Democratic Republic of the Congo
Practice Relating to Rule 37. Open Towns and Non-Defended Localities
The Democratic Republic of the Congo’s Military Penal Code (2002) provides:
Crimes against humanity are grave violations of international humanitarian law committed against any civilian population before or during war.
Crimes against humanity are not necessarily linked to the state of war and can be committed not only between persons of different nationality, but even between subjects of the same State.
The grave breaches listed hereafter, affecting, by action or omission, the persons and objects protected by the Geneva Conventions of 12 August 1949 and the Additional Protocols of 8 June 1977, constitute crimes against humanity, repressed according to the provisions of the present Code, without prejudice to more severe penal provisions provided by the ordinary Penal Code:
13. Making non-defended localities and demilitarized zones the object of attack;
The offences contained in the preceding article are punished with penal servitude for life.
If those contained in points 1, 2, 5, 6, 10 to 14 of the same article lead to the death or cause grave injury to the physical integrity or health of one or several persons, the perpetrators are liable to the death penalty.
In 2010, in the Barnaba Yonga Tshopena case, the Military Garrison Court of Ituri-Bunia convicted a leader of the Front for Patriotic Resistance in Ituri (FRPI) of several war crimes, including attacking non-defended localities. The Court stated:
88 … [T]he defendant … is accused of [committing a] war crime by launching attacks against non-defended localities, which is a punishable act according to article 8(2)(b)(v) [of the 1998 ICC Statute]. The constitutive elements of this crime are:
- The perpetrator must have attacked one or more towns, villages, dwellings or buildings;
- Such towns, villages, dwellings or buildings were open for unresisted occupation;
- Such towns, villages, dwellings or buildings did not constitute military objectives;
- The conduct took place in the context of and was associated with an armed conflict;
- The perpetrator must be aware of the factual circumstances that established the existence of an armed conflict.
89 … [I]n the present case, several villages were attacked and burned, including Nyankunde and seven other localities in the Groupement Musedzo, and the defendant … knew that those attacks were associated with an armed conflict. Therefore, this Court finds that there is sufficient evidence to establish substantial grounds to believe that the defendant committed a war crime by launching attacks against non-defendant localities.
Regarding the applicable law, the Court stated:
[T]he constitutional provisions of the Democratic Republic of the Congo, namely articles 153(4) and 215 of 18 February 2006 [Constitution (2006)], authorize both civil and military courts and tribunals to apply duly ratified international agreements and treaties, and give them higher authority than domestic legislation. This constitutional authorization combined with the self-executing nature of the … [1998 ICC] Statute justify the direct application of this treaty by Congolese courts and tribunals.