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The Legal Framework for Prosecution

The Congolese justice system has to date failed to address the egregious problem of sexual violence in the country.  In Congo, military courts (court-martials) have jurisdiction over all criminal offenses perpetrated by members of the national armed forces.  Members of local armed groups that are not integrated into the national army fall under the jurisdiction of the civilian courts.  Prosecutions of sexual violence in both military and civilian courts in Congo are hindered by outdated laws, the widespread impunity of combatants from justice, a refusal to recognize the serious nature of sexual offenses and insufficient attention to the needs of the victims. 

International humanitarian law

The armed conflict in Congo has both an internal and an international dimension.62 International humanitarian law, also known as the laws of war, sets out protections for civilians and captured combatants during both types of conflicts.  The four Geneva Conventions of 1949 and its Additional Protocols implicitly and explicitly condemn rape and other forms of sexual violence as serious violations of humanitarian law.63 In international armed conflicts – that is, conflicts between two or more states – such crimes are grave breaches of the Geneva Conventions and are considered war crimes. Violations involving direct attacks on civilians during internal armed conflicts are increasingly recognized as war crimes.

The Fourth Geneva Convention on the protection of civilians in international armed conflicts also provides a basis for defining the protections during an internal armed conflict.  Article 27 on the treatment of protected persons 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."64 Article 147 specifies that "torture or inhuman treatment" and "willfully causing great suffering or serious injury to body or health" are grave breaches of the conventions.65 The International Committee of the Red Cross (ICRC) considers rape and other forms of sexual violence to be grave breaches, and even a single act of sexual violence can constitute a war crime.66

Situations of armed conflict internal to a state are regulated by Article 3 common to the four Geneva Conventions and by the Second Protocol Additional to the Geneva Conventions (Protocol II). Common Article 3 and Protocol II apply to all parties to the conflict, nongovernmental armed groups as well as government forces. It 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."67 Acts of sexual violence fall squarely within this definition as they can be considered cruel treatment, torture, and outrages upon personal dignity.

Congo has been a party to Protocol II since December 2002.  Article 4 of Protocol II expressly forbids "violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment, such as torture, mutilation or any form of corporal punishment" and "outrages upon personal dignity, in particular humiliating and degrading treatment, rape and enforced prostitution and any form of indecent assault" as well as "slavery and the slave trade in all their forms."68 According to the ICRC Commentary, this provision "reaffirms and supplements” Common Article 3 because it “became clear that it was necessary to strengthen ... the protection of women ... who may also be the victims of rape, enforced prostitution or indecent assault."69

As the above language highlights, crimes of sexual violence under international humanitarian law have been mischaracterized as attacks against the honor of women or an outrage on personal dignity, as opposed to attacks on physical integrity. This approach diminishes the serious nature of the crime and contributes to the widespread misperception of rape as an attack on honor that is an "incidental" or "lesser" crime relative to crimes such as torture or enslavement.70

Acts of sexual violence committed as part of a widespread or systematic attack against civilians in Congo can be classified as crimes against humanity and prosecuted as such. There is no single international treaty that provides an authoritative definition of crimes against humanity, but such crimes are generally considered to be serious and inhumane acts committed as part of a widespread or systematic attack against the civilian population, during peacetime or armed conflict, and that result from the persecution of a specific group.71  Both state and non-state actors can be held accountable for crimes against humanity.

The Rome Statute of the ICC, which Congo ratified in April 2002, specifies “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization,” or any other form of sexual violence of comparable gravity as war crimes and crimes against humanity.72 An individual case of serious sexual violence can be prosecuted as a crime against humanity if the prosecution can make the link between the single violation and other violations of basic human rights or international humanitarian law that have been committed as a widespread or systematic attack against the civilian population.73

International human rights law

Congo is party to international human rights instruments that provide safeguards for women and girls at all times, including during armed conflict. These include protection from rape as torture and other mistreatment; slavery and forced prostitution; and discrimination based on sex. Armed groups, particularly those in control of territory, have increasingly been under an obligation to respect international human rights standards.74

The International Covenant on Civil and Political Rights (ICCPR)75 and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture)76 prohibit torture and other cruel, inhuman or degrading treatment by officials or persons acting in an official capacity. The Convention on the Rights of the Child (CRC) provides for the right to freedom from torture, sexual exploitation and abuse as well as liberty and security of person.77 Article 15 of Congo’s interim Constitution prohibits torture and cruel, inhuman and degrading treatment.78

The United Nations Special Rapporteur on Torture has recognized that rape can constitute torture: "[R]ape is a traumatic form of torture for the victim."79 The International Criminal Tribunal for the former Yugoslavia in the Furundzija case noted that "[i]n certain circumstances ... rape can amount to torture and has been found by international judicial bodies to constitute a violation of the norm prohibiting torture."80 The International Criminal Tribunal for Rwanda in the Akayesu case stated that "Like torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person. Like torture, rape is a violation of personal dignity, and rape in fact constitutes torture when it 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."81

Sexual violence generally violates women's rights to be free from discrimination based on sex as provided for under the ICCPR.82 Under Article 1 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),83 the definition of discrimination is considered to include "gender-based violence precisely because gender-based violence has the effect or purpose of impairing or nullifying the enjoyment by women of human rights" on a basis of equality with men.84 The CEDAW Committee enumerated a wide range of obligations for states related to ending sexual violence, including ensuring appropriate treatment for victims in the justice system, counseling and support services, and medical and psychological assistance to victims.85 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."86

The CRC also provides for freedom from discrimination on the basis of gender (Article 2), and the right to enjoyment of the highest attainable standard of health (Article 24). Under Article 39, states shall take all appropriate measures to promote physical and psychological recovery and social integration of a child victim of any form of neglect, exploitation, or abuse; torture of any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. The CRC also calls upon states to provide special protection and assistance to a child "temporarily or permanently deprived of his or her family environment." A child's right to "such measures of protection as are required by his status as a minor" is also guaranteed by the ICCPR.87

Under both the ICCPR and CEDAW, slavery and forced prostitution in times of armed conflict constitute a basic violation of the right to liberty and security of person.88 Furthermore, slavery is prohibited under Article 8 of the ICCPR, which also prohibits forced labor, and by the 1926 Slavery Convention.89 The right to freedom from slavery is also provided under article 18 of the Congo interim Constitution.

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"90 as well as the right to integrity of one's person, and the right to be free of "[a]ll forms of exploitation and degradation ..., particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment."91

Congolese military justice

Until late 2002, the national government used the Military Justice Code of 1972 to define and punish crimes committed by members of the armed forces, including acts of sexual violence.92 Rebel movements aspiring to national control, such as the RCD-Goma, the MLC, and the RCD-ML, also applied, at least in theory, the 1972 code to their forces.93  When the government adopted a new Military Justice Code and Military Criminal Code in November 2002, the rebel movements continued to rely on the older code.94 Whatever the code in use, however, very few prosecutions for crimes of sexual violence were undertaken against either the regular armed forces or rebel groups.95

As a party to the 1949 Geneva Conventions and the Rome Statute of the ICC, the Congolese government is obligated to ensure that its criminal codes prosecute war crimes and crimes against humanity, including rape and sexual violence, in accordance with the treaty provisions.96

The 1972 Military Justice Code does not have a specific provision on sexual violence, but it states that the Congolese Criminal Code is also valid for members of the armed forces.

The Military Penal Code of 2002 does not have a basic provision on sexual violence, but such crimes can be punished under the Criminal Code, as discussed below.  Provisions on “violence or severe abuses” (“violences ou sévices graves”) during war or a state of emergency (carrying the death penalty) and “arbitrary acts and rights violations” (“actes arbitraires ou attentatoires aux droits et libertés”) (up to four years imprisonment) could conceivably be a basis for prosecuting perpetrators of sexual violence.97 Article 173 on war crimes broadly states that a war crime is an offense committed during wartime that is not in accordance with customs or laws. Article 175 establishes the principle of command responsibility.

The Military Penal Code does include sexual violence in its provision on crimes against humanity. Article 169 on crimes against humanity states that acts of “rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization, and other forms of sexual violence of comparable gravity” constitute a crime against humanity if committed as part of a generalized or systematic attack against the civilian population or “the Republic”.

The 2002 military code nonetheless remains incompatible with the Rome Statute of the ICC and the Geneva Conventions, by failing to fully incorporate their criminal provisions into Congo law. A proposed draft law implementing the statute of the ICC would bring Congolese law into conformity with these international instruments. It is currently being reviewed by the Minister of Justice. If this law is passed, Congo will have made a significant step towards a comprehensive definition of war crimes, crimes against humanity, and genocide, consistent with the Rome Statute. The new legislation also expands the jurisdiction of civilian tribunals to members of the armed forces when they are accused of crimes against humanity or war crimes. This is of a particular importance to assert the primacy of the civilian justice system and create a coherent and unified jurisprudence.

The Congolese Criminal Code

During the armed conflict, Congolese criminal law and Criminal Code were in force throughout the territory of the Congo.  This included those areas controlled by rebel groups or which were occupied by foreign troops.98

The Congolese Criminal Code – which applies in both civilian and military courts – prohibits rape, defined as forcible sexual penetration of a female, and indecent assault, defined as sexual assault without penetration.99 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. Length of punishment may depend on the age of the victim and whether violence, ruse, or threats were used in committing the crime. Any sexual relations (“rapprochement charnel des sexes”) with a girl under the age of fourteen is statutory rape.100

Kidnapping or detaining a person using violence, ruse, or threat is also punishable under the Congolese Criminal 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.101

The criminal code does not specifically deal with acts of sexual violence such as inserting objects into the vagina and rape within the marriage. It also does not criminalize male rape. Finally, the law allows considering information about the past conduct of the victim, such as “loose morals,” as attenuating circumstances in judging whether a criminal offense has been committed.

The inadequacies of the rape law reflect traditional notions of rape, especially the weak legal and social status of women in Congo. This second-class status of women is reflected throughout Congolese law. For instance, the Congolese Family Code defines the husband as the head of the household and requires his wife to obey him. The women also has to move wherever the husband chooses to live, and has to seek her husband’s authorization to go to court.102 These laws violate international standards of equality between women and men. 

[62] For sexual crimes by foreign armed forces in Congo, see Human Rights Watch, The War Within The War.

[63] See the four Geneva Conventions of 1949 and the two 1977 Protocols Additional to the Geneva Conventions (Protocols I & II). Other sources of international humanitarian law are the 1907 Hague Convention and Regulations, decisions of international tribunals and customary law.  Congo ratified the 1949 Geneva Conventions in 1961, Protocol I in 1982, and Protocol II in 2002.

[64] Geneva Convention IV, Article 27. Article 76 of Protocol I extends this protection of protected persons to all women. Protocol I, Article 76.

[65] Fourth Geneva Convention, article 147.

[66] Theodor Meron, "Rape as a Crime Under International Humanitarian Law," American Journal of International Law (Washington D.C.: American Society of International Law, 1993), vol. 87, p. 426, citing the International Committee of the Red Cross, Aide Mémoire, December 3, 1992.

[67] Geneva Conventions, article 3.

[68] Protocol II, article 4 (2) (a), (e) and (f).

[69] ICRC Commentary on the Additional Protocols of June 1977 to the Geneva Conventions of 12 August 1949 (Geneva: Martinus Nijhoff, 1987), p. 1375, para. 4539.

[70] See Catherine N. Niarchos, "Women, War and Rape: Challenges facing the International Criminal Tribunal for the former Yugoslavia," Human Rights Quarterly (Baltimore: The John Hopkins University Press, 1995), vol. 17, pp. 672, 674.

[71] See, e.g. "Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808," 32 I.L.M. at 1159 (1993), para. 48.

[72] Rome Statute of the International Criminal Court, July 17, 1998, U.N. Doc. A/CONF.183/9.

[73] "It is sufficient to show that the act took place in the context of an accumulation of acts of violence which, individually, may vary greatly in nature and gravity." Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (Foca case), Appeals Chamber Judgment, June 12, 2002, IT-96-23 and IT-96-23/1, para.  419.

[74] Nigel S. Rodley, "Can Armed Opposition Groups Violate Human Rights?" in P. Mahoney and K. Mahoney (eds.) Human Rights in the 21st Century: A Global Challenge (Dordrecht: Martinus Nijhoff, 1993), pp. 297-318, and International Council on Human Rights Policy, "Hard Cases: Bringing Human Rights Violators to Justice Abroad-A Guide to Universal Jurisdiction," (Geneva: International Council on Human Rights Policy, 1999), p. 6.

[75] Congo acceded to the treaty on November 1, 1976.

[76] Congo ratified the Convention against Torture in 1996.

[77] Congo ratified the CRC in 1990. Article 34 protects the child from sexual exploitation and sexual abuse. Article 37 provides for the freedom from torture or other cruel, inhuman or degrading treatment or punishment as well as liberty and security of person.

[78] Constitution of the transition, adopted April 1, 2003.

[79] United Nations, Report of the U.N. Special Rapporteur on Torture, Mr. Nigel S. Rodley, submitted pursuant to the Commission on Human Rights Resolution 1992/32, E/CN.4/1995/34, Paragraph 19, January 12, 1995.

[80] Prosecutor v. Anto Furundžija, Judgment, IT-95-17/1-T, December 10, 1998, para. 171.

[81] Prosecutor v. Jean-Paul Akayesu, Judgment, ICTR-96-4-T, September 2, 1998 (the Akayesu Trial Chamber Judgement), para. 687.

[82] See ICCPR, Articles 2(1) and 26.

[83] Congo ratified CEDAW in 1986.

[84] Women, Law and Development International, Gender Violence: The Hidden War Crimes (Washington D.C.: Women, Law and Development International, 1998), p. 37.

[85] 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.

[86] United Nations General Assembly, "Declaration on the Elimination of Violence against Women," A/RES/48/104, December 20, 1993 (issued on February 23, 1994). See Article 4, in particular.  224 CRC, article 20(1).

[87] Although the masculine pronoun is used, the ICCPR is applicable without any discrimination to sex as stated in Article 24(1).

[88] Article 9 of the ICCPR provides for the freedom from arbitrary arrest, detention or exile, while Article 23 prohibits forced marriage. Under Article 6 of CEDAW, states are required to take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.

[89] Slavery Convention, United Nations, Treaty Series, vol. 212, p. 17. July 7, 1955.

[90] Article 3 of the African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, Organization of African Unity Doc. CAB/LEG/67/3 rev. 5. Congo ratified this treaty on July 20, 1987.

[91] African Charter on Human and Peoples' Rights, articles 4 and 5.

[92] Loi no. 72/060 du 25/09/1972 portant institution du code de justice militaire.

[93] The MLC decided that the 1972 Military Justice Code and the ordinary Penal Code were to be applied before these tribunals: Décret No 037/PRES/MLC/11/02 du 16 novembre 2002 portant organisation des juridictions de l’Armée de Libération du Congo. The RCD-G also applied the 1972 Military Justice Code in its military trials.

[94] The new legislation was composed of two separate laws, one on the military justice system and one on criminal procedure. Loi no. 023/2002 du 18/11/2002 portant code judiciaire militaire; Loi no.024/2002 du 18/11/2002 portant code penal militaire. The new code abolished a much-criticized Military Order Court set up by President Laurent-Desiré Kabila.

[95] In the RCD-Goma controlled areas, some more prosecutions took place for other crimes, such as murder.

[96] To give effect to the general obligation under article 86 of the Rome Statute to cooperate with the ICC, article 88 specifically requires states parties to “ensure that there are procedures available under their national law for all of the forms of cooperation which are specified” under the relevant section.  States should therefore review, and where necessary amend, their national laws and procedures to ensure that there are no obstacles to its meeting requests for assistance or cooperation from the ICC.  The four Geneva Conventions provide that state parties “undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention.”

[97] Military Penal Code, 2002, articles 103 and 104.

[98] Under a military occupation, the existing laws remain in effect unless the occupier imposes different rules.

[99] Article 170 reads: “Est puni d’une servitude pénale de cinq à vingt ans, celui qui aura commis un viol, soit àl’aide de violences ou menaces graves, soit par ruse, soit en abusant d’une personne qui par l’effet d’une maladie, par alteration de ses facultés ou par toute autre accidentelle, aurait perdu l’usage de ses sens ou en aurait été privée par quelque artifice. Est repute viol à l’aide de violences, le seul fait du rapprochement charnel des sexes commis sur les personnes designées à l’article 167.”

[100] For a conservative legal interpretation see Général Likulia Bolongo, Droit Pénal Spécial Zaïrois, 1985, p. 328-344.

[101] Article 67.

[102] Code zaïrois de la famille, art. 444, 448 and 454. Art. 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." (Unauthorized translation). In practice, women do not always abide by art. 448, requiring the husband’s authorization to initiate legal proceedings.

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