Initiative for Southern Africa (OSISA) – which funds the ABA/ROLI mobile court initiative in South Kivu – to conduct an assessment of the effectiveness of the mobile court project and to prepare a report addressing the performance of the mobile courts themselves.

Specifically, Judge Davis was charged with evaluating whether implementation of the project is actually helping to tackle head-on the pervasive impunity for crimes of

violence against women and children in South Kivu and to punish those found responsible.

After an exhaustive desk review, numerous interviews and a visit to Congo to see a mobile court in action, Judge Davis concludes that, despite the many challenges and frustrations that inevitably attend a project of this magnitude, the gender justice mobile courts have unquestionably delivered on their undertaking to bring justice to remote reaches of eastern Congo. Their work is notable for concrete, tangible results that demonstrate to the host communities that actions have consequences and that crime will be punished. Judge Davis highlights a few areas of concern as well as providing some recommendations to improve the performance of the mobile courts. But overall, Judge Davis finds that the ABA/ROLI-supported gender justice mobile courts have significantly transformed the prevailing discourse.

And while, the goal of ending the culture of impunity in eastern Congo requires a long term commitment and will not be achieved in a matter of months, each mobile court session represents a building block to a future where accountability will be a matter of course and where victims and accused alike will find justice.