49th Session of the Human Rights Council
28 February - 1st April 2022
ITEM 10 – Interactive Dialogue with the Deputy High Commissioner and International Experts on Human Rights in the Democratic Republic of Congo
29th of March 2022
By Patricia Jjuuko/GICJ
Executive Summary
During the 50th meeting of the 49th Session of the Human Rights Council held on the 29th of March, the Deputy High Commissioner for human rights, Ms Nada Al-Nashif provided an oral update on the human rights situation in the Democratic Republic of the Congo. She noted that the human rights situation had not improved significantly since the last update provided before the Council, as the country continued to be compounded by increased and persistent attacks by armed groups against civilians, notably in the eastern provinces. Ms Al-Nashif urged the authorities to take strong measures to stop this spiral of violence, uphold the rule of law and ensure that the perpetrators of serious violations of human rights and international humanitarian law were held to account. On a positive note, she welcomed the suppression of the Military Operational Court and efforts to support military justice.
The Minister of Human Rights of the Democratic Republic of the Congo, Mr Albert Fabrice Puela, in his statement, affirmed the government's commitment to the implementation of transitional justice in the Democratic Republic of the Congo and the creation of a national reparation fund for victims of serious crimes. Mr Barce Ndiaye, a member of the Team of International Experts spoke to the need for truth. He stated that without truth, rumours would lead to revenge-based violence which are difficult to combat. He called for a road map to be drawn up that is consistent and coherent and allows for wide scale national and international aid. Mr Dominique Kambala, the Director General of the Congolese Society also presented a report in which he noted that the DRC was concerned over how to manage the heavy burden of the past, marked by serious atrocities, which had been reported on by the Expert Team. Given this painful legacy, the government had opted for a transitional justice process, with national consultations, which were a decisive step in implementing political will.
In the ensuing interactive dialogue, the speakers acknowledged the marginal decline in violations of human rights however, they were deeply concerned with the alarming human rights situation including sexual and gender-based violence and executions in certain provinces. Despite the efforts deployed by the Democratic Republic of the Congo, including the transitional justice process, progress in executing the Peace, Truth and Justice Project was affected by the situation in the provinces central to the armed conflict. The speakers urged the government to increase efforts to improve the human rights situation, and to implement a clear, time-limited exit strategy from the state of siege, improve coordination with partners to protect civilians, and commit to protecting political space while building institutional support and accountability for human rights.
Background
The United Nations Human Rights Council established a team of international experts on the situation in Kasai through resolution 35/33 adopted without a vote on 23rd June 2017. The resolution tasks the team of international experts to collect and preserve information, to determine the facts and circumstances, in accordance with international standards and practice, concerning alleged human rights violations and abuses, and violations of international humanitarian law in the Kasai regions since 2016. The conclusions of this investigation are shared with the judicial authorities of the Democratic Republic of the Congo (DRC) to establish the truth and to ensure that the perpetrators of deplorable crimes are all held accountable. The Human Rights Council also requested the UN High Commissioner for Human Rights to present a comprehensive report with the team’s findings during interactive dialogues on DRC.
The Human Rights Council in its resolution 48/20 extended the mandate of the team of international experts to cover the entire national territory of the Democratic Republic of the Congo, beyond the Kasai region of the country, while maintaining the previous mandate established by resolution 38/20. The mandate set out to: monitor, evaluate, provide support and report on the implementation by the Democratic Republic of the Congo of the recommendations made by the previous teams of international experts in its report in particular with regard to the fight against impunity, the measures to promote reconciliation, and to make recommendations in this regard as appropriate. Through its October 2021 decision, the Council also requested the High Commissioner to present it with an oral update on the human rights situation in the Democratic Republic of the Congo, in the framework of an enhanced interactive dialogue at its 49th session in February/March 2022.
The High Commissioner’s Oral Update
In her opening statement, Ms Al-Nashif noted that the human rights situation in the Democratic Republic of the Congo had not improved significantly since the last update before the Council. She reported that there continues to be persistent attacks by armed groups against civilians, notably in the eastern provinces. In 2021, the United Nations Joint Human Rights Office (UNJHRO) documented nearly 7,000 cases of human rights violations and abuses throughout the country. Despite the overall decrease of nearly 12% from the previous year, abuses committed by the Allied Democratic Forces (ADF) fighters have increased. Their attacks on civilians intensified in North Kivu and Ituri, despite the state of siege in place since May 2021. Ms Al-Nashif remarked that in addition, there was a significant increase in attacks on civilians by the Nyatura armed group and various Maï-Maï groups in North Kivu, Tanganyika, Maniema, and South Kivu provinces. She was particularly concerned by the shrinking humanitarian space throughout conflict-affected provinces. This is reflected in their records which show that in 2021, the Office of the Human Rights Council documented at least 292 incidents of violence against humanitarian actors, with seven killed, 29 injured and 25 abducted for ransom.
The Deputy High Commissioner welcomed the suppression of the Military Operational Court and efforts to support military justice in the treatment of additional cases assigned to judges and invited the authorities to ensure that the derogations imposed under the state of siege comply with the spirit of article 4 of the International Covenant on Civil and Political Rights, considering the Human Rights Committee’s General Comment No. 29. She further acknowledged the efforts made by the authorities of the DRC since October 2021, in the fight against impunity for human rights violations. At least 57 members of the Armed Forces of the DRC and the Congolese National Police, as well as at least 83 members of the armed groups, had been convicted of human rights and/or international humanitarian law violations which are developments towards sustained peace and security. Ms Al- Nashif encouraged the government to ensure that all perpetrators of serious violations are held accountable, regardless of their rank or affiliation.
In her report, the Deputy High Commissioner also pointed out the verdict rendered on 29 January 2022 by the Military Court of Ex-Kasai Occidental, resulting in the conviction of more than 50 persons including a senior army officer, in relation to the killings of Ms Zaida Catalán and Mr Michael Sharp, former members of the United Nations Group of Experts on the DRC. Ms Al-Nashif encouraged the authorities to continue their investigations to ensure that all those involved in the murder of the two experts and individuals accompanying them are held to account. Lastly,, she welcomed the significant progress made in managing the crisis in the Kasai region, including the establishment of a provincial Truth, Justice, and Reconciliation Commission. However Ms Al-Nashif emphasised that the prioritisation of serious cases by the military justice system with the support of international partners, including the UNJHRO remains key. She noted with concern the slow pace of criminal prosecutions; nearly six years after the outbreak of the crisis to date, only a few major judicial cases had passed the preliminary investigation stage. Ms Al-Nashif hoped that with the continued support of her office and partners to judicial authorities, progress will be made towards the realisation of the right to justice of victims. The Deputy High Commissioner expressed her sincere appreciation to the authorities for their openness and excellent cooperation with her office and with the international experts. She noted that their political vision in favour of a transformative effort for justice is welcome as is their commitment to local, national, and regional ownership of this important endeavour and encouraged all member states to extend their full support to the important work of the team of experts.
In her concluding remarks, the Deputy High Commissioner pointed out that as the Congolese people headed towards elections in 2023, she called on the government to take all measures to ensure that the process is non-violent, transparent, inclusive, and credible. She expressed her appreciation that the Sakata draft law against tribalism, racism and xenophobia had been enlisted for discussion at the National Assembly and committed her support to continue to implement its technical cooperation activities, including training, capacity building and support of legal reforms.
Statement by Minister of Human Rights of the Democratic Republic of the Congo
Mr Albert Fabrice Puela underscored some of the changes that the Democratic Republic of the Congo had been through, including the renewal and extension of the mandate of the Team of International Experts on the situation in Kasai to the whole of the Congolese territory. He also stated the draft law on "trafficking in persons, amending and supplementing the decree of 30 January 1940 on the Congolese Penal Code on the prevention and repression of trafficking in persons" was scheduled for debate during the current March session. The Minister explained that this law would enable the Democratic Republic of the Congo to move up to the first third of the American State Department's ranking on "trafficking in persons".
He further noted that the adopted law on the protection and promotion of the rights of people living with disabilities was a good example of good practice. To address the problem of consolidating state authority by improving the human rights situation in the Democratic Republic of the Congo and optimising the allocation of resources in this sector, it was deemed necessary to provide the Ministry of Human Rights with a strategic development framework, known as the "Human Rights Sector Strategy", which was a first in the history of the Democratic Republic of the Congo. The implementation of this document, through its operational action plan, would allow for a harmonious development of the sector by bringing together the progress and reforms made within the Ministry and the development of the country at all levels.
The Minister concluded his statement and reaffirmed the Government’s commitment to the implementation of transitional justice in the Democratic Republic of the Congo and the creation of a national reparation fund for victims of serious crimes. He stated that the aim of transitional justice was to promote the dynamics of reform and reconciliation in societies emerging from armed conflict or from a period marked by large-scale crimes. Transitional justice should also contribute to the prevention of new conflicts, the consolidation of democracy and the re-establishment of the rule of law, all on a new consensual basis. Transitional justice was therefore essential to break the vicious circle of violence that had persisted in the Democratic Republic of Congo for many years. The Minister reiterated that the government of the Democratic Republic of the Congo remained committed to a process aimed at making the promotion and protection of human rights a catalyst for its action.
Statement by Team of International Experts
Mr Bacre Ndiaye in his statement said that this was the team’s first report since the mandate was extended to the whole of the country. In line with the mandate, he and Ms Keta-Bocoum had worked to help the Government implement their plan for transitional justice, worked to combat impunity, and visited the country to learn how to implement transitional justice. Mr Ndiaye emphasised the need for truth and stated that without this, rumours, and instigation to revenge-based violence were hard to combat. The expert further emphasised that there was a need for mutual tolerance, which could only exist in legal and judicial spheres. For efforts to be sustainable, they must be based on development projects that brought people together. Capacity building to combat corruption was a key element in ensuring policies that would bring about the progressive disengagement of the United Nations mission.
Mr Ndiaye emphasised the need for capacity building for administrators, judges and police officers to be deployed to all different communities to settle their differences peacefully. The inclusion in the delegation of the young student from the Twa community was appreciated, as this was a community that faced many problems with regards to the rule of law. The expert went on to state that there should be a road map that was consistent and coherent and allowed for national and international support on a massive scale. He acknowledged that in the judicial sector, there had been efforts made to recruit 2,000 judges, including for military justice, and efforts had been made to give the civilian justice sector a positive role in the country. Many voices had been raised to call for mixed jurisdictions and courts with the increased intervention of the International Criminal Court, but there was a need for sustainable efforts.
Director General of the Congolese Society for the Rule of Law
Mr Dominique Kambala noted that the situation in the Democratic Republic of the Congo was marked by persistent insecurity, particularly in the eastern part of the country, despite the launch of military operations. The civilian population continued to be exposed to deadly acts of violence, perpetrated by armed groups and their accomplices. The government has also failed to keep its promise to abolisharbitrary detentions, torture and beatings as such practices continue. Mr Kambala stated that it was hoped that civilian justice, which had been seriously tested, would be functional. He went on to note that the human rights situation was marked by the violation of constitutional and legal guarantees on the deprivation of liberty of citizens.
Mr Kambala stated that Democratic Republic of the Congo was concerned about how to manage the heavy burden of the past, marked by serious atrocities, which had been reported on by the Team of International Experts. With this painful legacy, the government had opted for transitional justice, with national consultations, which were a decisive step in implementing political will. These consultations, he said, must be held in a reasonable timeframe to alleviate the suffering of the victims, and a harmonious formulation must be found to express local experience. Mr Kambala reiterated that impunity continued to be triumphant, symbolising the oblivion of the rule of law and he encouraged the government to urge the international community to establish an international tribunal or establish special courts within the Congolese judicial system. The population lacked confidence in the judicial system, for a range of reasons, including the lack of judges, resources, guarantee of independence and immunity. This demonstrated the lack of capacity and lack of capital will to curb grave crimes committed in the Democratic Republic of the Congo. He emphasised that there should be an acceleration of the process of capacity building for the judicial system, which should be provided with resources to bolster its independence, effectiveness, and efficiency throughout the whole chain of justice.
Interventions of Interested Delegations
Following the presentations of the main speakers are the interventions of interested delegations, several countries welcomed the progress made and acknowledged the invaluable work of the commission but expressed concern about the human rights and humanitarian situation in South Sudan.
The delegate for the European Union, Ms Marleen Steenbrugghe welcomed the slight decline in violations in 2021. Nevertheless, she expressed her deep concern about the human rights situation which is marked by armed conflicts, sexual, gender-based violence and executions especially in the provinces of Manyama, Ituri, Tanganyika and Kivu. further acknowledged that the condemnation and conviction of hundreds of soldiers, policemen and armed groups is a strong signal that impunity no longer reigns supreme in the DRC. The representative acknowledged the verdict has handed down in the case of the 2017 Kasai murders of UN experts and their entourage, as positive and stated that it is vital that the investigation concerning other people involved continues to discover more about the truth and to ensure justice is done. Ms Steenbrugghe concluded by encouraging the Congolese authorities to cooperate fully with the UN mechanism.
The Delegate of Sweden, Ms Anna Jardfelt on behalf of the Nordic and Baltic States expressed her concern over attacks on civilians in camps in Eastern Congo and humanitarian actors, making their work even more difficult. She called the Council to address the matter urgently.The delegate concluded by asking the Deputy High Commissioner, what consequences have been observed in the state of siege and of the joint operations between Uganda and the Democratic Republic Congo on the civilian population?
The African group was represented by the Ambassador of Côte d'Ivoire, Mr Kouadio Adjoumani who welcomed the official launching of national consultations on transitional justice in Kalemie, Matadi and Goma. He stated that this demonstrates the effectiveness of the implementation of transitional justice in the DRC. The Ambassador welcomed the adoption by the Council Ministers of the bill for trafficking of persons which is currently under review in Parliament. Mr Adjoumani encouraged the government of the DRC to implement the recommendations formulated by the team of international experts into the situation in Kasai, and the positions of the treaty bodies and of the African Commission on Human Rights to ensure the protection of citizens.
The Delegate of Egypt, Ms Lydia Aly highlighted that Egypt valued the actions deployed by the government of the DRC to realise stability in the country, preserve human rights and protect civilians. The delegate further noted that they commend the continued participation of the DRC with all international human rights mechanisms towards realising stability. She encouraged the government to continue its efforts to provide support, protection and humanitarian aid to its civilians whilst developing mechanisms to address the obstacles imposed by armed groups in Kasai. Ms Aly stressed that the international community and regional partners must stand in solidarity with the DRC and provide security to IDPs in line with its priorities to realise an environment that is suitable for stability and security and take the necessary action of construction of infrastructure.
The Delegate from France, Mr Iyad Jaber also spoke on the importance of protecting civilians. The delegate highlighted that Ituri, North and South Kivu were particularly affected as seen in the attack carried out by the Allied Democratic Forces on the 25th of December 2021 on the town of Beni. These conflicts, he noted, exacerbated the already worrying humanitarian crisis where 27 million persons require humanitarian aid and where more than 5 million people are displaced in the country. concluded his statement by encouraging the country to protect civilians in armed conflict and support the activities of MONUSCO.
The Delegate of China, Mr Zhao Zhang expressed his desire for the relevant parties to continue to work together to promote national peace, stability and development and handle disputes with dialogue and consultation. He affirmed that China has always actively supported the country’s economic development to improve people's livelihood and has subsequently sent peacekeeping troops to participate in the UN peacekeeping operations. He further stated that China supports the efforts of the government of the DRC to promote and protect human rights and called on the international community to fully respect the sovereignty, independence and territorial integrity of the country. Mr Zhang called on the HRC to respect the will of the government and provide constructive technical assistance to the country to better promote and protect human rights. The delegate concluded his statement by affirming China’s commitment to continue to work with the international community for long term peace and stability and sustainable development.
Non-governmental organisations and civil society groups welcomed the work of the commission and the international team of experts but reiterated their concern about the reports on human rights violations and the humanitarian situation in the DRC, particularly the attacks on civilians and human rights defenders. They called on all perpetrators to be brought to account and for programs like the Disarmament, Demobilisation and Reintegration programs to be strengthened to support their aim to bring peace and stability. One of the NGOs presented a question regarding the possibility of other alternatives besides warfare on solving the issues in Eastern Congo. They stated that a purely military solution to insecurity in the DRC is not viable, a given MONUSCO’s plan to shift its focus towards the Eastern Provinces. The NGO requested to know what more could be done in addition to this top-down approach to engage more in sustainable peace initiatives in the Eastern Provinces affected by the persistent insecurity and intercommunal violence.
Concluding Remarks
Deputy High Commissioner
In her concluding remarks, Ms Al-Nashif reiterated that insecurity had increased all over the Democratic Republic of the Congo and emphasised the need to prioritise social life. The Deputy High Commissioner stated that peace and security depended on economic development and poverty needed to be addressed in relation to land and natural resources. Issues of past grievances also needed to be addressed. She affirmed that this would provide for a most sustainable road to ensure peace. She further emphasised that one short term measure to be encouraged was for the government to strengthen security around the camps. Dialogue must be promoted, as well as a bigger presence of the state and the implementation of the disarmament, demobilisation, and reintegration programmes. The resurgence of threats and harassment of civil society activists and journalists was worrying on the eve of the upcoming election. Ms Al-Nashif expressed that the efforts of the government to limit hate speech needed to be recognised. She concluded her final remarks by stating that the launching of the national consultation by the President was encouraging and that the disarmament, demobilisation and reintegration programmes were yet to be operational, but she commended the approach that was individual-centred.
Member of the Team of International Experts
Mr Bacre Ndiaye in his concluding remarks stated that discrimination in the east of the country, based on ancestral prejudices, needed to be addressed in a multifaceted and concerted way. The expert went on to confirm that there were studies on how to better understand the mechanisms underlying this form of discrimination. Mr Ndiaye further stated that it was necessary to combine punitive justice and traditional justice as well as a mix of modern and traditional methods. He called for greater investment to ensure that transitional justice was supported at an institutional level because where the state was not present, groups tended to enter into conflict and there was no neutral mediator anymore.
Ms Keta Boucoum, also a member of the team of International Experts, spoke on the need for human rights to be part of the strategy, and the strategy should follow a road map as well as have support at the national and international levels. She concluded by stating that very soon after the commissions were launched, progress would be seen in implementing transitional justice.
Director General of the Congolese Society for the Rule of Law
Mr Dominique Kambala recommended that a coherent road map be drawn up. He reiterated the need for resources without which this would not work. He went to state that the process of tackling impunity should not focus solely on small crimes. High-ranking officials were involved in Kasai, thus the process should also include high-ranking officials. Mr Kambala reiterated that justice should not be only brought to the poor, it was necessary at all levels.
Minister of Human Rights of the Democratic Republic of the Congo
Albert Fabrice Puela said that the Democratic Republic of the Congo was emerging from a very difficult time, but he reassured the Council that the will of the government to improve the situation was very firm. Human rights violations that were reported highlighted systematic and regular violations. He called on the Council to condemn the attacks by M23 as well as the neighbouring State which supported these attacks as this was not in the spirit of the Addis Ababa agreement. He pointed out that the mechanism for the prevention on torture was created in the Democratic Republic of the Congo and that the government was currently considering how to make it more effective in line with international standards. The government was also working in cooperation with human rights mechanisms, with the treaty bodies. The government would present its initial report to the Committee on the Rights of Persons with Disabilities soon.
Concerning the death penalty moratorium, the Minister of Human Rights stated that a bill had been put before Parliament and he hoped it would be considered during its March session. On the topic of transitional justice, he stated that there had been positive measures taken to try and counter the sluggishness of military justice and limit the number of abuses against civilians. On the recruitment of children , the Minister stated that the Democratic Republic of the Congo required the help of the international community. He further stated that establishments for these children existed, but they were in a dire state and the country needed support to ensure that there was a proper health care system in place in prisons. Mr Puela concluded by stating that the Transitional Justice process also required support to ensure that its implementation was effective and stated that the government was determined to do more to prosecute criminals.
Position of Geneva International Centre for Justice
We commend the government of the Democratic Republic of Congo on the efforts made in the fight against impunity. The recent convictions of persons in relation to the killings of Ms Zaida Catalán and Mr Michael Sharp is seen as a sign of progress in securing justice and eradicating impunity. We encourage the government to continue to use the systems put in place to prosecute suspected human rights violators and implement protective mechanisms to prevent any threats and intimidation aimed at the judiciary.
We are also deeply concerned with the number of dissidents who have returned to armed groups as the authorities failed to process them through an effective Disarmament, Demobilisation, and Reintegration program. We call on the government of the DRC to ensure that this program is strengthened to avoid the failures of past similar programs and make certain that peace and security are established in the region.
We further encourage the government to work closely with the United Nations Organisation Stabilisation Mission in the Democratic Republic of the Congo who are ready to provide technical and logistical support to accelerate the disarmament, demobilisation, and reintegration processes.
Deputy High Commissioner, Impunity, Team of International Experts, International Humanitarian Law, Democratic Republic of Congo, Justice, UN, Human Rights Council, 49th Session, Geneva4Justice, GICJ, Geneva International Centre For Justice
