Democratic Republic of the Congo
Practice Relating to Rule 151. Individual Responsibility
Section B. Individual civil liability
The Democratic Republic of the Congo’s Military Judiciary Code (2002) provides:
Action for reparation of damage caused by an offence falling under the competence of the military jurisdiction can be undertaken by the injured party by becoming a civil party at the same time and before the same judge as the public prosecution action.
When the military jurisdiction is seized, the party injured by the incriminated act can, by becoming civil party, seize it with the action for reparation.
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, first of all, one needs to analyse the conditions of civil liability established by article 258 of the Congolese Civil Code, book II, which provides: “any act whatsoever which causes damage to another, obligates the person by whose fault that damage has occurred to repair it”.
Whereas it follows from that legal provision that three conditions must be fulfilled for that liability to be established, namely:
1. The existence of a damage or injury which can be material, physical, or immaterial;
2. The fault;
3. The causal link between the damage suffered and the fault committed …
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;
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).
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 functions, 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.
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.
In 2009, in the Basele Lutula and Others case, the Military Garrison Court of Kisangani convicted Mai-Mai militia members of various crimes. Regarding reparation for the crime against humanity of rape and the crime of beating and wounding, the Court stated:
Pursuant to article 79(a)(1) of the … Military Judiciary Code [(2002)] and articles 69 and 112 of the Ordinary Code of Criminal Procedure, a claim of reparation for the harm caused by an offence within the jurisdiction of the military justice can be brought by the concerned party before the same judge and at the same time as the public prosecution, by becoming a civil party.
… A civil action on reparation for the harm caused by an offence can be brought by anyone who has suffered a harm directly caused by such offence … It follows from the above that the plaintiff is not characterised by his civil status, but by the reality of the harm that he suffered.
Therefore, three criteria for the reparation of a harm can be identified, namely, the existence of a fact which generates liability, the existence of a harm and [of] a nexus of cause and effect between the harm and the fact which generates liability.
[Regarding civil parties who were victims of rape:]
… The crime against humanity of rape constitutes the central fact which generates liability.
The civil parties evoked the following moral or material damages:
- some victims were infected …
- others lost their marriages
- minors lost their virginity
- singles had their possibilities of getting married reduced
- all victims have been suffering … also morally, until the present days, for having been humiliated.
[Regarding civil parties who were victims of the crime of beating and wounding:]
The [crime of] beating and wounding constitutes the central fact which generates liability.
Although the harm has not been clearly defined … , the expenses [incurred] in seeking care as well as the public humiliation [suffered] seem to … [justify] the damage …
Regarding the civil parties [who were victims of rape] … , the Court sentences the defendants Basele Lutula, Osumaka Loleka, Okanga Likunda, Kipeleka Nyembo Bumba and Koti Okeke to pay, jointly with the Democratic Republic of the Congo, the equivalent in francs of 10,000 USD … to each of [the civil parties] as compensation for the harm suffered.
Regarding the victims of [the crime of] beating and wounding … , the Military Garrison Court of Kisangani sentences the above-mentioned defendants to pay, in solidum
with the DRC, the equivalent in francs of 2,500 USD … to each of them as damages.
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. Regarding the civil liability of the defendant, the Court stated:
147 … [T]he acts of the present case are closely related to the armed conflicts that took place in the Ituri District, in the Eastern Province of the Democratic Republic of the Congo [DRC], from 2001 to 2004. Ituri was in turmoil during that period, following armed confrontations between several armed groups and other tribal militias supported by political-military movements in this part of the republic, which was outside the control and authority of the central government of the Democratic Republic of the Congo.
148 … [T]he most virulent of these groups was the UPC [Union of Congolese Patriots] and its armed branch called FPLC [Patriotic Forces for the Liberation of Congo], along with their allies from the Ugandan army called UPDF [Uganda People’s Defence Force]. During that period, they implemented strategies aimed at exacerbating the armed conflict by launching military operations of a large scale in Ituri, most often against armed groups and militias in Hema or Gegere, but mainly the Lendu civilians and similar ethnicities, in particular the Ngiti combatants from the FRPI militia, thus spreading terror, violence and death throughout Ituri.
149 … [T]he civil parties [to the present case] argued that the government of the Democratic Republic of the Congo should ensure to restore the safety of persons and their property throughout the national territory, including in Ituri, as well as ensure the safety of all of its borders.
150 … [A]ccording to the civil parties, the central government of the Democratic Republic of the Congo, exasperated by the scale of the armed conflicts in this part of the territory and concerned about restoring its authority and peace throughout the national territory, especially in Ituri, decided, at about the end of the second trimester of 2002, with the aim of neutralizing the UPC, to establish a secret collaboration with certain armed groups and tribal militias present in Ituri which were hostile to the UPC and … the UPDF, and to strengthen their military capacities in the field.
151 … [I]n order to achieve such objective, the central government of the DRC focused on providing weapons and ammunition in abundance to armed groups and other tribal militias hostile to the UPC, in particular the FRPI Ngiti combatants, through the armed group RCD KML [Congolese Rally for Democracy-Kisangani Movement for Liberation] of Mbusa Nyamwisi, as the latter was already an ally and controlled the aerodrome of Aveba, where planes carrying weapons and ammunition landed.
152 … [T]he civil parties concluded that it was in these circumstances that the FRPI Ngiti combatants were strengthened, through the supply of weapons and ammunition by the central Government of the DRC; and that it was with such weapons and ammunition that Collectivité Chefferie de Nyankunde and Groupement Mensudzo were attacked by such combatants … in September 2002, at the same time as the assaults launched by the same combatants against the positions of the armed branch of the UPC and the bases in Nyankunde centre of their allies of the Ugandan army, the UPDF, with the aim of dislodging them.
153 … [A]ccording to the civil parties, by proceeding this way, the central government of the DRC has de facto assigned to armed groups and tribal militias such as the FRPI Ngiti combatants a specific task which was related to the government’s national duty of putting an end to the armed conflicts in Ituri and restoring peace and the effectivity of its authority through the neutralization of the UPC, … FPLC and … UPDF.
154 … [T]he civil parties thus concluded that the Congolese government failed to fulfil its primary mission of ensuring the safety of the population of Ituri, including the inhabitants of Nyankunde and Musedzo; that the central government of the DRC created a relationship of principal and agent with those armed groups and tribal militias, including the FRPI Ngiti combatants; and that such relationship, according to article 260 of the Congolese Civil Code … , irreversibly and indubitably engages the civil responsibility of the principal, that is, the central government of the DRC, for the harm caused to third parties by FRPI Ngiti combatants.
155 … [This] Military Garrison Court finds that the civil parties raised contradictory arguments with the aim of holding the Congolese State civilly responsible in the present case … [T]he contradiction [is] blatant when they state that “there is evidence of [the defendant’s] indisputable membership of the FRPI: when arrested on 5 August 2007 fleeing from the sweep operations launched by the FAR[D]C [Armed Forces of the Democratic Republic of Congo] against the residual position of the FRPI, … [he] was found in possession of a roadmap … signed by … the Chief of Staff of the FRPI, for the [the defendant’s] displacement to the [latter’s] residence in Nyavo” … However, if there were a relationship between the supposed principal, [that is], the central government of the DRC, and the agents, [that is], armed groups and tribal militias [including] the FRPI Ngiti combatants, the FARDC, which is DRC’s regular army, would not have carried out such sweep operations against the residual positions of the FRPI … [This armed group] is still present in Chefferie de WaLendu Bindi and still fights against the FARDC.
156 … [This] Military Garrison Court … dismisses the hypothesis of a principal’s civil liability pursuant to article 260 of the Congolese Civil Code … in favour of [the application of] article 258 of the same code, according to which any act committed by a person which causes damage to another obliges the one by whose fault it occurred to repair it. This view by the Court does not deviate from the individual criminal responsibility of the defendant by omission as explained above.
157 … [I]n the present case, the criminal acts in question … caused material and/or moral harm both to natural persons and to … public or private … organizations and/or institutions …
158 … The natural persons who were victims in the present case are either survivors or the holders of rights of those victims who deceased due to a criminal act committed by FRPI Ngiti combatants on the occasion of the attacks launched … on 5 and 12 September 20002 against Nyankunde and Groupement Musedzo.
159 … All 12 natural persons … who were individually harmed - whether physically, materially or morally, lost one or more loved persons, or lost property of various types - , [and who] have regularly constituted themselves as civil parties before this Court, seek justice through the issuance of a decision granting them adequate individual and/or collective reparations depending on the case, pursuant to article 258 of the Congolese Civil Code …
160. In this regard, article 97 of the [2000 ICC] Rules of Procedure and Evidence provides that “[t]aking into account the scope and extent of any damage, loss or injury, the Court may award reparations on an individualized basis or, where it deems it appropriate, on a collective basis or both.”
161 … In view of the principle of equity, which justifies every judicial reparation, and of the nature of each form of reparation … , the Court will grant reparation to the victims who personally or individually suffered material and/or moral damage or injuries, with the aim of restoring the lost object, or replacing it with another object of a similar nature or value, or even to pay the corresponding amount … Collective reparation would be appropriate as reparation for material and/or moral damage resulting from either the loss or destruction of an object of common interest or utility, or the loss of a loved person by a certain group of persons or an entire community.
In 2008, a training manual by the prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, including war crimes, was adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo. The training manual stated: “Under Congolese law, … a victim is entitled to become a civil party [to the criminal proceedings] and bring a claim for reparation before the penal court”.