LEGAL PROTECTION AGAINST SEXUAL VIOLENCE
The RCD has publicly claimed that it is applying Congolese law. According to international humanitarian law, Congolese laws continue to apply in areas of Congo which are not under the control of the government. National legislation continues in force in an occupied territory and de facto authorities are responsible for maintaining public order and ensuring that courts continue to function for all crimes covered by this legislation. This applies to all armed groups operating on Congolese soil.
The Congolese Penal Code prohibits rape and indecent assault. Rape is defined as forcible sexual penetration, while indecent assault is a sexual assault without penetration. Rape is punishable by a prison sentence of five to twenty years, and indecent assault is punishable by prison terms between six months and twenty years, depending on the age of the victim and whether violence, ruse, or threat were used.230 Kidnapping or detaining a person using violence, ruse, or threat is also punishable under the Congolese Penal Code. If the victim is subjected to physical torture, the punishment is five to twenty years. If the torture leads to the death of the victim, the death sentence or a life prison sentence are applicable.231
The status of women under Congolese law is that of second class citizens.232 The Family Code defines the husband as the head of the household and determines that his wife has to obey him. Article 444 reads:
"The husband is the head of the household. His duty is the protection of his wife; his wife owes her obedience to her husband."233
A woman has to live with her husband wherever he chooses to live.234 Women must have their husbands' authorization to bring a case in court or to initiate other legal proceedings. If the husband refuses to allow his wife this authorization, a family council may overrule him, but without such a decision, the wife may not act.235 The situation of unmarried women is slightly better; the law does not require them to obtain permission from male family members for legal actions.
Certain dispositions of the Congolese Family Code contradict international women's rights as they have been spelt out in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the International Covenant on Civil and Political Rights (ICCPR), which have both been ratified by the Congolese government. The terms of the Code specifically violate the international standards requiring the equality of men and women before the law, for example, with reference to women's legal capacity, freedom to choose a residence and to dissolve marriage.236
Given the involvement of foreign government troops fighting on Congolese soil, the conflict in Congo has both an international and an internal dimension. Different legal regimes apply to acts committed by different forces in eastern Congo, described in this report.
The legal regime related to international armed conflict in Congo is set out in the Geneva Conventions of 1949 and the First Protocol Additional to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts (Protocol I). In 1961, Congo ratified the Geneva Conventions, and in 1982, it ratified Protocol I. Rwanda and Burundi, the two foreign powers involved in the conflict in eastern Congo's Kivu provinces, are also state parties to the Geneva Conventions of August 12, 1949 and Protocol I.237 Internal conflict is regulated by Common Article 3 to the Geneva Conventions applicable in situations of armed conflict "not of an international character." Both legal regimes governing the armed conflict in Congo prohibit sexual violence as a severe infraction.
Common Article 3 of the 1949 Geneva Conventions prohibits attacks on those taking no active part in hostilities including civilians. Among the acts prohibited are "(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) Taking of hostages; (c) Outrages upon personal dignity, in particular humiliating and degrading treatment." Common Article 3 expressly applies to "each party to the conflict," i.e. not only government armies but also armed groups. In eastern Congo, Mai Mai rebels, Rwandan and Burundian Hutu armed groups, as well as the Congolese Rally for Democracy and the Rwandan and Burundian government forces are all bound by the provisions of Common Article 3 which demands "respect for certain rules, which" are, in the words of the commentary to the Geneva Conventions, "already recognized as essential in all civilised countries."
The Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War makes specific provisions on sexual violence. Article 27 states that "Women shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault." This provision is binding for the contracting parties taking part in an international conflict. As the Congolese, Rwandan and Burundian government have all ratified the Geneva Conventions, their troops must abide by this standard.
The First Protocol Additional to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts (Protocol I) also prohibits acts of sexual violence. Article 76(1) stipulates that "women shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault." Protocol I refers to situations of international armed conflict.
International humanitarian law also prohibits acts or threats of violence with the primary purpose of spreading terror among the civilian population, as well as murder, physical or mental torture, rape, mutilation, enforced prostitution, pillage, collective punishments, or the taking of hostages. Methods of warfare likely to put the health or survival of the population in danger are also prohibited.238
The crime of rape rises to the level of grave breach of the Geneva Conventions (war crime) regardless of whether it occurs on a demonstrably massive scale or is associated with an overarching policy. When rape occurs on a mass scale or as a matter of orchestrated policy, this added dimension of the crime is recognized by designating and prosecuting rape as a crime against humanity.239 It is only recently that rape and other forms of sexual violence have been prosecuted as war crimes and crimes against humanity. The ad-hoc tribunals of the U.N. have played a key role in this process.
Despite these legal provisions, rape and other forms of sexual violence have long been dismissed as an unfortunate but common side-effect of war. Sexual violence has been used in many wars as a means to terrify the civilian population, but military and political leaders have shown little willingness to address the issue. This is illustrated by the struggle of the "comfort women," mostly Korean women who were used as sexual slaves by the Japanese army during World War II, to get an official apology from the Japanese government.240 Sexual violence in wartime is also underreported. As the U.N. special rapporteur on the causes and consequences of violence against women has pointed out: "[Rape] remains the least condemned war crime; throughout history, the rape of hundreds of thousands of women and children in all regions of the world has been a bitter reality."241
If these crimes are denounced, they tend to be exposed as uniquely horrific and not understood as the result of a complex set of abuses and discriminatory patterns against women and girls. In other situations, unsubstantiated reports about rape have been used to justify military action, for example in the case of Kosovo.242
Over the last decade, women's and human rights activists have forced more serious attention to these crimes. As a result important steps have been taken at the international level to prosecute rape and other sexual violence as a war crime. 243 The statutes of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda (ICTR) explicitly list rape as a crime under their jurisdictions. Both tribunals have indicted and convicted defendants for this war crime. In 1998, the ICTR found Jean-Paul Akayesu, the former mayor of Taba commune in Rwanda, guilty of nine counts of genocide, crimes against humanity, and war crimes. The verdict marked the first time an international court found rape to be an act of genocide. Even this important step toward securing accountability for violence against women came only after a protracted struggle: When Akayesu was first charged in 1996, the twelve counts in his indictment did not include sexual violence.244 In 2001, the ICTY convicted Bosnian Serbs Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic for rape, torture, and enslavement committed in Foca during the Bosnian war. This case marked the first time in history that an international tribunal brought charges expressly-and only-for crimes of sexual violence against women.245
Another important step forward is the explicit recognition of sexual violence as part of the mandate of the International Criminal Court. The Rome Statute of the International Criminal Court of 17 July 1998 specifies several types of war crimes and crimes against humanity which are in the competence of the court. These include rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity.246 Congo ratified the Rome Statute on April 11, 2002.
Many elements of international human rights law relate to sexual violence and to crimes that target women and girls in a discriminatory manner. Article 9 of the International Covenant on Civil and Political Rights (ICCPR), for instance, provides that: "Everyone has the right to liberty and security of person."247 The ICCPR, like many other human rights instruments, is explicit in affirming "the equal right of men and women to the enjoyment" of all rights it covers.248 Congo is a party to the ICCPR. The ICCPR as well as the Convention against Torture and Other Cruel Inhuman and Degrading Treatment or Punishment (CAT) prohibit torture under all circumstances. Congo ratified the CAT in 1996. The convention defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person....when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."249 The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), to which Congo is also a party, reinforces state responsibility in ensuring "without delay" that any "act or practice of discrimination against women" be stopped.250
In a 1993 resolution, the U.N. General Assembly declared that prohibiting gender discrimination includes eliminating gender-based violence and that states "should pursue by all appropriate means and without delay a policy of eliminating violence against women."251 The CEDAW Committee enumerated a wide range of obligations of states related to combating sexual violence, including ensuring appropriate treatment for victims in the justice system, counseling and support services, and medical and psychological assistance to victims.252
The Convention on the Rights of the Child (CRC) requires states parties to protect children from "all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse."253 States are also enjoined to provide special protection and assistance to a child "temporarily or permanently deprived of his or her family environment."254 Congo is a party to the CRC. A child's right to "such measures of protection as are required by his status as a minor" is also guaranteed by the ICCPR.255
The African Charter on Human and Peoples' Rights, to which Congo is a party, guarantees the "elimination of every discrimination against women...and protection of the rights of the woman and the child"256 as well as the right to integrity of one's person, the right to be free of "all forms of exploitation and degradation....particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment."257
230 Code pénal, arts. 167, 168, 170, 171.
231 Code pénal, art. 67. Human Rights Watch is opposed to the death penalty in all circumstances.
232 Two women's rights associations, Réseau Action Femmes in Kinshasa, and PAIF in Goma, have produced critical comments on the status of women under Congolese law. See Réseau Action Femmes, "Notes from workshop, November 23-24, 2001" and PAIF, "Les articles de la législation za_roise en contradiction avec les droits de femmes protégés par la convention internationale".
233 Code zaïrois de la famille, art. 444: "Le mari est le chef du ménage. Il doit protection _ sa femme; la femme doit obéissance _ son mari." Translation into English by Human Rights Watch.
234 Ibid., art. 454: "L'épouse est obligée d'habiter avec son mari et de le suivre partout o_ il juge _ propos de résider; le mari est obligé de la re_evoir." ("The wife has to live with her husband and follow him anywhere he chooses to reside; the husband has to allow her to live with him.").
235 Ibid., arts. 448-450. In practice, this provision is mostly applied to civil cases; in criminal cases, women often do go to court without permission from their husband. Human Rights Watch telephone interview with Congolese lawyer, February 8, 2002.
236 Convention on the Elimination of All Forms of Discrimination Against Women, arts. 15 and 16. For further details on the Convention see next chapter.
237 Rwanda signed the Geneva Conventions in 1964 and acceded to Protocol I and Protocol II on internal armed conflict in 1984. Burundi signed the Geneva Conventions in 1971 and acceded to Protocol I and Protocol II in 1993.
238 Geneva Convention Relative to the Protection of Civilians in Time of War; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
239 Theodor Meron, "Rape as a Crime under International Humanitarian Law," , American Journal of International Law 87 (1993): 424, 246, 427. See also Dorothy Q. Thomas and Regan E. Ralph, "Rape in War: Challenging the Tradition of Impunity," SAIS Review, Winter-Spring 1994, p.86.
241 Preliminary Report submitted by the Special Rapporteur on Violence against Women, its Causes and Consequences, Commission on Human Rights, Fiftieth Session, November 1994, U.N. Document E/CN.41995/42, p.64.
242 Rhonda Copelon, "Gendered War Crimes: Reconceptualizing Rape in Time of War," In Women's Rights, Human Rights: International Feminist Perspectives, ed. Julie Peters and Andrea Wolper (New York: Routledge, 1995), pp.197-214. On the manipulation of rape in war, see Human Rights Watch, "Kosovo: Rape as a Weapon of `Ethnic Cleansing'" A Human Rights Watch Report, vol.12, no 3 (D), March 2000, p.8.
243 See also United Nations, Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights held in Vienna from 14 to 25 June 1993, (A/CONF.157/24), October 13, 1993. art. 38 of the Vienna Declaration and Programme of Action states: "Violations of the human rights of women in situations of armed conflict are violations of the fundamental principles of international human rights and humanitarian law. All violations of this kind, including in particular murder, systematic rape, sexual slavery, and forced pregnancy, require a particularly effective response."
244 This happened despite the fact that Human Rights Watch and other rights groups had documented widespread rape during the genocide, particularly in the Taba commune. During the Akayesu trial, held intermittently from January 9, 1997 to March 23, 1998, Rwandan women testified that they had been subjected to repeated rapes by militia in and around the Taba commune office, sometimes in view of Akayesu. See Human Rights Watch World Report 1999, chapter on women's rights. See also Agnès Callamard, "Investigating Women's Rights Violations in Armed Conflicts," Amnesty International Publications and the International Centre for Human Rights and Democratic Development, 2001, chapter 1 on international justice.
245 Human Rights Watch World Report 2002, chapter on Bosnia and Herzegovina.
246 Rome Statute, art. 7(g).
247 International Covenant on Civil and Political Rights (ICCPR), art. 9(1).
248 ICCPR art. 3.
249 Convention against Torture and Other Cruel Inhuman and Degrading Treatment or Punishment, art. (1).
250 Convention on the Elimination of All Forms of Discrimination Against Women, art. 2(d).
251 United Nations General Assembly, "Declaration on the Elimination of Violence against Women," A/RES/48/104, December 20, 1993 (issued on February 23, 1994), esp. art. 4.
252 Committee on the Elimination of All Forms of Discrimination Against Women, "Violence Against Women," General Recommendation no. 19 (eleventh session, 1992), U.N. Document CEDAW/C/1992/L.1/Add.15.
253 Convention on the Rights of the Child, art. 19 (1).
254 Ibid., art. 20 (1).
255 ICCPR, art. 24 (1).
256 African (Banjul) Charter on Human and Peoples' Rights, adopted June 27, 1981, Organization of African Unity Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58, 1982, art. 3.
257 African Charter on Human and Peoples' Rights, arts. 4 and 5.