Democratic Republic of the Congo
Practice Relating to Rule 152. Command Responsibility for Orders to Commit War Crimes
The Democratic Republic of the Congo’s Military Penal Code (2002) provides:
As perpetrators of an offence are considered:
- those who, by offers, gifts, promises, threats, abuse of authority or power, culpable plots or artifice, have directly provoked that offence;
As accomplices of an offence are considered:
- those who have given instructions for its commission.
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 states:
We make a clear distinction between a first level [of responsibility composed] of the direct perpetrators of a crime, and other levels of responsibility [composed of] persons who, despite their distance and indirect link, have a participation in the commission of a crime …
… The various levels of responsibility:
a. The first category is that of direct perpetrators of a crime: a person who attacks a victim and physically commits a crime against the latter. This group includes also the immediate superiors of direct perpetrators if they are directly implicated in the preparation, order, incitation or commission.
b. The second category comprises intermediate perpetrators … including distant perpetrators who … participate with knowledge about the commission of the crimes by the direct perpetrators.
c. The third category is composed of military, police and political leaders, who use their power to [initiate] the crimes committed by the direct perpetrators. They are the ones who conceive [the crime] …
d. The last group is of persons likely to be implicated in the operational chain of serious international crimes, [which is] composed of individuals who, in the exercise of their usual [legal] powers, involuntarily form an unavoidable [link] of the criminal chain. The perpetrators use persons as instruments.
… The modes of “knowledge” by superiors:
One of the domains in which it is very difficult to [gather] evidence concerns the “knowledge” by a suspect or perpetrator of a crime before its commission. Article 30 of the … [1998 ICC] Statute requires evidence beyond reasonable doubt regarding the knowledge and intent of a person accused of a crime. It defines knowledge in paragraph 3 of that article: “knowledge means awareness that a circumstance exists or a consequence will occur in the ordinary course of events”.
The first category of evidence concerns the direct evidence of the knowledge by a superior … This category might include written or oral reports addressed to the person, [and] public or private declarations …
The second category includes evidence which indirectly establishes the knowledge by a suspect at a crucial moment … for example, when it is proven that a superior took a certain measure which indicates without doubt that he must have known about the crime or other important facts related to the crime.
The last category of evidence is composed of elements establishing the effective or supposed knowledge of a reasonable person who were to be in the same position as the suspect. This piece of evidence shows that a superior could not have ignored a particular fact as he had easy access to relevant piece[s] of information.
… The modes of criminal participation:
… There are many ways in which a crime can be perpetrated. When a crime involves several perpetrators, each one may have participated in a different way. This applies notably to international crimes, which are not only caused by those who physically perpetrate them, but also by those who order, incite and support them.
The participation of a person in the commission of a crime might vary according to his or her position and to the nature of the crime.
The premeditation of a crime means that a person or several persons conceived the perpetration of the crime, during both its preparation and execution, and that the crime was indeed committed within the outlined framework …
Such premeditation can take different forms according to the level of the different perpetrators. If it concerns a group of direct perpetrators who, for instance, attack a city where they commit several crimes, the premeditation includes activities which preceded the attack, when they discussed and agreed on the manner in which they would attack the city.
If it concerns superiors, they probably ignore the details of the attack against the city, [and] their premeditation consists of exchanges with superiors of the direct perpetrators where they discuss the supplies necessary for the attack and the date when the attack would be launched.
This mode includes all words, acts and gestures presented in public in view of driving another person to commit a criminal act. Incitement may also include the attitude of superiors who favour a lax environment which might encourage criminal inclinations of their subordinates. According to the case-law of the ICTY, the mens rea of incitement presupposes that the suspect had the intention to provoke the commission of a crime or was perfectly aware that the commission of a crime would be a probable consequence of his or her acts.
Order as a mode of participation in a crime presupposes the existence of a relation of subordination between the person who gives the order and the person who effectively commits the crime. In this case, mens rea consists of the will of the person giving the order to see such crime being committed, or the knowledge by that person of the high probability that the commission of such crime would result from his or her orders.
The order does not need to be written, nor even verbal …
d. Conspiracy or Joint Criminal Enterprise (JCE)
One of the most remarkable innovations of international criminal law is the … theory of the “joint criminal enterprise” as a mode of criminal participation. It characterises the criminal conduct of high officials which are not directly linked to the crimes committed or their victims. It was conceived by the ICTY … [I]t concerns the commission of acts by a group of persons who are all engaged in the implementation of a collective criminal plan.
This mode of responsibility means that, under certain circumstances, the members of a joint criminal enterprise are not only criminally responsible for the crime which was really intended, but also … for other crimes which result, in a predictable manner, from the joint criminal enterprise.