Democratic Republic of the Congo
Practice Relating to Rule 150. Reparation
In 2009, in the Basele Lutula and Others case, the Military Garrison Court of Kisangani convicted several Mai-Mai militia members of various crimes. The Court stated:
Regarding the civil parties … , the Court sentences the defendants Basele Lutula, Osumaka-Loleka, Okanga Likunda, Kipeleka Nyembo Bumba and Koti Okeke to pay, jointly with the Democratic Republic of the Congo [DRC], the equivalent in francs of 10,000 USD … to each of [the civil parties] as compensation for the harm suffered.
Regarding the victims of [the crime of] beating and wounding … , the Military Garrison Court of Kisangani sentences the above-mentioned defendants to pay, in solidum
with the DRC, the equivalent in francs of 2,500 USD … to each of them as damages.
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. The Court stated:
147 … [T]he acts of the present case are closely related to the armed conflicts that took place in the Ituri District, in the Eastern Province of the Democratic Republic of the Congo [DRC], from 2001 to 2004. Ituri was in turmoil during that period, following armed confrontations between several armed groups and other tribal militias supported by political-military movements in this part of the republic, which was outside the control and authority of the central government of the Democratic Republic of the Congo.
148 … [T]he most virulent of these groups was the UPC [Union of Congolese Patriots] and its armed branch called FPLC [Patriotic Forces for the Liberation of Congo], along with their allies from the Ugandan army called UPDF [Uganda People’s Defence Force]. During that period, they implemented strategies aimed at exacerbating the armed conflict by launching military operations of a large scale in Ituri, most often against armed groups and militias in Hema or Gegere, but mainly the Lendu civilians and similar ethnicities, in particular the Ngiti combatants from the FRPI militia, thus spreading terror, violence and death throughout Ituri.
149 … [T]he civil parties [to the present case] argued that the government of the Democratic Republic of the Congo should ensure to restore the safety of persons and their property throughout the national territory, including in Ituri, as well as ensure the safety of all of its borders.
150 … [A]ccording to the civil parties, the central government of the Democratic Republic of the Congo, exasperated by the scale of the armed conflicts in this part of the territory and concerned about restoring its authority and peace throughout the national territory, especially in Ituri, decided, at about the end of the second trimester of 2002, with the aim of neutralizing the UPC, to establish a secret collaboration with certain armed groups and tribal militias present in Ituri which were hostile to the UPC and … the UPDF, and to strengthen their military capacities in the field.
151 … [I]n order to achieve such objective, the central government of the DRC focused on providing weapons and ammunition in abundance to armed groups and other tribal militias hostile to the UPC, in particular the FRPI Ngiti combatants, through the armed group RCD KML [Congolese Rally for Democracy-Kisangani Movement for Liberation] of Mbusa Nyamwisi, as the latter was already an ally and controlled the aerodrome of Aveba, where planes carrying weapons and ammunition landed.
152 … [T]he civil parties concluded that it was in these circumstances that the FRPI Ngiti combatants were strengthened, through the supply of weapons and ammunition by the central Government of the DRC; and that it was with such weapons and ammunition that Collectivité Chefferie de Nyankunde and Groupement Mensudzo were attacked by such combatants … in September 2002, at the same time as the assaults launched by the same combatants against the positions of the armed branch of the UPC and the bases in Nyankunde centre of their allies of the Ugandan army, the UPDF, with the aim of dislodging them.
153 … [A]ccording to the civil parties, by proceeding this way, the central government of the DRC has de facto assigned to armed groups and tribal militias such as the FRPI Ngiti combatants a specific task which was related to the government’s national duty of putting an end to the armed conflicts in Ituri and restoring peace and the effectivity of its authority through the neutralization of the UPC, … FPLC and … UPDF.
154 … [T]he civil parties thus concluded that the Congolese government failed to fulfil its primary mission of ensuring the safety of the population of Ituri, including the inhabitants of Nyankunde and Musedzo; that the central government of the DRC created a relationship of principal and agent with those armed groups and tribal militias, including the FRPI Ngiti combatants; and that such relationship, according to article 260 of the Congolese Civil Code … , irreversibly and indubitably engages the civil responsibility of the principal, that is, the central government of the DRC, for the harm caused to third parties by FRPI Ngiti combatants.
155 … [This] Military Garrison Court finds that the civil parties raised contradictory arguments with the aim of holding the Congolese State civilly responsible in the present case … [T]he contradiction [is] blatant when they state that “there is evidence about [the defendant’s] indisputable membership of the FRPI: when arrested on 5 August 2007 fleeing from the sweep operations launched by the FAR[D]C [Armed Forces of the Democratic Republic of Congo] against residual positions of the FRPI, … [he] was found in possession of a roadmap … signed by … the Chief of Staff of the FRPI, for the [the defendant’s] displacement to the [latter’s] residence in Nyavo” … However, if there were a relationship between the supposed principal, [that is], the central government of the DRC, and the agents, [that is], armed groups and tribal militias [including] the FRPI Ngiti combatants, the FARDC, which is DRC’s regular army, would not have carried out such sweep operations against the residual positions of the FRPI … [This armed group] is still present in Chefferie de WaLendu Bindi and still fights against the FARDC.
156 … [This] Military Garrison Court … dismisses the hypothesis of a principal’s civil liability pursuant to article 260 of the Congolese Civil Code … in favour of [the application of] article 258 of the same code, according to which any act committed by a person which causes damage to another obliges the one by whose fault it occurred to repair it. This view by the Court does not deviate from the individual criminal responsibility of the defendant by omission as explained above.