Democratic Republic of the Congo
Practice Relating to Rule 40. Respect for Cultural Property
In 2009, in the Basele Lutula and Others case, the Military Garrison Court of Kisangani convicted Mai-Mai militia members of various crimes, including destruction of property. 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]:
- immovable property (sites, caves, caverns, land containing pre-historic sites, remains of ancient buildings etc.) or movable property (drawings, paintings, statues, utensils [or] engraving tools made by natives which have an archaeological, artistic or educational interest; [see] decree of 16 August 1939 regarding the protection of sites, monuments and production of art).
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 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 the pillaging of schools, churches and objects belonging to charitable organizations. 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 schools … [and] churches … 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, as well as to charitable organizations … 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.