Democratic Republic of the Congo
Practice Relating to Rule 89. Violence to Life
The Democratic Republic of the Congo’s Code of Military Justice (1972), as amended in 1978, provides that in times of war, violence to or serious injury of the civilian population is an offence.
The Democratic Republic of the Congo’s Military Penal Code (2002) provides:
Genocide is punished by death.
As genocide is to be understood one of the following acts committed with intent to destroy, in whole or in part, a national, political, ethnical, racial, ethnic or religious group, in particular:
(a) Killing members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
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:
Killing by reprisals is equated with assassination.
In March 2006, in the Bongi Massaba case, a case against a captain of the armed forces of the Democratic Republic of the Congo, the Military Garrison Court of Ituri at Bunia held:
Considering the proceedings taken against the defendant described above, prosecuted for:
2. Having committed a war crime;
Namely, having committed, in the village Russinga Mudogo (Kengolo), community of the Walendu Bindi, territory of Irumu, district of Ituri, in the Eastern province, in the DRC, in October 2005, without a certain precise date but within the legal period of limitation, intentional homicide by killing 5 (five) persons arrested by him, namely M., D., O., A. and K., after the confrontations against the FRPI [Forces de resistance patriotiques en Ituri], persons led to and killed on the mount Awi called Golgotha. Acts provided and punished by articles 8.2).a).i. and 77 of the Rome Statute.
Whereas the prosecution, for its part, brings war crimes charges for pillage, article 8.[2).b)].xvi of the Rome Statue, and for willful killing, article 8.2).a).i.
Whereas … the second offence charged by the prosecution is the war crime of wilful killing, whose point b) in the constitutive elements [of crimes], noted by the prosecution, is … that “The conduct took place in the context of and was associated with an international armed conflict”, whilst omitting proof of the international character of that conflict;
Whereas these acts can be better prosecuted on the basis of:
2) Article 8.2)c)I [of the Rome Statute], providing for the war crimes of violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
… point c) of article 8.2) literally alludes to armed conflicts not of an international character;
Regarding the analysis of murder according to article 8.2)c)i of the Rome Statute; for its completion, that crime requires the fulfilment of the following elements:
1) The perpetrator killed one or more persons; in the present case, captain Blaise Bongi Massaba killed five persons …
2) Such person or persons were either hors de combat, or were civilians, medical personnel, or religious personnel taking no active part in the hostilities; in this instance, they were civilian secondary school pupils;
3) The perpetrator was aware of the factual circumstances that established this status; in this instance, captain Blaise Bongi Massaba, who in the “centre de brassage” again had learned the law of armed conflict, who, according to his identification, is, on top of that, a trained pedagogue, saw certain victims in school uniform, those surprised on the school road carrying school notebooks; he further had all the time to identify them, for they were arrested by his own initiative;
4) The conduct took place in the context of and was associated with an armed conflict not of an international character; in this instance, captain Blaise Bongi Massaba commanded soldiers right in an attack operation against the pockets of resistance of the armed militias of Ituri, in the territory of Irumu, community of the Walendu-Bindi.
5) The perpetrator was aware of factual circumstances that established the existence of an armed conflict; in the present case, being himself a company commander, he knew that he was in the middle of an armed conflict against the armed militias FRPI and others, against whom he organized combat patrols;
The Military Garrison Tribunal of Ituri
Having deliberated on the case in public session on Friday, 24 March 2006;
On the question whether the defendant Blaise Bongi Massaba is guilty of the crimes with which he is charged, the Tribunal, by the majority of the votes of its members, responds: Yes.
Holds as established in fact and in law the offences the defendant captain Blaise Bongi Massaba is charged with and convicts him, consequently, without admitting mitigating circumstances:
- to penal servitude for life for war crimes of pillage of property (Article 8.2)e)v of the Rome Statute),
- to penal servitude for life for the war crime of murder (Article 8.2)c)i of the Rome Statute);
And, by applying article 7 of the Military Penal Code, convicts him:
- to penal servitude for life, as single, highest penalty.
In November 2006, on the defendant’s appeal, the Military Court of the Eastern Province held:
Whereas the Military Court of the Eastern Province is seized with the appeal of the defendant Blaise Bongi Massaba, convicted by the Military Garrison Tribunal of Ituri on the basis of two offences under the competence of the International Criminal Court, namely war crimes …;
War crime of violence to life and person
Whereas that offence is provided for and punished by article 8.2)c)i [of the Rome Statute];
Whereas that offence consists of the following constitutive elements:
1. The perpetrator must have killed one or more persons;
Whereas, in the present case, the defendant Blaise Nogi Massaba has admitted having given the order to the group composed of warrant officer Batanga, Sergeant-Major Mwanga, Sergeant Ramazani, Captain Mpinda and Corporal Takakule, to promptly execute the pupils who had carried the pillaged objects, …
Whereas the defendant Blaise Bongi claims that he himself executed an order received from Major Faustin Kakule, who has contested this during the preliminary investigation and preparation of the trial;
Whereas article 28 of the Constitution of the Democratic Republic of the Congo stipulates:
“No one is required to execute a manifestly illegal order”;
Whereas the unlawfulness of the order allegedly given by Major Faustin Kakule could not have been doubted and the defendant Blaise Bongi Massaba would have had to refuse executing it if such an order really had been given …
Whereas Professor Verhaegen reports, in this sense, the decision of the Belgian Military Court in 1966, which the Military Court embraces:
“the act does not only constitute murder according to the provisions of the Congolese [Penal] Code, but also a flagrant violation of the laws and customs of war and the laws of humanity;
the unlawfulness of the order being manifest, the defendant had to abstain from executing it”;
Whereas, therefore, the criminal responsibility of the defendant Blaise Bongi Massaba can in no case be lifted;
[2.] The second condition required by the treaty: “such person or persons must be protected by the Geneva Conventions”;
Whereas they are persons enumerated in Article 3 common to the four Geneva Conventions of 12 August 1949, namely:
1) Persons taking no active part in the hostilities;
2) Members of armed forces who have laid down their arms;
3) Persons placed hors de combat by sickness, wounds, detention, or any other cause;
Whereas, in the present case, the five pupils fall under the first category, like every civilian taking no active part in hostilities;
They were pupils who avoided the war between the FARDC [Armed Forces of the Democratic Republic of the Congo] soldiers and the militiamen;
Whereas, even if they were militiamen of the commander Darc, as claimed by the defendant without, however, providing evidence for it (presence of weapons, even non-firearms: machetes, knives or arrows), they would need to benefit from the Geneva Conventions as being rendered hors de combat by their capture;
Whereas, in fact, that protection is recognized for captured and disarmed combatants, i.e. those fallen into the hands of the adversary;
[3.] Whereas the defendant Blaise Bongi could not have been mistaken about the quality of the five persons presented to him;
Whereas they were dressed in school uniforms and four of them carried their typical [school] things;
Whereas corporal Valaka had insisted on that quality as pupils, used as porters, but in vain;
Whereas the defendant Blaise Bongi Massaba knew that under the factual circumstances the five persons were taking no active part in the hostilities;
Whereas, by virtue of his training and his function, the defendant is considered as knowing international humanitarian law, which protects civilian and combatants rendered hors de combat in a conflict;
[4.] Whereas the incriminated behaviour took place in the context of and was associated with a conflict not of an international character;
[5.] Whereas the defendant Blaise Bongi Massaba knew that his unit was engaged in the offensive launched in order to dismantle the pockets of resistance of militiamen in the sector of Walendu Bindi;
Whereas these men had confronted the FRPI militiamen at Olangba;
Whereas, in fact, the defendant Blaise Bongi Massaba could not ignore the existence of hostilities in the sector where his unit was deployed;
Whereas the defendant Blaise Bongi Massaba and his counsel plead guilty to that charge, they nevertheless have invoked mitigating circumstances
Whereas the Court … allows the defendant the benefit of mitigating circumstances resulting:
- from the fact that he is a first-time delinquent;
- from the fact that he is father to a large family;
- from the fact of his inexperience as a commander.
Whereas the charges of the war crimes of pillage and violence to life and person are sufficiently established as required by the law;
Finding on the public action
To the question whether the defendant Blaise Bongi Massaba is guilty of the war crimes of pillage and violence to life and persons he is charged with, the Military Court of the Eastern Province has replied, with the majority of the votes of members is: yes;
To the question whether there are grounds for holding mitigating circumstances to the benefit of the defendant, the Military Court of the Eastern Province has replied, with the majority of the votes of its members: yes, for each of the charges of which the defendant has been found guilty;
In consequence, convicts him:
- to 20 years of penal servitude for crimes of war of pillage;
- to 20 years of penal servitude for crimes of war of violence to life …,
applying article 7 of the Military Penal Code, convicts him therefore to 20 years of penal servitude as single, highest 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 murder. The Court stated:
67 … [T]he war crime of murder is provided for and punished by article 8(2)(c)(i) [of the 1998 ICC Statute] …
68 … [T]his crime requires, in addition to the evidence of the existence of an armed conflict not of an international character, as well as of the awareness by the perpetrator of factual circumstances establishing the existence of this conflict, that there is also evidence of the following three elements: “i) the perpetrator must have killed one or more persons; ii) the person or persons killed should be protected by one or several of the 1949 Geneva Conventions; and finally, iii) the perpetrator was aware of the factual circumstances that established their status of protected persons.”
69 … [I]n the present case, the defendant … is accused of having caused, through FRPI Ngiti combatants, the death of over 1200 persons, all civilians who inhabited entire Nyankunde and part of Groupement Musedzo or who were present … during the attacks carried out against these two places, respectively on 5 and 12 September 2002, by FRPI Ngiti combatants; as well as over 100 other persons who had fled Nyankunde to take refuge in Musedzo, at the primary school with the same name, where they were burned alive by FRPI Ngiti combatants under the lead of a commander called Avege, not otherwise identified. These acts constitute war crimes.
71 … [S]uch attacks took place during the period when large military operations were planned by FRPI leaders in reprisal against the populations of …[Nyankunde and Musedzo] following the attack carried out on 31 August 2002 by the UPC [Union of Congolese Patriots] troops and their allies from the Ugandan army against the locality of Songolo. The latter had military positions at the centre of Nyankunde … , in the Ituri district. This constitutes an armed conflict not of an international character.
72 … [F]urthermore, these two attacks caused the death of a very large number of persons among the inhabitants of these two places …
73 … [S]uch persons were all peaceful civilians, who did not take direct part in the armed hostilities which were in place at the District of Ituri. Thus, they were protected by article 3 common to the four  Geneva Conventions and by the 1977 [Additional] Protocol II;
74 … [I]n such situation, humanitarian law addresses the armed forces, whether they are regular or not, which take part in a conflict, and protects any individual or category of individuals not taking part, or no longer actively taking part, in hostilities, such as:
- Wounded or sick combatants;
- Persons deprived of their liberty due to the conflict;
- The civilian population;
- Medical or religious personnel.
The … [1998 ICC] Statute makes the same distinction between an internal and an international conflict. The character of the conflict is determinant for the charges which can be brought before the perpetrators of crimes.
75 … [M]oreover, throughout the period when these attacks were launched, there was an armed conflict not of an international character in Ituri, and all those civilian and military leaders from the FRPI who planned and ordered the attacks, as well as all Ngiti combatants of this political-military movement who materially committed [the attacks], were aware of the existence of an armed conflict of this type in Ituri. This proves the existence of the intentional or mental element which constitutes the special dolus according to article 30 of the [1998 ICC] … Statute.
77 … [T]herefore, this Court finds that there is sufficient evidence to establish substantial grounds to believe that murders constitutive of the war crime provided for in article 8(2)(c)(i) of the … [1998 ICC] … Statute were committed against over 1000 civilians who inhabited entire Nyankunde and part of Groupement Musedzo or who were present … during the attacks carried out against these two places respectively on 5 and 12 September 2002 by FRPI Ngiti combatants, 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.