Democratic Republic of the Congo
Practice Relating to Rule 52. Pillage
Under the Democratic Republic of the Congo’s Code of Military Justice (1972), as amended in 1980, pillage committed in time of war is a punishable offence.
The Democratic Republic of the Congo’s Military Penal Code (2002) provides:
Any pillage or damage to damage to commodities, goods or belongings committed by soldiers … as a group … [with violence] is punished with penal servitude for life.
In all other cases, pillage is punished with 10 to 20 years of penal servitude.
If the pillage was committed in time of war, or in a region where a state of siege or of emergency has been proclaimed, or at the occasion of a police operation aimed at maintaining or re-establishing public order, the perpetrators are punished by death.
In March 2006, in the Bongi Massaba case, a case against a captain of the armed forces of the Democratic Republic of the Congo, the Military Garrison Court of Ituri at Bunia held:
Considering the proceedings taken against the defendant described above, prosecuted for:
1. Having committed a war crime;
Namely, having pillaged, in the village of Tchekele, community of the Walendu Bindi, territory of Irumu, district of Ituri, in the Eastern province, in the DRC, on 20 October 2005, several objects of the civilian population, namely a motorcycle of the brand Senke, a motor-pump, two solar panels, a radio of the brand Sharp, two loudspeakers, during the confrontations of the armed forces of the DRC and the negative forces called FRPI, objects which he had transported by pupils to the mount Awi, acts provided for and punished by articles 8.2).b).XVI and 77 of the Rome Statute;
Whereas the prosecution, for its part, brings war crimes charges for pillage, article 8.[2).b)].xvi of the Rome Statute, and for wilful killing, article 8.2).a).i.
Whereas, however, in its analysis of the constitutive elements of the war crime of pillage the prosecution, which upholds element d) [of the elements of crimes], namely “The conduct took place in the context of and was associated with an international armed conflict”, contents itself with evoking the generalized attack between two internal armed entities, the armed forces of the DRC and the FRPI, thus removing the international character of the said armed conflict;
Whereas these acts can be better prosecuted on the basis of:
1) Article 8.2)e).v [of the Rome Statute], providing for the war crime of pillaging a town or place, even when taken by assault; the appropriation of objects not justified by military necessity executed on a large scale in an illegal and arbitrary manner;
Regarding the analysis of pillage as provided for by article 8.2)e)v [of the Rome Statute]. For its realization, that provision requires the following elements:
1) The perpetrator appropriated certain property; in the present case, captain Blaise Bongi Massaba appropriated a motorbike of the brand SENKE, a motor-pump, two big solar panels, a ten-battery SHARP radio, two loudspeakers, objects he moreover reclaimed by calling this property of civilian character “war booty”, in violation of the law of war;
2) The perpetrator intended to deprive the owner of the property and to appropriate it for private or personal use …
3) The appropriation was without the consent of the owner …
4) The conduct took place in the context of and was associated with an armed conflict not of an international character; in the present case, the national army, the FARDC, fought against the armed groups of the Ituri resisting disarmament;
5) The perpetrator was aware of factual circumstances that established the existence of an armed conflict; in the present case, Captain Blaise Bongi Massaba, commander of the third company engaged against these armed militias, qualified these victims as prisoners of war, in spite of the protection of that category by the international legal instruments duly ratified by the RDC.
The Military Garrison Tribunal of Ituri
Having deliberated on the case in public session on Friday, 24 March 2006;
On the question whether the defendant Blaise Bongi Massaba is guilty of the crimes with which he is charged, the Tribunal, by the majority of the votes of its members, responds: Yes.
Holds as established in fact and in law the offences the defendant captain Blaise Bongi Massaba is charged with and convicts him, consequently, without admitting mitigating circumstances:
- to penal servitude for life for war crimes of pillage of property (Article 8.2)e)v of the Rome Statute),
- to penal servitude for life for the war crime of murder (Article 8.2)c)i of the Rome Statute);
And, by applying article 7 of the Military Penal Code, convicts him:
- to penal servitude for life, as single, highest penalty.
In November 2006, on the defendant’s appeal, the Military Court of the Eastern Province held:
Whereas the Military Court of the Eastern Province is seized with the appeal of the defendant Blaise Bongi Massaba, convicted by the Military Garrison Tribunal of Ituri on the basis of two offences under the competence of the International Criminal Court, namely war crimes …;
War crime of pillage
Whereas, by war crimes, one means, in the case of conflicts not of an international character, the grave violations of article 3 common to the four Geneva Conventions of 12 August 1949;
Whereas in the present case it is the violation of pillaging a town or place taken by assault, in flagrant violation of the laws and customs applicable in conflicts between a regular army and an insurrectional group;
Whereas, pillage means all acts of dispossession or plundering of commodities, goods or other belongings either or the State, or of other domestic or foreign legal persons, or of individuals, acts which are generally accompanied by violence or other attacks on the physical integrity of persons, and committed by soldiers, in a group or not, or by other individuals, embarked or nor, or by equivalents, in possession of weapons or not, but with open force;
Whereas equated with pillaging is damaging, i.e. damage caused to the commodities, goods or other belongings, breaking of doors and exterior enclosures, committed by the actors mentioned above at all times on the national territory (Laurent Mutata, Congolese Military Penal Law, p. 134);
Whereas, according to the same author, the material act of pillage must be a positive act, excluding any passive or negative attitude, any inaction or abstention, and consisting in violent or forced appropriation or simply in destruction;
The mental element
The mental element is twofold:
- first, the fact of the belonging of the objects to other persons;
- and second, a criminal resolution arrived at jointly, implying a prior concertation, to take or to destroy the objects like true owners, while being aware of the fact that they belong to other persons, and independent of the will of those lawfully in possession;
Whereas, in the present case, the soldiers of the first platoon of the third company carrying out a pretended combat patrol under the command of Kabesa Kabesa, alias Werrason, and at the order of the defendant, captain Blaise Bongi Massaba, appropriated objects belonging to several villagers …, namely:
- a red motorbike of the brand SENKE,
- a motor-pump,
- two big solar panels,
- a radio of the brand Sharp,
- two loudspeakers,
- a 12 volt battery.
Whereas the defendant, Blaise Bongi Massaba, admits that his soldiers had pillaged in Tchekele and, in his defence, admits having received a single solar panel and a 12-volt battery given to him by his deputy Kabesa Kabesa, on his return from the combat patrol;
Whereas the prior concertation required for assessing the converging will is given inasmuch as Mr Bongi consigned his own bodyguard to Mr Werrason in order to ensure that things were carried out well; and he presents the objects as war booty, i.e. objects acquired by fact of a war, and he wants to get them back despite the action of the civil party …, this sufficiently establishes the intention of the defendant Bongi to despoil [the civil party], the real owner, and to appropriate these objects for personal purposes.
Whereas the behaviour took place in a context associated with a conflict not of an international character;
Whereas the appropriation was against the will, i.e. without the consent, of the owner…
Whereas these pillages took place in the context of a non-international armed conflict; in this instance the confrontation between the armed groups of the Ituri resisting disarmament and the FARDC;
Whereas captain Blaise Bongi Massaba, commander of the third company engaged against the armed militias, by qualifying the pupils brought to him as prisoners of war, was aware of the existence of an armed conflict;
Whereas the [pillaged] objects were objects of a purely civilian character;
Whereas the constitutive elements [of pillage] are fulfilled as regards the defendant Blaise Bongi Massaba;
Whereas the defence argues that the defendant Blaise Bongi was not present at the place of the pillaging, in Tchekele;
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 preeminence, 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;
Whereas the Court … allows the defendant the benefit of mitigating circumstances resulting:
- from the fact that he is a first-time delinquent;
- from the fact that he is father to a large family;
- from the fact of his inexperience as a commander.
Whereas the charges of the war crimes of pillage and violence to life and person are sufficiently established as required by the law;
Finding on the public action
To the question whether the defendant Blaise Bongi Massaba is guilty of the war crimes of pillage and violence to life and persons he is charged with, the Military Court of the Eastern Province has replied, with the majority of the votes of its members: yes;
To the question whether there are grounds for holding mitigating circumstances to the benefit of the defendant, the Military Court of the Eastern Province has replied, with the majority of the votes of its members: yes, for each of the charges of which the defendant has been found guilty;
In consequence, convicts him:
- to 20 years of penal servitude for crimes of war of pillage;
- to 20 years of penal servitude for crimes of war of violence to life … ,
applying article 7 of the Military Penal Code, convicts him therefore to 20 years of penal servitude as single, highest penalty.
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 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 consentment 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. Evidence was produced showing that the roofs and doors of stalls and shops were removed and various articles pillaged …
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, as well as to … economic operators. 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.
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.