Democratic Republic of the Congo
Practice Relating to Rule 99. Deprivation of Liberty
The Democratic Republic of the Congo’s Code of Military Justice (1972), as amended in 1978, provides for the punishment of anyone who, in the course of hostilities, without order from the authorities and except when the law so provides, arrests, detains or confines any person.
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.
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:
5. Unlawful deportation, transfer or displacement, unlawful confinement of a civilian person protected by the Conventions or the Additional Protocols;
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:
5. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
Whoever, during hostilities, without order of the established authorities and except for the cases where the law orders the seizing of a defendant, arrests, detains or illegally confines any persons, shall be punished by fifteen to twenty years of penal servitude.
Whoever lends a locality for the execution of the detention or illegal confinement shall be subject to the same penalty.
If the detention or illegal confinement has lasted more than fifteen days, the penalty shall be penal servitude for life.
Whoever, during hostilities, proceeds, in false attire, under a false name or with a false order of public authority, to the arrest, illegal confinement or detention of an individual, or if the arrested, detained or illegally confined individual is threatened with death, shall be punished with penal servitude for life.
The death penalty shall be applicable if the victims of arrest, detention or illegal confinement were submitted to corporal torture.
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. When explaining the constitutive elements of crimes, the training manual states:
… describes the prohibited conduct which is adopted by the accused … In certain circumstances, the omission of an act which a person was legally obliged to carry out may constitute the actus reus
of a crime. For example, the commander of a camp who continues to unlawfully detain civilians, while he has the power to release them, may be convicted for crimes resulting from the failure to exercise such power.