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CONCLUSIONS AND RECOMMENDATIONS
SUMMARY
A. Conclusions
As stated in the introduction, the initiative of the Commission is part of the larger search for truth and the struggle against impunity and strengthening of the rule of law in the Democratic Republic of Congo and the African Great Lakes region. The object of the Commission's work was to attempt to fill the void created by the persistence of deliberate obstacles put in the way of the UN human rights protection mechanisms. The work was carried out with a concern for complementarity and strengthening of the international mechanisms and the justice system of the Democratic Republic of Congo. From the outset, the Commission was inspired by the efforts of the three special rapporteurs and their mission assigned under a resolution of the United Nations Commission on Human Rights at its 53rd session. It praises the spirit of perseverance in the search for the truth consistently shown by the UN mission directed by Mr. Amega. It recognizes the right of the people of the Democratic Republic of Congo (former Zaire), those of all African peoples and humanity in general to ascertain the truth of the grave crimes committed on this territory between 1996 and 1997.
The Commission reviewed about 100 reports and written accounts, selecting about 30 produced by national and international human rights and humanitarian NGOs, reports of certain UN agencies, and the reports published by the UN human rights mechanisms. These reports were complemented by a confidential mission of inquiry in North and South Kivu and the Mbandaka region in January and February 1998. The Commission's investigators interviewed several direct witnesses and visited one hundred massacre sites. The Commission also received testimony from certain Kadogo (child soldiers and former ADFL soldiers). Finally, the Commission analyzed all the statements made by the ADFL during its rebel phase and compared them with the statements it made after taking power.
The Commission derives the following conclusions from this information:
1. The war waged by the Banyamulenge and the RPA troops in eastern Zaire, later the Democratic Republic of Congo, was indeed conceived in Kigali. It received arms and troop support from that government to eradicate the refugee camps and the former FAR and Interahamwe militias, who had become a threat to Rwanda's stability. Zairian territory was invaded by the RPA and later by the Ugandan (Beni and Butembo battles), Burundian and Angolan armies. This constitutes a crime of aggression as defined by international law, more particularly, the UN General Assembly Resolution of December 14, 1974.
2. The following 19 crimes were inventoried among the events which occurred between October 1996 and May 1997:
- Murders, assassinations, massacres, drownings
- Burning of villages and crops, material destruction
- Torture and inhuman treatment, mutilation
- Rape
- Disappearances
- Systematic pillaging
- Obstruction of humanitarian aid
- Incitement of hatred
- Theft of cattle and property
- Hostage taking
- Kidnapping of children and hospital patients
- Recruitment of minors
- Non-assistance to people in danger
- Arbitrary arrest and detention
- Conviction and execution without trial before a legally constituted tribunal
- Crime of aggression
- Forced expulsion of the Tutsi (Masisi, Kinshasa, Katanga, Kisangani)
- Forced repatriation of refugees
- Persecution for racial, ethnic or political reasons
All these crimes come under the category of grave violations of international humanitarian law, more particularly, the four Geneva conventions, as well as Article 3 of these conventions and the International Law Commission dealing with crimes against humanity and war crimes as well as the crime of genocide. All these acts, by whomsoever committed, do not admit of limitation under the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity of November 26, 1968.
3. The primary targets of these crimes were Hutus. They were considered as military targets, and women, children and the elderly were numerous among the victims. Zairian, Rwandese and Burundian Hutus were massacred on ethnic grounds. Certain of these massacres even took place far from the areas of combat, such as at Mbandaka. Many mass graves containing the bodies of these refugees were discovered.
4. To achieve their objectives, the perpetrators used excessive force, including indiscriminate bombardment of the camps. Also, they systematically blocked humanitarian aid intended for the refugees, many of whom died of disease and hunger as a result. Child mortality thus increased in the camps. This was a strategy aimed at eliminating the Hutu refugees slowly without resort to weapons.
5. To achieve their objectives, the perpetrators used excessive force, including indiscriminate bombardment of the camps. Also, they systematically blocked humanitarian aid intended for the refugees, many of whom died of disease and hunger as a result. Child mortality thus increased in the camps. This was a strategy aimed at eliminating the Hutu refugees slowly without resort to weapons.
6. The Commission has identified the persons responsible for these crimes as well as those who apparently committed, or commanded the troops who committed, the atrocities. The names of the people involved and their accomplices appear in chapter IV. According to President Kabila, "the officers who led the Uvira troops to Kinshasa are well known, and the name Masasu does not appear on the list." (94)
7. The Commission concludes from its analyses that war crimes were committed primarily as a result of the armed nature of the internal conflict, whose severity constituted a threat to peace and international security under Chapter 7 of the Charter of the United Nations. In particular, Article 3 of all four Geneva Conventions of 1949 was violated. The rebel forces were responsible for 70% of the massacres and executions of unarmed women, children and elderly persons and others sidelined from combat due to illness or fatigue. The ex-FAZ are responsible for 10-15% of these crimes, not against the refugees, but against anyone they found in their way. Mr. Mobutu's mercenaries accounted for 1.5%, and the Rwandan militias, 10%. The remainder of the crimes were committed by the foreign armies present on Zairian soil.
8. The Commission finds that crimes against humanity were committed by the ADFL forces and their allies, as well as by the forces of the former regime and its allies. Indeed, the 19 crimes inventoried, their severity and their widespread and systematic nature are attributable to both the current authorities and the former regime.
9. Concerning the crime of genocide, the Commission attempted to verify the existence of an intent or deliberate will to eliminate a part of the population of Hutu origin on ethnic grounds. The fact that a large percentage of these people were suspected of committing genocide against the Tutsi population and Hutu political opponents in April-July 1994 was not, in the Commission's opinion, an excuse to physically eliminate them. The Commission finds that the persistence of the various means and methods used in eliminating part of the refugee population, in particular by the ADFL rebels and their allies, makes them rightly regarded as genocidal procedures inherent in the crime of genocide. Indeed, most of the victims targeted were of Rwandan, Zairian or Burundian Hutu origin. They were massacred even outside the zones of combat. The rebel forces used all sorts of premeditated methods to eliminate the Hutu, including facilitators to lure the refugees out of hiding with promises of food and assistance. The deliberate obstruction of humanitarian aid by the ADFL forces led to difficult living conditions for the refugees and caused many of their deaths. ADFL intimidation and harassment of the refugees pushed them into the zones of hostilities and out of the reach of humanitarian aid. The selective kidnapping of Hutu patients from hospitals prevented them from receiving the necessary medical care and accelerated their deaths. Finally, there was the forced deportation of Hutus to Rwanda, where their safety was not guaranteed.
In the Commission's opinion, this deliberate intention was made plain by the firm resolve of Mr. Kabila's government, installed on May 17, 1997 by the ADFL forces and their military and political allies, to prevent the UN commission of inquiry from doing its work. It did so by cleaning up the massacre sites and by intimidating the local population to prevent them from testifying to the UN Commission. These facts are sufficient to demonstrate the intention of Mr. Kabila's government, since it was aware of the crimes committed on Congolese soil but neither condemned them publicly nor used the inherited justice system to identify and prosecute the alleged perpetrators. Quite the contrary: the new self-proclaimed leaders recognized by the African and international community act as if they had no knowledge of the gravity of what occurred in their country. In fact, they have systematically attempted to cover up these crimes. The severity and systematic nature of the massacres of the Hutu, as shown by the existence of mass graves and the intention to destroy the Hutu by a range of procedures, is enough to prove the crime of genocide.
10. À la recherche des responsables, personnes physiques et auteurs matériels et justiciables de ces crimes, la Commission a été impressionnée par le recours par l'AFDL à la stratégie d'officiers anonymes qui portent presque tous des prénoms dans le but de ne pas être identifiés. Cette identification ne pose plus de problème aujourd'hui, car le président Kabila détient, d'après sa déclaration à la télévision nationale, la liste de tous ces officiers qui ont joué un rôle clé lors de la guerre de libération du Congo-Zaïre. Ainsi la Commission a fait un premier effort d'identification des présumés responsables matériels en plus de déterminer par la règle de la responsabilité de commandement les personnalités politiques et militaires sur lesquels devrait porter une enquête judiciaire approfondie.
11. Finally, the Commission considered all efforts of the Zairian (subsequently Congolese) State, its African neighbours and the international community to confront the allegations of grave crimes committed on Zairian soil, and subsequently, on that of the Democratic Republic of Congo. Unfortunately, the Commission is obliged to note that as of this writing, these efforts have not resulted in a thorough investigation by the appropriate authorities. Besides the excellent reports produced by the mission of the three special rapporteurs, and pending publication of the first reports of the Mr. Amega's mission, it must be admitted that the approaches taken up to the present stress political aspects and the overriding necessity to guarantee a semblance of peace in the region.
Summary
B. Recommendations
In light of the foregoing, the International Non-Governmental Commission of Inquiry into the Massive Violations of Human Rights in the Democratic Republic of Congo (former Zaire) in 1996-1997 recommends the following:
I. To the Government of the Democratic Republic of Congo
- 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.
- To abstain from assuring impunity for the authors of these crimes by taking amnesty or other measures.
- To instruct the Congolese courts to seize themselves of these crimes, having regard to their imprescriptable nature and the universal jurisdiction of the courts in these matter.
- To make public the list of anonymous officers, whose merits have been praised by the authorities, in order to reveal their identity and the role that each of them played in these crimes.
- To create a fund for the benefit of the numerous civilian populations that are victims of war crimes and crimes against humanity.
- To promote the rule of law by permitting a campaign against impunity which destabilizes and encourages other crimes in the region.
II. To the United nations
a. To the General Assembly
- 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.
- 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.
- To take measures to impose an arms embargo in the region while peace and security remain illusory.
- To assure the return to the rule of law and democracy in order to ensure peace and stability in the region.
b. To the Security Council
- 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.
- 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.
Summary
Notes
94. Speech by Mr. Kabila in December 1997. - Return
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