The Kavumu trial: Complementarity in action in the Democratic Republic of Congo

 

On December 13, 2017, in a landmark decision, a military court in South Kivu convicted 11 Congolese militia members of murder and rape as crimes against humanity. The court, which was deployed as a “mobile court” in the village of Kavumu, found that the accused constituted an armed group controlled by provincial lawmaker Frederic Batumike that had carried out the rapes of 40 young girls. All 11 men, including Batumike, were sentenced to life imprisonment.

 

This was the first time in the Democratic Republic of Congo (DRC) that a sitting parliamentarian was found guilty for crimes under international law. This judgment also brought closure to a case that spanned almost five years and came to epitomize the scourge of sexual violence that still ravages parts of the DRC.

 

This article will briefly present the facts as well as the main procedural milestones of the Kavumu case. It will then discuss a few important takeaways from the Kavumu judgment that constitute not only important judicial precedent for the DRC justice system, but also represent key ingredients for the fight against impunity for crimes of sexual violence to be replicated in other jurisdictions.

 

 

Between early 2013 and June 2016, in the village of Kavumu, a few dozen kilometers from Bukavu, the capital of South Kivu province, as many as 40 young girls whose ages ranged from 18 months to 10 years old were abducted and raped before being returned to their families.

 

A similar modus operandi was used in each of these cases: after being abducted in the middle of the night by few men, the victim was raped, and then a sample of her hymenal blood was taken before she was left abandoned next to the village. Because the families were asleep and the victims were young and vulnerable, the perpetrators were not identified. Due to the extreme violence of the abuses, most of the victims were left with permanent damage to their reproductive system and experienced extreme trauma. They were treated at Panzi Hospital in Bukavu, but the physical and psychological recovery is ongoing.

 

 

For two years, despite the legal steps taken by the families of the victims as well as the documentation and advocacy undertaken by local and international actors organized in a Task Force led by Physicians for Human Rights, the local prosecutor refused to initiate a serious investigation.

 

However, in early 2016, the lawyers representing the victims, advised by TRIAL International, petitioned successfully to replace the local prosecutor with a provincial military prosecutor because there was enough evidence that the rapes were part of an overall attack that could constitute a crime against humanity.

 

In June 2016, the investigation led to the arrest of Frederic Batumike. A member of the South Kivu provincial assembly, Batumike was arrested alongside dozens of other alleged militia members on suspicion that they were involved in the systematic rapes. At the same time, the national government in Kinshasa recognized the urgency of the cases and decided to make it a priority.

 

In September 2017, the military prosecutor indicted 18 defendants for acts of rape constituting crimes against humanity, as well as additional offenses including murder and organization of a militia. The trial started in November 2017; it took 23 days of hearings and heard the testimony of dozens of witnesses. Comprehensive medico-legal evidence was submitted to the court. The military court found that 11 of the defendants constituted a militia led by Batumike that committed attacks against the civilian population as well as military positions. In particular, the attacks included systematically raping the young girls in Kavumu in order for the fighters to be protected from bullets in the battle, according to a traditional witchcraft practice.

 

 

Under international law, the best interests of the child and respect for his or her physical and psychological security are the guiding principles of all proceedings involving minors as victims. In this case, implementing these principles posed a special challenge considering the age of the victims, the gravity of the abuse, and the level of trauma and stigmatization.

 

The international legal community has developed a strong framework on children’s protection in legal proceedings. Amongst the relevant international standards, the 2016 International Criminal Court (ICC) Policy on Children by the Office of the Prosecutor informs that “direct contact, confrontation or interaction between a child victim or witness and the alleged perpetrator should be avoided, unless the child requests otherwise. Accordingly, the Office […] may also request that video or audio recordings of interviews with children be introduced pursuant to rule 68.” (Under rule 68 of the ICC’s Rules of Procedure and Evidence, a witness’s prior recorded testimony can be used as evidence during trial.)

 

Based on these premises, and in accordance with Congolese law that allows the adoption of all necessary measures to safeguard the physical and psychological security of victims of sexual violence, groundbreaking protection measures were implemented in the Kavumu case. For the first time in DRC, on top of medical and psychological evaluations to properly assess the damage inflicted on the victims, the investigating authorities requested video-recorded interviews with victims to be conducted in the presence of national and international experts on child trauma. In this way victims could have access to holistic trauma care throughout the evidence collection process itself.

 

During the trial, the victims’ lawyers requested a series of protection measures, including the use of codes instead of names for witnesses and victims throughout the court proceedings; anonymity for victims or witnesses who were testifying (with the use of head to toes cover and voice-altering equipment); and the admission of the pre-recorded testimonies in lieu of live testimony for the victims. Recognizing the necessity of these measures and ensuring their implementation, the military court of South Kivu set an important precedent toward a more victim-oriented criminal response to sexual violence crimes.

 

The Rome Statute Trumping Domestic Immunities

At the beginning of the trial, the defense lawyers claimed that the criminal proceedings against Batumike were unconstitutional because the military court had violated the immunities from prosecution he enjoyed under Article 107 of the Congolese Constitution as a Member of Parliament.

 

The court, dealing with this motion in a preliminary decision (arrêt avant dire droit), affirmed that “la cour est d’avis que la qualité de député provincial procure au prévenu BATUMIKE les immunités qui, malheureusement, sont battues en brèche par l’Art 27 du Statut de Rome de la CPI qui énonce le défaut de pertinence de qualité officielle de député par rapport au crime international lui infligé.”  In other words, if it is true that sitting parliamentarians enjoy immunities from prosecution conferred by the Constitution, the principle of irrelevance of official capacity in cases of investigation and prosecution for international crimes – as contained in Article 27 of the Rome Statute – prevails over the Constitutional provision.

 

Batumike’s immunity was therefore rendered irrelevant, and no violation of the Constitution was found.

 

This reasoning is very interesting because it affirms the prevalence of the Rome Statute over the national Constitution insofar as domestic immunities are concerned. It seems therefore that the object and purpose of the Rome Statute, which is to prosecute and sanction those most responsible for the gravest crimes, overrides otherwise, legitimate existing bars and hurdles to accountability, such as immunities from prosecution. From this decision, it could be inferred that the immunities conferred by the Constitution to members of the national government or head of state are equally not relevant when it comes to prosecutions for international crimes.

 

Taking Group Criminality Seriously

One of the main legal challenges of the Kavumu case was that, due to the nature of the crimes and the viciousness of their modus operandi, only one of the victims could identify her direct perpetrator as one of the defendants and part of the militia. It was therefore almost impossible to establish who among the militiamen was the direct material perpetrator of each and every rape.

 

International criminal jurisprudence has developed several legal doctrines, such as joint criminal enterprise, in order to capture similar manifestations of collective criminality when crimes are carried out by groups or individuals acting in pursuance of a common criminal design.

 

After considering that the victims could not identify the direct perpetrators due to their young age and the circumstances in which the crimes were committed, the court applied Article 25 of the Rome Statute. Article 25 contains several modes of criminal liability, including co-perpetration, indirect perpetration, and complicity in crimes committed by a group.

 

The court reasoned that “le prévenu est responsable non pas parce qu’il a commis matériellement les faits, mais parce qu’il prit le risque d’adhérer à un mouvement subversif qu’il savait mener des viols à grand échelle. Ainsi, chaque membre répondra de sa participation à un tel mouvement et aux actes conséquences qui en sont résulté.” In other words, the court proved that the defendants were part of a group of persons acting with a common purpose. The fact that they intentionally contributed to the criminal acts of the militia in the knowledge of its intention to systematically rape children was sufficient to hold them responsible for the rapes committed on the Kavumu girls.

 

By applying Article 25 of the Rome Statute, the military court was able to address the collective criminality behind the Kavumu attacks and hold the members of the militia accountable for their actions.

 

 

The prosecution of mass crimes cases presents tremendous challenges for any given jurisdiction, national or international. On top of the complexity of the context in which these crimes are typically committed, collecting testimonial evidence – in particular when it comes to child victims – as well as proving individual criminal responsibility when the direct perpetrators cannot be identified are daunting tasks. The lack of appropriate security and protection measures, as well as the existence of broad immunity provisions protecting state officials might pose further problems.

 

In the Kavumu case, the Congolese judicial authorities, working alongside international and local partners, managed to tackle complex issues in a solid and groundbreaking fashion setting an important example for the global fight against impunity for crimes under international law and demonstrating the full potential of the complementarity system enshrined in the Rome Statute of the ICC.

 

The final judgment in the case (available only in French) can be accessed at the link here.

 

Daniele Perissi and Elsa Taquet are legal advisors working on the DRC project for TRIAL International, a non-governmental organization fighting impunity for international crimes and supporting victims in their quest for justice. TRIAL International constituted and coached a collective of Congolese lawyers representing the Kavumu girls and their families. They helped documenting the case as well as designing the legal and judicial strategy adopted by the civil parties in the Kavumu trial.