Related Rule
Democratic Republic of the Congo
Practice Relating to Rule 28. Medical Units
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, including attacking and pillaging hospitals. Regarding the attack of hospitals, the Court stated:
90 … [T]he defendant … is accused of [committing a] war crime by [carrying out] attacks against buildings that do not constitute military objectives, which is a punishable act according to article 8(2)(e)(iv) [of the 1998 ICC Statute] …
91 … [T]he war crime addressed by this article is defined as the act of attacking and destroying buildings of common and/or public use, unless such attacks and destructions are imperatively demanded by military necessities.
92. In view of the [2000 ICC] Elements of Crimes, [this] war crime requires, in addition to a link between the crime and the existence of an armed conflict not of an international character, and the awareness by the perpetrator of the factual circumstances that established the existence of this conflict, that the following five elements be present:
i) an action by the perpetrator consisting of launching or directing an attack; ii) the object of the attack must be one or more buildings which do not constitute military objectives; iii) the perpetrator must intend these buildings to be the object of his attack knowing that they are not military objectives; iv) the conduct of the perpetrator must take place in the context of an armed conflict not of an international character; v) the perpetrator must be aware of the factual circumstances that established the existence of an armed conflict.
Attack shall be understood here in the sense of article 49(1) of the [1977] Additional Protocol I … , which defines attacks as “acts of violence against the adversary, whether in offence or in defence”.
93 … [I]n the present case, during the attacks launched against Nyankunde and Groupement Musedzo respectively on 5 and 12 September by FRPI Ngiti militiamen, the destructive attacks were deliberately directed against buildings which did not constitute military objectives, in particular hospital buildings …
96 … [T]hose buildings were damaged or destroyed because they were targeted by the Ngiti combatants …
97 … [S]uch attacks were launched against buildings in both places during a period where there was an armed conflict not of an international character in the territory of Irumu, in Ituri, situated in the Eastern Province of the Democratic Republic of the Congo.
98 … [T]he FRPI leaders who planned and ordered the above-mentioned attacks, as well as all Ngiti militiamen and combatants of the political-military movement who materially committed the attacks, were aware of the existence of an armed conflict of this nature in Ituri and had the intention to direct such attacks against those buildings knowing that they did not constitute military objectives. This proves the existence of the intentional or mental element which constitutes the direct and special dolus according to article 30 of the [1998 ICC] … Statute.
99 … [T]herefore, this Court finds that there is sufficient evidence to establish substantial grounds to believe that these attacks which constitute war crimes were intentionally launched against buildings that were not military objectives in Nyankunde and Groupement Musedzo by the FRPI Ngiti combatants with the support, authorization, blessing and/or lack of control by the leaders of this political-military movement called FRPI, including the defendant. 
Democratic Republic of the Congo, Military Garrison Court of Ituri-Bunia, Barnaba Yonga Tshopena case, Judgment, 9 July 2010, §§ 90–93 and 96–99.
Regarding the crime of pillaging, the Court stated:
100 … [T]he defendant … is accused of committing the war crime of pillaging in Nyankunde and Groupement Musedzo in the territory of Irumu, in Ituri, respectively on 5 and 12 September 2002 or around these dates, in violation of article 8(2)(e)(v) of the … [1998 ICC] Statute …
101 … [I]n view of the [2000 ICC] Elements of Crimes, the following elements must be fulfilled so this offence is committed:
i) the perpetrator must appropriate certain property; ii) the perpetrator must have the intention to deprive the owner of the property and to appropriate it for private or personal use; iii) the appropriation must be carried out without the consent of the owner; iv) the conduct must take place in the context of and be associated with an armed conflict not of an international character; and finally v) the perpetrator must be aware of the factual circumstances that established the existence of an armed conflict.
102 … [I]n the present case, during the assaults launched against Nyankunde and Groupement Musedzo respectively on 5 and 12 September by FRPI Ngiti combatants, certain property was indeed transferred from the population of those places under the control of the attackers, who appropriated [such property] without the consent of the owners, who were silent because they had either died or fled.
103 … [T]he evidence produced before the Court … establishes that FRPI Ngiti combatants intentionally pillaged property in the Collectivité Chefferie de Nyankunde and Groupement Musedzo after having taken control over these places. Several pillaged objects … were taken to the residence of the accused … where they were shared …
107 … [T]he pillaging continued for several days. It was common to see the attackers, assisted by women and children, removing part of the roofs of the houses, breaking down [entrance] doors and appropriating various pieces of furniture … Incidentally, even … hospitals were not spared from the pillaging.
108 … [T]his pillaging took place on the occasion of the attacks launched … on 5 September 2002 against Nyankunde and on 12 September 2002 against Groupement Musedzo within the context of an armed conflict not of an international character.
109 … [T]hroughout the period when the pillaging took place, the FRPI leaders who ordered the above-mentioned attacks, as well as the combatants of this political-military movement who materially committed the attacks, were aware of the existence of an armed conflict of this nature in Ituri. This proves the existence, in the present case, of the intentional or mental element which constitutes the special dolus in conformity with the requirements of intention and knowledge established by article 30 of the [1998 ICC] … Statute.
110 … After examining … the evidence … , the Court … is convinced that, on the occasion of the attacks launched respectively on 5 and 12 September 2002 against Collectivité Chefferie de Nyankunde and Groupement Musedzo, followed by their prolonged occupation by the FRPI Ngiti combatants, the latter indeed appropriated, for their private or personal use, objects belonging to the civilian populations … This includes livestock, electronic household appliances, motorcycles and bicycles, furniture, clothing, money, and even roof parts, doors and windows snatched from public buildings and private dwellings, without the consent of the legitimate owners and without the justification of any military necessity.
111 … [T]herefore, this Court finds that there is sufficient evidence to establish substantial grounds to believe that the war crime of pillaging was intentionally committed in the Collectivité Cheffereie de Nyankunde and Groupement Musedzo by the Ngiti combatants of the armed militia FRPI with the support, authorization and/or blessing of the leaders of this political-military movement, including the defendant. 
Democratic Republic of the Congo, Military Garrison Court of Ituri-Bunia, Barnaba Yonga Tshopena case, Judgment, 9 July 2010, §§ 100–103 and 107–111.
Regarding the applicable law, the Court stated:
[T]he constitutional provisions of the Democratic Republic of the Congo, namely articles 153(4) and 215 of 18 February 2006 [Constitution (2006)], authorize both civil and military courts and tribunals to apply duly ratified international agreements and treaties, and give them higher authority than domestic legislation. This constitutional authorization combined with the self-executing nature of the … [1998 ICC] Statute justify the direct application of this treaty by Congolese courts and tribunals. 
Democratic Republic of the Congo, Military Garrison Court of Ituri-Bunia, Barnaba Yonga Tshopena case, Judgment, 9 July 2010, § 63.