Democratic Republic of the Congo
Practice Relating to Rule 90. Torture and Cruel, Inhuman or Degrading Treatment
The Democratic Republic of the Congo’s Military Penal Code (2002) provides:
Any soldier or equivalent person who is guilty of committing grave acts of violence or ill-treatment towards civilian populations, in times of war or during exceptional circumstances, is punished by death.
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.
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:
1. Torture or other inhuman treatment, including biological experiments;
2. Wilfully causing great suffering, or serious injury to body or health;
The offences contained in the preceding article are punished with penal servitude for life.
If those contained in points 1, 2, 5, 6, 10 to 14 of the same article lead to the death or cause grave injury to the physical integrity or health of one or several persons, the perpetrators are liable to the death penalty.
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:
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) for several war crimes, including inhuman and cruel treatment. The Court stated:
128 … [T]he constitutive elements of the war crime of inhuman or cruel treatment provided for in article 8(2)(c)(i)-3 of the … [1998 ICC] Statute … require that: the perpetrator inflicted severe physical or mental pain or suffering upon one or more persons; such person or persons were either hors de combat, or were civilians, medical personnel or religious personnel taking no part in the hostilities; [and] the perpetrator was aware of the facts that established this status.
129 … [I]n the night from 25 to 26 December 2007, after raping [a victim] in the village Talolo in reprisal against the arrest of the defendant … by members of the FARDC [Armed Forces of the Democratic Republic of Congo], seven combatants poured hot embers in her sexual organ causing burns until her thighs. In view of the scars of the victim … , there is sufficient evidence to establish substantial grounds to believe that, after the arrest of the defendant, these serious injuries were inflicted upon the above-mentioned victim by FRPI Ngiti combatants.
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.
In 2005, in its third periodic report to the Human Rights Committee, the Democratic Republic of the Congo stated:
56. Article 134, paragraphs 1 and 3, of the transitional Constitution provide that: “In accordance with the provisions of article 73 of the present Constitution, the President of the Republic declares war on a decision of the Council of Ministers on the recommendation of the National Defence Council and authorization of the National Assembly and Senate. The rights and duties of citizens in time of war or in the event of invasion or attack on the country by foreign forces shall be governed by an organization act.”
57. Although the Constitution does not explicitly state which rights may be derogated from, in the event of the proclamation of a state of war or emergency, by constitutional tradition there is no authorization for derogation from the following fundamental rights: the right to life, the right to physical integrity (right not to be tortured), the right to equality, the right not to be kept in slavery or servitude, the right not to be imprisoned for acts of commission or omission which did not constitute offences when they were perpetrated, freedom of thought, conscience and religion, and recognition of legal personality.