Related Rule
Democratic Republic of the Congo
Practice Relating to Rule 156. Definition of War Crimes
According to the Democratic Republic of the Congo’s Code of Military Justice (1972), as amended in 1980, war crimes are “all offences against the laws of the Republic which are not justified by the laws and customs of war”. 
Democratic Republic of the Congo, Code of Military Justice, 1972, as amended in 1980, Article 502.
The Democratic Republic of the Congo’s Military Penal Code (2002) provides:
Chapter II: Crimes of genocide and crimes against humanity
Section 2: Crimes against humanity
Article 165
Crimes against humanity are grave violations of international humanitarian law committed against any civilian population before or during war.
Crimes against humanity are not necessarily linked to the state of war and can be committed not only between persons of different nationality, but even between subjects of the same State.
Article 166
The grave breaches listed hereafter, affecting, by action or omission, the persons and objects protected by the Geneva Conventions of 12 August 1949 and the Additional Protocols of 8 June 1977, constitute crimes against humanity, repressed according to the provisions of the present Code, without prejudice to more severe penal provisions provided by the ordinary Penal Code: …
Chapter III: War crimes
Article 173
As war crimes are to be understood all offences against the laws of the Republic committed during war and not justified by the laws and customs of war. 
Democratic Republic of the Congo, Military Penal Code, 2002, Articles 165–166 and 173.
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:
1. Having, in the territory of Manono, district of Tanganyika, and in the territories of Pueto and Mitwaba, district of Haut-Katanga, province of Katanga, in the Democratic Republic of the Congo, at an unspecified date, but within the period of October 2003 to 12 May 2006, a time not yet falling under the legal period of limitation, …
3. Having committed war crimes, in the same circumstances of place and time as above, 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 … 
Democratic Republic of the Congo, Military Auditor at the Military Garrison Court of Haut-Katanga, Kyungu Mutanga case, Referral decision, 10 July 2007, pp. 3–4.
In 2009, the Military Garrison Court of Haut-Katanga was called upon to decide on the criminal charges brought against Kyungu Mutanga and others, which included charges on war crimes and crimes against humanity allegedly committed as members of the armed group Mai-Mai. The Court stated:
[T]he Defence … states that … war crimes can only be committed during times of war, according to the text and intention of the legislation on the matter (the [1949] Geneva Conventions).
It argues that the … Public Prosecutor’s Office, when describing the facts in the indictment, has clearly demonstrated that there was no war in the period from 15 October 2003 to May 2006, as it argued that
in 1999, the Congolese started a rebellion … , on 4 April 2003, [there was a] global and inclusive agreement. In February 2003, Makabe called all combatants to lay down their weapons … This was the end of the collaboration between the FAP [Self-Defence Forces, the Maï-Maï] and the FAC [Congolese Armed Forces].
The … Public Prosecutor’s Office, in its long demonstration, concluded that the nature of the conflict is not an obstacle for the parties to comply with the rules of international humanitarian law.
Upholding the arguments presented by the Defence, the Court notes that, from 15 October 2003 until 12 May 2006 … , no war was declared.
Moreover, in the RDC, only the Head of State can declare a state of war so the laws and customs of war are observed by the belligerents.
Also with reference to the international and national approaches to the concept of “war crime”, it is always implied that, before any compliance with the laws and customs of war, there must be a declared war between the belligerents.
The Court notes that article 66 of the … [1945 IMT Charter (Nuremberg)] defines this concept as “violation of the laws or customs of war”;
That article 8 of the [1998] … ICC … Statute, without expressly giving a definition, merely names as war crimes several acts which constitute grave breaches of the … 1949 Geneva Conventions;
That article 173 of the … [Military Penal Code (2002)] defines war crimes as “all offences against the laws of the Republic committed during war and not justified by the laws and customs of war”.
With regard to the attacks [committed] by members of Gédéon’s Maï-Maï [group], [if] persons take by surprise military positions in order to resupply themselves with weapons and ammunition, can … [it] be considered as a state of war between the FARDC [the Armed Forces of the Democratic Republic of the Congo] and the Maï-Maï?
As for the fact that Maï-Maï [members] attacked certain villages which were hostile to their movement, can it constitute an armed struggle between social groups?
The Court recalls that, throughout its hearings, there was never any question about war. The Prosecution itself stated that there was peace in this part of the Republic since a ceasefire agreement had been signed in Lusaka on 10 June 1999 to end the political crises which followed the armed conflicts, and that Gédéon’s insurrectional movement came to disturb the tranquillity of the population from Mitwaba-Pweto-Manono territories.
In view of the above, the Court finds no element based on which it can uphold the war crimes charges against the defendants, as the war context is not precisely established in the present case. However, it upholds the [charges of] crimes against humanity and terrorism, as such crimes can be committed in any circumstances, that is, both in peace and war times. 
Democratic Republic of the Congo, Military Garrison Court of Haut-Katanga, Kyungu Mutanga case, Judgment, 5 March 2009, pp. 75–76 and 79–80.
Regarding the difference between war crimes and crimes against humanity, the Court stated:
The domestic law [referring to the Military Penal Code (2002)] confuses war crimes and crimes against humanity, which, on the other hand, are clearly defined by the [1998] ICC … Statute.
… [A]rticle 165 of the … Military Penal Code [(2002)] provides that:
Crimes against humanity are grave violations of international humanitarian law committed against any civilian population before or during war.
Crimes against humanity are not necessarily linked to the state of war and can be committed not only between persons of different nationality, but even between subjects of the same State. 
Democratic Republic of the Congo, Military Garrison Court of Haut-Katanga, Kyungu Mutanga case, Judgment, 5 March 2009, pp. 70 and 75–76.
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. When explaining the constitutive elements of crimes, the training manual states:
Actus reus … describes the prohibited conduct which is adopted by the accused …
… [It] describes also the conditions required for transforming a specific conduct into a crime. Thus, for war crimes, the fact that a specific crime (murder, rape, etc.) was perpetrated in the context of an armed conflict may be an element constitutive of the actus reus of the war crime. 
Democratic Republic of the Congo, Training manual by the Prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo, Military Justice seminar, 2008, p. 8.