VI. Applicable Legal Standards

International Human Rights Law

The crimes committed by Congolese security forces documented in this report, including summary executions, arbitrary arrest, detention without trial, and torture and inhuman treatment, constitute violations of Congo's obligations under international human rights law, including the International Covenant on Civil and Political Rights (ICCPR), which Congo ratified in 1976; the African Charter on Human and People's Rights, which Congo ratified in 1987; and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which Congo ratified in 1996.

Security forces used force, including lethal force, during demonstrations in Bas Congo in January–February 2007 and March 2008 without regard to international standards. The UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials offer important guidance on the use of force by police and other state agents in circumstances of civil unrest.[279] The principles state that officials exercising police powers shall "not use firearms against persons except in self-defense or defense of others against the imminent threat of death or serious injury … and only when less extreme means are insufficient to achieve these objectives" and that "[i]n any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life."[280]

Governments have a duty to investigate and prosecute serious violations of physical integrity under international law. The UN Human Rights Committee, which monitors the compliance of states parties to the ICCPR, has stated that governments not only have a duty to protect their citizens from such violations, but also to investigate violations when they occur and to bring the perpetrators to justice.[281] According to the committee, when investigations uncover violations of human rights:

States Parties must ensure that those responsible are brought to justice. As with failure to investigate, failure to bring to justice perpetrators of such violations could in and of itself give rise to a separate breach of the Covenant. These obligations arise notably in respect of those violations recognized as criminal under either domestic or international law, such as torture and similar cruel, inhuman and degrading treatment (article 7), [and] summary and arbitrary killing (article 6) … Indeed, the problem of impunity for these violations, a matter of sustained concern by the Committee, may well be an important contributing element in the recurrence of the violations.[282]

International human rights law also enshrines the right to an effective remedy.[283] A victim's right to an effective remedy not only obligates the state to prevent, investigate, and punish serious human rights violations, but also to provide reparations. Among various reparations mechanisms, states should restore the right violated and provide compensation for damages.[284]

International Humanitarian Law

To the extent that fighting between government security forces and Bemba's guards reached the level of an armed conflict, international humanitarian law applies. Applicable international humanitarian law is binding on all parties to the conflict and includes article 3 common to the four Geneva Conventions of 1949 and customary law applicable to non-international armed conflicts. Prohibitions include summary executions and torture, as well as attacks that deliberately target civilians or do not discriminate between civilians and combatants. Congo is party to the Rome Statute of the International Criminal Court, which may exercise jurisdiction for "the most serious crimes of concern to the international community as a whole," specifically, genocide, crimes against humanity, and war crimes.[285]

States have an obligation to investigate and prosecute individuals responsible for war crimes, which are serious violations of international humanitarian law. Commanders and civilian leaders may be prosecuted for war crimes as a matter of command responsibility when they knew or should have known about the commission of war crimes and took insufficient measures to prevent them or punish those responsible.[286]

Congolese Law

The actions of government officials and agencies documented in this report also infringe fundamental rights set out in the Congolese constitution, which came into effect on February 18, 2006.[287]Article 16 of the constitution assures citizens the right to life and the right not to be subjected to cruel, inhuman, or degrading treatment. Article 18 states that all arrested persons must be immediately informed of the reasons for arrest, the charges against them, and their rights. Detained persons have the right to enter into immediate contact with their family or legal counsel and must not be held in police investigative custody for longer than 48 hours, after which time they must be released or brought before the competent judicial authority. The life, physical and mental health, and dignity of all detainees must be protected. Article 19 states that every person has the right to trial before a competent judge within a reasonable time.[288]

Many constitutional rights have been incorporated into the Congolese penal code. For instance, arbitrary arrest is a crime under article 67 of the penal code, punishable by between one and five years' imprisonment. This sentence can be increased up to 20 years if the arrest was accompanied by physical ill-treatment or torture and up to death or life imprisonment where such injuries inflicted in detention result in the death of the victim. (Human Rights Watch opposes the death penalty in all circumstances because of its inherent cruelty and finality.) 

Under the constitution, Republican Guards and other military security personnel are not empowered to arrest civilians or detain them in military facilities, such as those at Camp Tshatshi, military intelligence (former DEMIAP) headquarters, or Camp Kokolo. And the military justice system has jurisdiction only to prosecute crimes committed by soldiers and the police, not civilians.[289]

As described in this report, Congolese military, law enforcement, and intelligence personnel have violated fundamental rights protected under domestic and international law with virtual impunity. At this writing, Human Rights Watch is not aware of any officer or state agent having been prosecuted for these serious crimes. No independent and transparent judicial investigation has been conducted into the violence committed by government troops and Bemba's guards in August 2006 or March 2007 in Kinshasa, nor into the violence in Bas Congo in February 2007 and March 2008. Human Rights Watch has found no instance where senior ranking civilian or military leaders sought to prevent or take serious actions to punish individuals under their effective control who were responsible for serious crimes in violation of international law.

The government should conduct investigations into violations of international human rights and humanitarian law documented in this report-whether committed by Congolese military or law enforcement personnel, Bemba's guards, or BDK adherents-and should address both direct responsibility for the commission of crimes and command responsibility. All individuals implicated in crimes should be prosecuted to the fullest extent of the law, regardless of their position or rank.  The failure to hold to account those responsible further aggravates Congo's culture of impunity and significantly decreases the likelihood the Congolese government will  develop respect for the rule of law, a cornerstone of democracy.