Report of the Panel on Remedies and Reparations for Victims of Sexual Violence in the Democratic Republic of Congo to the High Commissioner for Human Rights
1. In August 2010, a high-level panel was convened by the United Nations High Commissioner for Human Rights to hear directly from victims of sexual violence in the Democratic Republic of the Congo (DRC) regarding their needs and their perceptions of remedies and reparations available to them. The High Commissioner tasked the panel to assess the functioning of existing judicial mechanisms for remedies and reparations for victims of sexual violence, and to make recommendations on the strengthening of these mechanisms as well as the need for additional mechanisms, particularly to provide access to remedies for victims whose perpetrators are not known. The panel was chaired by Kyungwha Kang, the Deputy High Commissioner for Human Rights, with Elisabeth Rehn, former Minister of Defense of Finland and co-author of the UNIFEM report on Women, War and Peace, and Dr. Denis Mukwege, Medical Director of Panzi Hospital in Bukavu (South Kivu) serving as members. The panel worked in consultation with the Government of the DRC.
2. From 27 September to 13 October 2010, the panel conducted its in-country work, travelling to Kinshasa, Bukavu, Shabunda, Bunia, Komanda, Mbandaka and Songo Mboyo, and meeting with a total of 61 victims, some individually and some in groups, ranging in age from three to sixty-one years old. Groups included victims who had contracted HIV/AIDS as a result of rape, victims who had become pregnant and had children as a result of rape, victims whose husbands had rejected them following their rape, child victims of rape, victims of rape who had taken their cases to court seeking justice, and victims of rape by civilian perpetrators. In each locality, the panel also met with provincial and local government officials, and convened roundtables with officials in the justice sector, members of civil society and UN representatives.
3. The Panel was informed about efforts undertaken by the Government to address sexual violence, including the adoption of a National Strategy to Combat Gender-Based Violence and the passing of two laws against sexual violence in 2006. The panel found that the needs of the victims of sexual violence it interviewed are largely unmet, particularly in remote areas. The lives they knew have been largely destroyed, and they are suffering greatly - physically, psychologically, and materially. This victimization continues and is compounded by the stigma they often face in families and communities. Their husbands abandon them, and they are socially ostracized. Often this rejection is further compounded for victims who suffer from fistula, victims who become pregnant and bear children as a result of rape, and victims who contract sexually transmitted diseases, including HIV/AIDS. Shifting the stigma from the victims to the perpetrators would have a great impact on the ability of victims to reclaim their dignity and rebuild their lives.
4. For those victims the panel interviewed from North and South Kivu, where armed conflict continues to plague the civilian population, the restoration of peace and security was the highest priority - their “first prayer,” their “big dream,” and their “greatest hope.” Peace and security are seen as the precondition to any restoration of normal life, and victims expressed concern that whatever they are given now to restore their lives can be again destroyed if there is no peace. Among the recommendations of the panel is a call for intensification of efforts to restore peace and security in eastern DRC, with support from countries in the region and from the international community and with equal participation of women, in implementation of Security Council Resolution 1325.
5. Health care and education were among the highest priorities conveyed to the panel by victims, who expressed concern first and foremost for their children. They are determined but in many cases unable to send their children to school. Those who have contracted HIV/AIDS are deeply troubled by concern over what will happen to their children when they die. Many victims who met with the panel have been displaced from their homes, some as a result of the armed conflict and others as a result of rejection by their husbands and families. They expressed the need for socio-economic reintegration programmes, with attention to ensure that they are sustainable and tailored to the economic context.
6. The panel was struck by the difference between the urban centres and the villages it visited in each province. In remote areas there is so little infrastructure that access to any form of assistance or reparation is virtually non-existent. Most women outside the cities are unable to get medical assistance within 72 hours of rape. Nor are there prisons and courts within reachable distance, making detention and trial of perpetrators very challenging and rendering justice unattainable. Shabunda is not accessible by road. Transport is a critical need for law enforcement, as well as healthcare. Even in Bukavu, the panel noted that the police officer responsible for sexual violence investigations has only a motorcycle, which makes it impossible for her to transport arrested persons to detention facilities. Similarly in Mbandaka, the police unit for sexual violence and protection of children has no vehicle.
7. The panel met with victims of sexual violence who have been able to overcome the many challenges of bringing a case to court and getting a judgment that condemns the perpetrators and awards them reparations in the form of damages and interest. These victims expressed great frustration because their perpetrators have escaped from prison while they have not been paid the damages and interest awarded to them by the court, even in those cases where the state has been held liable in solidum. This is a matter of widespread concern to judicial officers and provincial government authorities, as well as civil society and the victims themselves. The failure to pay these awards is undermining the judiciary and the confidence of victims in the justice system. The panel recommendations call on the Government of the DRC to take immediate action to pay the damages and interest that have already been awarded to victims by the courts, in installments if necessary, and to make greater efforts to bring perpetrators to justice, including officers with command responsibility. The panel found that widespread sexual violence perpetrated with impunity by illegal armed groups as well as national security forces has led to a widely noted increase in sexual violence perpetrated by civilians as a result of war.
8. Most victims interviewed by the panel are unable to seek justice through the courts because they cannot identify their perpetrators, or in some cases their perpetrators have not been arrested, leaving these victims with no possibility of access to reparation through judicial proceedings, as the justice system does not provide for reparations in the absence of the perpetrator. Victims have a right to reparations, which include restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition. There is a need to highlight the responsibility of the government in this regard, with support from the international community. The conflict in DRC is transnational and there is a commonly held view among victims, civil society, and government authorities that there is an international responsibility as well as a national one to address the resulting harm.
9. The panel registered a clear call - from victims, NGOs and government authorities – for reparations. The creation of a reparations fund mechanism for victims of sexual violence whose perpetrators are unidentified or insolvent is envisioned by the National Strategy to Combat Gender-Based Violence, as a component of the fight against impunity. The panel heard many views on the relative benefits and drawbacks of individual vs. collective reparations, and repeatedly the suggestion was made that both collective and individual reparations should be provided for. Certain needs are more readily dealt with on a collective basis, whereas other needs can only be addressed on an individual basis. Depending on the nature of individual reparations, different levels of victim qualification might be required, if not through judicial proceeding then through an administrative process. The panel noted the distinction to be drawn between humanitarian assistance and reparations, or between development programmes and reparations, reparations being characterized by an element of redress, which acknowledges the harm suffered and provides benefits to remedy that harm, with some component of state responsibility.
10. The panel recommends that a fund to support reparations for victims of sexual violence in the DRC, the need for which is foreseen in the National Strategy to Combat Gender-Based Violence, be established as a matter of priority, with the governance of the reparations fund to include representatives of the Government of the DRC, the United Nations, donors, civil society, and survivors themselves, to best ensure accountability for the allocation of funding and the expenditure of funds. Such a fund should benefit victims of sexual violence in all parts of the country, not just eastern DRC. While there must be some element of government contribution to a reparations fund in recognition of its responsibility to the victims, this participation could take various forms including in-kind contributions, percentage allocation of costs, public statements and other forms of symbolic reparation that recognize the harm suffered by victims. The reparations fund should have the flexibility to respond differently to different needs in different places, and the panel recommends that a decentralized model that allows for reparation projects to be formulated at the local or provincial, as well as the national level, would be more effective in tailoring reparations, particularly collective reparations, to the needs of the victims. A reparations fund should be restricted to Congoleseled initiatives so as to help build national capacity, and the design of a reparations fund should be formulated in close consultation with victims of sexual violence, as well as civil society.