Democratic Republic of the Congo
Practice Relating to Rule 153. Command Responsibility for Failure to Prevent, Punish or Report War Crimes
The Democratic Republic of the Congo’s Military Judiciary Code (2002) provides:
When a subordinate is prosecuted as principal perpetrator of one of the offences contained in article 80, and his hierarchical superiors cannot be prosecuted as co-perpetrators, they are considered as accomplices insofar as they have organized or tolerated the criminal actions of their subordinate.
The Democratic Republic of the Congo’s Military Penal Code (2002) provides:
When a subordinate is prosecuted as principal perpetrator of a war crime and when his hierarchical superiors cannot be investigated as co-perpetrators, they are considered as accomplices insofar as they have tolerated the criminal actions of their subordinate.
In August 2006, in the Kahwa Panga Mandro case, the Military Garrison Court of Ituri at Bunia held:
c.) On the war crime by attack against protected objects according to Articles 8.2)b)ix) and 77 of the Rome Statute
Whereas for its realization, that charge requires the following elements:
1) That the perpetrator directed an attack;
Whereas in the present case it has been proven through the testimony of the victims that the troops of the chief Kahwa attacked Zumbe on his order, while he was the chief of the Hema militia called “Chui mobil force” …;
2) That the object of the attack was one or more buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives.
3) That the perpetrator intended such buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals or places where the sick and wounded are collected, which were not military objectives, to be the object of the attack;
Whereas in the present case, when attacking all these objects, Kahwa’s men knew that these objects were not military objects; whereas from this follows the mental element; whereas, in fact, there was no military target for pretending that they attacked that building because it was occupied by armed men;
4) The conduct took place in the context of and was associated with an armed conflict not of an international character [compare ICC Elements of Crimes, Article 8(2)(e)(iv) ICC Statute],
5) That the perpetrator was aware of factual circumstances that established the existence of an armed conflict.
Whereas, in fact, the defendant Kahwa was aware of the existence of these conflicts …
Whereas it has been proven that Kahwa in his [passive] attitude had to tolerate the violations committed by his men during the attack of 15 to 16 October 2002; whereas his troops, in fact, operated in the territory controlled by him in his capacity as chief of the community, acts he cannot pretend not having been aware of;
Whereas, in consequence, his responsibility on the basis of Articles 85 to 87 of the Geneva Additional Protocol and Article 28 of the Rome Statute on the responsibility of superiors, which provides as follows, [is established]:
“Their (command) responsibility is only engaged if they failed to take all necessary and reasonable measures within their power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.”
Whereas Articles 85–87 of Additional Protocol I provide that:
“any commander who is aware that subordinates are going to commit or have committed a violation must:
- initiate such steps as are necessary to prevent such violations,
- initiate disciplinary or penal action against violators, [according to] his competences,
- report violations to the competent authorities”;
Whereas, in fact, the commander shares the responsibility with the perpetrator of the act;
Whereas Article 29 of the [1998 Statute of the] International Criminal Court speaks of the responsibility of the superior (military commander or civilian superior) in the following cases:
- If “the military commander either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes”;
- If “the superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes and these crimes concerned activities that were within the effective responsibility and control of the superior”;
Whereas, in the present case, Kahwa, in his capacity as chief of the Hema militia and leader of the Bahema Banyuagi community, while attacking the Lendu did nothing to hinder these dramas; whereas his silence thus constitutes approval or a tacit order.
In November 2006, in the Bongi Massaba case, a case against a captain of the armed forces of the Democratic Republic of the Congo, the Military Court of the Eastern Province held:
Criminal responsibility of military commanders
Whereas, independent of the hypothesis of criminal participation, in the area of criminal repression the responsibility of the perpetrator of a punishable act remains, in principle, individual;
Whereas, however, this principle is under attack in international criminal law, where the guilt of a superior in the hierarchy for reprehensible acts of their subordinates can be upheld;
Whereas jurisprudence has set out three conditions which establish that borrowed criminal responsibility (Bagalishema case, ICTR, Trial Chamber, 7 June 2001);
… A link of subordination placing the perpetrator of the crime under the effective control of the accused;
It follows from the examination of the case that the fact that the defendant Blaise Bongi Massaba included his own bodyguard in the patrol platoon led by second lieutenant Kabesa and guided by his informers in the village of Tchekele sufficiently establishes the subordination required for establishing the violation;
Whereas the defendant Blaise Bongi Massaba has a functional pre-eminence, i.e. the material capacity to prevent and punish violations of humanitarian law; (in this sense, ICTY, Mucić et al. case, cited by the ICTR in the Kayishema and Ruzindana case, Trial Chamber, 15 May 2003);
Whereas the defendant Blaise Bongo Massaba, when the pillaged objects where brought in, instead of punishing the pillagers, on the contrary appropriated the objects by declaring to his wife and even in his complaint that they were war booty;
Whereas the defendant Blaise Bongi Massaba had reason not only to know but, above all, to make sure, that his soldiers went and, then, pillaged the locality of Tchekele;
Whereas the defendant Blaise Bongi Massaba failed to take all necessary or reasonable measures to prevent the said act from being committed;
Whereas the defendant Blaise Bongi Massaba failed to punish the original perpetrators;
Whereas, therefore, the defendant Blaise Bongi Massa must share the responsibility with his soldiers, perpetrators of these pillages;
Whereas article 28 of the Rome Treaty confirms that principle of co-responsibility in the following hypotheses:
- the defendant Blaise Bongo Massaba knew well that his troops would commit pillage, which is why his bodyguard Valaka and his informant had to be part of that patrol to make sure that the pillaged objects were brought;
Whereas, furthermore, he himself organized that pillage by taking into account information received from the [informant] from Tchekele, who had to take the members of the patrol to addresses already identified;
Whereas his co-responsibility, i.e. as co-perpetrator of the pillage in Tchekele, is therefore established.
In 2009, in the Basele Lutula and Others case, the Military Garrison Court of Kisangani convicted Mai-Mai militia members of various crimes. Regarding the criminal responsibility of one of the defendants for the crime against humanity of rape, the Court stated:
The defendant Basele Lutula, alias Colonel Thoms, is charged of the crime against humanity of rape pursuant to article 28 of the  Rome Statute, which states:
In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:
a) a military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:
- that military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and
- that military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
b) with respect to superior and subordinate relationships not described in paragraph a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates …
It follows from the above that all conditions should be met for the criminal responsibility of the superior to be engaged, namely:
1. the existence of an effective subordination and control.
The commander may be part of the State structure ( … chiefs of staff of different operations etc. …) or of unofficial military structures, such as rebel armies, insurgents [and] armed groups.
Article 38 of the … [1998 ICC] Statute makes a distinction between a de jure and a de facto command as it states: “a military commander or person effectively acting as a military commander”.
In the present case, the defence states, without referring to names, that those who would have committed the crime openly declare not to recognize the defendant Basele as a hierarchical chief. It results from the evidence produced in the hearing that the defendant [Basele Lutula] acknowledges having sent the defendants Kipeleka Nyembo Bumba, Osumaka Loleka, Okanga Likunda and Koti Okeke to cut down all trees in the sector of Yawende Loolo, where the locality Lieke Lesole is situated.
In view of the above, the fact that the defendant Basele Lutula, alias Colonel Thoms, gave orders for the defendants Kipeleka, Osumaka, Okanga and Koti Okeke to cut down the trees, and the fact that … the latters executed that order is sufficient proof that … [Basele Lutula] exercised de facto command over the others and that he controlled them effectively. Thus, … [the Court] concludes that the defendant Basele Lutula, alias Colonel Thoms, is indeed the superior of Kipeleka, Osumaka, Okanga and Koti Okeke, [who formed a] group send by him to Lieke Lesole in July 2007.
2. Moral element
Article 28(a)(i) [of the 1998 ICC Statute] states: “That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes”.
This provision suggests that the superior, in view of the scale of the crimes committed by his subordinates, could not have ignored them.
In the present case, the defendant Basele Lutula, alias Colonel Thoms, who was 26km from Lieke Lesole, more precisely in Lohumonoko, when Kipeleka and his group raped women … , could not have ignored what his men were doing, even more because he had effective control over them.
3. It must be proven that the superior did not take all necessary and reasonable measures within his power to prevent the commission [of the crimes] or to submit [the matter] to the competent authorities … In this regard, the defence argued that, as it was not an organised … [army] nor a rebellion, only the State was able to punish the above-mentioned defendants for their criminalized conduct … [or] to prevent it. The Court finds that the defendant Basele Lutula, alias Colonel Thoms, as a superior who has effective control over his men, played the role of a military commander … , that is, he could punish the commission [of crimes]. When he became aware of the mass rapes committed by … [his men], all he did was to send his brother, known by the pseudonym of “Avance”, to recover the two weapons of war carried by them. This is sufficient proof that he did not have the intention to prevent or to punish those crimes, nor to inform the competent authorities.
Therefore, [the Court] upholds the charge of crimes against humanity of rape pursuant to article 7(1)(g) [of the 1998 ICC Statute] against the defendant Basele Lutula in application of article 28 … [of the same statute].
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 based on command responsibility. The Court stated:
130 … [I]n principle, individual criminal liability is individual. However, some adjustments are needed for a better understanding of such principle. Indeed, some criminalize complicity and co-perpetration; others, in particular international criminal law and military criminal law, … provide that superiors can, in certain circumstances, be convicted for crimes committed by their subordinates.
131 … [O]n this matter, this Military Tribunal follows the view of the Pre-Trial Chamber II of the International Criminal Court, according to which “article 28 of the [1998 ICC] Statute reflects a different form of criminal responsibility than that found under article 25(3) (a) of the Statute in the sense that a superior may be held responsible for the prohibited conduct of his subordinates for failing to fulfil his duty to prevent or repress their unlawful conduct or submit the matter to the competent authorities. This sort of responsibility can be better understood ‘when seen against the principle that criminal responsibility for omissions is incurred only where there is a legal obligation to act’. Bemba case, Decision on the Confirmation of Charges, 15 June 2009, § 405]
132 … [I]n the present case, … the defendant … did not individually and materially commit the various war crimes for which he is charged, as the material perpetrators are formally identified as being the Ngiti combatants of the FRPI militia. [H]e was the founder, moral authority and spiritual leader [of the FRPI] and, by right, the commander and leader of the FRPI, as well as the Messiah of the Lendu people. [A]s such, he is the highest moral authority and the supreme spiritual leader. De facto, he is considered by his FRPI peers as the supreme leader of the Ngiti combatants of this political-military movement. In this capacity, together with other commanders of this political-military movement, he organized, planned or encouraged in any way the attacks … against Nyankunde and Groupement Musedzo by FRPI Ngiti combatants respectively on 5 and 12 September 2002.
133 … Below is the evidence of the defendant’s membership of the … FRPI since its foundation until his arrest:
- The accused … founded the tribal militia of Ngiti combatants which later became the armed political-military movement named Front for Patriotic Resistance in Ituri, FRPI;
- He invited [several of] the commanders who joined the tribal militia of Ngiti combatants … He knows all of them personally and individually. He demonstrated this [knowledge] during a public hearing of this Court …
- The accused … , after talking about those FRPI commanders at the public hearing, was asked by the Court how he knew them if he argued not to be member of the FRPI. He replied without hesitation that he knew them very well because they were his people. This means they were close collaborators within the FRPI.
- … [T]he accused … was the only person on guard at the Operational Area of Ituri … [on the occasion of the ceremony organized … when FRPI commanders joined the Armed Forces of the Democratic Republic of the Congo – FARDC], at the official gallery reserved for the high civil and military authorities … [T]he Court asked in which role he was present there, and he replied that it was in his role of director of the CODECO. [The Court] notes that this cooperative no longer exists since 2000 and that all its workers became combatants at the Ngiti militia, which later became the FRPI. Thus, he was present in the role of FRPI leader.
- … [T]he accused … was found to be circulating in the FRPI’s bastion … His justification was that he was there to show himself and contradict rumours about his death and to … [have a feast] for the occasion of his re-appearance. [The Court] deduces in view of the above that he was there as part of a tour for the inspection of military positions of the FRPI Ngiti combatants … , in the role of supreme moral and spiritual authority and de facto supreme commander of the FRPI Ngiti combatants. [H]is public appearances necessarily involved jubilant scenes and large festivities as admitted by him.
- … [T]he defendant … , in 2007, was fleeing the sweep operations launched by the FARD[C] against FRPI’s residual positions. When arrested, he was found in possession of an FRPI’s roadmap given to him by … [FRPI’s] Colonel Cobra Matata Banaloki so he could reach the latter’s residence in Nyavo.
134 … [T]he above-mentioned reasons constitute sufficient evidence … to establish substantial grounds to believe that the defendant … was not only a member of the FRPI, but also and mainly the highest civil authority who had an unquestionable authority within this political-military-tribal movement, including over the commanders.
135 … [T]his evidence gives the Court substantial grounds to believe that the defendant … should logically be considered criminally responsible for the charged acts, in the role of … a superior within the FRPI militia pursuant to article 28(b) of the … [1998 ICC] Statute, for the following reasons.
136 … [A]lthough he was not a commander within the FRPI militia, the defendant … was de facto its supreme commander, as he was not only the founder, but also the highest moral authority and supreme spiritual leader. As such, he is a superior having de facto under his authority and control the FRPI Ngiti combatants … (this is the spirit of article 28(2) of the … [1998 ICC] Statute, which provides that, regarding a civil superior, the Court must prove that he knew, or consciously disregarded, information which clearly indicated, that the subordinates were committing or about to commit such crimes).
137 … [T]herefore, since the foundation of the FRPI until the moment when the defendant was arrested, … [he] was not only supposed to exercise de facto authority and effective control over the FRPI militia and ipso facto, over the Ngiti combatants who have committed war crimes during the attacks against Collectivité Chefferie de Nyankunde and Groupement Musedzo respectively on 5 and 12 September 2002; but unfortunately he also omitted or neglected to exercise the appropriate control over the FRPI Ngiti combatants, as he knew that the latter would commit war crimes (in the Emil Muller case, … [an accused] was convicted for the first time by the German Supreme Court in Leipzig after World War II for not having prevented nor taken disciplinary action against the perpetrators: his responsibility lies in the omission … ; a superior is responsible for crimes committed by his subordinates and for his omission in preventing [the commission of those crimes] or in taking disciplinary action).
138 … [H]e was also supposed to exercise the power of giving orders, which were executed through the chain of command as, at the time of the facts of the present case, the FRPI was organized as a conventional army, with a General Staff directed by Kandro Ndekote, seconded by Cobra Matata Banaloki. [T]hese were the ones who headed up the bodies and structures of command, military operations … [and] administration, but unfortunately … [the accused] omitted or neglected to exercise the appropriate control over the Ngiti combatants of the FRPI militia through the chain of command, while he knew that the latter would commit war crimes.
139 … [H]e was also supposed to have and exercise the power and material capacity for preventing and punishing the commission of crimes, as there was a branch within the FRPI in charge of military justice … However, not only he omitted or neglected to exercise the appropriate control over the FRPI Ngiti combatants by giving orders with the aim of preventing the commission of war crimes through the chain of command, but he also did not punish their commission nor submitted them to the authority of the branch in charge of military justice within the FRPI for investigation and prosecution, while he knew that the latter were going to commit or had committed war crimes.
[footnote in original omitted]
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 allows concluding that a superior could not have ignored a particular fact as he had easy access to relevant piece 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.
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 the crime would be a probable consequence of his or her acts.
Incitement may be carried out by omission (for instance, if a superior officer intentionally omits to take all appropriate measures to punish or denounce the criminal conduct of his or her subordinates). In this case, it must be proven that there is a relation of cause and effect between the incitement and the effective commission of the crime.
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.
In these circumstances, a superior may be held criminally responsible for crimes committed by his or her subordinates if he or she does not succeed in preventing or punishing them. A superior is thus responsible for his or her omission or negligence in reacting at the moment when he became aware that a crime would be committed or had already been committed.
The training manual further states:
Legal implications of sexual violence as an international crime
… International crimes imply … the responsibility of commanders and other superiors. This mode of responsibility is subject to the following conditions:
1. the superior must have effective control over persons under his command;
2. he must not have prevented or punished crimes brought to his knowledge, nor referred such crimes to the competent authority.