The term “war crimes” is generally used to refer to any serious violations of international humanitarian law directed at civilians or enemy combatants during an international or internal armed conflict, for which the perpetrators may be held criminally liable on an individual basis. Such crimes are derived primarily from the Geneva Conventions of 12 August 1949 and their Additional Protocols I and II of 1977, and the Hague Conventions of 1899 and 1907. Their most recent codification can be found in article 8 of the Rome Statute of the International Criminal Court of 1998, which distinguishes four categories of war crime:

• Grave breaches of the Geneva Conventions committed against protected persons or property in an international armed conflict such as wilful killing, torture, wilfully causing serious injury to body or health and the destruction and appropriation of property (sect. a, para. 2 of article 8);

• Other serious violations of the laws and customs applicable in international armed conflict, such as intentional attacks on the civilian population, rape and sexual slavery, and enlisting or using child soldiers (sect. b, para. 2 of article 8);

• Serious violations of article 3 common to the four Geneva Conventions directed against people taking no active part in the hostilities in an internal armed conflict, such as violence to life and person, in particular murder, mutilation, cruel treatment and torture (sect. c, para. 2 of article 8);
• Other serious violations of the laws and customs applicable in an internal armed conflict, such as intentional attacks on the civilian population, rape and sexual slavery, and conscripting, enlisting or using child soldiers (sect. e, para. 2 of article 8).

According to this definition, the commission of a war crime requires evidence of four main elements, in addition to the psychological element required for each accused person:

a) A prohibited act (such as murder, causing bodily injury and rape); 

b) Committed against protected persons (such as those taking no direct part in the hostilities);⁸⁶⁷ 

c) During an armed conflict, either internal or international;

d) And the existence of a nexus between the armed conflict and the act committed.

1. Prohibited acts

Among the many acts prohibited under the definition of war crimes are those that constitute the core of the most serious human rights violations, in particular violations of the right to life, personal physical and moral integrity and personal freedom and security. In international humanitarian law, violations are treated as serious – and consequently as war crimes – when they endanger protected persons or property, or when they infringe important values.⁸⁶⁸ The inventory set out in the previous chapters pointed to the commission of multiple prohibited acts, in particular:

• Murders and wilful killings;
• Causing injury to body or health;
• Rapes, sexual slavery or any other form of sexual violence constituting a serious breach of the Geneva Conventions;
• Torture;
• Intentional attacks directed against the civilian population or in the knowledge that they would cause a disproportionate loss of human life amongst civilians;
• Deportation or illegal transfer of a civilian population or a portion of such a population;
• Illicit and arbitrary looting, destruction and appropriation of civilian property;
• Conscription, enlisting and use of child soldiers.

2. Protected persons

The second element required for the classification of war crimes concerns the nature of the victims of the prohibited acts (or the property targeted), who must be part of a protected group as defined in the Geneva Conventions. The definition of these groups varies somewhat according to the different Conventions, the nature of the conflict and the prohibited acts directed against them. For the purposes of this Exercise, it has been assumed that it covers those not taking part in the hostilities,⁸⁶⁹ in particular civilian populations, and those no longer able to fight as a result of illness, injury, detention or for any other reasons, including combatants who have laid down their weapons. The vast majority of the victims of the most serious violations of international humanitarian law committed in the DRC between March 1993 and June 2003 identified in this report belong to these protected groups, generally civilians who are not taking part in the hostilities. This applies in particular to people living in refugee camps, who constitute a civilian population that is not participating in the hostilities, in spite of the presence of military personnel among them in some cases.⁸⁷⁰

3. Armed conflict

The prohibited acts directed against a protected group must be committed during an armed conflict. Armed conflict occurs when one or more States use armed force against another State, when government armed forces are in conflict with non-governmental armed groups or when there is an armed conflict between particular groups. ⁸⁷¹

International humanitarian law distinguishes two types of armed conflict: international armed conflict, which generally involves two or more States, and internal or non-international armed conflict, which involves fighting between government forces and non-governmental armed groups, or just between armed groups. Finally, in order to distinguish internal (non-international) conflict from internal unrest, internal tensions or banditry, international humanitarian law requires that the armed conflict should be prolonged, that it should be at a minimum level of intensity and that the parties involved should be organised to a minimum degree.⁸⁷² As far as the parties to the conflict mentioned in this report are concerned, the vast majority of those involved were certainly organised to the minimum degree required by international humanitarian law, insofar as these were regular state-controlled troops or had been before the conflict (for example, the ex-FAR) and armed rebel groups or militias that were often supported, trained and armed by the armed forces of neighbouring countries or by the Government in Kinshasa. The few possible exceptions to this general observation are examined in context below.

Although the distinction between an international armed conflict and an internal armed conflict is always essential in determining the legal regime applicable under the Rome Statute of the ICC, it is blurred in terms of the legal implications in this case. The distinction is still important in some respects, particularly as to the obligation on States to provide for universal jurisdiction on war crimes deemed to be “grave breaches”,⁸⁷³ the inclusion or not of certain prohibited acts, and so on, in their national legislation. However, as the ICRC study on customary law confirms,almost all violations of international humanitarian law and the war crimes associated with them are the same, whether the context is one of international or internal armed conflict. The most serious violations described in this report would thus be classified as war crimes under either system, to take attacks on civilians, sexual violence and looting as just a few examples. In fact, the vast majority of violent incidents listed in the preceding chapters are the result of armed conflict, whether this is internal or international, and point to the commission of war crimes as serious violations of international humanitarian law.⁸⁷⁴

4. Nexus

Finally, there must be a nexus between the prohibited act and the armed conflict. There is thus a requirement that the perpetrator of the act should be aware of the existence of the armed conflict at the moment he/she commits the act, that the act should take place in the context of the armed conflict and that it should be “associated” with it.⁸⁷⁵ In general terms, this nexus is clear in the incidents identified by the Mapping Team. Nonetheless, it will have to be demonstrated in respect of each individual prosecuted for war crimes before a judicial body to establish their personal criminal liability.

5. Issues around the classification of armed conflicts in the DRC