Related Rule
Democratic Republic of the Congo
Practice Relating to Rule 136. Recruitment of Child Soldiers
The Democratic Republic of the Congo’s Law on Child Protection (2009) states:
Article 2
For the purpose of the present law, it is understood as:
1. child: every person under the age of 18;
Article 53
The worst forms of child labour are prohibited.
The worst forms of child labour include:
b) the forced or compulsory recruitment of children in view of their use in armed conflict.
Article 71
The enlistment and use of children in armed forces and groups, as well as in the police, are prohibited.
The State ensures the demobilization of children enlisted or used in armed forces and groups, as well as in the police …
Article 81
The National Committee to combat the worst forms of child labour has the following mission:
1. to develop a national strategy for the eradication of the worst forms of child labour;
2. to ensure the follow-up of the implementation of the strategy is implemented and to evaluate the degree of application of the measures prescribed.
Article 187
… [T]he enlistment or use of children under the age of 18 years in armed forces and groups, as well as in the police, is punishable by between ten to twenty years’ imprisonment. 
Democratic Republic of the Congo, Law on Child Protection, 2009, Articles 2(1), 53(b), 71, 81(1)–(2) and 187.
In July 2007, the Military Auditor at the Military Garrison Court of Haut-Katanga at Kipushi referred the Kyungu Mutanga case for trial at the court. The charges listed in the referral decision included:
3. Having committed war crimes … as part of a plan or a policy or a large-scale commission of such crimes, in view of either the grave breaches of the Geneva Conventions of 12 August 1949, namely acts against persons or property protected under the provisions of the Geneva Conventions; (…) or, in the case of an armed conflict not of an international character at the exclusion of situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause; or other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, excluding situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature, including armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups:
In the present case,
b) having enlisted into his movement about 300 children aged less than 15 years, of which 270 were identified and demobilized by the CONADER [National Commission for Disarmament, Demobilization and Reintegration] at the time of this surrender on 12 May 2006 in Mazombwe, and among whom are: KNR, recruited at the age of 14 years in the locality Kinshia; KNK, recruited at the age of 11 years in the locality Nkonga by the commander Katema; MNT, recruited at the age of 10 years in the locality Kilumbe; LM, recruited at the age of 9 years in the locality Ntoya; MKL, recruited at the age of 13 years in the locality Mwerma; NKN, recruited at the age of 13 years in the locality Shamwana; these latter having actively participated in hostilities in the localities of Shamwana, Mwema, Ntoya, Kilumbe, Nkonga, Kinshia and Luende.
Acts provided for and penalized by Article 8(2) … e) … vii) and 77 of the Rome Statute. 
Democratic Republic of the Congo, Military Auditor at the Military Garrison Court of Haut-Katanga, Kyungu Mutanga case, Referral decision, 10 July 200, pp. 4–5.
In 2007, in its second periodic report to the Committee on the Rights of the Child, the Democratic Republic of the Congo stated:
68. [Among] [t]he … legal enactments that provide specific protection for persons under age 18 … [is]:
(a) Decree-Law No. 066 of 9 June 2000, providing for demobilization … of vulnerable groups present within fighting forces, whose article 2 provides: “Vulnerable groups shall mean: child soldiers, girls or boys under age 18 (…)”;
(b) Act No. 04/023 of 12 December 2004, setting out the general organization of defence and the armed forces, whose article 7 provides: “Congolese of both sexes who have reached the age of 18 may be conscripted in the event of mobilization.”
70. With regard to work, a distinction is made, in keeping with ILO conventions, between the worst forms of labour, from which all persons under age 18 are excluded, and light, healthy work, which may be done by children at least 16 years of age.
96. The war, which had a very adverse effect on children’s rights, has ended through the conclusion and implementation of the Global and Comprehensive Agreement signed in Pretoria on 17 December 2002, although there remain to this day some isolated pockets of armed conflict in the East of the country.
97. … Among the positive measures taken by the Government to maintain a lasting peace, the following should be noted:
- The demobilization of children in armed forces and armed groups;
185. The new Labour Code of 2002 … prohibits all of the worst forms of child labour, taking its cue from article 3 of ILO Convention No. 182 (1999) concerning the prohibition of the worst forms of child labour and immediate action with a view to their elimination. Pursuant to article 3 (2) of the Code, the term “worst forms of child labour” includes, in particular:
(a) All forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict;
187. Article 4 establishes a National Committee to combat the worst forms of child labour, whose mandate is: (a) To develop a national strategy for the eradication of the worst forms of child labour …
201. The extreme poverty faced by families accounts for the massive enlistment of children in armed groups since the war of 1996. Having thus been prematurely put through the traumatizing experience of war, these children have been denied the enjoyment of their fundamental rights to education, health and integrated development. In order to extricate these children from that harmful environment in the future, the Government, with significant support from international cooperation, has exerted considerable efforts to remove from armed groups and forces all children involved in them in one way or another (soldiers, bearers, pages, household aides, etc.), whose number has been reckoned at over 30,000, including about 15 per cent girls.
202. … [L]egislative and regulatory measures have unequivocally prohibited the involvement of children in armed conflicts. Thus, Article 190 of the Constitution … (2006) provides: “No one shall, subject to punishment for high treason […], keep youths under arms,” while Article 7 of Act No. 04/023 of 12 December 2004, setting out the general organization of defence and the armed forces, provides: “Congolese of both sexes who have reached the age of 18 may be conscripted in the event of mobilization.”
204. On 30 April, 2006, 29,291 children certified in orientation centres were withdrawn from armed forces and groups … Thus, the presence of children in some largely un-integrated military units is dwindling.
205. However, surveying the number of girls and ensuring their removal remains a fairly delicate issue. Many girls who were conscripted or who voluntarily enlisted now consider themselves the “wives” of soldiers and thus place themselves outside the DDR programme. Moreover, those who are completely free to leave the armed groups are reluctant to come forward and to seek aid from the DDR programme. Fear of social ostracism if they reveal their association with the armed forces, and a concern to preserve their dignity, lead them to prefer a discreet return to civilian life.
206. Also noteworthy is the implementation of the inter-regional programme to prevent involvement of children in armed conflicts … , as part of the International Programme on the Elimination of Child Labour (IPEC).
207. … In summary, the national programme for disarmament, demobilization and reintegration of children comprises the following stages:
(a) A campaign for the release of children involved in armed forces and groups;
211. The Government’s commitment to ending conscription of children in armed groups also finds expression in the fact that it has initiated within the country, or in cooperation with the International Criminal Court, judicial proceedings against the perpetrators of those acts, as in the case of Thomas Lubanga, against whom charges were confirmed on January, 2007 in The Hague.
212. Internally, in May, 2005, the Headquarters of the Armed Forces expressly ordered all officers not to recruit children under the age of 18 and instructed them that all offenders would be severely punished. 
Democratic Republic of the Congo, Second periodic report to the Committee on the Rights of the Child, 24 July 2008, UN Doc. CRC/C/COD/2, submitted 23 October 2007, §§ 68, 70, 96–97, 185(a), 187(a), 201–202, 204–207(a) and 211–212.
In 2008, in its written replies to the issues raised by the Committee on the Rights of the Child with regard to its second periodic report, the Democratic Republic of the Congo stated:
The harmonization of domestic legislation with the Convention began with the texts referred to in paragraph 32 of the report, namely:
(b) Act No. 015/2002 of 16 October 2002 enacting the Labour Code, which inter alia raised the minimum employment age from 14 to 16 and prohibited the enrolment of children in armed forces or groups;
(c) Act No. 04/023 of 12 December 2004 concerning the general organization of defence and the armed forces, which forbids the enrolment of children under the age of 18;
The priorities with regard to protecting children’s rights are:
- Ending the conscription of children into armed groups in the east of the Democratic Republic of the Congo. 
Democratic Republic of the Congo, Written replies by the Government of the Democratic Republic of the Congo to the Committee on the Rights of the Child concerning the list of issues to be taken up in connection with the second periodic report of the Democratic Republic of the Congo, 30 December 2008, UN Doc. CRC/C/COD/Q/2/Add.1, submitted 24 December 2008, pp. 3 and 8.