Related Rule
Democratic Republic of the Congo
Practice Relating to Rule 101. The Principle of Legality
The Democratic Republic of the Congo’s Military Penal Code (2002) provides:
Article 2
No offence can be punished with a penalty not provided for by law before the offence was committed. However, new provisions less severe than those of the old law apply to offences that were committed before the new provisions entered into force and that have not yet led to a final conviction.
However, the application of the new law has no effect on the validity of proceedings completed in accordance with the old law. The penalty nevertheless is no longer executed if it was pronounced for a fact which, according to a law subsequent to the judgement, no longer has the character of an offence. 
Democratic Republic of the Congo, Military Penal Code, 2002, Article 2.
In March 2006, in the Bongi Massaba case, a case against a captain of the armed forces of the Democratic Republic of the Congo, the Military Garrison Court of Ituri at Bunia held:
III. Applicable law
Whereas the Military Garrison Court of Ituri has been seized by referral decision of the Garrison Military Auditor with two charges falling under the competence of the International Criminal Court, namely, first, war crimes as provided for in article 8.2.b.xvi and article 77, and second, article 8.2.a.i and article 77 of the Rome Treaty on the Statute of the International Criminal Court of 17 July 1998;
Whereas that Statute represses the crimes of genocide, crimes against humanity and war crimes committed since the first of July 2002, the crimes of aggression not yet having been defined;
Whereas the Democratic Republic of the Congo has ratified that treaty by Decree-law No. 0013/002 of 30 March 2002;
Whereas the Military Penal Code of 18 November 2002, Law No. 024/2002, in its articles 161 to 175, provides for the crimes of genocide, crimes against humanity and war crimes;
Whereas, in consequence, the material competence of the International Criminal Court is not exclusive, by virtue not only of the principle of complementarity and subsidiarity of that Court in relation to domestic jurisdictions, in the sense that it follows from the reading of that Statute that the domestic jurisdictions are preferred to the ICC, which only intervenes under the conditions determined by that Statute;
Whereas, however, that domestic legislation, in this instance the Military Penal Code of 18 November 2002, in force since 30 March 2003, contains a clear gap by, in fact, not punishing war crimes for which there is no penalty provided;
Whereas, obviously, the Congolese legislator did not at all have the intention to leave unpunished this atrocious crime, whose great gravity it had recognized by ratifying the Treaty of Rome on the Statute of the Court;
Whereas, in consequence, that omission of penalization is, in the end, only a purely material error …;
Whereas, according to article 2 of the Military Penal Code, “No offence can be punished with a penalty not provided for by the law before the offence was committed”;
Whereas, in this instance, indeed, that domestic law has never provided for a penalty for war crimes, not even by the technique of cross-reference;
Whereas, under these conditions, it is necessary to seek to fill these gaps in the domestic legislation by relying on the Rome Treaty on the Statute of the International Criminal Court ratified by the DRC, in order better to attain the aim the Congolese legislator had, namely to have war crimes punished by the military jurisdictions on the national level (read point VII of the legislative background to Laws No. 023 and 024/2002 of 18 November 2002 in the Journal Officiel of the DRC, special issue of 30 March 2003);
Whereas, according to article 215 of the Constitution of the RDC promulgated on 18 February 2006, it is stipulated that “the regularly concluded treaties and international agreements have, from the time of their publication, an authority superior to that of the law, without reserve to the application of the treaty or agreement by the other party”;
Whereas, for this reason, the Military Garrison Tribunal of Mbandaka, seized with a case concerning crimes against humanity provided for by article 166 of the Military Penal Code, in its interlocutory decision pronounced on 12 January 2006, RP No. 086/05, RMP No. 279/GMZ/WAB/2005, has decided to try that charge in accordance with the provisions and penalties of the Rome Statute, which it considered to be more clearly defined, better adapted by having at its disposal mechanisms for the protection of the rights of victims, less severe in as much as it does not know the death penalty, in contrast to the Military Penal Code;
Whereas, in the present case, these reasons justify the prosecution in directly relating its legal definitions of the charges to the Rome Statute, whose ratification by the DRC is part of the armory of laws of the Democratic Republic of the Congo by virtue of legal monism with primacy of international law, in this instance the ICC Statute which inspired the introduction into the Military Penal Code of the crimes falling under its jurisdiction. 
Democratic Republic of the Congo, Military Garrison Court of Ituri, Bongi Massaba case, Judgment, 24 March 2006.
In November 2006, on the defendant’s appeal, the Military Court of the Eastern Province also held:
Applicable Law
Whereas the Military Court of the Eastern Province is seized with the appeal of the defendant Blaise Bongi Massaba, convicted by the Military Garrison Tribunal of Ituri on the basis of two offences under the competence of the International Criminal Court …;
Whereas the Democratic Republic of the Congo has ratified that treaty by Decree-law No. 0013/2002 of 30 March 2002;
Whereas the Military Penal Code issued by Law No. 024/2002 of18 November 2002, in its articles 161 to 175, provides for:
- crimes of genocide,
- crimes against humanity,
- and war crimes;
Whereas in view of the principle of complementarity and subsidiarity, which rules the International Criminal Court, its material competence is not exclusive;
Whereas, according to the reading of the Rome Treaty, domestic jurisdictions are preferred to the International Criminal Court, which only intervenes under the conditions determined by the same treaty;
Whereas article 173 of the Military Penal Code provides the content of the notion of war crime, but is mute as regards the penalty to inflict, i.e. the incrimination of war crimes is without penal sanction;
Whereas the Congolese legislation could not at all leave unpunished all these atrocities whose gravity it recognized by the ratification of the Rome Treaty on the Statue of the Court;
Whereas according to the terms of article 2 of the Military Penal Code: “No offence can be punished with a penalty not provided for by the law before the offence was committed”;
Whereas, in this instance, article 173 of the Military Penal Code has never provided for a penalty for war crimes, not even by the technique of cross-reference;
Whereas the competence of the Military Court of the Eastern Province cannot have the recognition of these odious crimes by the Military Penal Code as its basis;
Whereas, according to the reading of the legislative background of Laws No. 023 and 024/2002 of 18 November 2002 published in the Journal Officiel of the Democratic Republic of the Congo, special issue of 30 March 2003, point VIII, there is cause to fill this gap of the Congolese legislation by relying on the Rome Treaty on the Statute of the International Criminal Court, ratified by the Democratic Republic of the Congo, and to resort, for the repression of these international crimes, to article 153, paragraph 4 of the Constitution of the Democratic Republic of the Congo, which declares that the Courts and Tribunals, civilian and military, apply international treaties duly ratified, laws, regulations as long as they are in accordance with the laws, as well as custom as long as it is in accordance with public order and morals;
Whereas, based on this constitutional provision, the Military Garrison Tribunal of Mbandaka, in its interlocutory decision RP No. 086/05, RMP No. 279/GMZ/WAB/2005, pronounced on 12 January 2006, seized with a case concerning crimes against humanity provided for by article 166 of the Military Penal Code, has decided to try that charge by relying on the provisions and penalties of the Rome Statute;
Whereas that Tribunal considered the provisions of the Rome Treaty to be more clearly defined and better adapted by having at its disposal mechanisms for the protection of the rights of victims,
Whereas the Military Court of the Eastern Province considers that the provisions of the Rome treaty are more humanizing, in fact, less severe as regards the penalty, the death penalty there being unknown, in contrast to the Military Penal Code.
Whereas it is for these reasons that the Military Court of the Eastern Province has decided to apply the Rome Treaty, whose ratification by the Democratic Republic of the Congo integrates it into the legislative armory, in accordance with article 215 of the Constitution of the Democratic Republic of the Congo. 
Democratic Republic of the Congo, Military Court of the Eastern Province, Bongi Massaba case, Judgment on Appeals, 4 November 2006.
In August 2006, in the Kahwa Panga Mandro case, the Military Garrison Court of Ituri at Bunia held:
a) The applicable law
Whereas, newly introduced into positive Congolese law first by Decree-Law No. 003/2002 of 30 March 2002 concerning the ratification of the Rome Treaty of 17 July 1998 on the Statute of the International Criminal Court, the crimes against humanity and the war crimes repressed by that Court on the territory of every State party, among them the Democratic Republic of the Congo, were, on 30 March 2003, date of the entry into force of Law No. 024/2002 of 18 November 2002 on the Military Penal Code, placed under the sole competence of the military courts, as stipulated in Article 161 of that Law;
Whereas, as regards the war crimes provided for in Articles 173 to 175, it follows that the Congolese legislator intended that for their repression the military judge refer to the penalties provided in internal law for the various violations of the laws of the Republic that, in view of that Military Penal Code, merely become war crimes because of the fact that they are committed during war in violation of the laws and customs of war;
Whereas, however, the present court will refer to the definition of these crimes such as it is given by the Rome Treaty mentioned, for the reason that the Constitution of the Democratic Republic of the Congo of 18 February 2006, in its Articles 215 and 153, paragraph 4, respectively, stipulates as follows:
“the international treaties and agreements regularly concluded have, from the time of their publication, an authority superior to that of the laws, without reserve of the application of the treaty or agreement by the other party”
“the Courts and Tribunals, civilian and military, apply the international treaties duly ratified, laws, regulations provided that they are in accordance with the laws, as well as custom provided that it is not contrary to the public order or morality”;
Whereas, further, it is already in this sense that in its judgement rendered on 24 March 2006, under RP No. 018/2006, the present Tribunal convicted captain Blaise Bongi Massaba for war crimes on the basis of the Rome Treaty of 18 July 1998 on the Statute of the International Criminal Court …
Whereas, consequently, in the present case this Tribunal again will safely apply the essential provisions of the Rome Statute, on crimes against humanity and war crimes. 
Democratic Republic of the Congo, Military Garrison Court of Ituri, Kahwa Panga Mandro case, Judgment, 2 August 2006.
In 2009, in the Kyungu Mutanga case, the Military Garrison Court of Haut-Katanga was called upon to decide on several criminal charges against Kyungu Mutanga and others, including charges on war crimes and crimes against humanity allegedly committed as members of the armed group Mai-Mai. Regarding the applicable law, the Court stated:
[Crimes against humanity and war crimes] are provided for in both the … [Military Penal Code (2002)] and the … 1998 … ICC … Statute.
The Court notes that article 153 of the [2006] Constitution clearly provides that “in addition to laws, civil and military courts shall apply also international treaties and agreements which have been duly ratified”.
As the DRC authorised the ratification of the … 1998 … ICC … Statute through its Decree-Law No. 0013/2002 of 3 March 2002, the Court has thus to deal with the fact that there are two conflicting laws.
In the present case, the crimes against humanity and war crimes for which the defendants are charged, are regulated by two conflicting legal instruments with regard to the definitions of such crimes and applicable penalties.
… The domestic law confuses war crimes and crimes against humanity, which, on the other hand, are clearly defined in the [1998] ICC … Statute.
… The domestic law is stricter in the applicable penalty than the international legal instrument.
The former provides for the death penalty, while the latter discards the death penalty in favour of a life sentence.
Thus, the Court finds that the [1998] … ICC … Statute is very favourable to the defendants.
It discards, in the present case, the [application of the] … Military Penal Code [(2002)] in favour of the [application of the] … 1998 … ICC … Statute exclusively with regard to the charges of crimes against humanity and war crimes brought against the defendants. 
Democratic Republic of the Congo, Military Garrison Court of Haut-Katanga, Kyungu Mutanga case, Judgment, 5 March 2009, pp. 69–70.
In 2009, in the Basele Lutula and Others case, the Military Garrison Court of Kisangani convicted Mai-Mai militia members of various crimes, including the crime against humanity of rape. Regarding the applicable law, the Court stated:
Considering that the Public Prosecutor’s Office upheld the category of crime against humanity by rape provided for and punished by article 7(1)(a)-1 of the … [1998 ICC] Statute … ;
Considering that articles 165 and 169 of the Penal Code provide for and punish the same crime;
Considering that the Democratic Republic of the Congo ratified the … [1998 ICC] Statute through Decree No. 0013/002 of 20 March 2002;
Considering that article 215 of the Constitution … (2006) provides that “regularly concluded international treaties and agreements … have a higher authority than laws … ”;
Considering that the … [1998 ICC] Statute, contrary to the statutes of the ad hoc tribunals, namely the ICTR and the ICTY, and [contrary to] … [the Military Penal Code (2002)], is not ambiguous regarding the definition of … terms, in particular “attack” [and] “widespread or systematic character” …
Considering that the provisions of the … [1998 ICC] Statute on those crimes are soft to the defendants and favourable to the victims;
Considering that in its judgement … RDN No. 086/05, RMP No. 279/2005 of 12 January 2005, the … [Military Garrison Court of Mbandaka], to which [a case on] crimes against humanity had been referred pursuant to article 166 of the Military Penal Code [(2002)], decided to … [apply] the provisions of the … [1998 ICC] Statute because they are not ambiguous;
… [I]n the present case, in view of the above, the Court will apply the relevant essential provisions of the … [1998 ICC] Statute. 
Democratic Republic of the Congo, Military Garrison Court of Kisangani, Basele Lutula and Others case, Judgment, 3 June 2009, pp. 20–21.
In 2005, in its third periodic report to the Human Rights Committee, the Democratic Republic of the Congo stated:
56. Article 134, paragraphs 1 and 3, of the transitional Constitution provide that: “In accordance with the provisions of article 73 of the present Constitution, the President of the Republic declares war on a decision of the Council of Ministers on the recommendation of the National Defence Council and authorization of the National Assembly and Senate. The rights and duties of citizens in time of war or in the event of invasion or attack on the country by foreign forces shall be governed by an organization act.”
57. Although the Constitution does not explicitly state which rights may be derogated from, in the event of the proclamation of a state of war or emergency, by constitutional tradition there is no authorization for derogation from the following fundamental rights: the right to life, the right to physical integrity (right not to be tortured), the right to equality, the right not to be kept in slavery or servitude, the right not to be imprisoned for acts of commission or omission which did not constitute offences when they were perpetrated, freedom of thought, conscience and religion, and recognition of legal personality. 
Democratic Republic of the Congo, Third periodic report to the Human Rights Committee, UN Doc. CCPR/C/COD/2005/3, 3 May 2005, §§ 56–57.