Mapping Report > Section I. Inventory of the most serious violations > CHAPTER V. Legal classification of acts of violence > B. Crimes against humanity

The definition of crimes against humanity has become much more specific since it was first formulated in international law in the Statute of the Nuremberg Tribunal. Its recent codification in Article 7, Paragraph 1 of the Rome Statute of the ICC lists 11 acts which, when they are committed “as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”, constitute crimes against humanity. It emerges from this definition that three main elements must coexist for classification as a crime against humanity, in addition to the element of knowledge of the attack, which serves to establish individual criminal liability:

a) A listed act (such as murder, rape or serious injury to body or physical health);
b) Committed as part of a widespread or systematic attack;
c) Directed against any civilian population.

1. Listed acts

The 11 acts listed in the definition of crimes against humanity essentially reflect the most serious violations of human rights, in particular violations of the right to life, serious injury to personal physical and moral integrity and personal security. The inventory of serious violations set out in the preceding chapters revealed the commission of multiple acts listed in the definition of crimes against humanity, including:

• Murder;
• Extermination;
• Enslavement;
• Deportation or forcible transfer of the population;
• Torture;

• Rape, sexual slavery or any other form of sexual violence of comparable gravity;
• Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious or gender grounds;
• Enforced disappearance of persons;
• Any other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

2. Widespread or systematic attack

For the acts listed previously to be classified as crimes against humanity, they must be committed as part of a widespread or systematic attack. An attack, according to the Rome Statute, consists of multiple acts of violence such as those listed in the definition. It does not necessarily have to consist of a military attack or armed conflict.⁹¹³ Nonetheless, a single act can constitute a crime against humanity if it is part of a larger attack. The widespread nature of the attack is based on its scale, the number of people targeted or “the cumulative effect of a series of inhumane acts or [through] the specific effect of a single, large-scale act”.⁹¹⁴ Its systematic nature is inferred from the “organised character of the acts committed and [from] the improbability of their being random in nature”.⁹¹⁵ The serious violations described in the preceding chapters point to the existence of multiple attacks launched by the various groups involved in the conflicts being widespread or systematic in nature.

3. Directed against any civilian population

The notion of crime against humanity is intended to protect civilian populations, hence the requirement that the widespread or systematic attack be directed against them. A civilian population is defined not only as people who are not in uniform and have no link to the public authorities, but all people who are “out of combat” and thus are not, or are no longer, taking part in the conflict.⁹¹⁶ The expression “civilian population” needs to be understood in its broad sense and refers to a population that is primarily made up of civilians. A population may be classified as “civilian” even if it includes non-civilians, provided that civilians are in the majority.⁹¹⁷ As a result, refugees in camps constitute a civilian population even if armed elements are also present. Again, it can be stated that the vast majority of victims in the cases listed were part of civilian populations.

4. Crimes against humanity

The multiple incidents described in the preceding chapters show that the vast majority of the acts of violence perpetrated during these years were part of waves of retaliation and campaigns of persecution and hunting down refugees, which in general terms translated into a series of widespread and systematic attacks against civilian populations. A very large number of the crimes listed above were committed as part of a widespread or systematic attack against a civilian population and can therefore be classified as crime against humanity. Mention should be made at this point, by way of illustration only, of the crimes against humanity that formed part of a campaign of persecution directed against certain groups, primarily for political or ethnic reasons. The crime of persecution encompasses a large number of acts, including, amongst others, those of a physical, economic or judicial nature depriving an individual of the exercise of their fundamental rights.⁹¹⁸ To be classified as a crime of persecution, said act must be 1) a manifest or flagrant denial, 2) for reasons of discrimination, 3) of a fundamental right protected by international customary or treaty law, 4) of the same degree of seriousness as the other acts listed in the definition of crimes against humanity.⁹¹⁹

Directed against the Kasaians

The multiple acts of violence perpetrated against the Kasaians from March 1993 onwards offer a typical example of crimes against humanity committed outside of an armed conflict.⁹²⁰ Several acts listed in the definition of crimes against humanity were perpetrated against the Kasaians, including murder, deportation or forcible transfer of the population and other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. They also display the essential elements of persecution as a crime against humanity: the Kasaians were an identifiable group whose members were persecuted for reasons of political and ethnic order, the victims of a virulent anti-Kasaian campaign started by the most senior political officials in the province at the time.

The attacks on the Kasaian civilian population were quite clearly widespread and systematic. Between 1992 and 1995, the violence spread throughout the province, affecting thousands of victims, and was thus widespread in nature. The attacks were also systematic. They were orchestrated in a calculated manner by the military and political authorities. The extent of the violence, the organisation of trains for the deportations of the Kasaians, the anti-Kasaian campaign in Lubumbashi, during which some were hunted down in a context of “professional purification”, and the multitude of individual attacks tolerated or organised by the authorities are all factors showing the “organised character of the acts committed and the improbability of their being random in nature.”⁹²¹ Finally, the perpetrators, the majority of whom were members of a militia derived from the youth wing of a political movement, namely the Union des fédéralistes et républicains indépendants (UFERI), the JUFERI, were well aware that the acts committed were part of a wider context of an anti-Kasaian campaign launched by their political leaders, which was to be rapidly transformed into a widespread and systematic attack against the Kasaian population.

Directed against the Hutus

The Investigative Team of the Secretary-General in the DRC in 1997/1998 concluded that the systematic massacre of Hutu refugees by AFDL/APR forces was a crime against humanity, but reserved judgement on the question of the intention behind this series of massacres.⁹²² The information gathered to date makes it possible to confirm quite clearly that these were indeed crimes against humanity: the very high number of serious crimes listed, committed by the AFDL/APR against Hutu refugees, indicates the widespread nature of these attacks. The systematic, planned and widespread nature of these attacks is also demonstrated by the hunting-down of refugees that took place from east to west throughout the whole of the DRC, and the fact that these attacks were carried out against primarily civilian populations in spite of the presence of elements of the ex-FAR/Interahamwe being confirmed in several places.

The ethnic conflicts in North Kivu gave way during the first war to numerous attacks by the AFDL/APR against the Hutu populations established in the region for many years. The widespread and systematic nature of these attacks against Hutu civilian populations emerges clearly from the incidents described in the preceding pages, which could therefore be classified as crimes against humanity.

These crimes will be re-examined in the analysis of the specific question of the existence or not of an intention to partially destroy the group of Hutu refugees, which is the essential element in the crime of genocide as defined in international law.

Directed against the Tutsis

As victims for many years of campaigns of discrimination and forcible expulsion in South Kivu and repeated attacks by elements of the ex-FAR/Interahamwe in North Kivu, the Tutsis were particularly targeted from the start of the first war onwards, accused of collaborating with “Banyamulenge/Tutsi armed elements” and later with the AFDL/APR/FAB. The authorities, at both a national and local level, called on the population to hunt them down and asked the army to expel them by force. In this climate, the Tutsi population – an identifiable group according to the definition of persecution in the context of crimes against humanity – was the victim of murders, tortures, rapes and arbitrary detention, in particular in South Kivu and Kinshasa. Subsequently, following the breakdown of the relationship between President Kabila and his former Rwandan allies and the start of the second war, a new campaign against the Tutsis was launched by senior government officials, including the President himself, in Kinshasa and the other provinces under government control. Mr. Abdulaye Yerodia Ndombasi, the head of President Kabila’s cabinet even called for the extermination of the “Tutsi vermin”.⁹²³ The numerous acts of anti-Tutsi violence identified during these two periods, first from September 1996 and subsequently from August 1998, combined elements that would enable them to be classified as acts of persecution in the context of the definition of crimes against humanity.

The widespread and systematic nature of the attacks on the Tutsis is demonstrated by the high number of victims and crimes committed in several regions in the country, the type of violations committed by the security forces or in which they were complicit, the role played by the political authorities, in particular public incitement to hatred and even the commission of crimes against the Tutsis, and the fact that no effort was made by the authorities to prevent, arrest or punish the multiple violations of rights committed against the Tutsi population. Again, it can be inferred that the perpetrators were clearly aware that their acts were part of a wider an anti-Tutsi campaign, which was translated on the ground into widespread attacks authorised by the most senior political leaders in the country at the time.