Democratic Republic of the Congo
Practice Relating to Rule 38. Attacks against Cultural Property
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:
18. Making the clearly-recognized historic monuments, archives, works of art or places of worship which constitute the cultural or spiritual heritage of peoples and to which special protection has been given by special arrangement the object of attack, where there is no evidence of the violation by the adverse Party of the prohibition on using these objects in support of the military effort, and when these objects are not located in the immediate proximity of military objectives.
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.
Any of the following acts, perpetrated as part of a widespread or systematic attack knowingly directed against the Republic or the civilian population, equally constitutes a crime against humanity and is punished by death, whether committed in time of peace or in time of war:
10. Destruction of the universal natural or cultural heritage.
In August 2006, in the Kahwa Panga Mandro case, the Military Garrison Court of Ituri at Bunia held:
3. On the crime against humanity of murder and the war crime of attack against protected objects …
c.) On the war crime by attack against protected objects according to Articles 8.2)b)ix) and 77 of the Rome Statute
Whereas for its realisation, that charge requires the following elements:
1) That the perpetrator directed an attack;
Whereas in the present case it has been proven through the testimony of the victims that the troops of the chief Kahwa attacked Zumbe on his order, while he was the chief of the Hema militia called “Chui mobil force” …;
2) That the object of the attack was one or more buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives.
Whereas in the present case it follows from witness evidence that the attack from 15 to 16 October 2002 concerned the buildings of the Zumbe health centre, the CECA 20 church of Zumbe, the primary school of Zumbe and the school Buisa Bunyi;
3) That the perpetrator intended such buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives, to be the object of the attack;
Whereas in the present case, when attacking all these objects, Kahwa’s men knew that these objects were not military objects; whereas from this follows the mental element; whereas, in fact, there was no military target for pretending that they attacked that building because it was occupied by armed men;
4) The conduct took place in the context of and was associated with an armed conflict not of an international character [sic; see Elements of Crimes, Article 8(2)(e)(iv) ICC Statute],
In the present case, the Hema militias and the Lendu fought against each other, and that since 2000, on the basis of land conflicts;
Whereas, in fact, the examination of the victims, in particular the chief of the locality and community of Zumbe, has shown that there were several attacks committed by the Hema against the Lendu of Bedu-Ezekele. …
5) That the perpetrator was aware of factual circumstances that established the existence of an armed conflict.
Whereas, in fact, the defendant Kahwa was aware of the existence of these conflicts …
Whereas it has been proven that Kahwa in his [passive] attitude had to tolerate the violations committed by his men during the attack of 15 to 16 October 2002; whereas his troops, in fact, operated in the territory controlled by him in his capacity as chief of the community, acts he cannot pretend not to have been aware of;
Whereas, in consequence, his responsibility on the basis of Articles 85 to 87 of the Geneva Additional Protocol [I] and Article 28 of the Rome Statute on the responsibility of superiors, which provides as follows, [is established]:
“Their (command) responsibility is only engaged if they failed to take all necessary and reasonable measures within their power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.”
Whereas Articles 85–87 of Additional Protocol I provide that:
“any commander who is aware that subordinates are going to commit or have committed a violation must:
- initiate such steps as are necessary to prevent such violations,
- initiate disciplinary or penal action against violators, [according to] his competences,
- report violations to the competent authorities”;
Whereas, in fact, the commander shares the responsibility with the perpetrator of the act;
Whereas Article 29 of the International Criminal Court speaks of the responsibility of the superior (military commander or civilian superior) in the following cases:
- If “the military commander either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes”;
- If “the superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes and these crimes concerned activities that were within the effective responsibility and control of the superior”;
Whereas, in the present case, Kahwa, in his capacity as chief of the Hema militia and leader of the Bahema Banyuagi community, while attacking the Lendu did nothing to hinder these dramas; whereas his silence thus constitutes approval or a tacit order;
The Military Garrison Tribunal of Ituri, holding publicly and after proceedings in which both sides were heard, by the majority of the votes of its members, by secret vote:
- Holds as established in fact and in law the offence of war crime by attack directed against protected objects the defendant Kahwa Panga Mandro is charged with and for this convicts him to 20 years of penal servitude.
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 protected objects. The Court stated:
90 … [T]he defendant … is accused of [committing a] war crime by [carrying out] attacks against buildings that do not constitute military objectives, which is a punishable act according to article 8(2)(e)(iv) [of the 1998 ICC Statute] …
91 … [T]he war crime addressed by this article is defined as the act of attacking and destroying buildings of common and/or public use, unless such attacks and destructions are imperatively demanded by military necessities.
92. In view of the [2000 ICC] Elements of Crimes, [this] war crime requires, in addition to a link between the crime and the existence of an armed conflict not of an international character, and the awareness by the perpetrator of the factual circumstances that established the existence of this conflict, that the following five elements be present:
i) an action by the perpetrator consisting of launching or directing an attack; ii) the object of the attack must be one or more buildings which do not constitute military objectives; iii) the perpetrator must intend these buildings to be the object of his attack knowing that they are not military objectives; iv) the conduct of the perpetrator must take place in the context of an armed conflict not of an international character; v) the perpetrator must be aware of the factual circumstances that established the existence of an armed conflict.
Attack shall be understood here in the sense of article 49(1) of the  Additional Protocol I … , which defines attacks as “acts of violence against the adversary, whether in offence or in defence”.
93 … [I]n the present case, during the attacks launched against Nyankunde and Groupement Musedzo respectively on 5 and 12 September by FRPI Ngiti militiamen, the destructive attacks were deliberately directed against buildings which did not constitute military objectives, in particular buildings dedicated to … charitable purposes, … religion and education.
96 … [T]hose buildings were damaged or destroyed because they were targeted by the Ngiti combatants …
97 … [S]uch attacks were launched against buildings in both places during a period where there was an armed conflict not of an international character in the territory of Irumu, in Ituri, situated in the Eastern Province of the Democratic Republic of the Congo.
98 … [T]he FRPI leaders who planned and ordered the above-mentioned attacks, as well as all Ngiti militiamen and combatants of the political-military movement who materially committed the attacks, were aware of the existence of an armed conflict of this nature in Ituri and had the intention to direct such attacks against those buildings knowing that they did not constitute military objectives. This proves the existence of the intentional or mental element which constitutes the direct and special dolus according to article 30 of the [1998 ICC] … Statute.
99 … [T]herefore, this Court finds that there is sufficient evidence to establish substantial grounds to believe that these attacks which constitute war crimes were intentionally launched against buildings which were not military objectives in Nyankunde and Groupement Musedzo by the FRPI Ngiti combatants with the support, authorization, blessing and/or lack of control by the leaders of this political-military movement called FRPI, including the defendant.
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.