Human Rights Components of MONUC

During the entirety of the MONUC deployment, there has been evidence of human rights abuse throughout the DRC. Most of the human rights abuses are committed by the armed forces of the warring parties.¹⁵⁶ They include arbitrary killings, arbitrary arrests, mass rape, illegal detentions, harassment and extortion, ill- treatment and torture of prison detainees.¹⁵⁷

The importance of a human rights component within the MONUC was first highlighted by the UNSC in 2000.¹⁵⁸ In March 2003, a resolution was adopted, by which the Secretary-General was requested to increase the number of personnel in the MONUC’s human rights component to assist and enhance the capacity of the Congolese parties to investigate all the serious violations of international humanitarian law and human rights.¹⁵⁹ The MONUC Human Rights Division developed its mandate in accordance with UN Security Council Resolution 1565 (2004), as confirmed by Resolution 1628 (2005). MONUC is mandated "to assist the Government of National Unity and Transition in the promotion and protection of human rights, with particular attention to women, children and vulnerable persons. MONUC provides advice and assistance concerning the essential legislation of human rights and fundamental freedoms." The Human Rights Division (HRD) is to assist the authorities to put an end to impunity and to ensure that those responsible for serious violations of human rights and international humanitarian law are brought to justice. The HRD monitors and documents human rights violations across the country. Special attention is paid to violations of the rights to life, liberty and physical integrity; to elections-related human rights violations; and to the link between the exploitation of natural resources and human rights abuses.

The Division is to protect individuals under imminent threat of physical violence, notably witnesses, victims and human rights defenders.

Within the MONUC,¹⁶⁰ human rights work is done by a number of divisions, including Child Protection, Humanitarian, Civilian Police (CIVPOL) and Military observers. MONUC’s human right section is presently composed of 50 personnel, inclusive of both administrative and substantive staff, possibly to be increased to 90 with the approval of the new budget.¹⁶¹ At the time

156 Thirteenth Report of the Secretary-General on the United Nations Mission in the Democratic Republic of Congo S/2003/211, February 21, 2003; See also Annan K. (1994) ‘Peace-Keeping in Situations of Civil War,’ in New York University Journal of International Law and Politics, vol. 26, No 4, pp. 623-644.

157 MONUC Human Rights Division, ‘DR Congo: Monthly Human Rights Assessment-October 2006,’ Africafiles, November 23, 2006.

158 See UNSC RES/1291/200 in which the Security Council, among other things, authorized the expansion of MONUC in the area of human rights.

159 See S/RES/1468, March 20, 2003.

160 Part of the information on this section emanates from the interviews conducted on June 11, 2007 to the Head of MONUC Human Rights section in MONUC headquarters in Bukavu, eastern DRC.

161 The budget was to be approved during the time of field research.

of the current research, MONUC had 12 field offices in the DRC, with a further two anticipated to be operational soon. This may seem like a sizable presence in the field, but the number of human rights officers and offices is miniscule, when one considers the size of the country.

The Human rights section of MONUC has the following basic tools at its disposal to join forces in the fight against impunity for human rights violators:

• Monitoring

• Special investigations and

• Thematic reports.

Each of the tools is considered in more details below:

Monitoring involves the following elements:

• Pro-active observation. This entails learning about the environment to be worked in. To be at the service of a community, one must be able to understand its dynamics and keep abreast of current events. One must know who is who and know the geography of the region.

Above all, one must be accessible. All of this requires a non-bureaucratic approach to human rights work.

• Interventions/interactions with local authorities. Local authorities are responsible for the protection and promotion of human rights. It is therefore of paramount importance to engage with them in a respectful but frank dialogue. It is always preferable to address issues locally.

Only in exceptional cases should matters be brought to the attention of the central authorities.

• Protection of civilians. This entails preventive actions and re-settlement initiatives to reduce the threat caused by proximity. Protection of civilians is normally done through intervention with the authorities. A classical example is interventions with prosecutors, the police or the military hierarchy in the event of illegal arrests and detentions. At times, threats against civilians may mean the civilians themselves demand re-settlement. Luckily, since the DRC is so vast, the option of re-settlement does not usually entail more refuge abroad. It must be stressed; nevertheless, that resettlement is considered an extreme measure that is seldom resorted to.

• Reporting. Reports can be made to the UNSC or to the MONUC Headquarters or shared with pressure groups such as concerned members of the diplomatic corps. The ultimate goal of monitoring is to establish a historical record, so that the truth is available to the persons it belongs to. It can possibly also be used for justice and compensation purposes. Due to

limited resources, the Human Rights section has had to prioritize its monitoring activities, focusing essentially on gross violations of human rights: summary execution/extra-judicial killings, enforced disappearances, torture, and illegal arrests or detention. Sexual violence, including that visited upon men, has been singled out as an area deserving particular attention. The need to limit the breadth of monitoring tasks and to prioritize springs from the conviction that it is better to do little, but do it well, than to be spread too thin and thus have little or no impact at all.

• Special investigations. Such investigations by the Human Rights Section are spearheaded by a two-person team, which concentrates on gross violations of human rights. In the DRC, the latter are normally associated with massacres, in which case the section organises a larger multi-disciplinary investigation team. Besides limited resources, a major challenge to special investigations is in the fact that it is virtually impossible to conduct follow-up on an initial investigation. This limit imposes the use of particular stringent caution in terms of exposure of witnesses and other sources of information. “Do no harm” is a basic tenet of human rights work. There may be times when a special investigation team will have to decide whether to gather information and by so doing risk jeopardizing the sources of information, or to go home empty handed. This dilemma unfortunately becomes even more acute in situations where the team knows that it may never be able to go back and check that those sources are, in fact, safe and sound and, if they are not, intervene for their protection.

Somewhat linked to the issue of special investigation, is the sad realization that the systematic and effective use of modern forensic techniques to ascertain causes of death, as well as for the purpose of identification, is a distant dream in the DRC. The issue of identifying the many missing persons and their families, which so far does not appear to be a priority on the agenda of civil society, is therefore likely to remain an unfortunately neglected aspect of investigation. Both in fact-finding activities of a monitoring nature, and in special investigations, a major and necessary challenge is to adopt a methodology that renders human rights work fully compatible with the requirements of criminal justice (including meeting the burden of proof), if these activities are to support the fight against impunity.

o Thematic Reporting. This type of reporting aims at collecting and analysing data on the areas that deserve particular attention. The challenge is to point to the root causes of problems, and to identify recommendations that can lead to a concrete improvement in the human rights situation.

On the rule of law, the story is not that much different. After years of dictatorship and war, the DRC is a state with limited police, and no judicial and correctional capacity in the territory that has remained under government control, and little or no capacity at all elsewhere. The task of reconstruction is therefore immense. Here, in a situation totally void of any form of legality, MONUC operates under Chapter VII. According to its Rules of Engagement, MONUC’s military can and do arrest and detain civilians and militia elements that are caught red-handed engaging in obviously criminal acts. The lack of a national/judicial/detention capacity results in such suspects being released after short periods of detention. At times, persons may be arrested for contravening orders imposed under MONUC’s Chapter VII authority –for instance, refusal to disarm in the town of Bunia. This raises a number of questions relating to the legal framework for these arrests and the position of MONUC as a peacekeeping mission, as opposed to being considered as an occupying power subject to humanitarian law rules under the four Geneva Conventions ¹⁶² and their Protocols.

Another major challenge, which is of a general nature but also impacts on human rights and the rule of law, is co-ordination. How does one ensure co-ordination of the different actors involving in human rights functions? How does one ensure that donor money, however well intended, does not generate conflict and jealousies among NGOs, and result in the distribution of existing networks and grass-root initiatives? For example, in Bukavu, eastern Congo an initial spontaneous and successful co-ordination around the issue of sexual violence suffered a major setback the moment donors and other external players began to show an interest in it. Somewhat understandably, the focus of many actors shifted from helping the victims to fund-raising and power grabbing. As a result, co-ordination came to a virtual standstill for a number of months during which the debate revolved around rather fictitious items of a purely formal nature. Eventually, after much struggling, the co-ordination picked up again. However, it would appear that not much progress in addressing violence occurred during that unfortunate interlude.

Despite the presence of the Human Rights Section and all these human rights functions, the MONUC’s human rights mandate has been unnecessarily weak and not well-defined. The implementation of MONUC’s humanitarian assistance and human rights mandate appears to rest on

162 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field 1949 (‘Geneva I’); Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea 1949 (‘Geneva II’); Geneva Convention Relative to the Treatment of Prisoners of War 1949 (‘Geneva III’); and Geneva Convention Relative to the protection of Civilian Person in Time of War 1949 (‘Geneva IV’).

the “as MONUC deems within its capabilities and under acceptable security conditions” portion of the mandate.

Success in these efforts in the overall prevention and management of the Congo conflict remains to be seen.