International Non-governmental Commission of Inquiry into the Massive Violations of Human Rights Committed in the Democratic Republic of Congo (Former Zaire) 1996-1997

Introduction

     Since the beginning of the war in the eastern part of the former Zaire, several sources have persistently and concurrently reported massive violations of human rights in that country. Whatever the motivation of the Alliance of Democratic Forces for the Liberation of Congo/Zaïre (ADFL) and later of the new Government of the Democratic Republic of Congo to systematically obstruct the various official international investigations subsequently requested by the United Nations Commission for Human Rights during its 53rd Session in April 1997 or by the Secretary General of the United Nations Organization in June 1997, many facts are now emerging. Massacres of civilians took place, and among them many women and children, often beyond the areas of armed conflict.

     The question is no longer whether or not massacres of Rwandan refugees and of Congolese citizens did occur in Congo, but rather what is the extent and nature of these massacres. Were they violations of international humanitarian law, war crimes, crimes against humanity, or acts of genocide?

     In order to establish these distinctions, determine responsibility, and if possible identify individuals responsible for these crimes, criminal law jurisprudence provides us with two types of evidence: physical evidence and evidence based on a reliable bodyof testimonies by the witnesses. Since the beginning of this search for truth, those who control the areas where these crimes were presumably committed (ADFL, and since May 1997, the Government of the Democratic Republic of Congo) have used all political and diplomatic manoeuvering in order to deny access to the investigators. The international community, frustrated by these obstructions, is at an impasse. Will the Commission headed by Judge Améga have enough time and resources to meet the challenge of conducting a conclusive independent inquiry in face of the substantial allegations that physical evidence has been deliberately destroyed?

     We should recall that in 1994, it was the concerted and consistent effort of many human rights NGOs, in conjunction with some member states that finally forced the UN Human Rights Commission and soon after the Security Council to define "the so-called inter-ethnic massacres" that began intensively in Rwanda in April 1994 as "genocide, crimes against humanity and war crimes." It was also this concerted effort that pushed the UN to take, although rather late, its responsibilities according to the International Convention for the Prevention and the Punishment of the Crime of Genocide, and the various Geneva Conventions on war crimes and crimes against humanity, by creating the International Criminal Tribunal for Rwanda in Arusha. However, the present frustration imposed on the international community by some governments of the region, in particular that of the Democratic Republic of Congo, has not prevented the same humanitarian, non-governmental conscience to do its work while member states of the UN seem to hide behind political considerations.

     The principal hypothesis of this initiative is that if one cannot freely access the area, the truth may nevertheless be established through a solid synthesis of all the investigations conducted and of the substantial bodyof testimonies accumulated since the beginning of the conflict in the eastern part of Congo/Zaïre last year, in addition to a recent, on-site complement of inquiry east of Mbandaka during January and February 1998, in spite of a vast campaign to erase any traces of crimes and to intimidate the population from testifying.

     In April 1997, the International Centre for Human Rights and Democratic Development received a request from several human rights organizations in Zaïre to put in place an international non-governmental commission of inquiry whose goal would be to investigate the massacres. At the time, our institution preferred, as did many others, to support the implementation of the resolution of the UN Commission for Human Rights establishing the commission of inquiry composed of Mr. Garretón, Special Rapporteur for Zaire (Congo), Mr. Foli, member of the Working Group on Enforced or Involuntary Disappearances, and Mr. Bacre Ndiaye, Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions.

     A year later, many reports were produced in various quarters by NGOs such as Physicians for Human Rights; Doctors Without Borders; Amnesty International; Human Rights Watch Africa and the International Federation of Human Rights Leagues (FIDH). The joint mission of the three Special Rapporteurs published a report at the beginning of July 1997. The UN High Commission for Refugees, which recently withdrew its mission from Congo, accumulated testimonies and published internal and public reports over many months. Others humanitarian organizations and institutions have in their possession many testimonies, including the European Union Commissioner for Humanitarian Affairs, Ms. Emma Bonino.

     At the end of October 1997, the International Centre for Human Rights and Democratic Development solicited the participation of other organizations for this international Non-governmental Commission initiative to synthesize the numerous reports and testimonies that have emerged. Several organizations replied favourably, certain ones by furnishing documents and others by delegating individuals to join the workteam. This team worked for three weeks between January 26th and February 13th in Montreal.

     Why did the Non-governmental Commission choose to cover the period of 1996-1997 instead of 1993-1997 as did the UN Commission of Inquiry that is presently on-site?

     In the present inquiry, the Commission chose the period of 1996-1997 in conformity with the UN Human Rights Commission resolution, contrary to the Secretary General's mission of inquiry that is presently on-site which, as a result of political negotiations, extended the period of its inquiry to 1993 in order to satisfy the claims of one of the parties to the conflict. This negotiation has weakened the multilateral system for the protection of human rights by bringing into question a UN Human Rights Commission resolution and by pushing aside the Special Rapporteur for Zaire (Congo). Thus, the approach of the Non-governmental Commission aims to reinforce and support the system of international instruments and mechanisms for the promotion and protection of human rights.

     The other fundamental reason is that, given the magnitude of human rights violations and the type of crimes committed, the victims involved and the individuals responsible, all these are pushing us to not mix those violations that were committed between 1993 and 1996 by the Mobutu regime with the other crimes committed during that period by the ex-FAR (Rwandan Armed Forces) and Interahamwe which were a prolongation of the Rwandan genocide that took place on foreign territory. In this regard, the International Criminal Tribunal in Arusha was created as an international response to the crime of genocide, war crimes, and crimes against humanity that were committed on Rwandan citizens either inside or outside Rwandan territory during the period from January 1st to December 31st 1994. The Rwandan judicial apparatus with its Genocide Law has undertaken to cover the period between 1990 and 1995. It would be most suitable if these judicial structures conducted any new inquiries for these periods.

     As it is an shared international responsibility to establish the truth about massive human rights violations whenever and wherever they occur, we have chosen to make a modest contribution by focussing on the more recent period in the Democratic Republic of Congo.

     Furthermore, the Special Rapporteur on Zaire (Congo) also investigated the events of 1993, 1994, and 1995, in the east of Zaire under Mobutu, in particular in the region of North Kivu (Masisi) and South Kivu. For all these reasons, therefore, the Non-governmental Commission has chosen the most recent and intense period, namely from January to December 1997, to investigate the allegations of these crimes that are not subject to prescription.

     Goal

     Our principal aim in this initiative is to fight against a culture of impunity which is prevalent in this region Africa and which is a long-term obstacle to all international peace-building and peace-keeping efforts in the region. If crimes related to international criminal law took place in Congo, the truth should be known and impartially presented. Afterwards, an international campaign will be necessary in order to generate the necessary political will to request that the suspects responsible for these crimes be prosecuted in due course by the international justice system, in a forum such as the proposed International Criminal Court. While awaiting the creation of such a court, the suspects should be castigated by the international community and their own national community.

     Objectives

• to produce a synthesis of existing reports over the period of one month;
• to develop a strategy and a methodology to gather and analyse the many testimonies from eye-witnesses already collected by several Congolese human rights organizations;
• to hear additional eye-witnesses, civilian or ex-combatants, of the Congo/Zaïre war;
• to determine, through a legal analysis of the facts and of international law, whether the massive violations that occured on the territory of the Former-Zaire constitute crimes against humanity, war crimes, or acts of genocide;
• to prepare a synthesis report which will be published and submitted as part of the official documents at the next session of the UN Commission for Human Rights.

     Methodology

     Documentation was gathered for the work of the Commission in December 1997 (see annexed bibliography). During the period of its operations in Montreal, the Commission discussed the methodology to be employed in preparing its report. It made an inventory of the crimes committed and analysed the background to the crimes, the methods used, their geographic occurrence and their judicial categorization. It also sought to identify those responsible. It worked out an outline for the report, and proceeded to write the preliminary report. In the month following the Montreal meeting, this report was finalized by correspondence among the various members of the editorial team.

     The bodyof the work was essentially an analysis of written documents: investigation reports, testimony and newspaper articles. These were also subjected to comparative analysis in arriving at the synthesis contained in this report. As a means of illustrating the facts reported, this summary report reproduces lengthy passages; however, where such lengthy quotation is felt to be unnecessary, the reader is referred to the bibliography.

     As one of its supplementary efforts, the Commission, through the intermediary of serious collaborators, conducted a field research effort in the Democratic Republic of Congo to clarify certain aspects of the reports and testimonies and, in particular, to gather further details on the question of responsibility. This supplementary inquiry was conducted particularly in the regions of North and South Kivu, Kisangani, and Mbandaka.

     Inventory of Types of Crimes Perpetrated

     In its work, the Non-Governmental Commission identified the following types of massive human rights violations, among other crimes, committed on Congolese soil:

1. Murders, assassinations, massacres, drownings
2. Burning of villages and crops, destruction of property
3. Torture and inhuman treatment, mutilation
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

     Operational Questions and Working Hypotheses

     In its discussions concerning the destruction of human life as a result of the massacres, the Non-Governmental Commission considered the following operational questions and working hypotheses:

     Was there an intent to systematically destroy the lives of human beings protected in the refugee camps in Zaire?

1. The "ADFL rebellion" was conceived in Kigali between 1995 and 1996 for the purpose of dismantling the Rwandese refugee camps in eastern Zaire. The aim was to annihilate the military capacity of the ex-FAR and Interahamwe who, after "Operation Turquoise" in 1994, had taken a portion of the Rwandese population hostage and reconstituted their forces and command structures in the Zairian camps. Thus, the refugee camps created by the UN High Commission for Refugees and the international humanitarian organizations were knowingly identified as military targets from the outset.
   
   
2. Special RPA commandos within the ADFL forces had a mission to physically destroy all Rwandese Hutu refugees suspected of genocide, whether armed, involved in combat or defenceless civilians, including children, women, and the elderly. From the outset, there was a real intention to physically destroy and annihilate part of the Rwandese refugee population in Zaire.
   
   
3. The soldiers of the ex-FAR and the Interahamwe militiamen killed Hutu refugees seeking to return to Rwanda and targeted Congolese Tutsi communities, forcing them into exile in Rwanda.
   
   
4. UN High Commission for Refugees workers and other humanitarian organizations indirectly contributed to the elimination of the Rwandese refugees and Zairian civilians by identifying the locations of these refugees once the large camps had been destroyed.
   
   
5. As a result of their hesitation and because of the failure of the international humanitarian mission of intervention, the major international powers indirectly contributed to the destruction of many human lives.
   
   

        Where did the most deadly massacres take place? Was there any correlation between the sites of the massacres and the zones of combat during the rebel campaign?

6. The sites of the worst massacres correspond to the location of Rwandese civilian refugees on Zairian soil, but were only very weakly correlated with the location of military combat.
   
   

        Who is responsible for the massacres? Who gave the order to fire on non-combatant civilians? Who gave the order to destroy the lives of non-combatants and unarmed combatants during the October 1996-May 1997 campaign?

7. The RPA commanders working as part of the ADFL rebel forces.
   
   
8. General Kagame in his capacity as Minister of Defence and Commander in Chief of the RPA.
   
   
9. Mr. Kabila in his capacity as spokesperson, President of the ADFL and self-proclaimed President of the Democratic Republic of Congo.
   
   
10. The commanders of the ex-FAR.
    
    
11. Mercenary leaders hired to back the Zairian armed forces in Kisangani.
    
    

         Who knew about these orders?

12. The Rwandan Patriotic Army staff.
    
    
13. The ADFL staff.
    
    
14. The FAZ staff.
    
    
15. The staff of the ex-FAR.
    
    
16. Certain political leaders.
    
    

     OUTLINE OF THE REPORT

     The commission decided on the following outline in keeping with the legal analysis adopted. In each section, the legal framework for the crimes in question is presented and discussed. Then, a summary of the corresponding facts is presented, with reference to the various reports or quotation of relevant testimony illustrating them. The report is divided into the following sections:

I.     The Crime of Aggression by One Country Against Another.
II.    Crimes Against Humanity and War Crimes
III.    Persistence of Genocidal Procedures and acts of Genocide
IV.   Responsibility
V.    Roles and Responsibility of the International Community
VI.   Conclusions and recommendations