Related Rule
Democratic Republic of the Congo
Practice Relating to Rule 149. Responsibility for Violations of International Humanitarian Law
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:
Whereas, in the present case, the three conditions of civil liability are fulfilled, inasmuch as the defendant has committed a fault by causing, by bullet, the death of the following persons …
Whereas, therefore, the civil liability of the defendant, as perpetrator of the act, is fully engaged.
Whereas, furthermore, the conditions of article 260, paragraph 3 [of the Congolese Civil Code], according to which masters and principals are liable for the damage caused by their servants and agents in the functions for which they were employed must equally be examined;
Whereas, in fact, four conditions are required for the application of that article, namely: the existence of a link between the principal and the agent; proof that the damage was caused by the fault; occurrence of the damage in the exercise of the functions for which the agent was last employed; the damage was caused to a third person.
1. Existence of a link between the principal and the agent: There is a link between the principal to the agent if a person has authority over the other who is his subordinate and acts under the orders or instructions of the first.
2. The victim must prove that the damage was caused by the fault of the agent: In other words, there is the possibility of exoneration in case of acts not committed by the agent.
3. The damage must be caused to a third person: A third means generally any person other than the principal or the agent …
4. Finally, the agent or the servant must have caused the damage in the exercise of the functions for which he is employed.
Case law decides that it is sufficient that the fault has been committed by the agent in the course of the service, even if he has overstepped a prohibition by the principal (Tribunal Haut Lomami, 20 May 1948, RJCB, 1949, p. 57). That prohibition, in the present case, is the general instruction, known to all soldiers of the FARDC, that persons not directly participating in hostilities (civilians, prisoners of war, etc.) must not be killed.
Whereas, in the present case, the four conditions mentioned above are fulfilled, inasmuch as:
- there is an agent, namely the defendant Blaise Bongi Massaba, who worked under the authority and the orders of the principal who happens to be the Congolese State (Democratic Republic of the Congo), through the army, the FARDC;
- the death of the five persons cited above was caused by the defendant, captain Blaise Bongi Massaba, agent of the Congolese State, who, with the help of a war weapon, shot at the five victims;
- these victims, cited above, were third persons in the sense of the law …
[-] the defendant, captain Blaise Bongi Massaba, agent of the army, the FARDC, committed the act which caused injury to the victims while being in service;
Whereas, in view of the above, the civil liability of the principal, namely the Congolese State (the Democratic Republic of the Congo), through its army (the FARDC), remains fully engaged;
Therefore
The Military Garrison Tribunal of Ituri, finding on the civil action,
After proceedings in which both sides were heard, and by the majority of the votes of its members, by secret vote,
Consequently orders Mr Blaise Bongi Massaba jointly with the Democratic Republic of the Congo to pay each of the four families of the victims the equivalent in Congolese Francs of the sum of 75,000 US Dollars (seventy-five-thousand US Dollars) as damages and interest, covering all injuries, or the equivalent in Congolese Francs of the total sum of 300,000 US Dollars (three-hundred-thousand US Dollars). 
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 held:
Whereas the charges of the war crimes of pillage and violence to life and person are sufficiently established as required by the law;
Whereas these breaches caused damages and harm for which the civilian parties demand reparation and indemnification on the basis of articles 258 and 260 of the third book of the Congolese civil code;
Whereas the civil liability of the authors of breaches that have caused harm to the parties is based on article 258 of the third book of the Congolese civil code, according to which: “any act whatsoever which causes damage to another, obligates the person by whose fault that damage has occurred to repair it”.
What about the civil responsibility of the State?
Whereas that responsibility follows from the presumption of the fault the administration or the State can commit in the choice and supervision of its agents;
Whereas [as] the beneficiary of the act accomplished by its agents on its account, it is only logical and follows from the elementary principle of fairness that the State is called on to repair the wrong resulting from the service from which it profits as master; …
Whereas the State, just like the principal, must answer for the damage caused by its agents in the exercise of their function, not because it has committed a fault, created a risk or broken the equality of burdens between citizens, but because it is obligated to guarantee the safety of individuals against damaging acts by those who exercise an activity in its name and on its account;
Whereas, in fact, when an organ of the State acts, it is the State itself that acts, and, consequently, when an agent commits a fault in the exercise of his functions, that fault engages the whole State …;
Whereas the abuse of the function is no obstacle to the responsibility of the master;
Whereas the defendant Blaise Bongi Massaba, in his capacity as soldier of the FARDC, is an agent of the Congolese State, thus that soldier engages the responsibility of the State, since it is admitted that the abuse of functions is not an obstacle to the responsibility of the principal, namely the Democratic Republic of the Congo;
Whereas the Military Court of the Eastern Province therefore judges that the responsibility of the Democratic Republic of the Congo is engaged as regards the assassination of the five pupils from Tchekele by the soldiers of the third company under the command of the defendant Blaise Bongi Massaba;
Whereas the same applies to the other acts of attacks on property in which not only the soldiers are implicated but in which also and in particular the Congolese State has failed its mission to keep individuals safe;
Whereas that responsibility for acts of third persons finds its basis in article 260 of the third book of the Congolese civil code which provides:
- one is responsible not only for the damage one causes by one’s own act, but also for that which is caused by the act of persons for whom one is responsible or things which one has under one’s care;
Whereas the Democratic Republic of the Congo in its capacity as principal described above, has the civil liability for the reparation or indemnification of damages and harm caused to third persons by the act of its agents, who are the soldiers of the FARDC, of the third company of the first battalion in the sixth brigade.
Therefore
The Military Court of the Eastern Province, finding on the civil action, after proceedings in which both sides were heard, and by the majority of the votes of its members.
1. Declares admissible and founded on the merits the action for reparation and indemnification for harms introduced by Madame …
The courts orders the defendant Blaise Bongi Massaba, jointly with the Democratic Republic of the Congo, to pay as compensation for damage suffered:
To Madame …
- mother of … and aunt of…
- the equivalent in Congolese Francs of 100,000 US Dollars as damages and interest,
- the equivalent in Congolese Francs of 15,000 US Dollars as the counter value of her destroyed house …,
- the restitution of the objects described above or their counter value …
2. As regards the civil party …, father of … and …,
The Military Court of the Eastern Province orders the defendant Blaise Bongi Massaba, jointly with the Democratic Republic of the Congo, to pay …
- the equivalent in Congolese Francs of 100,000 US Dollars as damages and interest.
3. As regards the civil party …, father of …,
The Military Court of the Eastern Province orders the defendant Blaise Bongi Massaba, jointly with the Democratic Republic of the Congo, to pay…
- the equivalent in Congolese Francs of 50,000 US Dollars as damages and interest. 
Democratic Republic of the Congo, Military Court of the Eastern Province, Bongi Massaba case, Judgment on Appeals, 4 November 2006.