The Democratic Republic of the mapping report that documented the most serious violations of human rights andCongo international humanitarian law committed within the DRC between March 1993 and JuneInternational Judicial Structures, 2003. This report was highly contested by theDomestic Courts, and Confronting the states of Rwanda and Uganda, whose armiesHuman Rights Abuses Against Children were accused of involvement in the extensivein the Recent Congolese Wars human rights abuses that occurred. The period between 1993 and 2003 comprises the failure of the democratisation process, the First Congolese Rachel Gardner War, the Second Congolese War, and the political

A transition period between President Laurent- fter the United Nations released a Désiré Kabila’s death in 2001 and the succession mapping report on October 1st, 2010 that of his son, Joseph Kabila, 10 days later. provided evidence of extensive humanrights violations in the Democratic Republic of A large section of the UN mapping report isthe Congo (DRC), it became apparent that some devoted to outlining the human rights abusesform of justice was necessary to ensure that those against children, including being victims ofresponsible were held accountable and that such widespread attacks on civilian populations, victimsabuses could be prevented in the future. Indeed, of ethnic violence, victims of sexual violence,the recorded human rights abuses against children as well as suffering from high infant mortalitywere horrific, and it is difficult to imagine the next and vulnerability to anti-personnel mines. Thegeneration being able to cope with the memories report describes horrific incidences of violence,of the death and violence during the civil wars including: the massacres of children in “a largeextending from 1993 to 2003. There are numerous number of schools, hospitals, orphanages and theinternational treaties and conventions applicable premises of several humanitarian organisations;”to these human rights violations. However, the murder of ethnically targeted children “withwhile the DRC’s judicial structures contain blows from hatchets or with their head smashedsections allowing prosecution under imperatives against a wall or tree trunk;” and sexual relationsof international human rights law, the process with children, which superstition says canof enforcing sentences upon individuals after “cure certain diseases (HIV/AIDS) or make theconviction is flawed and virtually non-existent perpetrator invulnerable.” Of additional concernat this point in time. The currently weak political in the DRC is that, in 2003, “Oxfam estimatedsystem of the DRC requires transitional justice that, in some regions, one-quarter of all childrenmechanisms, particularly international judicial were dying before their fifth birthday... [which]bodies, to combat the problem of impunity andaddress the human rights abuses committed

against children. While a number of transitional For further information, see: Nest et al. The Democraticjudicial bodies exist to aid in developing of a Republic of the Congo: Economic Dimensions of War and Peace. Boulder, Colorado: Lynne Rienner Publishers, Inc.,culture of justice, including the International 2006; Scherrer, Christian P. War in the Congo. Moers:Criminal Court, international criminal tribunals, Institute for Research on Ethnicity and Conflict resolutionand hybrid courts, hybrid courts appear to offer (IRECOR), 2001

the greatest ability to strengthen state judicial United Nations, Human Rights Commission, “Democrat-systems in the post-conflict period. ic Republic of the Congo, 1993-2003,” [New York, NY], 2010: 338, http://www.ohchr.org/Documents/Countries/ ZR/DRC_MAPPING_REPORT_FINAL_EN.pdf BACKGROUND: ABUSES AGAINST United Nations, Human Rights Commission, “Demo- CHILDREN IN THE DRC FROM 1993-2003 cratic Republic of the Congo, 1993-2003,” 339

United Nations, Human Rights Commission, “Demo-The United Nations released a controversial cratic Republic of the Congo, 1993-2003,” 341

make[s] the DRC one of the three most dangerous represent the initiation of change in the statecountries in the world in which to be born.” towards the values contained therein. TreatiesThe fact that children, those most dependent on represent a form of empowerment to both theothers for their survival, are unable to develop states and the individuals within the states whoin a safe and secure environment, should be an have ratified them, as they “help local actors setenormous concern for officials both in the DRC priorities, define meaning, make rights demands,and any state that agrees with and adheres to theprinciples in the Universal Declaration of Rights and bargain from a position of greater strengthand Freedoms. than would have been the case in the absence of their government’s treaty commitment.” Thus, itAdditionally, there was widespread use of is important to discuss the international treatieschildren in armed groups and forces during the and conventions signed and ratified by the DRCtime of the conflict, despite the DRC’s ratification that hold relevance to the aforementioned humanof international treaties that specifically prohibit rights abuses against children.child recruitment. Children in armed groups were“subjected to indescribable violence, including The United Nations Declaration of the Rights ofmurder, rape, and torture, cruel, inhuman and the Child was signed and ratified by the DRC indegrading treatment, forced displacements 1990. The declaration states that “the child, byand the destruction of their villages, and were reason of his physical and mental immaturity,deprived of all their rights.” Children are needs special safeguards and care, includingspecifically recruited because “of their availability appropriate legal protection, before as well asand malleability in a drawn-out conflict.” Colonel after birth.”10 The rights and freedoms of a childNtambo Mutchail of the AFDL/APR stated clearlywhy children are used so extensively in conflict: are declared in fifty-four articles, and include such principles as: the right to life; the right to They are the best. At this age there is be raised by parents; the right to play and rest; total obedience. They are not distracted. the right to basic social security; and the right to They haven’t yet experienced a private legal help and fair treatment in the justice system. life. They are devoted to one thing: to the All of these have been violated during the DRC Alliance. They have nothing else in their conflict through the orphaning and murder of hands. They are not worried by morals. civilian children, the lack of human security, the They are devoted to the Alliance. inability to access social security due to threats of rebel invasion and violence, and the lack ofChildren are thus exploited through military accountability for those who were convicted ofrecruitment due to their vulnerability and crimes within the DRC.susceptibility to the rebels’ indoctrination. Similar to the UN Convention on the Rights of INTERNATIONAL TREATIES AND the Child is the African Charter on the Rights and CONVENTIONS VERSUS DOMESTIC LEGAL PROVISIONS Welfare of the Child11. In 48 articles, the Charter sets out the rights of the African child, with theInternational treaties and conventions are recognition that “the child occupies a unique andregularly signed and ratified by states, and privileged position in the African society and that

United Nations, Human Rights Commission, “Demo- Beth A Simmons, Mobilizing for Human Rights:cratic Republic of the Congo, 1993-2003,” 342 International Law in Domestic Politics (New York:

for the full and harmonious development of his using them to ticipate actively in hostilities.”16personality, the child should grow up in a family Child soldiers are thus forbidden under theenvironment in an atmosphere of happiness, love international treaties and conventions of whichand understanding.”12 The Charter additionally the DRC is a part, and both the state and thenotes that because of “ the unique factors of international community are thus obliged to taketheir socio-economic, cultural, traditional and immediate action to ensure that measures aredevelopmental circumstances, natural disasters, taken to prevent recruitment of children in thearmed conflicts, exploitation and hunger, and future.on account of the child’s physical and mentalimmaturity he/she needs special safeguards In assessing the legal structures of the DRC, itand care.”13 The DRC ratified this treaty in 2001, is important to note that the DRC has codifiedthereby reiterating their recognition of the rights international treaties and conventions withinof a child within their state. Despite ratifying this the domestic legal structure of the state. Undertreaty, the DRC has had immense difficulties the Congolese Constitution, the human rights ofin ensuring that such safeguards are realized DRC citizens, including “civil and political; social,within the domestic judicial system, and instead, economic and cultural; and peoples’ rights,”17a culture of impunity has led to such violence as are protected. ������������������������������� The DRC’s Constitution of 2006described in the UN Mapping Report. states:

It is likewise important to note the treaties signed “Les Cours et Tribunaux, civils etand ratified by the DRC that prohibit the use of militaires, appliquent les traitéschild soldiers in times of conflict. The Optional internationaux dûment ratifiés, les lois,Protocol to the Convention on the Rights of the les actes réglementaires pour autantChild14 on the involvement of children in armed qu’ils soient conformes aux lois ainsiconflict furthers the previous convention by que la coutume pour autant que celle-ciensuring that “states parties shall take all feasible ne soit pas contraire à l’ordre public oumeasures to ensure that members of their armed aux bonnes mœurs.”18forces who have not attained the age of 18 years donot take a direct part in hostilities.”15 Additionally, Additionally, the Constitution states: “les traitésthe Rome Statue of the International Criminal et accords internationaux conclus ont, dès leurCourt, under article eight, explicitly prohibits the publication, une autorité supérieure à celle des“conscripting or enlisting [of] children under the lois, sous réserve pour chaque traité ou accord, deage of 15 years into the national armed forces or

12 OAU, African Charter on the Rights and Welfare 16 United Nations, Rome Statute of the ICC, [New York,of the Child, [Addis Ababa, Ethiopia], 1999: 1. http:// NY], 1999, http://untreaty.un.org/cod/icc/statute/rome-www.africa-union.org/official_documents/Treaties_ fra.htm%20Conventions_%20Protocols/a.%20C.%20ON%20TH 17 Dunia Zongwe, Francois Butedi and Clement Phebe,E%20RIGHT%20AND%20WELF%20OF%20CHILD.pdf “The Legal System and Research of the Democratic Re-13 OAU, African Charter on the Rights and Welfare of the public of Congo (DRC): An Overview,” GlobaLex, http://Child, 1. www.nyulawglobal.org/Globalex/Democratic_Repub-14 Adopted by United Nations General Assembly in 25 May lic_Congo.htm.2000, entry into force 12 Feb 2002 18 “The courts and tribunals, both civil and military,15 United Nations, Office of the United Nations High shall apply duly ratified international treaties, laws andCommissioner for Human Rights, Optional Protocol regulatory acts, provided they are in accordance withto the Convention on the Rights of the Child on the the laws and with custom.” ��������������������������� The Democratic Republic ofinvolvement of children in armed conflict, [Geneva, the Congo, Constitution de la République DémocratiqueSwitzerland], 2002: 1, http://www2.ohchr.org/english/ du Congo, [Kinshasa, DRC], 2006, http://democratie.law/crc-conflict.htm francophonie.org/IMG/pdf/Constitution_de_la_RDC.pdf

son application par l’autre partie.”19 Both of these THE STATE OF DOMESTIC JUDICIALdeclarations assert that the DRC courts hold the STRUCTURES IN THE DEMOCRATICpower to implement the rights guaranteed under REPUBLIC OF THE CONGOinternational law upon those crimes committedwithin the nation of the DRC itself. Such a legal An adequate legal framework currently existsframework provides the initial structure needed within the DRC to allow for criminal prosecutionsto prevent future human rights violations against of human rights abuses under internationalchildren. law. However, the problem in the DRC is “less a problem of inadequate provisions in criminalHowever, the aforementioned legal imperatives law than a failure to apply them.”23 There are awere only written down and implemented in number of examples where people were convicted2006, leaving the period before this time subject but never penalized for their involvement in theto different legal precedents. For example, until abuses between 1993 and 2003. For example,2009 the recruitment and use of children in times Jean-Pierre Biyoyo, of the Congolese Army, wasof conflict “was not established as a crime in the promoted to Lieutenant-Colonel “after receivingDRC’s criminal code.”20 Although in June 2000, a death sentence from a military court in Marcha decree “ordered the demobilisation and family 2006 for desertion and fleeing abroad in timesor socio-economic reintegration of children of war, organizing an insurrection movement,associated with the armed forces or groups, and the arbitrary arrest and illegal detention ofgirls and boys, under the age of 18,”21 this decree children.”24 This example clearly demonstrates adoes not prevent these children from being re- divide between the sentencing and implementationrecruited for military parties involved. The re- of that sentence within the DRC’s judicial sector.recruitment of child soldiers is furthermore a However, the impunity problem apparent in thecommon occurrence in zones of civil and inter- justice system is due to a number of factors, allstate conflict, as in the case of the DRC between of which need to be addressed before the courts2000 and 2003, where the demobilisation and can effectively investigate, prosecute and tryreintegration of child soldiers was supposed to criminals under the existing framework.occur. Additionally, there is no guarantee thatthose children who are reintegrated into society The lack of resources and capacity of the DRCare actually safer, due to the immense violence, is one factor that is perpetuating the impunityethnic conflict, and attacks on refugee camps that within the DRC state. Between 2004 and 2006,were occurring over this period.22 the government spent a mere 0.6 per cent per year on justice, “while most countries spend between [two per cent] and [six per cent]19 “Duly concluded international treaties and agreements of their national budgets on justice.”25 Theshall have, hollowing publication, higher authority than underfunding of the judicial system leads to alaws, provided each treaty or agreement is applied by the number of consequences, including lower wages The Democratic Republic of the Congo, Constitu-other.” �������������������������������������� for judicial employees, inadequate infrastructuretion de la République Démocratique du Congo. and buildings, insecurity in the transportation20 United Nations, Human Rights Commission, and protection of witness, insufficient training“Democratic Republic of the Congo, 1993-2003,” 34521 for those currently in the legal profession, and United Nations, Human Rights Commission,“Democratic Republic of the Congo, 1993-2003,” 345 the poor functioning of the prison system. Of22 See Singer, P. W. Children at War. New York: Pantheon 23Books, 2005; Wessells, Michael. Child Soldiers: From United Nations, Human Rights Commission,Violence to Protection. Cambridge, Massachusetts: “Democratic Republic of the Congo, 1993-2003,” 422. 24Harvard University Press, 2006; Thomas, Virgina. 2008. United Nations, Human Rights Commission,“Overcoming Lost Childhoods: Lessons Learned from the “Democratic Republic of the Congo, 1993-2003,” 345-46 25Rehabilitation and Reintegration of former Child Soldiers United Nations, Human Rights Commission,in Colombia.” Y Care International. “Democratic Republic of the Congo, 1993-2003,” 424

additional concern is the state of vulnerability in personnel is an enormous problem within thewhich insufficient funding leaves judicial agents, DRC, and must be solved before domestic justicewho are then more willing to accept bribes when can be established.deciding court cases. The interference of political and military figuresOf particular note is that the DRC judicial system in the judicial process is another significantis plagued by a completely insufficient number concern that aids the cycle of impunity in theof judges and magistrates for the population in DRC. Throughout the history of the DRC, therequestion, likely due to budgetary constraints have been incidents where “military and civilianand the difficulties of pursuing higher education judges and prosecutors were threatened andduring the ten years of conflict. The UNDP and attacked by armed group members and sometimesMinistry of Justice estimated that in 2007, “there even members of the armed force to intimidatewere 2030 magistrates, or one per 30 000 of them, disrupt criminal proceedings and ensurethe population, and only 230 jurisdictions and impunity.”30 As such, many cases favour the moreoffices.”26 This is compared to the global average of powerful citizens within the state, and the rule ofone magistrate or judge per 15 000 inhabitants.27 law is not applied universally. This violates theThe lack of courts and magistrates has resulted in basic right to a “fair and public hearing by anmagistrates being backlogged with all the cases independent and impartial tribunal”31 guaranteedreferred to them, as well as being unable to reach in article 10 of the Universal Declaration ofthe quorum required in order to sit. Evidently, Human Rights. Despite attempts to correctthis has resulted in a national scramble to find and these historical malpractices through the newsecure people employed in the legal profession. constitution, which guarantees separation ofIn 2007, the Ministry of Justice “estimated that powers into three jurisdictional orders, thethere was a shortfall of nearly 2500 magistrates Congolese judicial system remains corrupted bynationwide, and that 1000 needed to be recruited political and military malfeasance.urgently.”28 However, as mentioned earlier, it isdifficult to find those who have attained high Another important flaw in the DRC’s judicialenough forms of education to achieve a legal system is that the military courts hold exclusivedegree. Additionally, many areas of the province jurisdiction over prosecuting criminals underremain extremely dangerous for inhabitants, and international law. This poses a significantas such, it is difficult to find people who would conflict-of-interest, as the majority of humanwant to relocate to these regions. As a result, rights violations in the previous conflicts wererural inhabitants are left without accessible legal committed by those holding high positionsaid, and are often ruled under local figures “who in military command. This resultant lack oftend to abuse their administrative, economic independence of the courts and tribunals is againand customary powers when ruling on lawsuits slowing down the judicial process and resulting input before the courts.”29 Thus, the lack of judicial unfair and closed trials. Indeed, by unfavourably prosecuting military personnel who are accused of26 United Nations, Human Rights Commission,“Democratic Republic of the Congo, 1993-2003,” 426 30 United Nations, Human Rights Council, Combined27 Mark Shaw, Ian van Diik, and Wolfgang Rhomberg, report of seven thematic special procedures on Technical“Determining Trends in Global Crime and Justice: An Assistance to the Government of the DRC and urgentOverview of Results from the United Nations Surveys of examination of the situation in the east of the country,Crime trends and Operation of Criminal Justice Systems,” [Kinshasa, DRC], 2009: 17, http://www2.ohchr.org/Forum on Crime and Society 3, no.1 (2003): 21. english/bodies/hrcouncil/docs/10session/A.HRC.10.59.28 United Nations, Human Rights Commission, pdf“Democratic Republic of the Congo, 1993-2003,” 426 31 United Nations. Universal Declaration of Human29 United Nations, Human Rights Commission, Rights. ���������������������� [Paris, France], 1948 :��������������������������� 10. http://www.un.org/en/“Democratic Republic of the Congo, 1993-2003,” 427 documents/udhr/index.shtml

severe human rights violations within a military Accordingly, it is clear that due to the lack ofcourt; these courts “deny the victims and their resources and capacity, lack of judicial personnel,relatives the right to an effective remedy and the and the role of the military over matters ofright to know the truth.”32 Indeed, the jurisdiction international law that the DRC’s legacy ofof military courts over international law goes impunity will continue if the crimes outlined inagainst article 37 of the UN Convention on the the UN Mapping Report are tried under domesticRights of the Child, which states that “every child law. The DRC will require a number of yearsdeprived of his or her liberty shall have... the of corrective measures, revision of laws, andright to challenge the legality of the deprivation retraining of legal aid before its current judicialof his or her liberty before a court or other structure will be able to effectively prosecutecompetent, independent and impartial authority, criminals under international law and combat theand to a prompt decision on any such action.”33 current state of impunity. Until this is achieved,Additionally, under the Principles and Guidelines international involvement is needed to further seton the Right to a Fair Trial and Legal Assistance a precedent within the state to ensure that justicein Africa, it states clearly that “the only purpose and the rule of law are established.

“”of Military Courts shall be to determine offences of a purely THE NECESSITY OF THE ICC IN DRC’S “the only purpose of military nature TRANSITIONAL JUSTICE committed Military Courts shall be by military The authority of international law within states to determine offences personnel” and is a complex issue, and raises serious questions of a purely military that “military regarding concepts such as state sovereignty and nature committed by courts should universality. On one side, scholars argue that not in any treaties “violate the right of a state to the exclusive military personnel” circumstances adjudication of matters that affect only its own and that “military whatsoever citizens and that take place within its borders.”35 courts should not in h a v e The rule of state sovereignty, affirmed in the UN any circumstances j u r i s d i c t i o n Charter, is thus violated through the intrusion of

“” over civilians.”34 outside actors in domestic affairs. However, on whatsoever have Thus, it is vital the other side of the debate are those who argue jurisdiction over that the role of “there is no state so powerful that it may not civilians.” military courts sometime need the help of others outside itself, be revised, so either for purposes of trade, or even to wardthat crimes under international law are tried in off the forces of many sovereign nations unitedordinary courts and guarantee that conflicts-of- against it.”36 Thus, while “the real politics ofinterest do not affect the outcome of the trial. change is likely to occur at the domestic level,”37 it may be necessary for outside actors to assist32 Frederico Andreu-Guzmán,, Military jurisdiction and states when its judicial capacity is weakened. Ofinternational law: Military courts and gross human vital importance in the debate, as it relates to therights violations (vol. 1), [Châtelaine, Geneva]: Interna- DRC, is the recognition that “children in the DRCtional Commission of Jurists, 2004: 12, http://www.ecoi. have suffered far too much and, if this situationnet/file_upload/87_1184764886_trib-mil-eng-part-i.pdf33 is allowed to continue, there is a risk that a United Nations, General Assembly, Convention on theRights of the Child, [New York, NY], 1989, http://www2. 35ohchr.org/english/law/crc.htm Larry May, Crimes Against Humanity: A Normative34 African Commission on Human and Peoples’ Rights Account, (Cambridge: Cambridge UP, 2005), 11. 36(ACHPR), Principles and Guidelines on the Right to a May, Crimes Against Humanity: A Normative Account,Fair Trial and Legal Assistance in Africa, [Banjul, The 10. 37Gambia], 1994, http://www.afrimap.org/english/images/ Simmons, Mobilizing for Human Rights: Internationaltreaty/ACHPR_Principles&Guidelines_FairTrial.pdf Law in Domestic Politics, 126.

new generation will be created that has known alternative of forcibly arresting internationalnothing but violence, and violence as a means criminals appears equally unappealing due toof conflict resolution, thus compromising the its infringement of state sovereignty and the factcountry’s chance of achieving lasting peace.”38 If that this would require the ICC to have a policefor no other reason, it is imperative that punitive force or military. Therefore, despite the ICC’smeasures be taken so that a sense of justice is set drawbacks, its presence has established a legalin the minds of the future generation, and so that precedent within the state that “any individual,they are aware that future atrocities will not go irrespective of their rank or level of politicalunpunished. responsibility, can be held accountable for the most serious crimes,”42 a precedent which canAt the present time, due to the continued state give some hope to the victims of the human rightsof impunity and violence in the DRC, it may be violations for the future of its judicial system.necessary to address post-conflict stress throughtransitional justice, which comprises “the full As one form of transitional justice, the ICC couldrange of processes and mechanisms associated open the trials against the accused within thewith a society’s attempts to come to terms with DRC itself to ensure that crimes are punisheda legacy of large-scale past abuses, in order to from a perspective of national justice as opposedensure accountability, serve justice and achieve to foreign justice. In 2004, after the DRC handedreconciliation.”39 The International Criminal over Thomas Lubanga to the ICC, discussionsCourt has already been pursued as one option began regarding the possibility of opening thein prosecuting offenders under international Lubanga trial within the borders of the DRC.law. The President of the DRC stated in 2004 However, “the government quashed the idea,that “because of the exceptional situation in citing security concerns, but observers believemy country, the competent authorities are that many within the government were keen thatunfortunately not capable of investigating the the trial be as far away from Congo as possible and[crimes under international law] or of carrying seen as foreign justice.”43 While the government’sout the required prosecutions without the intent is questionable, there is, indeed, evidencecontribution of the International Criminal that security concerns exist. In the 2006 NsongoCourt.”40 Several cases have already been brought Mboyo case, for example, after seven officersforward to the Court, including the Lubanga trial, were sentenced to life in prison, “all those foundwhich opened in January 2009, and the issuing guilty escaped from jail and remain at large.”44of an arrest warrant for Bosco Ntaganda in In confronting these obstacles, it may be more2006. However, Ntaganda is still at large and the beneficial for the ICC to be used only for the mostgovernment has stated that “it has no intention brutal and systematic violence that will gatherof arresting Bosco Ntaganda, at least for the broad state support for its investigations and trialmoment.”41 This leads to an important flaw in the procedures. Additionally, the ICC should take aICC, which is its reliance on states to cooperate stance to increase its presence within the nationin the arrest of war criminals. However, the itself, directing initiatives towards “exchanges of information, training sessions and possibly joint38 United Nations, Human Rights Commission,“Democratic Republic of the Congo, 1993-2003,” 358. 42 United Nations, Human Rights Commission,39 United Nations, Human Rights Commission, Secre- “Democratic Republic of the Congo, 1993-2003,” 470tary-General, The Rule of Law and Transitional Justice 43 Laura Davis, “Justice-Sensitive Security System Reformin Conflict and Post-Conflict Societies, [New York, NY], in the Democratic Republic of the Congo,” [Brussels,2006: 4, http://www.unhcr.org/4506bc494.html Belgium]: Initiative for Peacebuilding, 2009: 21,40 United Nations, Human Rights Commission, http://www.initiativeforpeacebuilding.eu/pdf/Justice_“Democratic Republic of the Congo, 1993-2003,” 451. Sensitive_Security_System_reform_in_the_DRC.pdf41 44 United Nations, Human Rights Commission, Davis, “Justice-Sensitive Security System Reform in the“Democratic Republic of the Congo, 1993-2003,” 469. Democratic Republic of the Congo,” 21.

investigations with Congolese judicial staff.”45 upholding justice within the DRC, an internationalBy helping to stimulate greater capacity into the criminal court is an attractive option to investigate,judicial sector, the ICC can have an impact which prosecute, and sentence those involved in crimeswill extend beyond the present time and into the against humanity. In assessing the viability offuture stability of the DRC. an international criminal tribunal for the DRC, one could use, as a case study, the International TRANSITIONAL JUSTICE AND THE Criminal Tribunal for Rwanda (ICTR). The ICTR REBUILDING OF A NATION was set up in the Tanzanian town of Arusha, composed entirely of international lawyers, judges, After extensive conflict in the DRC, it is vital that and magistrates from around the world, and isthe international community not only address mandated “to prosecute persons responsible forthe present impunity, but also ensure that the serious violations of international humanitarianfuture of the state judicial systems be rebuilt and law committed in the territory of Rwanda andimproved. Transitional justice goes beyond the Rwandan citizens responsible for such violationsinvolvement of the ICC to setting up mechanisms committed in the territory of neighbouringthat help prepare the state itself by establishing States.”47 It has aided in determining individualjustice mechanisms in the future. Two widely criminal responsibility as opposed to collectiveconsidered options include international criminal guilt, upheld the role of international law, appliedtribunals and hybrid courts. impartial justice, built a record of past crimes, and helped combat impunity by holding accountabilityThe Sun City Agreement of 2002, agreed upon by those who have been responsible for the humangovernment bodies, rebel forces, and civil society rights abuses of the past.48 A similar court couldgroups, was ostensibly the first step in outlining have equally positive effects on the DRC.an appropriate framework for transitional justicein the DRC at the end of the Second Congolese When comparing the ICTR with the InternationalWar. Five recommendations were put forth from Criminal Tribunal for the Former Yugoslaviathe agreement, including: the establishment (ICTY), it is important to note that the ICTRof an international criminal court for the DRC experienced greater success due to clearly definedto judge crimes committed since 1960; the restrictions on the lifespan of the tribunal, thecreation of a national Truth and Reconciliation containment of the Rwandan conflict by theCommission; the creation of a national human time of the commencement of the ICTR, andrights observatory; the abolition of the military large state support in obtaining custody of seniorcourts’ jurisdiction to judge civilians and the level offenders. All of these were necessary to therecognition of the right of appeal before those success of the tribunal; the ICTY experiencedjurisdictions; and the assertion of the separation enormous difficulties because the aforementionedof powers and the effective independence of conditions had not been established. Boththe judiciary.46 These mechanisms all address a tribunals, however, experienced backloggingnumber of the problems in the current judicial due to the huge number of cases and the lengthsystem in the DRC, bring attention to the abuses of the trials. The implementation of a similarof the past wars, set up mechanisms that would court in the DRC is, assuredly, a viable option inaddress present inadequacies within the judicial combating impunity in the short-term, althoughsystem, and expand the capacity and training ofDRC judicial personnel to combat impunity. 47 United Nations, Security Council, 3453rd meeting, TheIn the search for long-term mechanisms in Security Council, Resolution 955, 8 Nov 1994, http:// www.un.org/ictr/english/Resolutions/955e.htm45 48 United Nations, Human Rights Commission, Antonio Cassese, “On the Current Trends towards“Democratic Republic of the Congo, 1993-2003,” 471 Criminal Prosecution and Punishment of Breaches of46 United Nations, Human Rights Commission, International Humanitarian Law,” European Journal of“Democratic Republic of the Congo, 1993-2003,” 454 International Law 9, no. 1 (1998) : 9. 10

it is vital to have state cooperation in the arrest of as to ensure a lasting legacy for the rule of lawpolitical and military leaders and clearly defined and respect for human rights.”51 While hybridgoals and time schedules set for the tribunal. courts, like international criminal tribunals, are temporary and must therefore confine, ratherConversely, another option that could be than expand, themselves to a set time frame,pursued is that of a hybrid court. Hybrid courts it is an effective transitional mechanism to consider in the post-conflict region of the DRC,are defined by the UN as those courts “of mixed especially in building up the capacity of DRC’scomposition and jurisdiction, encompassing legal personnel, widening access to the courts toboth national and international aspects, usually the DRC citizens, and creating the infrastructureoperating within the jurisdiction where the for further legal courts after the hybrid court hascrimes occurred.”49 In the DRC, these courts served its purpose.would prosecute offenders near the centre of thecountry and employ a large majority of the judges CONCLUSIONand judicial personnel directly from the DRC.This would allow for a shorter transportation In conclusion, the international human rightsdistance for plaintiffs, allow for legal precedents abuses against children that occurred in the DRCto be set for national justice within state borders, have serious implications on its internationaland assist in economic development through treaties, and these abuses must be dealt with bythe hiring of state employees and the building a strong and competent judicial body to halt theof judicial infrastructure. Furthermore, hybrid cycle of impunity. Due to the weak state of thecourts would address a number of concerns DRC’s judicial sector, one should instead considerwithin the region, including the lack of capacity bringing in international aid, either exclusivelyand resources within the DRC, a fear of bias or conjointly, in investigating, prosecuting, andand lack of independence in the legal system, sentencing those responsible for human rightscontributing to the right to justice and effective violations. The exclusive jurisdiction of the ICCremedy, combating the culture of impunity, and and international criminal tribunals are twocontributing to reconciliation.50 options in carrying out post-conflict trials, both of which would combat impunity outside ofThe Special Court for Sierra Leone, set up by state boundaries and involve almost exclusivelythe government of Sierra Leone and the United judicial personnel from abroad. Hybrid courtsNations, is one example of this form of hybrid offer the advantage of having a widely accessiblecourt. In this case, there have been several court within state boundaries and utilizing theconcerns, such as the wide use of international, labour of the country in court trials, buildingrather than domestic, personnel, as well as a the capacity of judicial personnel and raising anarrow base of actors who were consulted in thecourts’ establishment, which the DRC can critique, sense of national, rather than foreign, justice.revise, and improve upon to fit their needs in This is likely the strongest option available topost-conflict restoration. With appropriate combat impunity and to raise a culture of justicerevisions and accountability mechanisms in place, in the DRC. Whichever option is pursed, the most“hybrid courts can have a positive impact on the important factor is that children are guaranteeddomestic justice system of post-conflict States so justice and a future free of the violence and impunity they have experienced over the past49 United Nations, Office of the United Nations High decades.Commissioner for Human Rights, “Rule-of-Law ToolsFor Post-Conflict States: Maximizing the legacy of hybridcourts,” [New York, NY], 2008:1. http://www.unrol.org/files/HybridCourts.pdf50 United Nations, Office of the United Nations High 51 United Nations, Office of the United Nations HighCommissioner for Human Rights, “Rule-of-Law Tools Commissioner for Human Rights, “Rule-of-Law ToolsFor Post-Conflict States: Maximizing the legacy of hybrid For Post-Conflict States: Maximizing the legacy of hybridcourts,” 12. courts,” 6.Bibliography The Democratic Republic of the Congo. Constitution de la République Démocratique du Congo. Kinshasa, DRC, 2006. http://democratie. francophonie.org/IMG/pdf/Constitution_de_la_African Commission on Human and Peoples’ Rights RDC.pdf (ACHPR). Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in United Nations. General Assembly. Convention on the Africa. Banjul, The Gambia, 1994. http://www. Rights of the Child. New York, NY, 1989. afrimap.org/english/images/treaty/ACHPR_ http://www2.ohchr.org/english/law/crc.htm Principles&Guidelines_FairTrial.pdf ---. General Assembly. Declaration of the Rights of the Child. Geneva, Switzerland, 1959.Andreu-Guzmán, Frederico. Military jurisdiction and http://www.cirp.org/library/ethics/UN- international law: Military courts and declaration/ gross human rights violations (vol. 1). Châtelaine, ---. Human Rights Commission. “Democratic Republic of Geneva: International Commission of Jurists, the Congo, 1993-2003.” New York, 2004. http://www.ecoi.net/file_upload/87_ NY, 2010. http://www.ohchr.org/Documents/ 1184764886_trib-mil-eng-part-i.pdf Countries/ZR/DRC_MAPPING_REPORT_ FINAL_EN.pdfBohlander, Michael. International Criminal Justice: A ---. Human Rights Commission. Secretary-General. The Critical Analysis of Institutions and Rule of Law and Transitional Justice in Procedures. London: Cameron May Ltd., 2007. Conflict and Post-Conflict Societies. New York, NY, 2006. http://www.unhcr.org/4506bc494.Cassese, Antonio. “On the Current Trends towards html Criminal Prosecution and Punishment of ---. Human Rights Council. Combined report of seven Breaches of International Humanitarian Law.” thematic special procedures on Technical European Journal of International Law Assistance to the Government of the DRC and 9, no. 1 (1998): 2-17. urgent examination of the situation in the east of the country. Kinshasa, DRC, 2009. http://Davis, Laura. “Justice-Sensitive Security System Reform www2.ohchr.org/english/bodies/hrcouncil/docs/ in the Democratic Republic of the 10session/A.HRC.10.59.pdf Congo.” Brussels, Belgium: Initiative ---. Office of the United Nations High Commissioner for for Peacebuilding, 2009. http://www. Human Rights. Optional Protocol to initiativeforpeacebuilding.eu/pdf/Justice_ the Convention on the Rights of the Child on Sensitive_Security_System_reform_in_the_ the involvement of children in armed conflict. DRC.pdf Geneva, Switzerland, 2002. http://www2.ohchr. org/english/law/crc-conflict.htmMay, Larry. Crimes Against Humanity: A Normative ---. Office of the United Nations High Commissioner for Account. Cambridge: Cambridge UP, 2005. Human Rights. “Rule-of-Law Tools Organisation of African Unity. African Charter on For Post-Conflict States: Maximizing the legacy of the Rights and Welfare of the Child. Addis hybrid courts.” New York, NY, 2008. http://www. Ababa, Ethiopia, 1999. http://www.africa- unrol.org/files/HybridCourts.pdf union.org/official_documents/Treaties_%20 ---. Rome Statute of the ICC. New York, NY, 1999. Conventions_%20Protocols/a.%20C.%20ON%20 http://untreaty.un.org/cod/icc/statute/romefra. THE%20RIGHT%20AND%20WELF%20OF%20 htm CHILD.pdf ---. Security Council. 3453rd meeting. The Security Council, Resolution 955. 8 Nov 1994. http:// Shaw, Mark, Ian van Diik, and Wolfgang Rhomberg. www.un.org/ictr/english/Resolutions/955e.htm “Determining Trends in Global Crime and ---. Universal Declaration of Human Rights. Paris, ��������� Justice: An Overview of Results from the United France, 1948. http://www.un.org/en/documents/ Nations Surveys of Crime trends and Operation of udhr/index.shtml Criminal Justice Systems.” Forum on Crime and Society 3, no. 1 (2003): 35-63. Zongwe, Dunia, Francois Butedi and Clement Phebe. “The Legal System and Research of theSimmons, Beth A. Mobilizing for Human Rights: Democratic Republic of Congo (DRC): An International Law in Domestic Politics. New Overview.” GlobaLex. Accessed November 2, York: Cambridge University Press, 2009. 2010. http://www.nyulawglobal.org/Globalex/ Democratic_Republic_Congo.htm.