Соответствующая норма
Democratic Republic of the Congo
Practice Relating to Rule 151. Individual Responsibility
Section A. Individual criminal responsibility
The Democratic Republic of the Congo’s Code of Military Justice (1972), as amended in 1980, contains provisions for the punishment of a list of offences such as war crimes which are applicable “in time of war or in an area where a state of siege or a state of emergency has been proclaimed”. 
Democratic Republic of the Congo, Code of Military Justice, 1972, as amended in 1980, Articles 436, 455, 472 and 522–526.
In 2009, in the Basele Lutula and Others case, the Military Garrison Court of Kisangani convicted Mai-Mai militia members of various crimes. Regarding their individual criminal responsibility for destruction of property and for the crime against humanity of rape, the Court stated:
Criminal participation in the offence of destruction and damage without malicious intent
There is criminal participation when several persons take a more or less active and direct part in the perpetration of an offence … Criminal participation is punishable only in the cases provided for in articles 21 and 22 of the CPOL II [Penal Code] and under certain conditions, namely, the existence of a primary offence, an act of participation, a [nexus] between the act of participation and the damage caused, [and] a moral element …
Any participation is punishable only when it contributes to the commission of an offence. In the present case, the destruction and damage without malicious intent is the punishable offence concerned. The act of participation in a primary offence can only be an act of agreement or complicity.
There is connection or co-activity when the contribution to an offence is direct or indispensable, while there is complicity when the assistance provided is useful although not necessary … [T]he act of participation must be voluntary …
Criminal participation supposes the existence of a moral element consisting of the intention to participate in an offence with the aim of facilitating its preparation or execution … In the same vein, it has been decided in case-law that “criminal participation requires the intention of associating oneself with the perpetration of an offence” … In the present case, the defendants Kipeleka Nyembo, Okanga Likunda, Osumaka Loleka and Koti Okeke obliged men from the locality of Lieke Lesole to cut down fruit trees found alongside the road by threatening them with two weapons of war … By proceeding this way, they participated in this offence. They are thus co-perpetrators, especially since the material act of this offence is consummated … with the simple destruction of these trees which are protected by law.
Criminal participation [in the crime against humanity of rape]
There is criminal participation when several persons take a more or less active and direct part in the perpetration of an offence … Criminal participation is punishable only in the cases provided for in articles 21 and 22 of the CPOL II [Penal Code] and under certain conditions, namely, the existence of a primary offence, an act of participation, a [nexus] between the act of participation and the damage caused, [and] a moral element …
Not all participation is punishable. It becomes punishable only when it contributes to the commission of an offence. In the present case, the crime against humanity of rape is the primary offence concerned.
An act of participation in a primary offence can only be an act of co-activity or complicity, which are concepts that must be clarified. There is co-activity … when the contribution to an offence is direct or indispensable, while there is complicity when the assistance provided is useful although not necessary … The existence of one of these legal modes [of participation] is sufficient to constitute criminal participation. The act of criminal participation must be a voluntary act, and not an accidental fact.
Criminal participation requires a relation of cause and effect between the act which has been voluntarily carried out, and the consummation of the offence.
Criminal participation supposes the existence of a moral element consisting of the intention to participate in an offence with the aim of facilitating its preparation or execution … It has been decided in the case-law that “criminal participation requires the intention of associating oneself with the perpetration of an offence” …
In the present case, the ladies and young ladies … were raped in the period from 14 to 28 July 2007 by the defendants Kipeleka Nyembo Bumba, alias Kata Moto, Osumaka Loleka, alias Effacer Le Tableau, and Koti Okeke, alias Koy Likoloya Ngomba.
Thus, the material and positive act constitutive of the material element of the crime against humanity of rape … [was] committed [by them] as material perpetrators.
Regarding the defendant Okanga Likunda, alias Musique, who was part of this group, he participated in the crime against humanity of rape as co-perpetrator.
This defendant, who had relatives in the locality of Lieke Lesole, served as a guide. 
Democratic Republic of the Congo, Military Garrison Court of Kisangani, Basele Lutula and Others case, Judgment, 3 June 2009, pp. 15–16 and 24–26.
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. When discussing the civil liability of the defendant, the Court stated that its view on the obligation of the defendant to make reparation “does not deviate from the individual criminal responsibility of the defendant by omission”. 
Democratic Republic of the Congo, Military Garrison Court of Ituri-Bunia, Barnaba Yonga Tshopena case, Judgment, 9 July 2010, § 156.
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:
Constitutive elements of criminal responsibility
Traditionally, the constitutive elements of crimes are divided in two categories: actus reus and mens rea.
a. Actus reus
- It describes the prohibited conduct which is adopted by the accused. The actus reus depends also on the results caused, which establish the criminal nature of the conduct. Thus, throwing a stone is not a crime, unless it wounds or kills a human being. 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.
- The actus reus describes also the conditions required for transforming a specific conduct into a crime. Thus, for war crimes, the fact that a specific crime (murder, rape, etc.) was perpetrated in the context of an armed conflict may be an element constitutive of the actus reus of the war crime.
b. Mens rea
Its elements refer to the state of mind of a person involved in the actus reus of a crime. In principle, criminal law does not punish involuntary acts. It makes a clear distinction between the conduct which unconsciously or involuntarily causes harm and deliberate acts committed with a criminal intention. Thus, the elements of the mens rea of a crime consist of the intention which motivates the suspect at the precise moment when the act is carried out.
Article 30(1) of the … [1998 ICC] Statute requires that the elements of the actus reus of a crime be necessarily committed “with intent and knowledge”. This definition of the necessary psychological state clearly establishes that, unless expressly provided otherwise, the crimes within the jurisdiction of the ICC must be perpetrated with the highest degree of intent. Inferior criminal states of mind, such as criminal negligence, are insufficient. 
Democratic Republic of the Congo, Training manual by the Prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo, Military Justice seminar, 2008, pp. 8–9.
Regarding modes of criminal responsibility, the training manual states:
We make a clear distinction between a first level [of responsibility composed] of the direct perpetrators of a crime, and other levels of responsibility [composed of] persons who, despite their distance and indirect link, have a participation in the commission of a crime …
The various levels of responsibility:
a. The first category is that of direct perpetrators of a crime: a person who attacks a victim and physically commits a crime against the latter. This group includes also the immediate superiors of direct perpetrators if they are directly implicated in the preparation, order, incitation or commission.
b. The second category comprises intermediate perpetrators … including distant perpetrators who … participate with knowledge about the commission of the crimes by the direct perpetrators.
c. The third category is composed of military, police and political leaders, who use their power to [initiate] the crimes committed by the direct perpetrators. They are the ones who conceive [the crime] …
d. The last group is of persons likely to be implicated in the operational chain of serious international crimes, [which is] composed of individuals who, in the exercise of their usual [legal] powers, involuntarily form an unavoidable [link] of the criminal chain. The perpetrators use persons as instruments.
The modes of “knowledge” :
One of the domains in which it is very difficult to [gather] evidence concerns the “knowledge” by a suspect or perpetrator of a crime before its commission. Article 30 of the … [1998 ICC] Statute requires evidence beyond reasonable doubt regarding the knowledge and intent of a person accused of a crime. It defines knowledge in paragraph 3 of that article: “knowledge means awareness that a circumstance exists or a consequence will occur in the ordinary course of events”.
The modes of criminal participation:
… There are many ways in which a crime can be perpetrated. When a crime involves several perpetrators, each one may have participated in a different way. This applies notably to international crimes, which are not only caused by those who physically perpetrate them, but also by those who order, incite and support them.
The participation of a person in the commission of a crime might vary according to his or her position and to the nature of the crime.
a. Premeditation
The premeditation of a crime means that a person or several persons conceived the perpetration of the crime, during both its preparation and execution, and that the crime was indeed committed within the outlined framework …
Such premeditation can take different forms according to the level of the various perpetrators. If it concerns a group of direct perpetrators who, for instance, attack a city where they commit several crimes, the premeditation includes activities which preceded the attack, when they discussed and agreed on the manner in which they would attack the city.
b. Incitement
This mode includes all words, acts and gestures presented in public in view of driving another person to commit a criminal act … According to the case-law of the ICTY, the mens rea of incitement presupposes that the suspect had the intention to provoke the commission of a crime or was perfectly aware that the commission of a crime would be a probable consequence of his or her acts.
Incitement may be carried out by omission … In this case, it must be proven that there is a relation of cause and effect between the incitement and the effective commission of the crime.
c. Order
Order as a mode of participation in a crime presupposes the existence of a relation of subordination between the person who gives the order and the person who effectively commits the crime. In this case, mens rea consists of the will of the person giving the order to see such crime being committed, or the knowledge by that person of the high probability that the commission of such crime would result from his or her orders.
The order does not need to be written, nor even verbal …
d. Conspiracy or Joint Criminal Enterprise (JCE)
One of the most remarkable innovations of international criminal law is the … theory of the “joint criminal enterprise” as a mode of criminal participation. It characterises the criminal conduct of high officials which are not directly linked to the crimes committed or their victims. It was conceived by the ICTY … [I]t concerns the commission of acts by a group of persons who are all engaged in the implementation of a collective criminal plan.
This mode of responsibility means that, under certain circumstances, the members of a joint criminal enterprise are not only criminally responsible for the crime which was really intended, but also … for other crimes which result, in a predictable manner, from the joint criminal enterprise. 
Democratic Republic of the Congo, Training manual by the Prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo, Military Justice seminar, 2008, pp. 9–13.