Democratic Republic of the Congo
Practice Relating to Rule 158. Prosecution of War Crimes
The Democratic Republic of the Congo’s Code of Military Justice (1972), as amended in 1980, contains provisions for the punishment of a list of offences such as war crimes which are applicable “in time of war or in an area where a state of siege or a state of emergency has been proclaimed”.
In 2007, in its second periodic report to the Committee on the Rights of the Child, the Democratic Republic of the Congo stated regarding the prosecution of sexual violence:
157. Sexual violence is also a very disturbing trend which especially affects women and girls. During the war, it took on barbaric forms, in that it involved mainly members of armed forces and groups, but it is now increasingly committed by civilians …
158. With a view to preventing and severely punishing violations involving this type of violence while at the same time ensuring systematic care for victims, … [the Law Relative to Sexual Violence (2006)] and [Act] No. 06/019 of 20 July 2006] were adopted to take more vigorous action against sexual violence. They amend, respectively, provisions of the Penal Code and the Code of Criminal Procedure.
159. … [The Law Relative to Sexual Violence (2006)] strengthens penalties for rape and criminalizes other forms of anti-social behaviour which had heretofore gone unpunished. Certain violations were drawn from the [1998 ICC] Statute … , others from the  Optional Protocol … on … [Child Trade], … [P]rostitution and … [P]ornography.
161. Act No. 0619 provides for an expedited procedure for investigation and trial of sexual violence cases. It contains the following provisions:
Article 7 bis:
Without prejudice to legal provisions concerning procedure in cases of flagrante delicto, the preliminary inquiry with respect to sexual violence shall take place within a period not exceeding one month from the date of filing of the case with the judicial authority. The investigation and the issuance of a judgment shall take place within a period not exceeding three months from the date of filing of the case with the judicial authority.
The investigation by the officer of the judicial police shall be immediate. It shall be conducted without interruption in such a manner as to supply the officer of the public prosecutor’s office the main elements needed to form a view of the case.
During all phases of the procedure, the victim shall have the assistance of counsel.
Article 9 bis:
The alternative fine (amende transactionnelle) provided for in Article 9 above shall not apply to offenses related to sexual violence.
163. The Joint Initiative [to combat sexual violence against women, youth and children in the Democratic Republic of the Congo, launched in March 2004,] is a multi-sectoral framework for coordination and action in preventing and responding to violence against women, young people and children. The participants are: the Government (Ministries of Human Rights, Status of Women and the Family, Social Affairs, etc.); United Nations organizations (UNFPA, UNICEF, UNDP, HCHR, United Nations Development Fund for Women (UNIFEM), World Food Programme (WFP), United Nations Food and Agriculture Organization (FAO), United Nations Organization Mission in the Democratic Republic of the Congo (MONUC)); and non-governmental organizations.
164. The actions of the Joint Initiative fall under five headings:
(e) Legal aid, by establishing legal clinics (orienting victims to judicial organs and providing legal assistance), including reform of the judicial system (combating impunity, strengthening capacities among magistrates).
166. Following the awareness-raising efforts concerning the fight against sexual violence, the adoption of these laws, and dissemination of information about them among the public, the perpetrators of rape and other sex offenses are being prosecuted and convicted, especially in military jurisdictions. Among the cases decided, the following are noteworthy:
- RP 086/005 - RP101/006, of 20 June 2006, a judgment handed down by the military tribunal of the garrison of Mbandaka (Equateur Province) against nine soldiers found guilty, in particular, of rape of 46 persons in Bokala, and who were sentenced for crimes against humanity to penal servitude for life, based on articles 7, 9, 21, 25, 31, 32, 33 and 37 of the [1998 ICC] Statute … ;
- RP 084/2005 of 12 April 2006, a judgment handed down by the military tribunal of Mbandaka against 12 soldiers prosecuted for the rape of 31 persons in Songo Mboyo and sentenced to penal servitude for life, based on the [1998 ICC] Statute … ;
- RP 011/05 of 26 October 2005, a judgment handed down by the military tribunal of the garrison of Kindu, in Maniema Province, against two Mai-Mai militia members who committed acts of rape and sexual slavery against four women in the locality of Kimanda, and who were sentenced to death based on articles 5, 6, 165, 169 (7) and 172 of the Military Penal Code [(2002)].
167. Also noteworthy is the conviction of two soldiers to 10 years’ penal servitude for the rape, respectively, of a 5-year-old girl and a 13-year-old girl, by the military tribunal of the garrison of Kalemie (Katanga Province) in May, 2006. However, it should be noted that judicial decisions are few in light of the number of crimes committed. Logistical difficulties in particular hamper thorough surveys. But the determination of the Government to combat impunity is real and will become increasingly manifest through the reform of the justice system that is now under way, supported by the international community.
168. In connection with the awareness-raising campaign, the theme chosen for International Women’s Day 2007 is: “Ending violence against women, demanding application of the law.”
Regarding the prosecution of the recruitment of child soldiers, the Democratic Republic of the Congo stated:
211. The Government’s commitment to ending conscription of children in armed groups also finds expression in the fact that it has initiated within the country, or in cooperation with the International Criminal Court, judicial proceedings against the perpetrators of those acts, as in the case of Thomas Lubanga, against whom charges were confirmed on January, 2007 in The Hague.
212. Internally, in May, 2005, the Headquarters of the Armed Forces expressly ordered all officers not to recruit children under the age of 18 and instructed them that all offenders would be severely punished. The Auditor General of the Congolese armed forces then expressly instructed all senior auditors and garrison auditors to prosecute any individual who broke the law and the aforementioned military orders.
213. It is on that basis that, on 17 March 2006, the military tribunal of the garrison of Bukavu convicted Major Biyoyo (formerly of the Mudiundu 40 Movement), a member of the Tenth Military Region, on charges of insurrection, desertion, arbitrary arrest and illegal detention of children in South Kivu in April, 2004.
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 in its introduction:
[International crimes] are very complex, especially because of the difficulty to collect material evidence, and … because these crimes are often committed in the context of armed conflicts and therefore investigations only start much later …
… Thus, this seminar aims to strengthen the capacities of Congolese magistrates and to familiarise them with innovative techniques [for the investigation of such crimes].
Regarding the prosecution of sexual crimes in the Democratic Republic of the Congo, the training manual states:
Attitudes regarding the investigation and judicial prosecution of … sexual violence during an armed conflict have evolved. Not long ago, in several cases, there was hesitation for initiating investigation of sexual violence. Several excuses were used, such as:
a. How to prosecute a commander when the soldier acted by himself?
b. The victims will refuse to testify.
c. How to prove the crime if no medical examination was carried out after the facts?
However, courts ended up accepting that other pieces of evidence … can suffice.
The training manual further states:
Our country has nowadays an appropriate and up-to-date legislation for the prosecution and punishment of sexual offences …
… However, [the prosecution of sexual offences] … does not depend only on the existence of appropriate legislation … Having structures and people in charge of managing them, namely, magistrates, assistants etc., is also necessary.
It is important thus to mention some difficulties for the implementation of justice regarding sexual offences. Such obstacles can be of a human or material character.
The lack of courts and tribunals in our country makes it difficult to reach the entire population … [There is also] a lack of magistrates charged with delivering justice regarding sexual violence.
Regarding material obstacles, it is important to note the lack of office supplies … , including forms that magistrates need in order to carry out their work. All these obstacles, alongside many other obstacles not mentioned here … , imply that justice will never be correctly delivered regarding sexual violence, despite the existence in our country of all the … legal instruments …
In addition to such laws on sexual violence, it is also necessary that the political leaders of our country have political will to improve the prosecution and punishment of offences related to sexual violence.
In 2010, during a speech before Parliament on the State of the Nation, the President of the Republic stated:
Even if still fragile in certain areas, peace is back in practically all the national territory.
The challenge now is to consolidate peace and stabilize the region …
This justifies several decisions we have already taken or that will soon be taken, in particular:
- chasing all offenders and [imposing] exemplary penalties to all those found guilty of committing rape, war crimes or crimes against humanity.