[4] Report ICHRDD And ASADHO: Executive Summary

Subject:

report ICHRDD and ASADHO: executive summary

Sat, 27 Jun 1998 18:47:52 +0200

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TABLE OF CONTENTS AND EXECUTIVE SUMMARY
OF THE REPORT PREPARED BY
THE INTERNATIONAL CENTRE FOR HUMAN RIGHTS AND
DEMOCRATIC DEVELOPMENT (ICHRDD)
(Montreal, Canada)
AND
L'ASSOCIATION AFRICAINE POUR LA DEFENSE DES DROITS DE L'HOMME EN REPUBLIQUE DEMOCRATIQUE DU CONGO (ASADHO)
(Kinshasa)

JUNE 1998

---------------------------------------------------------------------------- TABLE OF CONTENTS

Executive summary
 

Introduction

• Goals
• Objectives
• Methodology
• Inventory of Types of Crimes Perpetrate
• Operational Questions and Working Hypotheses

 
 

1. The Crime of Aggression by One Country against Another
2. Crimes against Humanity and War Crimes 2.1. Murder on a Large Scale

2.2. Torture and Other Cruel, Inhuman or Degrading Treatment 2.3. Forced Disappearances
2.4. Rape
2.5. Pillaging, Village Burning and Destruction of Property as War Crimes 2.6. Obstruction of All Forms of Humanitarian Aid
2.7. The Crime of Arbitrary Arrest, Illegal Detention and Kidnapping 2.8. The Crime of Forced Expulsion of the Tutsis
2.9. Forced Transfer of Hutus to Rwanda
2.10. Persecution on Political, Racial or Religious Grounds 2.11. Incitement of Racial, Ethnic or Political Hatred
2.12. Violation of Property Rights
2.13. Recruitment and Enrollment of Children and Minors
3. Persistence of Genocidal Procedures and Acts of Genocide 3.1. Destruction of the "Armed" Camps 3.2. Systematic Destruction of the Camps and their Civilian Inhabitants 3.3. Pursuit

3.4. The Treatment of Refugees Returning to Rwanda
4. Responsibilities

1. Legal Basis

2. The Search of Responsibilities

2.1. The Responsibility of the Rwandan Government and the Rwandan Patriotic Army

2.2. The Responsibility of the ADFL and the Present Government of the Democratic Republic of Congo

2.3. The Presidency and the Last Two Governments in Zaire 4.3. Individual Perpetrators of the Massacres

3.1. Eastern Massacres

3.2. Massacres in North Kivu

3.3. Massacres in the Kisangani Area

3.4. Mbandaka Massacres

5. Roles and Responsibility of the International Community 5.1. Before the So -called "War of Liberation" by the ADFL: Conditions at the Origin of the Massacres of Refugees

2. During the ADFL "War of Liberation"

6. Conclusions and Recommendations

1. Conclusions
2. Recommendations

2. I To the Government of the Democratic Republic of Congo B. II To the United Nations

 
 

EXECUTIVE SUMMARY
Between October and November 1997, official inquiries into serious violations of human rights in the Democratic Republic of Congo requested by the UN Human Rights Commission and the UN Secretary General met with continuous obstructions by the Government of the Democratic Republic of Congo led Mr. Kabila, the self -proclaimed president since the "war of liberation" of May 17, 1997. As a result, in November 1997 a non-governmental Commission of Inquiry (the Commission) was established as a joint initiative of the Congo-Kinshasa Association for the Defence of Human Rights (ASADHO - former AZADHO) and the International Centre for Human Rights and Democratic Development.

The following organizations, although not active in drafting the report, endorse the initiative as well as its report:

• World Organisation Against Torture (OMCT), Geneva
• Comite' de solidarite' avec le Congo Kinshasa, Palermo - Groupe Jeremie, Bukavu
• Groupe Justice et liberation
• Collectif d'actions pour le developpement des droits de l'homme (CADDHOM), Kamituga, Sud Kivu
• Voix des sans-voix pour les droits de l'homme (VSV), Kinshasa - Rencontre africaine pour la defense des droits de l'homme (RADDHO), Dakar

• Amnesty International
• Human Rights Watch/Africa
• Physicians for Human Rights
• International Federation of Human Rights Leagues (FIDH) - Justice et Liberation
• Doctors Without Borders.

The primary motive of the Commission is to make a contribution, however modest, to the strengthening of the rule of law in the Democratic Republic of Congo and to the struggle against the impunity which prevails in the Great Lakes region of Africa.
The principal objective of the Commission is to satisfy the need and rights of the people of the Democratic Republic of Congo, of Africa, and of the rest of humanity to know the facts surrounding the massive violations of human rights committed by the various parties to the conflict in former-Zaire in 1996 and 1997 and, as far as possible, to identify the individuals responsible for these crimes.

The methodology adopted by the Commission was to provide a legal analysis of the crimes committed that is based on an analysis and synthesis of the facts brought to light by the many reports and testimonies compiled over the last year by local, national, and international non-governmental human rights organizations, humanitarian organizations, various agencies of the United Nations including its Human Rights Commission, and press agencies. This documentary approach was supplemented by an independent inquiry conducted in January and February 1998 by the Commission in North and South Kivu, Kisangani, and Mbandaka with the objective of confirming the testimonies, identifying the individuals responsible for the massacres, and identifying the physical location of the mass graves. For three weeks, a team of experts met in Montreal between January 25th and February 13th to study the reports and testimonies and benefitted from others who contributed by telephone or by writing.
Then, the team of experts heard other testimonies, notably from priests and members of NGOs present in Zaire at the time in question and who are now located in Belgium, France, Switzerland, Canada, USA, Sweden, Holland, England, and other countries. Afterwards, the team of experts prepared the outline for its preliminary report that was prepared during March 1998.
 

Emerging from this process are conclusions which, for the most-part, are similar to those of the UN Human Rights Commission's mission of inquiry led by Mr. Roberto Garreton to the effect that war crimes and crimes against humanity were committed in the Democratic Republic of Congo and that there were violations of the Geneva Conventions of 1949, particularly article 3, common to the Conventions and their Protocols, which reads:

"In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: - violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture

• taking of hostages
• outrages upon personal dignity, in particular humiliating and degrading treatment
• the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

 
 

2. The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict."

 
 

The authors of these crimes did not restrain themselves from using any means to obtain their objective to eliminate all Hutu refugees: - direct massacres

• displacing the refugees to inhospitable areas where they would perish from sickness, disease, and the harsh climate
• obstruction of humanitarian assistance
• using humanitarian organizations to trap refugees.

>From these facts, it is the Commission's opinion that acts of genocide were committed in Zaire against the Hutus in violation of the Convention on the Prevention and Punishment of the Crime of Genocide, which was adopted on December 9th, 1948 and ratified by Zaire.
The fact that many of the people targetted by these acts were themselves presumed responsable for genocide against the Tutsi and dissident Hutus in Rwanda between April and July 1994, and are accused by the government of Rwanda of having exported the ideology of genocide to Zaire, does not constitute in the opinion of the Commission an excuse or a legal or moral justification for the commission of another crime of this nature. The Non-Governmental Commission estimates that several thousands of Zairian citizens (Congolese) of Hutu ethnic background or descent who attempted to assist the persecuted refugees also lost their lives in a violent manner as a result of this genocidal process.

The Commission has made an inventory of 19 crimes which were committed in a massive fashion during this period in the Democratic Republic of Congo: 1. Murders, assassinations, massacres, drownings

2. Burning of villages and crops, destruction of property 3. Torture and inhuman treatment, mutilations

4. Rape
5. Disappearances
6. Systematic looting
7. Obstruction of humanitarian aid
8. Incitement of hatred
9. Theft of livestock and property
10. Hostage-taking
11. Kidnapping of children and medical patients
12. Recruitment of minors
13. Non-assistance to people in danger
14. Arrest and arbitrary detention
15. Conviction and execution without recourse to a legally constituted tribunal 16. Crime of aggression

17. Forced expulsion of Tutsis (Masisi, Kinshasa, Katanga, Kisangani) 18. Forced repatriation of refugees

19. Racial, ethnic or political persecution.

The targets of these murders were of three types:

• Hutu refugees
• Zaireans of Hutu, Hunde, Fulero, Bemba ethnic origin
• Tutsi and other indigenous civilian populations in the east of Zaire.

Although they may originate from many diverse sources, all the published reports and testimonies that were analyzed by the commission are so consistent and concordant that, it is hard to sustain that they form part of a deliberate campaign to destory the reputation of the new regime that was established in the Democratic Republic of Congo after a victorious "war of liberation" against a 32 year old dictatorship that was a disgrace to the majority of the population. In this sense, the Non-governmental Commission maintains that the ADFL and its allies from the Rwandan Patriotic Army (RPA) might not be the only parties responsable for these crimes. The personal responsibility of President Mobutu might also be involved, as might be that of the two past governments, for their reception, armament and training in Zairean territory of the Rwandan armed forces and Interahamwe militia that had been defeated in Rwanda, despite full knowledge that these groups were presumably responsible for the crime of genocide committed between April and July 1994 in Rwanda and continued to be used against Tutsi minority in Zaire, in addition to preparing themselves to invade Rwanda.

Finally, the Non-Governmental Commission analyzed the role and responsibility of the international community, including African States, in particular the neighbours of the Democratic Republic of Congo. By the negligence, obliviousness, and torpor that resulted either from a sense of culpability after the Rwandan genocide or simply from political calculation, the international community lacked the real political will to deal with a situation that was foreseeable since 1994.

In the opinion of the Commission, all unfolded as if, after two and a half years of various and unfruitful efforts to solve the refugee problem in the east of Zaire, coupled by a serious problem of illegal weapons sales in which Zaire had become the hub, the most influential members of the international community turned a blind eye to an "African military solution", to the knowledge of the initiative of Rwanda and the Rwandan Patriotic Army, and to the deadly consequences that affected thousands of human lives. The refugee camps that were considered like barracks by the Rwandan authorities and several independent observers were destroyed, the refugees dispersed, the humanitarian aid blocked; hundreds of thousands of refugees were forcibly repatriated while tens or hundreds of thousands of others lost their lives; and, nonetheless, a year later, the expected peace and stability is far from being assured in the Great Lakes region of Africa. This "African military solution" seem not to satisfy anybody entirely today. Although the forceful closure of the refugee camps seem to have allowed some breath to an international community that apparently spends nearly a million dollars per day to maintain an immense assistance operation for refugees in the Great Lakes region. In the opinion of the Commission, this represents an insufficient humanitarian response to a political situation that has become problematic on a moral, political, legal, social, and economic level for the stability of the region. Thus, all has unfolded as if an implicit consensus had been reached that the Rwandan refugees, Hutus for the most-part, would bear the burden of a quest for stability in Zaire, a country whose immense natural resources are coveted after the fall of Mobutu and his regime. By far, these crimes against humanity were preferrable to the general chaos that was predicted for the period after Marshal Mobutu's death.
 
 

Following its conclusions, the Non-governmental Commission on the massive violation of human rights in the Democratic Republic of Congo (1996-1997) issues the following recommendations:
 

To the Government of the Democratic Republic of Congo

1. To conform to its international obligations in relation to human rights by publically recognizing the seriousness of the crimes that were committed during the "war of liberation" and to undertake to bring the authors of these crimes to justice
2. To abstain from assuring impunity for the authors of these crimes by taking amnesty or other measures
3. To instruct the Congolese courts to seize themselves of these crimes having regard to their imprescriptable nature and the inherent jurisdiction of the courts in these matter
4. To make public the list of anonymous officers, whose merits have collectivelly been praised by the authorities, in order to reveal their identity and the role that each of whom played in these crimes 5. To create a fund for the benefit of the numerous civilian populations that are victims of war crimes and crimes against humanity 6. To promote the rule of law by permitting a campaign against impunity which destabilizes and encourages other crimes in the region.

 
 

a.To the General Assembly

1. To enact a resolution calling for all states to initiate judicial inquiries against all individuals suspected of responsibility for these crimes that are on their territory
2. To convene a special session of the UN Human Rights Commission to examine the conclusion of the mission of inquiry that was mandated by the Secretary General before they are submitted to the Security Council, given that the Secretary General's mission of inquiry has practically the same mandate as that which was created by UN Human Rights Commission resolution 1997/57
3. To take measures to impose an arms embargo in the region while peace and security remain illusory
4. To assure the return to the rule of law and democracy in order to ensure peace and stability in the region.

2. To the Security Council

1. In order to maintain international peace and security, to apply, in the event of obstruction of the mission of inquiry, coercive measures, including the diplomatic isolation of the regime in Kinshasa, the restriction of visas and mobility, to permit the UN Secretary-General's mission of inquiry to continue its on-site investigations 2. To permit the extension of the jurisdiction of the International Criminal Tribunal for Rwanda in order to investigate these crimes that are an extension of the genocide of 1994 that took place on Rwandan soil.

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