15 December 2010
On the 9th August 2010, a remarkable judgment for the struggle against the most serious violations of human rights was handed down in Ituri by the military tribunal of Bunia, (East DRC). Bernard Yonga Tshopena Kakado, founder of the Ituri Patriotic Resistance Front (IPRF), was condemned to life imprisonment. From 2000 to 2007, when he was arrested by the Congolese army, his armed militia was sadly made famous by the scale of its crimes against civilians.
Thanks to the victims’ lawyers, Kakado, initially prosecuted for participation in an insurrectionary movement, was finally recognized, in his capacity as leader, as guilty of the war crimes of murder, attacks against civilian populations, attacks against protected property, pillage, rape, cruel and inhuman treatment and sexual enslavement committed by his militiamen. The judgment lists by name more than 1200 victims, killed in the space of a week.
Kakado appealed the decision and the opening of the trial before the Military Court of the Eastern Province ought to begin in the coming weeks.
In the context of its program of struggle against the impunity of international crimes in DRC, Avocats Sans Frontières selected Messrs. Mukendi and Kaghoma to defend the legal interests of the victims. During an interview with us, Mr. Mukendi went back over the conditions of his intervention in the case and the most intense moments of the trial.
Mr. Mukendi, how did you come to represent the victims in this case?
From 2005 to 2007, I was part of around one hundred Congolese lawyers who benefited from a training course on judicial assistance for the victims and defendants of international crimes (1). Since then, I have continued to collaborate with ASF and this is the third time that the organisation has selected me to represent the parties in this type of case before the Congolese courts and military tribunals.
What professional challenges does the Kakado case present?
For me, it is notably a question of experiencing the realities of the delicate legal assistance for the victims of international crimes, while ensuring the respect of the courts and the tribunals for their rights, as guaranteed by the Rome Statute (2).
The greatest challenge is to convince the tribunal of the veracity of the facts, of the reality of the war crimes and the prejudices which the victims suffered. It is difficult because four associate judges were sitting in the case and, since they are not professional magistrates, they are not very well equipped to judge complex cases, such as those relating to international crimes.
What were the most intense moments of the case?
First, I would say the battle to obtain from the tribunal the decision to extend the prosecution for various war crimes of the defendant, Kakado. Next, I remember the fight to get the defendant’s defence, the public ministry and the tribunal to agree to accord anonymity to the victims and witnesses, and to allow them to appear with their faces hooded and under code names, with the aim of protecting and reassuring them, conforming to the demands of the Rome Statute. Finally, I remember the poignant moment when I spoke to expose before the tribunal the atrocities and the inhumanity of the events endured by the victims, and thus the scale of the material as much as the moral prejudices which they suffered.
What were the biggest difficulties you encountered?
First there was the thorny matter of the research and collection, in conjunction with the public ministry, of the material evidence of the commission of war crimes with which the defendant was charged, and their production and admissibility before the court. Another sizable problem was that of ensuring my own security, as well as that of the victims and the witnesses for the prosecution, before, during and after their appearance. It must not be forgotten that this was an important and sensitive case, in a particular climate since the defendant still enjoyed great popularity in the area, and this despite the military operations to root out pockets of resistance from militiamen still loyal to the defendant.
And your greatest victory?
My greatest success was to carry through to the end the defence of the victims in this terrible case, where there had been over 1200 people massacred in the space of a week, then the attacks of Nyankunde and Musedzo in ITRI by the militiamen of the IPRF.
What do you expect from the appeal?
First, I would like to see very soon this case on the clerks’ list at the Military Court of the Eastern Province so that the appeal can start quickly. Evidently, I hope that the appeal judge confirms the sentence given by the first judge and that he improves the fate of the plaintiffs in according them just and fair reparations.
What consequences does the decision have for the victims? What was their reaction?
While I am waiting to put into action a mission to bring restitution for the victims, they are already informally informed of the contents of the judgment. They phoned me to express their joy and their thanks to ASF and all the lawyers who were put at their disposition by the organisation. The victims felt a great satisfaction to see the perpetrator of the crimes which they suffered, punished under the law. This decision is important to them because it has restored to them ever so slightly their violated rights.
Interview conducted by Myriam Khaldi
(1) This training was organised between October 2005 and October 2007 by ASF in collaboration with the Bars of the DRC, the Human Rights section of MONUC, the International Criminal Court, the NGO REDRESS and the ICRC.
(2) The Rome Statute is the treaty which created the International Criminal Court. Since the DRC ratified it in 2002 and, conforming to the Congolese constitution, the treaties have a value superior to that of the laws, the national jurisdictions must apply it directly. The judges must notably take up the exact definitions of war crimes, crimes against humanity and genocide, and respect the rights of victims and witnesses, very strongly protected by the Statute.