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Military Court Trials Worry Rights Activists

IWPR - September 27, 2007

At the Kisangani military court in the northeastern Democratic Republic of Congo, the day's work begins long before any lawyers or accused arrive. The courtroom - where judges hear cases both mundane and involving the most serious war crimes - is devoid of furniture. The judge's assistants must carry in a desk to serve as the bench and pews from the nearby Catholic church to seat spectators.
But legal experts see the courts as the best hope for dealing with impunity in DRC, despite their failings.

By Lisa Clifford in The Hague (AR No. 134, 25-Sept-07)

At the Kisangani military court in the northeastern Democratic Republic of Congo, the day's work begins long before any lawyers or accused arrive.

The courtroom - where judges hear cases both mundane and involving the most serious war crimes - is devoid of furniture. The judge's assistants must carry in a desk to serve as the bench and pews from the nearby Catholic church to seat spectators.

Lack of electricity means court sessions end at sunset and all the furniture goes back to where it came.

Observers say the conditions in Kisangani are similar in military courts throughout the country - which is what brought Colonel Dominic McAlea to the Congo.

"My aim is fairly basic - to try to breathe some life into the system," said McAlea, a military criminal law advisor with the United Nations Mission in the Democratic Republic of Congo's, MONUC, rule of law unit.

"[Judges and prosecutors] still have their professional pride - they're still trying - but they are starved of resources. I'm here to help change that, identify and prioritise the needs and present those needs to international donors who might help."

Proponents of war crimes justice see it as the best hope for dealing with impunity in a country where two civil wars have claimed an estimated four million lives, and peace remains fragile.

Civilian courts in Congo are in disarray and a bill integrating the International Criminal Court, ICC, statute into domestic legislation - giving them clear jurisdiction to hear war crimes cases - is dormant.

The ICC has one militia leader, Thomas Lubanga Dyilo, in custody, but since the Hague-based court is only mandated to try high-ranking suspects, and only has the capacity to take on a limited number of cases, military tribunals in the Congo have been given a role in prosecuting war crimes trials.

In one case in February, a military court in the northeastern town of Bunia convicted 13 soldiers of massacring civilians in Ituri, sentencing them to life imprisonment. In April 2006, seven officers were found guilty of mass rape, the first time rape was tried as a crime against humanity in the Congo.

But Congolese military courts are highly controversial, with detractors citing cases brought on trumped up charges, trials involving civilians and rampant political interference.

"In some cases we had hope that these trials appeared to show a beacon of hope, that some of the most serious crimes against humanity would be tried and even if its military courts that's a significant step forward," said Anneke Van Woudenberg, senior Congo researcher at Human Rights Watch.

"I think we're seeing that beacon of hope dimming quite substantially, because we're seeing increasing interference in those trials, either at the first level or on appeal."

Van Woudenberg cites the case of Ituri militia leader Kahwa Mandro - a former member of Lubanga's Union of Congolese Patriots and founder of the Party for Unity and the Protection of Congo's Integrity.

He was recently found guilty by a military court of war crimes and crimes against humanity in a groundbreaking verdict.

But that verdict was overturned after an appeal that included testimony from Congo president Joseph Kabila in a closed session. "All indications are that [the case was thrown out] on the basis of political interference," said Van Woudenberg. "They decided on a spurious legal basis to cancel the first judgment and didn't follow Congolese or international law."

And there have been other high profile cases of justice denied by military courts, say critics.

A verdict in late June in Kisangani cleared nine soldiers of war crimes and three foreign employees of the Anvil Mining company for complicity in war crimes committed during a massacre at Kilwa in which 73 civilians died during battles between rebels and the army.

Observers say the trial was plagued by obstructions and political interference and failed to conform to international judicial standards. They say the Congolese authorities blocked investigations into the incident for more than a year; that witnesses and victims were intimidated; and that the military prosecutor was taken off the case when he resisted pressure to drop the charges against the three workers from Anvil.

"There was political interference from beginning to end," said Carina Tertsakian, the lead campaigner on the Congo at the NGO Global Witness, which helped compile a detailed report on the trial.

The United Nations High Commissioner for Human Rights, Louise Arbour, also criticised the verdict in the Kilwa case and expressed special concern that a military court had tried civilians.

In the Congo, military courts enjoy relatively broad jurisdiction and can try anyone - including civilians - who is alleged to have committed an offence with a military weapon.

That's how former presidential candidate and lawyer Marie-Therese Nlandu ended up on trial before military judges in the capital Kinshasa.

Nlandu ran for president in the first round of elections but was defeated. She switched allegiance to Kabila rival Jean-Pierre Bemba who was also defeated. He alleged fraud and Nlandu represented him in court.

She and several associates were arrested in November and Nlandu was charged with organising an insurrection after three hand grenades were found in their car. Activists say the prosecution was politically motivated, and Nlandu was acquitted. Prosecutors have appealed that verdict.

Harriet Solloway, who as director of MONUC's rule of law unit is charged with helping the Congolese rebuild their justice sector, admits there are problems with military courts.

Chief among those, she says, is the lack of any working mechanism for sanctioning judges who are suspected of wrongdoing.

"There is no functioning process to look at cases where judicial misconduct is suspected," said Solloway. "There's nothing you can do about a judge who is corrupt and to me that's wrong."

But she insists there is reason for hope and robustly defends military courts, which she says are better organised, disciplined and controlled than their civilian counterparts.

"Given proper support and proper reinforcement and under a watchful eye, I believe the military justice sector is one of the great hopes for?. dealing with impunity," said Solloway.

At the heart of her optimism, she says, is the generally high calibre of those working in the military court system.

"There's a core of real jurists in Congo," she said. "There are people who think like jurists. They have the intellectual capacity and the basic understanding of law, law making and justice that makes it possible to work with them and improve for the future."

Solloway acknowledges that political interference is a serious problem but points out that isn't confined to military courts.

"It's a fallacy that military justice is more controlled by the state than civilian justice. There's the same potential for political interference," she said.

"[Military justice] is the best shot the country has. I believe the direction things are going now they deserve a chance."

Lisa Clifford is an international justice reporter in The Hague.

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