Democratic Republic of the Congo
Practice Relating to Rule 1. The Principle of Distinction between Civilians and Combatants
The Democratic Republic of the Congo’s Code of Military Justice (1972), as amended in 1980, imposes a criminal sanction on “every soldier who is guilty of committing acts of violence … against the civilian population in time of war”.
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:
10. Making the civilian population or individual civilians the object of attack;
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.
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 directing attacks against the civilian population. The Court stated:
79 … [T]he defendant … is accused of intentionally directing attacks against the civilian population as such, or against individual civilians not taking direct part in hostilities, which constitutes a war crime provided for in article 8(2)(e)(i) of the … [1998 ICC] Statute …
80 … [I]n view of the [2000 ICC] Elements of Crimes, [this] war crime requires, in addition to a link between the crime and the existence of an armed conflict not of an international character, and the awareness by the perpetrator of the factual circumstances that established the existence of this conflict, that the following three elements be present:
i) an action by the perpetrator consisting of directing an attack;
ii) the object of the attack must be the civilian population as such or individual civilians not taking direct part in hostilities;
iii) the perpetrator must intend such civilian population to be the object of his attack knowing that this population does not take direct part in hostilities.
Attack shall be understood here in the sense of article 49(1) of the  Additional Protocol I … , which defines attacks as “acts of violence against the adversary, whether in offence or in defence”.
81 … [I]t is known that, on 5 and 12 September 2002, the civilian populations of Chefferie de Nyankunde and Groupement Musedzo were the object of attacks by Ngiti combatants from the armed militia called FRPI …
82 … [T]he attacks were launched by the FRPI Ngiti combatants in reprisal against the civilian population, mainly individuals from the Bira tribe which inhabits this part of the Irumu territory. They were considered by the leaders of the FRPI to be allied with the UPC [Union of Congolese Patriots], led by Thomas Lubanga, and … the Ugandan army. At the time of the events, the [UPC] had established a military position at the centre of Nyankunde at the Irumu territory, Ituri district.
83 … [A]lthough there was a military position of the UPC at the centre of Nyankunde with about 200 servicemen, serious evidence shows that these attacks were not planned and directed exclusively against this military target, but were also – and mainly – planned and directed against the Bira and Hema civilian populations of Nyankunde and the neighbouring Groupement de Musedzo, with the aim of intentionally killing and/or expelling them so the Lendu and Ngiti could take possession [of the territory].
84 … [T]he evidence of these attacks and their planning results simply from the number of civilians who were killed by the FRPI Ngiti combatants during the attacks, the number and gravity of the injuries caused to the surviving victims, as well as the scale of the destruction and pillaging of civilian objects, followed by the prolonged occupation of these two places for years after each of the attacks. (In addition to witness statements … ).
85 … [T]hroughout this period, there was an armed conflict not of an international character in Ituri … [T]he FRPI leaders who planned and ordered the above-mentioned attacks, as well as all Ngiti militiamen and combatants of the political-military movement who materially committed the attacks, were aware of the existence of an armed conflict of this nature in Ituri and had the intention to direct such attacks against the civilian populations and individual civilians not taking direct part in hostilities, in violation of the provisions of the  Geneva Conventions. This proves the existence of the intentional or mental element which constitutes the direct and special dolus according to article 30 of the [1998 ICC] … Statute.
86 … [T]herefore, this Court finds that there is sufficient evidence to establish substantial grounds to believe that these attacks which constitute war crimes were intentionally directed against the civilian population of Nyankunde and Groupement Musedzo by FRPI Ngiti combatants and that, after having taken control of these places, they intentionally targeted civilians, most of them women, children and elderly people who had not been able to escape from the attacks, as well as inhabitants from Nyankunde who had taken refuge in Musedzo at the classrooms of its primary school.
87 … These attacks were carried out with the support, authorization, blessing, and/or lack of control by leaders of this political-military movement called FRPI, 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.