On 19th April 2004, the Office of the Prosecutor of the International Criminal Court (ICC) announced receipt of the referral of the situation in the Democratic Republic of Congo (DRC). The referral, transmitted to the office of ICC Prosecutor Luis Moreno Ocampo in a letter signed by DRC President Joseph Kabila, requests that the Prosecutor investigate allegations of crimes falling within ICC jurisdiction, (namely genocide, crimes against humanity and war crimes,) if committed anywhere in the territory of the DRC since the July 1, 2002 date of entry into force of the Rome Statute of the ICC. But the ghost of impunity continues to haunt the Democratic Republic of Congo (DRC) despite the referral of the situation to the ICC.

By means of the letter, the DRC asked the Prosecutor to investigate in order to determine if one or more persons should be charged with such crimes, and the authorities committed to cooperate with the ICC. After receiving several communications from individuals and non-governmental organisations, the Prosecutor had announced in July 2003 that he would closely follow the situation in the DRC, indicating that this would be a priority for his Office.

Since then, the Office has continued its work in analyzing the situation in the DRC, especially in Ituri. Following various procedures and in accordance with the Rome Statute, the Prosecutor will now proceed to determine whether there is a reasonable basis to initiate an investigation in respect of the situation referred. The Office of the Prosecutor will therefore assure itself of the basis for an investigation under the Statute and examine the modalities for such an investigation, in order to reach an informed decision.

The Congolese Dilemma

Since 1998, the DRC has experienced horrific armed conflict in which impunity for war crimes and crimes against humanity has been, and continues to be, the norm. Attacks against the civilian population, killings, and use of sexual violence continue to be committed in the East. These crimes will not stop as long as those who commit them are not held responsible for their acts. Accountability for those responsible for serious crimes is essential if the DRC and the region are to make a transition to a durable peace. Therefore, we salute the initiative of the DRC to refer its situation to the ICC in order to put an end to impunity.

But although the ICC may be an answer to crimes committed in the DRC, what will happen to crimes committed from 1998 to July 2002, a period that is beyond the scope of the ICC? While the DRC's ratification of the Rome Statute allows the ICC to try crimes committed after July 1, 2002, there is no mechanism to thoroughly investigate and prosecute the gravest crimes committed during the five-year war and put an end to impunity.

The national justice system is unable, due to its current state of disarray, even with massive help, to address past crimes perpetrated in the DRC since 1998. The ICC is also not competent because of lack of jurisdiction to deal with these crimes. Thus the necessity of possible justice mechanisms to investigate and prosecute crimes against humanity and war crimes committed prior to the entry into force of the ICC Statute.

Furthermore, the current transitional period in the DRC is particularly marked by the creation of several institutions “purported” to support “democracy”, among which is the Truth and Reconciliation Commission (TRC). This TRC would consider political, economic, and social crimes committed from 1960 until 2003 in order “to establish truth and help bring individuals and communities to reconciliation.”

But one question remains: Is the establishment of the Truth and Reconciliation Commission (TRC) in the DRC meant to end impunity or to cover up gross violations of human rights committed in the DRC? The response seems to be known in advance, since one individual suspected of involvement in human rights abuses was appointed to the executive committee of this TRC.
The ghost of impunity continues to haunt the DRC and the important thing now is to look at the challenges in addressing impunity for the horrific crimes that have been committed in the DRC since 1998. If not, the impunity for these atrocities will sends the message that such crimes may be tolerated in the future.

Therefore, the question arises as to how possible it is to establish an International Criminal Tribunal beyond the borders of the DRC, to include the Great Lakes Region for crimes committed in the DRC since 1998?

* Yav Katshung Joseph is executive director of the CERDH (www.cerdh.tk)

* Please send comments to