Democratic Republic of the Congo
Practice Related to Rule 94. Slavery and Slave Trade
The Democratic Republic of the Congo’s Military Penal Code (2002) provides:
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.
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) of several war crimes, including sexual slavery. The Court stated:
120 … [T]he charges … of the war crime of sexual slavery brought against the defendant … correspond to the crime provided for in article 8(2)(e)(vi)-1 of the … [1998 ICC] Statute. He is accused of sexually enslaving civilian women who inhabited Groupement Musedzo, from the Collectivité de Marabo in the Irumu territory, or who were present at the moment when this place was attacked, on 12 September 2001, including the victim-witness … In view of article 8(2)(e)(vi)-2 of the … [1998 ICC] Statute and the [2000 ICC] Elements of Crimes, this crime requires, in addition to evidence of the existence of a link between the crime and … an armed conflict not of an international character, that the perpetrator was aware of factual circumstances establishing the existence of such conflict, as well as that:
i) the direct perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty; ii) the perpetrator caused such person or persons to engage in one or more acts of a sexual nature.
121 … [A] footnote in … the [2000 ICC] Elements of Crime clarif[ies] that:
It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to servile status as defined in the 1956 Supplementary Convention on [the Abolition of] Slavery. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.
122 … In the present case, this Court finds that there is sufficient evidence to establish substantial grounds to believe that, during and after the attacks carried out by FRPI Ngiti combatants … against the Collectivité Chefferie de Nyankunde on 5 September 2002 and Groupement Musedzo on 12 September 2002, such … combatants … indeed committed acts of sexual slavery against civilian women who inhabited those places or who were present when the attacks took place.
123 … [This] military court achieved this conclusion in particular due to the … statement of the first victim-witness … who, at the time of the facts, was a civilian aged 14 years and inhabited the locality of Lawa in Groupement Musedzo when the attack … of 12 September 2002 by FRPI Ngiti combatants took place. She says that she and another young lady from her village were abducted from Lawa and taken … close to the … residence of the defendant …
124 … [T]his victim-witness states that she was deprived of liberty of movement for a year and two months in … Tsheyi, where she was closely watched and kept in the residence of a so-called Papy, not otherwise identified, who was an Ngiti combatant and a guard of the defendant … Such combatant obliged the lady … , under threats of death, to become his “wife”. During the time when she was held in captivity … , the victim-witness was reduced to sexual slavery by combatant Papy and was obliged, sometimes also together with other women, to carry out forced domestic work consisting of drawing large quantities of water and preparing large quantities of food for the guests of the defendant … when there were parties.
125 … Regarding the moral or subjective element required for the war crime of rape and sexual slavery provided for in article 8(2)(e)(vi)-1 and 2 of the … [1998 ICC] Statute, article 30 of the same text requires that those crimes be committed with intention and knowledge …
126 … This legal requirement is fulfilled in the present case, both by the direct perpetrator and by the defendant … as they … had the common intention of carrying out those attacks … against Chefferie de Nyankunde and Groupement Musedzo and meant to adopt such aggressive conduct in those places; had knowledge or awareness of the existence of an armed conflict not of an international character; as well as knowledge or awareness that, as a consequence of carrying out such attacks in such circumstances, rapes and sexual slavery would occur in the ordinary course of events.
127. This court finds that there is sufficient evidence to establish substantial grounds to believe that, during and after the attacks carried out by FRPI Ngiti combatants … against Chefferie de Nyankunde on 5 September 2002 and Groupement Musedzo on 12 September 2002, such combatants indeed committed acts of rape and sexual slavery against women who inhabited those places or who were present at the moment of the attacks … , 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.
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.
In 2007, in its second periodic report to the Committee on the Rights of the Child, the Democratic Republic of the Congo stated:
157. Sexual violence is also a very disturbing trend which especially affects women and girls. During the war, it took on barbaric forms, in that it involved mainly members of armed forces and groups, but it is now increasingly committed by civilians …
158. With a view to preventing and severely punishing violations involving this type of violence while at the same time ensuring systematic care for victims, … [the Law Relative to Sexual Violence (2006)] and [Act] and No. 06/019 of 20 July 2006 were adopted to take more vigorous action against sexual violence. They amend, respectively, provisions of the Penal Code and the Code of Criminal Procedure.
159 … [The Law Relative to Sexual Violence (2006)] … criminalizes other forms of anti-social behaviour which had heretofore gone unpunished. Certain violations were drawn from the [1998 ICC] Statute … , others from the  Optional Protocol … on … [Child Trade], … [P]rostitution and … [P]ornography.
160 … Mention should be made of the following new offenses: … sexual slavery … [and] sexual trafficking and exploitation of children …
161. Act No. 0619 provides for an expedited procedure for investigation and trial of sexual violence cases.
In 2008, a training manual by the Prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, including war crimes, was adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo. The training manual states:
A. The prosecution of sexual offences under Congolese law …
In our country, sexual offences … are prosecuted and punished based on … [the Law Relative to Sexual Violence (2006)] …
This law … incorporated offences from international humanitarian law. [It provides for:]
6. Sexual slavery (article 174e)
It consists of the act of purchasing, selling, lending or bartering such a person for sexual purposes, and causing that person to engage in one or more acts of a sexual nature.
11. Trafficking and exploitation of children for sexual purposes (article 174j)
It concerns transactions related to the trafficking or exploitation of children or any other person for sexual purposes in return for remuneration or any advantage whatsoever.
B. The prosecution of sexual offences as international crimes
In our country, the prosecution of such offences are based in two legal instruments, namely, the … [1998 ICC] Statute and the Military Penal Code [(2002)].
The … [1998 ICC] Statute provides for sexual offences among other human rights violations which constitute crimes against humanity and war crimes.
In article 8, the Statute defines war crimes as breaches of the 1949 Geneva Conventions … , namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention: “… sexual slavery … ”.
It is important to note that article 153(4) of the Constitution … [(2006)] allows civil and military courts and tribunals to apply duly ratified international treaties … [T]he ratification of the Statute was authorised by Decree-Law No. 013/2002 of 3 March 2002.
The Military Penal Code [(2002)] treats sexual offences as crimes against humanity and punishes them in article 169, which states that
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: … sexual slavery.
Our country has nowadays an appropriate and up-to-date legislation for the prosecution and punishment of sexual offences.