July 16, 2009

I. Sexual Violence in Congo

"The Worst Place" to Be a Woman or a Child

Tens of thousands of women and girls in Congo have become victims of sexual violence during the past 15 years. The United Nations Population Fund (UNFPA), the agency coordinating work on sexual violence in Congo, reported that 15,996 new cases of sexual violence were registered in 2008 throughout the country. In the eastern province of North Kivu alone, there were 4,820 new cases.[4] UNFPA also reported that more than 65 percent of victims of sexual violence during the same period were children, the majority adolescent girls.[5] An estimated ten percent of victims are children less than ten years old.[6]

However, official statistics are only estimates and the data collected by UNFPA is fragmented and fails to paint an accurate picture. It is likely that it represents only a small percentage of the total reported cases of sexual violence.[7] The statistics are based on information from the judiciary and from agencies providing services to victims, such as medical or legal assistance, and sometimes victims who obtain support from multiple agencies may be counted twice.[8] Victims who are unable-or too scared or ashamed-to seek assistance are not likely to be counted. According to one estimate, less than 50 percent of women who are raped are able to access health centers.[9]

Nevertheless, there are some indisputable facts: brutal acts of sexual violence continue on a widespread basis throughout Congo and many of the victims are girls under the age of 18. Humanitarian workers and other observers have in recent years labeled Congo as "the worst place to be a child" or "the worst place on earth to be a woman."[10]

Congo has been wracked by war over the past 15 years. The first war from 1996 to 1997 ousted long-time ruler, Mobutu Sese Seko, and brought to power Laurent-Désiré Kabila, a rebel leader supported by Rwanda and Uganda. The second war from 1998 to 2003 started when President Kabila broke his alliance with his former backers, and Rwanda and Uganda invaded the east of the country. The war became one of the deadliest in the world resulting in the deaths of an estimated 5.4 million people.[11] Sexual violence was widespread and sometimes systematic, a weapon of war used by all sides to deliberately terrorize civilians, to exert control over them, or to punish them for perceived collaboration with the enemy. Armed groups also abducted women and girls and used them as sexual slaves.[12]Many of the crimes committed amounted to war crimes or even crimes against humanity. Women said the war was being fought "on their bodies."[13]

Sexual violence continued in Congo throughout the peace process and the national elections in 2006. In eastern Congo, new armed groups were created and violence, including rape, continued. As fighting intensified in North Kivu in 2008, so did the cases of sexual violence.

In recent years, acts of sexual violence by civilians have also notably increased. This has been attributed to an increase in demobilized combatants who have reintegrated into society with minimal rehabilitation measures, and to the brutalization of society that eroded previous protective social norms.[14]

The medical, psychological, and social impact of sexual violence is disastrous. Victims may suffer deadly injuries due to the rape, in particular when they are very young, when they are gang raped, raped with great violence, or have objects inserted into their vaginas. Many survivors suffer permanent damage to their genitals and develop fistulas, resulting in chronic incontinence.[15] HIV and other sexually transmitted infections are also frequently transmitted through rape. Health consequences are particularly serious for girls. Girls often suffer more serious injuries to their genitals than adult women. When girls become pregnant, they sometimes suffer from further health problems during pregnancy and childbirth, such as fistulas.

Victims are not only traumatized by sexual violence, but also by the negative attitude of their communities towards them. This affects girls-who are usually dependent on a caregiver-particularly. Families sometimes reject their own daughters after rape. When girls are rejected by their families and leave their home, they become vulnerable to further abuse. Girls are also often rejected by their fiancés and have difficulties finding a husband. The situation is particularly difficult for girls who had babies after the rape, and whose story is often known to the community. These girls have the challenging task of raising a child born from rape while still being a child themselves. Many girls also drop out of school after rape, due to ill-health, trauma, displacement, or stigma. Psychosocial support for girls who have experienced sexual violence requires special expertise, of which there is little available in war-torn Congo.[16]

Congo's Legal Obligations to Prevent, Investigate, and Punish Sexual Violence

International Law

Congo is bound by international humanitarian law ("the laws of war") and international human rights law.Both bodies of law prohibit acts of sexual violence. International humanitarian law, largely derived from the four Geneva Conventions and their protocols, sets out protections for civilians and other non-combatants during both international and internal armed conflicts.[17] It implicitly and explicitly prohibits both states and non-state armed groups from committing rape and other forms of sexual violence.[18]

When crimes of sexual violence are committed as part of armed conflict, they can be prosecuted as war crimes. States have an obligation to investigate alleged war crimes committed by their nationals, including members of the armed forces, and prosecute those responsible.[19] Non-state armed groups also have an obligation to prevent war crimes and should investigate and appropriately punish perpetrators.[20] Acts of sexual violence committed as part of a widespread or systematic attack against civilians can be classified as crimes against humanity and prosecuted as such. The Rome Statute of the International Criminal Court (ICC), to which Congo is a party, specifies that acts of rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity can constitute war crimes or crimes against humanity.[21]

Aside from their direct criminal responsibility for crimes committed on the ground (for instance, by issuing orders that are executed by subordinates), commanders or other superiors may be guilty for failing to prevent or punish crimes committed by their subordinates. Command responsibility is an established principle of customary international humanitarian law and has been incorporated into the Rome Statute.[22]

International human rights law also contains protections from rape and other forms of sexual abuse through its prohibitions on torture and other ill-treatment, slavery, forced prostitution, and discrimination based on sex.[23] The Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child contain additional protections for children.[24]

International human rights law also enshrines the right to an effective remedy, which obligates the state to prevent, investigate, and punish serious human rights violations.[25]States must also provide reparations to victims of human rights violations, such as compensation for damages.[26]The UN has reaffirmed these principles specifically in relation to eliminating violence against women.[27]

Congolese Law

In addition to its obligations under international law, Congo has a duty under its own laws to prevent and punish acts of sexual violence.

In 2006, Congo's parliament passed a new law on sexual violence. For the first time, the law specifically criminalizes acts such as the insertion of an object into a women's vagina, sexual mutilation, and sexual slavery. It defines any sexual relation with a minor as statutory rape. Penalties for rape range from five to twenty years, but are doubled under certain conditions, for example when committed by a public official, by several persons together, with use or threat of a weapon, or in situations of captivity.[28] A separate law on criminal procedure specifies that victims have a right to be seen by a doctor and psychologist, that the duration of judicial proceedings must not exceed three months, and that the security and psychological well-being of victims and witnesses must be guaranteed.[29] Congo's new law on child protection contains further protections for children against sexual crimes.[30] These laws are applied by civilian and military jurisdictions.

Congo's military justice system, governed by the Military Justice Code and the Military Penal Code, has exclusive jurisdiction over members of the army and the police, as well as combatants of armed groups and civilians who commit crimes against the army. It stipulates that judges must have a similar or higher rank than the defendants. The Military Penal Code defines war crimes and crimes against humanity-including sexual crimes-but it is less detailed and different from the Rome Statute. All violations of laws occurring during war, and not justified by the laws or customs of war, are defined as war crimes.[31] When committed as part of a widespread or systematic attack on the civilian population or the country, rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization, and other forms of sexual violence are defined as crimes against humanity.[32] The law stipulates that superiors may be prosecuted as accomplices when they have tolerated the actions of their inferiors.[33]

Since 2003, a bill for implementing the Rome Statute into Congolese law has been pending in parliament. The bill codifies crimes against humanity and war crimes, including sexual crimes, and expands the jurisdiction of the civilian judiciary to include war crimes and crimes against humanity committed by members of the armed forces. Its adoption would incorporate international legal standards on the most serious crimes into Congolese law and shift the responsibility for prosecuting such crimes to civilian courts away from the military jurisdiction.

[4] UNFPA,"Figures on sexual violence reported in the DRC in 2008,"(Quelques chiffres des violences sexuelles reportées en RDC en 2008), undated (on file with Human Rights Watch). According to the Minister for Gender, Family, and Children, over one million women and girls have become victims of sexual violence in Congo. Human Rights Watch telephone interview with Marie-Ange Lukiana, Minister for Gender, Family Affairs, and Children, June 9, 2009.

[5] Human Rights Watch email correspondence with UNFPA, May 19, 2009. In contrast, the Special Representative of the UN Secretary General for Children and Armed Conflict estimates that 48 percent of victims are children. "R. Coomaraswamy: 48% of the victims of sexual violence in the DRC are children," MONUC news article, April 21, 2009, http://monuc.unmissions.org/Default.aspx?tabid=932&ctl=Details&mid=1096&ItemID=3602 (accessed May 11, 2009). Under international law, anyone under the age of 18 is a child.

[6] Nicola Dahrendorf, former MONUC Senior Advisor and Coordinator on Sexual Violence, statement at a presentation to the "Conference on the Great Lakes Pact – Two years on: Issues of Implementation and Enforcement," London School of Economics, May 29, 2009, attended by Human Rights Watch researcher.

[7] There are discrepancies in the number of reported cases. For example, according to the medical sub-commission of the Commission provinciale de lutte contre les violences sexuelles (CPVS), there were 10,644 cases of sexual violence registered in South Kivu in 2008, while the official UNFPA figure for South Kivu is 2,883. CPVS Sud Kivu, "Data Presentation of the Medical Sub-Commission," (Présentation des données de la sous-commission médicale), February 2009 (on file with Human Rights Watch); UNFPA, "Figures on sexual violence." 

[8] Figures are registered at the local level by service providers, collected at the provincial level and channeled to a central point. Human Rights Watch telephone interview with UNFPA representative, May 19, 2009; UNFPA, "Methodology," (Méthodologie), undated (on file with Human Rights Watch).

[9] Nicola Dahrendorf, former Senior Advisor and Coordinator on Sexual Violence at MONUC, statement at a presentation to the "Conference on the Great Lakes Pact – Two years on: Issues of Implementation and Enforcement," London School of Economics, May 29, 2009, attended by Human Rights Watch researcher.

[10] Helene Cooper, "Waiting for Their Moment in the Worst Place on Earth to Be a Woman," New York Times, November 16, 2005, http://www.nytimes.com/2005/11/16/opinion/16wed4.html (accessed May 29, 2009); "Conflict makes Congo 'worst place to be a child,'" Alertnet, November 11, 2008, http://www.alertnet.org/thenews/newsdesk/LB607262.htm (accessed May 28, 2009); "Congo 'worst place' to be woman or child," CTV.ca, November 12, 2008, http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20081112/congo_refugees_081112?s_name=&no_ads= (accessed May 16, 2009).

[11] International Rescue Committee (IRC), "IRC Study Shows Congo's Neglected Crisis Leaves 5.4 Million Dead; Peace Deal in N.Kivu, Increased Aid Critical to Reducing Death Toll," January 22, 2008, http://www.theirc.org/news/irc-study-shows-congos0122.html (accessed May 29, 2009). IRC did a household-based survey, using random samples.

[12]Human Rights Watch, The War Within The War: Sexual Violence Against Women and Girls in Eastern Congo (New York: Human Rights Watch, 2002), http://www.hrw.org/sites/default/files/reports/congo0602.pdf; Human Rights Watch, Seeking Justice: The Prosecution of Sexual Violence in the Congo War, vol.17, no.1(A), March 2005, http://www.hrw.org/sites/default/files/reports/drc0305.pdf; Swedish Foundation for Human Rights and All Parliamentary Group on the Great Lakes of Africa, "Justice, Impunity, and Sexual Violence in Eastern Democratic Republic of Congo," report of the International parliamentary-expert mission,November 2008, http://www.appggreatlakes.org/index.php/document-library-mainmenu-32/doc_view/119-sexual-violence-report?tmpl=component&format=raw (accessed May 11, 2009).

[13]Campagne des femmes congolaises contre les violences sexuelles en RDC, "Sexual Violence in Eastern DRC," (Les violences sexuelles à l'est de la RDC), undated,http://www.rdcviolencesexuelle.org/site/fr/node/18 (accessed May 28, 2009).

[14] UN Human Rights Council, Report of the Special Rapporteur on violence against women, its causes and consequences, Yakin Ertürk, mission to the Democratic Republic of Congo, U.N. Doc. A/HRC/7/6/Add.4, February 28, 2008, http://www2.ohchr.org/english/bodies/hrcouncil/docs/7session/A.HRC.7.6.Add.4.doc (accessed May 11, 2009), para. 15.

[15]A fistula is a rupture in an organ or several organs. Rape victims sometimes suffer from fistulas between the vagina, rectum, and bladder, leading to incontinence and infections.

[16] UNICEF, "Democratic Republic of Congo. Martin Bell reports on children caught in war," July 2006, http://www.unicef.org/childalert/drc/content/Child_Alert_DRC_en.pdf (accessed June 24, 2009); Human Rights Watch, The War Within The War; Human Rights Watch, Seeking Justice.

[17] See Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), adopted August 12, 1949, 75 U.N.T.S. 31, entered into force October 21, 1950; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention), adopted August 12, 1949, 75 U.N.T.S. 85, entered into force October 21, 1950; Geneva Convention relative to the Treatment of Prisoners of War (Third Geneva Convention), adopted August 12, 1949, 75 U.N.T.S. 135, entered into force October 21, 1950; Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), adopted August 12, 1949, 75 U.N.T.S. 287, entered into force October 21, 1950; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted June 8, 1977, 1125 U.N.T.S. 3, entered into force December 7, 1978; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 U.N.T.S. 609, entered into force December 7, 1978. Other sources of international humanitarian law are the 1907 Hague Convention and Regulations, decisions of international tribunals, and customary law.

[18] Art. 3 common to the four Geneva Conventions of 1949. The Additional Protocol II of 1977 to the Geneva Conventions in article 4(2)(e), to which Congo is a party, explicitly prohibits rape and "any form of indecent assault."

[19] The obligation of states to prosecute grave breaches of international humanitarian law is outlined in each of the Geneva Conventions. In particular, see Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, art. 49; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, art. 50; Convention (III) relative to the Treatment of Prisoners of War, art. 129; Convention (IV) relative to the Protection of Civilian Persons in Time of War, art. 146.

[20]International Committee of the Red Cross (ICRC), Customary International Humanitarian Law (Cambridge, UK: Cambridge University Press, 2005), pp. 591-93, 607-10.

[21]Rome Statute of the International Criminal Court (Rome Statute), U.N. Doc. A/CONF.183/9, July 17, 1998, entered into force July 1, 2002. The Rome Statute is the treaty creating the ICC.

[22] Rome Statute, art. 28. Customary international law results from a general and consistent practice of states followed from a sense of legal obligation. Although customary international law is unwritten, it is often reflected in the terms of treaties, and in the writing of legal scholars and experts. The principle of command responsibility is incorporated into many legal systems worldwide.

[23]The International Covenant on Civil and Political Rights (ICCPR) prohibits torture and other cruel, inhuman, or degrading treatment (art. 7) and protects women's right to be free from discrimination based on sex (arts. 2(1) and 26). ICCPR, adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by Congo in 1976; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, ratified by Congo in 1996;Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted December 18, 1979, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force September 3, 1981, ratified by Congo in 1986; African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, entered into force October 21, 1986, ratified by Congo in 1987, arts. 2, 5, 18(3).

[24]Convention on the Rights of the Child, G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force Sept. 2, 1990, ratified by Congo in 1990, arts. 2, 34, 37, 43; African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), entered into force November 29, 1999, ratified by Congo in 2001, arts. 16, 27.

[25]See UN Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004) , para. 15. See also Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity ("Impunity Principles"), U.N. Doc. E/CN.4/2005/102/Add.1, February 8, 2005, adopted by the UN Commission on Human Rights in Resolution E/CN.4/2005/81, April 15, 2005, principle I; Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law ("Reparations Principles"), adopted December 16, 2005, G.A. res. 60/147, U.N. Doc. A/RES/60/147 (2005), principle 11.

[26] UN Human Rights Committee, General Comment 31, para. 16.

[27]United Nations Declaration on the Elimination of Violence Against Women, December 20, 1993, G.A. res. 48/104, 48 U.N. GAOR Supp. (No. 49) at 217, U.N. Doc. A/48/49 (1993).

[28] Law number 06/018 modifying and completing the Congolese penal code, July 20, 2006.

[29] Law number 06/019 modifying and completing the Congolese criminal procedure code, July 20, 2006.

[30] Law number 09/001 on child protection, January 10, 2009.

[31] Law number 024/2002 on the Congolese military penal code, November 18, 2002, art. 173.

[32] Ibid., art.169.

[33] Ibid., art. 175.