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Still in Search of Justice
Ten Years since the Disappearances of Over 350 in Republic of Congo

Refugee Rights News
May 2009

“The disappeared of the beach” is the term used to describe the over 350 people who disappeared ten years ago, between April and November of 1999, at the end of the civil war in the Republic of Congo (RoC). The group was comprised of refugees returning from neighbouring Democratic Republic of Congo and internally displaced persons who were returning from the Pool, a region south of Brazzaville. Although the UN High Commissioner for Refugees (UNHCR) and the Republic of Congo government had guaranteed safe passage through a humanitarian corridor, upon arrival at the Brazzaville river port (known as the “beach”), many simply disappeared.

Rights groups accuse the government of transporting many of this group to secret locations, supposed “transit points” for their relocation. Most of the disappeared were young men who it is believed were arrested by President Sassou Nguesso's authorities on suspicion of being supporters of a militia known as the Ninja, private mercenaries used by some political parties in the 1990s. Ten years later, no one has been convicted of any offence linked to these disappearances. On 30 May 2009, a memorial mass was organised in Brazzaville, according to activist group Front for Peace and the Defence of Democracy in the Congo. Roger Bouka Owoko, Executive Director of the Congolese Observatory of Human Rights (OCDH), who has pursued justice for the victims in French courts said, "We demand now, ten years after, that the truth on this matter be revealed to determine the seriousness of what has happened, to establish responsibility, to punish the perpetrators and most importantly to repair the damage to hundreds of families.”
                 
Seeking Justice in Congo

At the end of 2001, fearing the disappearances would go unpunished, a group of relatives of the victims formed the Collective of Relatives of the Disappeared of the Beach and demanded prosecution of the Congolese generals they suspected of being responsible. Six months later, an investigation into the incident was opened in the Congolese justice system in the Criminal Court of Brazzaville, and finally in 2005 the trials of 15 security officials on charges of genocide, war crimes and crimes against humanity relating to 85 of the 353 individuals who disappeared began. The court found the state civilly liable and ordered the state to pay compensation to victims’ families but acquitted all of the accused on criminal charges.

Seeking Justice through Universal Jurisdiction

Separate legal proceedings were also started in 2001 in France on the basis of the principle of universal jurisdiction, a concept which allows any state to exercise jurisdiction over any individual who commits certain heinous and widely condemned offences, even where there may be little direct link between the country and the alleged crime. The traditional rationale for universal jurisdiction is that certain prohibited acts are of such serious concern to the international community as a whole that the potential for prosecution must be universal.

France is bound by the 1984 Convention against Torture (CAT), which it ratified in 1987 and incorporated into its domestic criminal code in 1994 and which includes this concept. France’s domestic criminal code therefore requires the prosecution or extradition of any person alleged to have committed torture and who is found on French territory. Under CAT, the term torture is defined as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as . . . punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at instigation of or with consent or acquiescence of a public official or other person acting in official capacity”. In an interview with Toucan Radio, one of only two survivors of the killings said that when he was shot by RoC officials, the bullet entered under his ear and exited through his mouth, ripping out his gums. He fell under the other bodies and managed to escape, eventually making his way to France.

Following advocacy by the International Federation for Human Rights (FIDH), the French League for Human Rights (LDH) and OCDH, French authorities sought indictments for President Nguesso of RoC, Minister of the Interior Pierre Oba, Inspector General of the Congolese Armed Forces Norbert Dabira, Presidential Guard Commander Blaise Adoua and Police Chief Jean-Francois Ndengue in 2001. The Republic of Congo government asked the International Court of Justice (ICJ) for a provisional measure to halt France’s investigations into the Brazzaville Beach case on the basis that the French legal proceedings would cause “irreparable prejudice” to Congo’s image and damage relations between France and the RoC, but the ICJ rejected the country’s request in June 2003. The French legal proceedings continued and two Congolese officials were indicted, Ndengue and Dabira. Ndengue was arrested during his visit to Paris on 1 April 2004 but was released from prison in the middle of the night of 3 April 2004. The Court of Appeals had ruled that an investigation into Ndengue was invalid and that he was entitled to release from prison on the basis that he held a valid diplomatic passport and was on an official visit. On 23 May 2003, Dabira was also arrested during a visit to France and later failed to appear before a judge in September 2002 and subsequently remained in Brazzaville, despite the French indictment and an international warrant for his arrest.

However, in January 2007, the Paris Court of Cassation, the criminal chamber of the French Supreme Court, decided to overturn the decision of the Court of Appeals cancelling the Brazzaville Beach case and ruled that the French courts did in fact have jurisdiction as a result of Ndengue’s residence in France. The appeal against the Court of Appeal decision in the Ndengue case had been advanced by the OCDH and the Collective of the Families of the Disappeared of the Beach. As a result, the two groups were accused by the Republic of Congo government of engaging in subversive activities with the aim of destabilising the state. Marcel Touanga, a human rights defender and father of one of the disappeared, currently living in exile in France, is head of the Collective of Relatives of the Disappeared of the Beach and became the target of surveillance and threatening phone calls. On 10 January 2007, President Nguesso publically threatened the OCDH and the victims’ families with reprisal on national television. In November 2007, the government banned a demonstration planned by human rights groups to bring attention to the missing of Brazzaville Beach during the 42nd Session of the African Commission on Human and Peoples’ Rights in spite of prior approval for the march.

In April 2008, the Court of Cassation in France rejected further appeals raised by the defence for the Congolese officials and confirmed that the French court has jurisdiction to prosecute the crimes as a result of the application of the Convention against Torture and the French Code of Criminal Procedure, which allows the prosecution of any person suspected of torture if he or she is in French territory. The Court confirmed that the prosecution’s indictment had been properly executed despite Ndengue’s assertions that he was entitled to diplomatic immunity at the time he was arrested in France. The Court ruled that Ndengue was not on an official diplomatic mission at the time he was arrested. The defence also raised the argument of res judicata, noting that the defendants had already been tried and acquitted during the 2005 Brazzaville trial, an argument that the Court of Cassation also rejected. As a result, a new investigative judge has taken over and the trials may continue, but because the accused officials remain in Congo and are unlikely to set foot in France again, it remains to be seen if any of the defendants will be forced to expose themselves to the jurisdiction of the French courts again. “Right now, it’s a waiting game,” a lawyer from FIDH said.

These developments are unfolding during a larger debate in the AU about universal jurisdiction. Following the AU’s June 2008 decision made in Sharm el-Sheikh, Egypt that the principle of universal jurisdiction needed to be thoroughly discussed at the UN Security Council and General Assembly levels, the AU and EU formed a Joint Expert Group of Legal Experts to draft a report clarifying the AU and EU understandings of the principle of universal jurisdiction. Further, during a ministerial meeting in Rwanda, 3-4 November 2008 for ministers of justice and attorneys general of AU member states, the ministerial conference emphasised that there was a need to follow closely future developments about the “abusive application of universal jurisdiction”. The conference concluded that cases of individual judges in non-African states applying domestic law should be examined separately but in tandem with those of the International Criminal Court (ICC) and that Africa should strengthen its own international justice mechanisms, such as the African Commission on Human and Peoples’ Rights. In February 2009, the AU Heads of State and Government stated that the warrant of arrest executed against Rose Kabuye, Chief of Protocol to the President of Rwanda in Germany was “creating tension between the AU and the EU”.

The arguments against the use of universal jurisdiction are manifold: universal jurisdiction may be at odds with national reconciliation procedures set up by new democratic governments that are dealing with their countries’ authoritarian pasts; judges everywhere would be in a position to make extradition requests without warning to the accused and perhaps without regard to policies that the accused’s home country may already have in place for dealing with charges; universal jurisdiction would also project some elements of conflict into various national courts by allowing the pursuit of adversaries through extradition requests. Despite these concerns, the realities of structural incapacities, show trials which sidestep victims’ or defendants’ rights and fear by courts and prosecutors in trying government officials can create significant barriers in the search for justice. For now, the families of the victims of the disappeared of the beach are looking to the prosecutions in France as the only avenue for criminal convictions.