STRATEGY FOR RAPID RE-ESTABLISHMENT OF A CRIMINAL JUSTICE CAPACITY IN BUNIA DEMOCRATIC REPUBLIC OF THE CONGO

Transcription

1 STRATEGY FOR RAPID RE-ESTABLISHMENT OF A CRIMINAL JUSTICE CAPACITY IN BUNIA DEMOCRATIC REPUBLIC OF THE CONGO DPKO Civilian Police Division August 2003

2 TABLE OF CONTENTS Executive Summary... 1 Introduction... 2 Objectives. 2 Current Situation... 3 Key Issues.. 4 Strategy for Rapid Re-establishment of a Criminal Justice Capacity in Bunia.. 7 Phase 1: Pre-trial Detention Capacity... 7 Phase 2: Basic Functioning of the Criminal Justice System Recruitment and Training of Local Staff.. 11 Rehabilitation of Current Facilities and Provision of Equipment 13 International Personnel Advisory and Training Roles Accountability Mechanisms Code of Conduct and Monitoring. 14 Conclusions Recommendations 15 Annexes Annex 1: Individuals and Organizations Consulted Annex 2: Terms of Reference Annex 3: Current Situation of the Police, Judicial and Corrections Systems in Bunia Annex 4: Detention and Review Process Annex 5: Capacity of Military Component for Extraordinary Pre-Trial Detention and Review Annex 6: Rapid Re-establishment of Pre-Trial Detention Capacity Additional Options Considered Annex 7: Prison Concept of Operations Annex 8: Prison Infrastructure Rehabilitation and Equipment Needs

3 STRATEGY FOR RAPID RE-ESTABLISHMENT OF A CRIMINAL JUSTICE CAPACITY IN BUNIA, DEMOCRATIC REPUBLIC OF THE CONGO August 2003 EXECUTIVE SUMMARY The police, judicial and corrections systems in Bunia are not currently functioning. The international civilian and military presences authorized by the Security Council for limited tasks are not able to fill the void and, as a result, there is almost complete impunity for abduction, rape, murder and other serious crimes reportedly being committed there on a regular basis. This document provides a two-phase Strategy for the rapid re-establishment of the criminal justice system in Bunia. Phase 1 establishes initial local capacity for the pre-trial detention of criminal suspects including those that might be detained by the international military presence as it carries out its mandate in Ituri. It could be implemented within seven to ten days after a decision to do so and deployment to Bunia of all necessary resources. Phase 2 provides for development of a local police service, expanded judicial capacity including the capacity to conduct trials and enhanced prison capacity. This phase builds on Phase 1 but is not dependent on it and could be implemented within twelve to sixteen weeks of the full deployment of the necessary resources to Bunia. It is underpinned by the recruitment and training of local staff, rehabilitation of current facilities, provision of equipment, deployment of international personnel, and implementation of accountability mechanisms including a code of conduct and a human rights monitoring programme. The Strategy is premised on the resolution of nine strategic issues, key among these are: successful coordination of donor efforts; the selection of police and prison personnel; the quick transfer of judges and prosecutors to Bunia; the payment of local salaries; and, support from the IEMF and/or MONUC s military component as they work within their mandates to help stabilize the security conditions in Bunia. Implementation of both phases of the Strategy should begin at the same time. Both should be led by MONUC and will require the active support of the Government of National Unity, the Ituri Interim Administration, and the international community. Effective consultation and collaboration with a full range of professional and civil society actors is also paramount to its successful and sustainable implementation.

4 INTRODUCTION This Report is the product of an assessment of the criminal justice system in Bunia conducted by police, judicial and corrections advisors 1 from the Civilian Police Division of the UN Department of Peacekeeping Operations (DPKO/CPD) from 8-24 July (The Assessment Team s terms of reference are set forth in Annex 1.) The assessment was closely supported by MONUC personnel who organized and participated in the mission, provided insights and guidance, and who participated in formulating the resulting recommendations. The Assessment Team based its recommendations on preparatory work conducted before deployment and on consultations with a wide range of parties national, international and UN system partners in Kinshasa, Kisangani and Bunia (See Annex 2). The recommendations draw, in particular, on the Evaluation du Système Judiciare et Pénitentiaire de Bunia (25 June 2003) prepared by the MONUC/Bunia Human Rights Section, OHCHR s draft Projet sur la Restauration du Systeme Judiciaire en Ituri, and numerous other useful documents from MONUC s civilian police component. In the corresponding sections below, this Report: (1) sets forth its two main objectives; (2) assesses the current situation in Bunia; (3) identifies and addresses the key issues faced; (4) offers a two-phased Strategy for Rapid Re-Establishment of a Criminal Justice Capacity in Bunia ; and (5) provides recommendations on steps needed to implement the Strategy. OBJECTIVES The Strategy and Recommendations below are offered to provide technical guidance to the Ituri Interim Administration (IIA), the Government of National Unity, other national actors, and the international community on steps needed to achieve the following two objectives 2 : Quick set-up of a system of arrest and pre-trial detention of those found to have committed a serious criminal offense that threatens the security of the peacekeeping operation or the civilian population; and Re-establishment of a minimally functioning local police, judicial and corrections structures with capacity to provide basic policing, conduct pre-trial detention hearings, detain prisoners, complete criminal investigations, and hold some criminal trials. 1 The CPD/DPKO Assessment Team consisted of: Mr. Sani Abdoulaye, CPD Desk Officer for MONUC; Ms. Isabel Hight, Corrections Officer in CPD s Criminal Law and Judicial Advisory Unit (CLJAU); and Mr. Robert Pulver, Judicial Officer in the CPD/CLJAU. The Assessment Team conducted the assessment, developed these recommendations, and drafted this Report with strong substantive support from: Mr. Stephane Jean, Legal Advisor to the MONUC Police Commissioner; and Mr. Benjamin Hounton, MONUC Human Rights Officer. 2 Longer-term strategies are not addressed in this paper, but will be necessary to provide for the complete functioning and development of the criminal justice system in Bunia. As recommended in the Secretary General s Second Special Report (S/2003/566 of 27 May 2003, para. 72), the European Union, UNDP and OHCHR plan to begin a detailed nationwide rule -of-law assessment as early as September This assessment is likely to lead to a larger, nation-wide rule-of-law approach being developed in early to mid

5 CURRENT SITUATION Bunia is currently without functioning police, judicial or corrections systems and a culture of impunity persists. MONUC s mandate does not expressly provide for it to undertake executive policing, judicial or corrections responsibilities and the IEMF interprets its mandate to exclude arrest or detention of criminal suspects 3. As a result, neither the IEMF nor MONUC are in a position to perform basic policing activity or to apprehend and detain for any period of time those believed to have committed serious crimes, including those caught en flagrante. Of an estimated 300 police previously stationed in Bunia, approximately 150 have been located and are available for re-engagement. Approximately thirty-five former court officials including one judge, several judicial police officers, registry officers, process servers and other clerical support staff are also present and appear eager to take up their positions. (One prosecutor formerly serving in Bunia is also available, but may not have been properly appointed. The same may well be true of some other staff). At least two defense lawyers are also present and appear to be available. Eleven previous prison staff including the management are similarly available for work. Of the four police stations, three appear structurally sound and warrant rehabilitation, the fifth requires demolition. Of these four, the headquarters building is the least damaged. The tribunal is in good condition and the prison in a state of severe decay and dilapidation. All require reconnection of electricity, water, installation of security grilles and lockable doors at a minimum. The prison requires the most extensive work. Almost all office, security and other equipment necessary to the functioning of the criminal justice system has been looted, lost or destroyed. According to those interviewed, no staff in Bunia have been paid salaries since July Many are acknowledged by the local population to have accepted bribes and favors and engaged in corrupt practices, and a number from all three systems are said to have been closely aligned with militia groups. It is widely believed that because of this alignment, or because of the conflict and their own ethnic and other affiliations, the previous judges and the prosecutor may be unable to dispense justice in an unbiased and impartial way. The majority of police have never received police training and none has been offered since Judges and prosecutors are said to have received high-level academic preparation but no further training. The court system is seen by some to be a root cause of the conflict, given its reputed role in resolving land disputes through bribery. As a result, current judges and prosecutors are likely to be unacceptable to large portions of the population and their return would signal a continuation of the old system. 3 The IEMF sees its primary functions as securing the airport, ridding Bunia of visible weapons, and thereby preparing for the arrival of the Ituri Brigade (also referred to as Task Force 2). Its mandate, however, is quite broad. Under Security Council resolution 1484, the IEMF is authorized until 1 September 2003 to contribute to the stabilization of the security conditions and the improvement of the humanitarian situation in Bunia and, if the situation requires it, to contribute to the safety of the civilian population, United Nations personnel and the humanitarian presence in the town. It is further authorized to take all necessary measures to fulfil its mandate (S/RES/1484 of 30 May 2003 paras. 1&4)

6 Prison staff and administrative court personnel are generally in need of education about the basics of their functions and all groups require education in the application of human rights principles, standards and the international conventions. For additional background on the current status of the police, judicial, and corrections systems in Bunia, see Annex 3. KEY ISSUES The following are key strategic issues that need to be addressed to successfully implement this Strategy: 1. Support from the Government of National Unity and the Ituri Interim Administration. One aim of this Strategy is to strengthen the IIA so as to bolster the peace process in Bunia. Because the police, the judiciary and prisons are structures of national character, however, strong central government support for this Strategy is essential to its success. The Strategy provides for the police and prison to operate under the authority of the IIA until the central government chooses to integrate them into national structures. This transition period should be short. It also recommends that judicial and prosecutorial authorities and their staff be administered by central authorities and that judges and prosecutors from other districts be immediately transferred to serve in Bunia. Moreover, national authorities should be committed to quickly begin paying salaries of police, judicial and prisons personnel in Bunia. Recommended Action: MONUC quickly commence discussions with the Government of National Unity and the IIA to seek support for this Strategy, including support for the interim management of police and prisons by the IIA. 2. Co-ordination of Efforts. All bilateral missions, donors and UN system partners consulted stressed the vital importance of re-establishing police, judicial and prisons functions in Bunia. Several pointed to a lack of donor coordination in the DRC generally and in Bunia specifically. Strong diplomatic and donor support for this Strategy is required, and mechanisms should immediately be set up in both Kinshasa and Bunia to accomplish this. Moreover, while MONUC may itself carry out some parts of this Strategy, the bulk of such efforts should be undertaken by multi-lateral or bi-lateral partners. Recommended Action: The IIA, with MONUC and/or bi-lateral support, should form a body for the coordination of donor efforts in Ituri. In addition, as recommended in the Secretary- General s Second Special Report, a multi-disciplinary rule-of-law task force should be established in Kinshasa to ensure coordination of such efforts 4. A key initial focus of the task force should be to support rule of law in Ituri. 3. Selection of Police and Prison Personnel. The re-engagement of local police officers and prisons staff by the IIA should be temporary and based on the understanding that these personnel 4 Id. at para

7 will later be eligible for re-integration into national police and prison systems. The personnel selected should reflect Bunia s pre-conflict ethnic diversity and appropriate gender balance. Moreover, because of the systemic corruption and serious crimes that may have been committed by some potential recruits, the implementation of a transparent and accountable recruitment procedure including a vetting committee operating under the IIA is needed. The recruitment procedure should be developed and implemented by the IIA with the strong involvement and guidance of international advisors 5. Recommended Action: MONUC or another international actor should provide comprehensive assistance to the IIA in the development of a transparent and accountable recruitment policy and procedure. This should include strong support for the operation of an IIA vetting/hiring committee. 4. Re-engagement or Transfer of Judges, Prosecutors and Related Personnel. Because of the constitutional and symbolic significance of the judicial and prosecutorial systems, this Strategy provides for the magistrates (judges and prosecutors) and their staff (e.g., registrars, process servers, judicial police, and other administrative staff) to be administered under the central authority, rather than under the IIA. The overwhelming sentiment that current judges and prosecutors are either unwilling for safety reasons to return to work and/or are too closely associated with sides to the conflict or to past corruption leads to the conclusion that they would need to be transferred to other districts. This Strategy therefore recommends that a new national Judicial Council be quickly convened in Kinshasa and that the President of the Council effect the rapid transfer to Bunia of judges and prosecutors from other districts. The law appears to empower the President of the Judicial Council to make such a transfer for exigencies of service or at the request of the transferee 6. Those interviewed believe that other judicial and prosecutorial personnel (registrars, process servers, judicial police, administrative personnel, etc.) could resume their functions without being replaced or transferred, if provided proper oversight and training. Recommended Action: MONUC and the diplomatic community commence discussions with the Government of National Unity, encouraging the rapid formation of the Judicial Council and appropriate steps by the Council to transfer judges and prosecutors to Bunia on an emergency basis. 5. Payment of Salaries. Donors are traditionally reluctant to contribute to the payment of national salaries. Nevertheless, to strengthen the authority of the IIA, this Strategy provides that salary payment or a stipend for living expenses be financed by donors on a temporary basis and paid through the IIA. While national salaries currently paid in Kinshasa are said to range from a base for police of less than $10/month to roughly $18/month for a chief judge of the Cour du Grande Instance, a higher amount is necessary under the dangerous conditions in Bunia. 5 Criteria that might be established to preclude appointment as a civil servant could relate to known involvement in major corruption, violations of international humanitarian law, or other major criminal activity. In addition, the criteria and procedure should be consistent with any applicable civil service legislation. 6 See Article 11, Statute of Magistrates, Ordonnance-Loi No of , J.O.R.Z. September Additional legal review should be undertaken in theatre to mo re precisely determine the transfer process

8 Moreover, a salary sufficient for basic sustenance is a pre-requisite to any effort to combat the corrupt practices that have plagued the DRC. Thus, a graded stipend should be paid ranging from $2/day for base level police and corrections personnel, to perhaps $4/day for the chief judge and prosecutor. Court appointed defense counsel should be compensated on a commensurate basis, consistent with the applicable law. Temporary contracts issued by the IIA for police and prisons personnel should be made consistent with current civil service conditions and relevant legislation so as to maximize subsequent smooth integration into national structures. This will be a key issue in managing the expectations of future employment of the previous work force. Recommended Action: Donors should channel sufficient funds to the IIA earmarked for payment of stipends to police, judicial and prisons personnel for an interim period of six to nine months. MONUC and the diplomatic community should seek agreement from the Government of National Unity to assume, as promptly as possible, responsibility for the payment of salaries consistent with the national civil servant salary scale. 6. Provision of Security for Local Staff and Institutions. Judicial personnel highlighted security as essential to their ability to fulfill their roles. While the close protection some personnel requested may not be viable given resource constraints, the Strategy provides for concentrated patrolling in the vicinity of the police stations, court and prison, as well as intermittent escorts to and from residential areas for judges and other at-risk personnel when requested by the IIA. Recommended Action: MONUC and/or donors quickly train and equip local police to provide static security at criminal justice institutions, including the court and prison. The military (IEMF and/or MONUC) concentrate patrolling efforts around such institutions and consider the establishment of checkpoints on key roads near such institutions. The MONUC Force Commander may consider whether the Ituri Brigade could support additional perimeter security at the prison. Similarly, the military may perform escort and extraction tasks for designated criminal justice personnel when authorized by the Force Commander. 7. Other Support from the MONUC Ituri Brigade and/or the IEMF. It is axiomatic that any military component deployed into a security and law enforcement vacuum such as in Bunia must be well equipped to deal with the variety of security threats it will face. The MONUC Ituri Brigade will encounter and be in a position to disarm and detain individuals who, through violations of criminal law, pose a serious threat to the Brigade, to the civilian component of the mission, or to the inhabitants of Bunia. This Strategy, therefore, calls for support from the MONUC Ituri Brigade and from the IEMF where consistent with their mandates, rules of engagement and contractual arrangements with troop contributing countries. Such support to the local criminal justice system is fundamental to the establishment and maintenance of a secure environment in Bunia. DPKO s Military Planning Section advises that this support be provided subject to consideration of competing mission requirements. Recommended Action: The IEMF and MONUC s Ituri Brigade provide as much support to the implementation of this Strategy as their mandates, rules of engagement, MOUs with troop contributing countries, and resources permit

9 8. Possession of Weapons by Police. This is a contentious and difficult issue. Information from a wide range of sources suggests that much of the population in Bunia has access to hidden weapons and, as a result, police will face a particularly dangerous situation when carrying out investigations and other duties. It is recommended that police in Bunia be issued sidearms during the hours of duty under a strict control arrangement which involves close support and monitoring by MONUC civilian police advisors. This arrangement would require the formal issuing and return of the weapon for each officer at the commencement and cessation of duty with each weapon being secured in a locked safe when not issued to an on-duty officer. While the risk remains that these weapons could be commandeered by others, compelling information suggests it is essential that local police be provided with a sidearm for their own protection when carrying out their duties and as a confidence building measure with the local community. Recommended Action: MONUC civilian police train local police in the use of firearms during their initial training and a firearms policy and strict control procedures be developed and the implementation facilitated and closely monitored by MONUC civilian police. STRATEGY FOR RAPID RE-ESTABLISHMENT OF A CRIMINAL JUSTICE CAPACITY IN BUNIA The following Strategy is designed to two phases. Phase 1 provides for the rapid development of a capacity in Bunia for the pre-trial detention of criminal suspects. This capacity could be operational approximately seven to ten days after the deployment of necessary resources and staff to Bunia. Phase 2 leads to a more complete functioning of Bunia s criminal justice system, including the capacity to conduct some criminal trials. This capacity could begin to operate approximately twelve to sixteen weeks after deployment of necessary resources and staff. Elements of both phases should be initiated as soon as possible 7. Recommended Action: MONUC immediately devote two full-time staff members one in Kinshasa and one in Bunia to support implementation of both phases of this Strategy. Phase 1: Pre-Trial Detention Capacity Creation of Limited Local Police, Judicial and Prison Capacity This phase relies on current legislation, which provides for officers of the Congolese police service to arrest persons suspected of committing criminal acts. It also relies on the capacity of the IEMF and/or MONUC to inform local police of any incident they observe in which a serious crime may have been committed, and to the extent permitted under their mandates and rules of engagement to disarm and hold perpetrators for prompt turnover to police authorities. It provides for pre-trial reviews in accordance with national judicial procedures, commencement of 7 Although the most rapid establishment of arrest and detention capability is achieved through the implementation of Phase 1, it may be determined that it is acceptable and preferable to implement Phase 2 only. This would mean that the prison rehabilitation could be undertaken without the complication of an existing prisoner population being present and the consequent need to manage the security issues which arise when refurbishing a prison in use

10 investigations, and the detention of suspects under secure and humane prison conditions within the current prison. It does not provide for the hearing of trials. Local police officers, supported by MONUC civilian police advisors, would be deployed to police headquarters where they would receive and process any criminal suspects detained pursuant to provisions of the local law. After arrest, suspects would be transferred on the day of intake to the prison and the police would transfer the case to the prosecutor for investigation. The prison would be staffed by existing local staff, and an international prisons advisor would support the local staff. Both the police and the prison staff would operate under the authority of the IIA. Judges and prosecutors along with judicial police officers, registrars, process servers, and other administrative staff would deal with pre-trial reviews. They would be under the administration of central authorities but would receive stipends from the IIA. They would be supported by an international judicial affairs advisor and monitored by national and international human rights organizations. Suspects would be entitled to free defense counsel as needed. Judicial police, working in the office of the prosecutor, would undertake the investigations. The judicial review of pre-trial detention would be provided within the prison facility and would occur at the intervals provided for under local law. (Annex 4 describes the detention and review process.) Local law appears to allow a maximum of 105 days of judicial detention before release or trial. For this reason, the trial capacity provided for under Phase 2 will be quickly required. This phase requires: The IEMF, and subsequently the Ituri Brigade, to advise police headquarters officers of any incident which they observe in which it appears that a serious crime may have been committed. To the extent permitted under their mandates, rules of engagement and agreements with troop contributing countries, IEMF and the Ituri Brigade would also disarm and hold perpetrators for prompt turnover to police authorities. The IIA hire twelve previous local police officers from those currently working on per diem contracts at the MONUC compound in Bunia, who would work under the authority of the IIA and be deployed to the existing police headquarters. The IIA require the attendance of any eight of these officers from 7am 7pm seven days per week at police headquarters. Their sole function would be to receive and process any suspects turned over by IEMF, MONUC or others including lodging the suspect in the police headquarters holding cells, notifying the judicial police of the arrest, and arranging the transfer of the suspect(s) to the prison on the same day. These local officers would be supported at all times by four MONUC civilian police mentors/advisors and would operate under the authority of the IIA until absorbed into the integrated national police service. The President of the Judicial Council immediately transfer two judges and two prosecutors from elsewhere in the DRC to Bunia. If transfer is not feasible, one judge and one prosecutor currently in Bunia might be utilized (although it appears that the prosecutor was not appointed by the central authority)

11 Four existing judicial police officers, two registrars, two process servers and any necessary administrative staff should be re-engaged under central authority to begin the investigation and support court processes. The IIA engage private defense counsel to represent indigent defendants free of charge, with their payment being made through donor or other funding. MONUC and/or donor(s) create a temporary holding capacity within the current prison facility using existing MONUC assets or donor funding. The IIA re-engage the eleven existing prison staff to manage the operations of the prison and immediately recruit up to fourteen additional prison staff. The military (IEMF and/or MONUC) concentrate patrolling efforts around police headquarters and the prison and consider the establishment of checkpoints on key roads near these institutions. The Sector Six Commander should consider whether the Brigade could support additional perimeter security in the area of the prison. MONUC co-ordinate the infrastructure rehabilitation activity, including reconnection of electricity and water at each facility, minor refurbishment of police headquarters and the court, provision of minimum office furniture at police headquarters and the prison and office supplies to police headquarters, the court and prison. MONUC and IIA determine payment arrangements for provision of a stipend through the IIA, using funding provided by a donor source for a limited period of time. MONUC or an interested bi-lateral or multi-lateral donor publish the transitional constitution, criminal code, criminal procedure code and other relevant legislation for quick distribution to police, judicial and prisons officials in Bunia and elsewhere in the DRC. An initial publication of at least 1,000 copies should be undertaken immediately. Other Options Considered As with the IEMF, the MONUC Ituri Brigade will encounter individuals who commit serious crimes against MONUC and who present a continuing serious risk to MONUC. The Ituri Brigade will also be in a position to detain individuals it observes in the midst of committing serious criminal acts against the population. Currently, it appears that both the IEMF and MONUC would disarm and eventually release such individuals, because there are no functioning criminal justice institutions in Bunia to which to relinquish suspects. (For example, MONUC has rescued abducted persons in Bunia, but was constrained to release the perpetrators). The release of criminal perpetrators caught en flagrante sends the signal that the international military presence is powerless to act in such situations, emboldens suspects to perpetrate further crimes, and undermines the international community s efforts to bring peace and stability to Bunia. The Assessment Team considered that with the adoption of Security Council resolution 1493 on 28 July 2003, MONUC may wish to take a more pro-active stance in dealing with such - 9 -

12 situations 8. Thus, the Assessment Team considered at some length the possibility of recommending the development of a capacity within the MONUC Ituri Brigade for the arrest and pre-trial detention of criminal suspects. More recently DPKO s Military Division has indicated that such option is not feasible given the Brigade s mandate, rules of engagement, human resources, as well as the current MOUs with troop contributors. While such option may not be feasible for MONUC, Annex 5 provides further general information on the option the Assessment Team considered 9. In addition, the Assessment Team considered at some length two other options for the emergency pre-trial detention of criminal suspects: (1) the arrest and detention of suspects by the IEMF, subject to national judicial review; and (2) IEMF and/or MONUC temporarily holding suspects prior to transfer to national authorities in another district. For the reasons set forth in Annex 6, neither of these options appears to be currently feasible. Phase 2: Basic Functioning of the Criminal Justice System As described below, Phase 2 leads to a more complete functioning of Bunia s criminal justice system, including the capacity to conduct some criminal trials. It, nevertheless, is a short-term, remedial approach that would require later augmentation by national authorities and, perhaps, international assistance providers 10. This phase also relies on current legislation, which provides for the arrest of persons suspected by the Congolese police service of committing criminal acts. It continues to rely on the capacity of the MONUC Ituri Brigade to advise local police of any incident they observe in which it appears that a serious crime may have been committed and/or to temporarily hold individuals for turnover to police authorities. It provides for pre-trial reviews, investigation, and the hearing of trials in accordance with national criminal procedure. It also involves the rehabilitation of the current prison for the pre-trial and post-conviction detention of male detainees (and in extreme circumstances women and juveniles). Recruitment of Congolese police officers (initially from existing staff) would be quickly completed through a vetting procedure organized by the IIA. These officers would be trained in groups of approximately fifty in anticipation of their eventual integration into the national integrated police service, with eight weeks of training provided over a twelve-week period. 8 MONUC is now empowered to to use all necessary means to fulfil its mandate in the Ituri district (S/RES/1493, para. 26). Its role in Ituri includes helping stabilize the security conditions... and if the conditions warrant it, helping to ensure the security of the civilian population and the personnel of the United Nations and the humanitarian organizations in Bunia... (Id. at para. 27) 9 Extra -judicial detentions carried out by the NATO-led military presence in Kosovo and by UNMIK (under executive orders of detention), have been highly criticized by human rights organizations. 10 This Strategy provides for only the basic functioning of the criminal justice system. The full functioning of the system would require additional resources and efforts. For example, preliminary estimates indicate a force of approximately 400 local police may be necessary to meet the policing needs of Bunia in the longer term, and the future structure of the police service will be dependant on decisions by the central government. A fully functioning court system would require additional staffing and the establishment of the Tribunaux de Paix. Accommodating more than 140 prisoners would require additional staffing and support

13 When deployed to operational duty, the local police officers would be supported by MONUC civilian police mentors/advisors. A number would be deployed to headquarters (as described in Phase 1) and to other duty stations in Bunia. The initial focus should be on the provision of static security at key locations, as well as on other basic policing functions. The prison would be rehabilitated to accommodate up to 140 adult males, the prisoners managed by local staff and intermittent external security patrolling be undertaken by the military. Prison staff would be supported by an international advisor and training officer. Court officers would be re-engaged, and judges and prosecutors would be transferred to Bunia. An international judicial affairs officer and court administration expert would work in the tribunal to provide support to the judges, prosecutors and other staff. Court proceedings would be monitored by international trial monitoring programmes. The key elements of this phase include: (1) Recruitment and Training of Local Staff; (2) Rehabilitation of the Current Facilities and Provision of Equipment; (3) Deployment of International Personnel; and (4) Development of Accountability Mechanisms. RECRUITMENT AND TRAINING OF LOCAL STAFF The initial complement of police and prison personnel would be drawn from previous staff and, where necessary, external local applicants all of whom would be subject to a vetting procedure under the auspices of the IIA. Police This Strategy provides for the initial engagement of forty to fifty former police officers through the recruitment and vetting procedure referred to above. These officers would complete an initial training programme comprised of four weeks of the current two-month Police Recruit Training Programme focusing on general police responsibilities, the legal framework, basic investigation techniques, human rights issues and code of conduct. At the fifth week, half the group would be deployed to operational duties in the company of MONUC civilian police officer deployed as on-the-job advisors/mentors. The other half would continue the fifth week of training and alternate weekly between operational duties and the formal training programme until completed after a further eight weeks. Ongoing recruitment and training in this manner is proposed during Phase 2 of up to 250 officers within eighteen months, ensuring ethnic diversity and gender balance. It is proposed that the timetable of the current programme be adjusted to include firearms instruction during the initial four weeks training, and that this instruction be provided at Kisangani where there is an approved firing range. This would require logistical arrangements for the transport, accommodation and possible payment of an allowance. Weapons training is strongly supported by the MONUC Civilian Police Commissioner and other personnel. This Strategy accelerates police operational availability and begins to address the preference of the Police Commissioner that all operational police undertake the full two-month training prior

14 to deployment. A local secondary school in Bunia appears to be available for use until late September. This initial police complement should also include a designated Chief of Police who would not necessarily have been a serving police officer but may have legal or management training. The command structure should be developed as the number of recruits increases, and the structure should be consistent with any national structure developed and implemented by the Government of National Unity for the national integrated police service. Uniforms are not essential whilst in training for either police or prison staff. Since these staff will potentially become part of the national police and prison services, it is desirable that a donor fund the purchase of uniforms from a DRC contractor and these be provided to police at least when they assume operational responsibilities. In lieu of uniforms, berets or other readily available apparel should be sourced locally. Judicial and Prosecutorial Staff A minimum of three judges, two prosecutors, four judicial police, two registrars, two process servers, as well as five administrative personnel in the prosecutors office are necessary to provide for ongoing functioning of the courts. Defense counsel would be assigned to represent indigent clients free of charge, with their payment provided for by donor or other funding. It would be necessary for the Government of National Unity to temporarily assign judges and prosecutors, on an emergency basis to Bunia. Other necessary judicial and prosecutorial staff could be selected from the previous staff and provided on-the-job training and support from an international advisor posted in the court. Given the reported high academic level of judges, prosecutors and defense counsel, they could be provided seminars on specialized topics sometime after they re-commence their duties. These seminars should preferably be led by national legal professionals with the support of international experts. Initial seminars should focus on applicable international pre-trial and criminal standards and should be practice based. Later seminars should be developed with the input of the judges, prosecutors and defense counsel themselves and should cover topics they identify as necessary. Participation in seminars outside of Bunia should also be considered. International NGOs involved in the training of legal professionals in the DRC should be contacted to determine their availability to provide such training in Bunia. Judicial police officers responsible for criminal investigations would participate in the police training described above and could also partake in relevant seminars for judges, prosecutors and defense counsel. Prison A complement of forty to fifty prison staff (including management and administration) will ultimately be required to manage the internal operation of the prison providing for twenty-four hour, seven-day per week management of up to 140 prisoners. An initial complement of eleven staff drawn from the previous staff is proposed will be expanded by the early recruitment of up to fourteen additional prison staff. Any shortfall in available and suitable previous staff could be

15 covered from former court or other civil servants. The returning and new staff would undergo a five-day training course on basic security and prisoner management policies and procedures and human rights and be required to sign a code of conduct. This initial training would be supported by on-the-job training. (For details of the prison Concept of Operations see Annex 7.) REHABILITATION OF CURRENT FACILITIES AND PROVISION OF EQUIPMENT Accessing donor funding and mobilizing materials and labour is likely to require greater lead time than other components of the Strategy and therefore should be taken up by MONUC simultaneously with Phase 1 implementation. While the initial police recruits are undergoing the first four weeks of training, the refurbishment of the police headquarters, three police stations, the court and prison could be undertaken. Refurbishment of each facility would include: reconnection of electricity and water; installation of lockable doors and security window grilles; repair of roofs, ceilings, walls and entry stairs; and repair of holding cell floors at police headquarters. It should be noted that while the prison is in a severe state of decay the majority of it appears to be sufficiently sound to warrant refurbishment. In any event, it is regarded as unlikely that a donor would provide for a new facility at least in the short term. It is proposed that MONUC encourage the donor community to undertake the short-term rehabilitation of the prison and the provision of basic office furniture and supplies at all police stations, the court (minimal furniture needed) and the prison. In addition, as mentioned above under Phase 1, MONUC or an interested bi- lateral or multilateral donor should publish the transitional constitution, criminal code, criminal procedure code and other relevant legislation for quick distribution to police, judicial and prisons officials. For details of the Prison Infrastructure Rehabilitation and Equipment Needs see Annex 8. INTERNATIONAL PERSONNEL ADVISORY AND TRAINING ROLES The involvement of international staff officials in training and advising roles co-located with national is a central tenet of this Strategy and is essential to its success. Most of these advisors would ideally be provided by multi-lateral and bi-lateral donors, with MONUC or other UN system partners potentially identifying and filling some gaps if other donors do not come forward. Thus, this phase contemplates deployment of an initial complement of twenty MONUC civilian police officers to develop and deliver the formal training programme, and to provide on-going advice, on-the-job training, mentoring and monitoring (including provision of administration advice and support to the head of the local police service). On-the-job training would include MONUC civilian police officers undertaking joint patrols with local staff and supporting and guiding the conduct of investigations. MONUC civilian police mentors/advisors should accompany local police in a recommended one-to-four ratio. These officers which can be provided from within currently vacant MONUC civilian police positions must be fluent in French, preferably have experience in peacekeeping, and have well-developed training and

16 advisory skills. As additional officers are recruited, the number of MONUC civilian police trainers, mentors and advisors will need to be increased. A Judicial Affairs Advisor, provided by a multi-lateral or bi-lateral donor or by MONUC is needed to provide advice to the judges, prosecutors and court staff to facilitate smooth functioning of the judicial system and to help increase public confidence in the judiciary. A Court Administration expert, also provided by a donor or MONUC, should also be deployed for two to three months to help ensure the development of efficient court administration systems. Both experts should be fluent in French, have prior experience in the region, and have significant experience in a similar civil law system. Both experts should have offices and work full time in the tribunal with their local counterparts. An international Prison Advisor is proposed to assist prison officials develop and implement basic security, prisoner management and administration policies and procedures in accordance with human rights principles including development and implementation of recruitment policy and procedures. This officer should have extensive prison management experience, be fluent in French and should have experience of prison reform in developing countries. Also proposed is a Prison Trainer responsible for developing and implementing formal and onthe-job training programmes, the latter of which would be the primary approach. This officer should have extensive experience in the development, preparation and delivery of prison training programmes both in the classroom and on-the-job in a prison, be fluent in French, and be able to function effectively in minimally resourced conditions 11. ACCOUNTABILITY MECHANISMS CODE OF CONDUCT AND MONITORING The development of a code of conduct is regarded as a key facet of this Strategy. The code should provide unambiguous guidance as to the standard of conduct accepted, and it should result in a strict response (e.g., dismissal) if breached given the culture of corruption that has been graphically described to the team. The code should be developed by the IIA, based on any existing standards, with the active assistance of the international advisors. Each officer should, as a condition of service, sign his/her agreement to the code. International monitoring of the criminal justice process by OHCHR, MONUC s Human Rights Section and/or another recognized agency is necessary to encourage fair and impartial dispensation of justice and to begin to build confidence in the judicial system. Police, court and prison monitoring should, therefore, be undertaken by local and international human rights organizations in accordance with their usual mandates to independently monitor and report on individual cases, including pre-trial detention proceedings, and to identify systemic problems and issues in the functioning of the judicial system. While the rights of defendants should be a core focus of the programme, it should also focus on broader issues of the administration of justice. With the exception of matters for which confidentiality is required, reports should be frequent and should be available to judicial/legal personnel as well as the public. Monitors should be 11 Greater efficiency and effectiveness could be achieved if the prison personnel and equipment needs were provided by the same donor, since this would allow sharing of these resources and maximize the likelihood of a consistent prison management approach

17 guaranteed access to the prison, pre-trial detention proceedings, trials, and other public phases of the judicial process and have access to appropriate documentation. CONCLUSIONS The implementation of this Strategy requires the full and active support of national authorities, the IIA, MONUC, other multi-lateral and bi-lateral actors, and the Congolese criminal justice professionals. While MONUC will necessarily play a central role in Kinshasa and Bunia in implementing and guiding its implementation, it is hoped that the bulk of the initiatives described herein will be undertaken and individually led by bi-lateral or other donors and assistance providers. The most effective approach would likely involve MONUC taking the lead in developing and overseeing an Implementation Plan. This plan should include coordination mechanisms and a public information strategy. Assuming lead responsibility will necessitate the full-time tasking of two MONUC officers, one in Bunia and the other in Kinshasa, to coordinate and manage the implementation of the Strategy. In the event that this Strategy, or something similar, is not quickly implemented, international peacekeeping efforts in Bunia will be seriously undermined. Military efforts to provide security in Bunia and beyond cannot be fully successful unless complemented by functioning national police, judicial and corrections systems. Thus, in the event that resources are not mobilized to implement this Strategy, serious consideration should be made of a more robust mandate for MONUC, including executive roles in policing and perhaps in the judicial and corrections areas. RECOMMENDATIONS It is recommended that: 1. All relevant partners, including the international community, the Government of National Unity and the IIA, support and implement the above Strategy. 2. MONUC immediately devote two full-time staff members one in Kinshasa and one in Bunia to support implementation of both phases of this Strategy 3. MONUC quickly commence discussions with the Government of National Unity and the IIA to seek support for this Strategy, including support for the interim management of police and prisons by the IIA. 4. The IIA, with MONUC and/or bi-lateral support, form a body for the coordination of donor efforts in Ituri. In addition, as recommended in the Secretary-General s Second Special Report, a multi-disciplinary rule-of-law task force should be established in Kinshasa to ensure coordination of such efforts. A key initial focus of the task force should be to support rule of law in Ituri

18 5. MONUC or another international actor should provide comprehensive assistance to the IIA in the development of a transparent and accountable recruitment policy and procedure. This should include strong support for the operation of an IIA vetting/hiring committee. 6. MONUC should provide immediate support for the development of a Code of Conduct for police, court administration staff and prison staff by the IIA. 7. MONUC and the diplomatic community commence discussions with the Government of National Unity, encouraging the rapid formation of the Judicial Council and appropriate steps by the Council to transfer judges and prosecutors to Bunia on an emergency basis. 8. Donors should channel sufficient funds to the IIA earmarked for payment of stipends to police, judicial and prisons personnel for an interim period of six to nine months. MONUC and the diplomatic community should seek agreement from the Government of National Unity to assume, as promptly as possible, responsibility for the payment of salaries consistent with the national civil servant salary scale. 9. MONUC and/or donors quickly train and equip local police to provide static security at criminal justice institutions, including the court and prison. The military (IEMF and/or MONUC) concentrate patrolling efforts around such institutions and consider the establishment of checkpoints on key roads near such institutions. The MONUC Force Commander may consider whether the Ituri Brigade could support additional perimeter security at the prison. Similarly, the military may perform escort and extraction tasks for designated criminal justice personnel when authorized by the Force Commander. 10. The IEMF and MONUC s Ituri Brigade provide as much support to the implementation of this Strategy as their mandates, rules of engagement, MOUs with troop contributing countries, and resources permit. (DPKO s Military Planning Section advises that this support be provided subject to consideration of competing mission requirements.) 11. The DPKO Civilian Police Division should expedite the recruitment of twenty civilian police officers qualified to provide formal and on the job training for current vacant positions. 12. MONUC civilian police train local police in the use of firearms during their initial training and a firearms policy and strict control procedures be developed and the implementation facilitated and closely monitored by MONUC civilian police. 13. MONUC develop a public information strategy to disseminate information throughout the Ituri District about efforts to establish credible criminal justice institutions in Bunia