Democratic Republic of the Congo
Practice Relating to Rule 43. Application of General Principles on the Conduct of Hostilities to the Natural Environment
The Democratic Republic of the Congo’s Military Penal Code (2002) provides:
Any of the following acts, perpetrated as part of a widespread or systematic attack knowingly directed against the Republic or the civilian population, equally constitutes a crime against humanity and is punished by death, whether committed in time of peace or in time of war:
9. Grave devastation of the fauna, of the flora, of surface or underground resources;
10. Destruction of the universal natural or cultural heritage.
In 2009, in the Basele Lutula and Others case, the Military Garrison Court of Kisangani convicted Mai-Mai militia members of various crimes. The Court stated:
Destruction and damage without malicious intent (article 113 of CPL II [Penal Code])
Pursuant to article 113 of the Penal Code enacted by the ordinance of 28 February 1913: “whoever, even without malicious intent, destroys or damages, without any right or title, … movable or immovable property is liable to punishment of up to seven days’ imprisonment and a fine … ”.
It follows from this definition that this offence requires the combination of the following constitutive elements: protected objects, a material act and a moral element.
Article 113 can be applied with regard to [the following protected objects]:
- fruit and ornamental … [trees]
- palm tree …
- immovable property (sites, caves, caverns … ) …
The law does not require that the destroyed or damaged property belongs to another person.
The material act consists of destroying or damaging the above-mentioned objects as specified by law.
The moral element which characterizes this offence … is a simple [and] general one. The agent must act voluntarily but without malicious intent or without title or right.
In the present case, the defendants Kipeleka Nyembo, Okanga Likunda, Osumaka Loleka and Koti Okeke knew that they were breaching the law when they were … cutting down fruit trees which are protected by law, namely mango, palm and avocado trees.