THE EStates in the Great Lakes region have adopted an important legal framework for judicial cooperation since the 1970s. However, these agreements are very little implemented, even though the implementation of regional agreements is necessary to enable strengthening judicial systems and thus contribute to the stability of the region.
Photo credit: Pexels – EKATERINA BOLOVTSOVA
For around thirty years, the Great Lakes region has been marked by major political crises, internal and regional conflicts which have caused thousands of deaths and large population displacements.[1].
Countries in the Great Lakes region suffer from various forms of cross-border crime, such as illegal management and trafficking of natural resources, human rights violations including sexual violence, migrant smuggling and human trafficking, which can lead to instability due to the impunity of the perpetrators of these crimes.
The perpetrators of the most serious crimes travel and settle in neighboring states, leading, there too, to cross-border crime. To ensure the repression of human rights violations, DR Congo, Burundi and Rwanda are required to cooperate in order to effectively fight against impunity. Criminal judicial cooperation involves the collaboration of national, international and regional jurisdictions to combat crime.
A relatively well-provided legal framework
At the international level, by ratifying the Geneva Conventions of 1949, States in the region are required to respect the principle aut dedere aut judicare. This obligation requires the State in whose territory the alleged perpetrator of a crime is to extradite him (aut dedere)or to judge him (aut judicare).
In addition, the United Nations Conventions against transnational organized crime, there corruption and the enforced disappearances provide a broad legal framework for international cooperation regarding these specific crimes and have been signed and ratified by the three States of interest to us.
Concerning the instruments of the Great Lakes region, a regional Convention was adopted with the aim of governing international judicial cooperation between Burundi, Rwanda, DR Congo and Tanzania. it's about the Judicial Convention of the Economic Community of the Great Lakes Countries (CEPGL) as well as its Protocol relating to daily mutual legal assistance, both adopted in 1975.
More recently, during the International Conference on the Great Lakes Region in 2006, the States of the region adopted the Pact on Security, Stability and Development in the Great Lakes Region. This general Pact has ten Protocols, including one relating to the judicial cooperation. This Protocol has two parts: one on cooperation in investigations and prosecutions, the other on extradition. There extradition procedure allows a foreign State to obtain from another State the surrender of an accused or convicted person.
In February 2013, eleven countries, including the three in question, signed in Addis Ababa, sponsored by the UN. According to this document, the signatory countries undertake, among other things, not to harbor or protect people accused of war crimes, crimes against humanity or crimes of genocide. At the end of 2016, was created in Nairobi, the Judicial Cooperation Network of the Great Lakes region (RCJGL) in order to meet the commitments of the 2013 Framework Agreement. Framework on peace, security and cooperation, sponsored by the UN. According to this document, the signatory countries undertake, among other things, to neither shelter nor protect people accused of war crimes, crimes against humanity or crimes of genocide. At the end of 2016, was created in Nairobi, the Judicial Cooperation Network of the Great Lakes region (RCJGL) in order to meet the commitments of the 2013 Framework Agreement.
Although some examples judicial cooperation can be advanced between the three States, they do not make it possible to respond to the extent of cross-border crime. Indeed, impunity remains the rule, and the establishment of responsibilities, the exception.
The pitfalls of judicial cooperation in the Greater Region–Lakes
- States adopt agreements but do not execute them
Generally speaking, regional instruments aim to provide economic and social development states and populations. In this sense, to have a real impact on the daily life of citizens, these instruments must be implemented. International organizations, such as the CEPGL, are not directly responsible for implementing the instruments; this mission is reserved for the signatory states.
Thus, regional cooperation is an area in which state sovereignty is particularly important. In matters of judicial cooperation, a State may refuse a request for extradition or application of the principle aut dedere aut judicare, if it considers that its sovereignty is violated or if its laws do not allow it.
Nevertheless, the regional organization can offer support for the implementation of the instruments, via assistance mechanisms, advocacy mechanisms, compliance mechanisms, monitoring mechanisms or even dispute resolution mechanisms. For example, there is a regional monitoring mechanism of the Framework Agreement for Peace, Security and Cooperation for DR Congo and the region.
Contrary to the Judicial Convention of the Economic Community of the Great Lakes Countries of 1975 and its protocol, article 30§1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, allows you to enter the International Court of Justice in case of dispute. To ensure effective judicial cooperation, one of the solutions could be the creation of a jurisdiction by the CEPGL, or the possibility of seizing an already existing jurisdiction.
- National laws do not take into account regional agreements
Instruments adopted at the regional level must be applied at the national level in order to achieve legal and practical effects. Often, this Implementation depends on the constitutional and legal regimes of each country. To facilitate regional judicial cooperation and make it effective, CEPGL member states must adopt harmonized national laws.
However, reading the national provisions of the States shows that some have texts that predate the 1975 Judicial Convention and the 1975 Protocol, which can pose problems in the execution of requests. In this case, the national law of the DR Congo is still based on the 1886 extradition decree and does not take into account the Convention and its Protocol signed subsequently.
It is therefore important to harmonize the different national legislations to enable effective and mutually beneficial judicial cooperation. Firstly, harmonization would facilitate the execution of requests and avoid complications that can arise when national laws are different. Finally, it would strengthen mutual trust between Member States and facilitate the resolution of cross-border problems.
However, States may have different legal systems, legal cultures and priorities in matters of judicial cooperation. It may therefore be difficult to find common ground and reach consensus on specific issues related to judicial cooperation. Harmonization can take time and require significant resources.
- Abolition of the death penalty: DR Congo still under moratorium
Although the peremptory norms of international law do not require the abolition of the death penalty, since the Soering affair, brought before the European Court of Human Rights, the presence of the death penalty in the State arsenal has become an obstacle to judicial cooperation, because it is in contradiction with the right to life. It is the responsibility of States to respect and guarantee the right to life. Therefore, States must refrain from extraditing or transferring people to countries where they risk a violation of their right to life.
In DR Congo, the death penalty is still applied to certain crimes, although it was abolished by Rwandan and Burundian legislators, it therefore hinders the effectiveness of judicial cooperation. As of June 2023, DR Congo has not yet ratified the Second Optional Protocol relating to the International Covenant on Civil and Political Rights, aimed at abolishing the death penalty. Although the death penalty was suspended in DR Congo since 2003, Congolese courts continue to hand down death sentences, but the sentence is automatically commuted to life in prison.
Some countries therefore refuse to extradite people suspected of having committed serious international crimes to the DR Congo because the death penalty is still in force in its legislation. In this case, Rwanda, abolitionist country since 2007, considers the death penalty as a reason for refusing the extradition request.
- Prison conditions which do not allow effective judicial cooperation
Judicial cooperation can be affected by modern human rights issues, particularly when it is proven that the State requesting extradition does not have appropriate prison conditions.
According to Master Mulenda and Master Banza, respectively lawyer at the International Criminal Court and member of the permanent commission for reforms of Congolese law, prison conditions in DR Congo are lamentable. Prisons are often overcrowded, lack food and clean water, and prisoners do not have access to adequate medical care. Living conditions in prisons are, most of the time, unsanitary and prisoners may be subjected to harsh conditions. physical and sexual violence. Human rights organizations have reported cases of torture, prolonged detention without fair trial and inhumane conditions in Congolese prisons[2]. THE Acat report reports similar conditions within the Burundian prison services.
Therefore, extradition to these States is hindered when serious grounds for human rights violations are advanced. CEPGL member countries should therefore improve their prison conditions to facilitate judicial cooperation in criminal matters.
The need for effective judicial cooperation for the stability of the region
Although political commitments are expressed regarding judicial cooperation in the region, their execution is not satisfactory. This failure fuels impunity of military leaders and other hierarchical superiors accused of international crimes who benefit from protection in their own State or in neighboring States. There is an increased need for judicial cooperation between countries in the region, particularly regarding requests for extradition and legal assistance, at the national, regional and international levels[3].
Much remains to be done politically and legally to effectively combat impunity and bring perpetrators of crimes to justice, particularly with regard to sexual violence and violence against women. Judicial coordination and cooperation are all the more important in the investigation of international crimes given the the extent of the repercussions of these crimes in societies.
Serious crimes present serious political, legal and institutional challenges, but real progress can be achieved if mutual cooperation and trust develop among the States of the Great Lakes region. There Justice & Peace Commission calls on States to work jointly at the judicial level, thus the countries could strengthen their relations and allow the advent of a certain stability in the region. Unimplemented instruments harm the reputation of the regional organization concerned and the credibility of the international system as a whole. This is why Belgium and its citizens are concerned by the importance of active and effective cooperation. Furthermore, the repression of international crimes would improve citizen confidence in their governments, security services and judicial institutions, would strengthen relationships of trust and collaboration between neighboring States and contribute to the stability of the region.
Louise Lesoil.
[1] Conflicts, development and views on the future of the DRC: words from North Kivu – Lo Spiegone
[2] In the prisons of the Democratic Republic of Congo, “hellish living conditions” (lemonde.fr)
[3] Judicial cooperation and human rights | OSESG-GL (unmissions.org)
