Mapping Report > Section II. Specific Acts of Violence > CHAPTER I. Acts of violence committed against women and sexual violence > A. Legal framework applicable to acts of sexual violence

1. Domestic law

Although the 2006 Constitution guarantees equality of status between men and women, this equality is not yet reflected in terms of implementing measures governing women’s status. In actual fact, women do not enjoy the same rights as men and are legally subordinate to them.⁹⁶⁸ In the particular area of sexual violence, the main innovation of the Constitution can be found in Article 15, which classifies sexual violence committed against any person as a crime against humanity.⁹⁶⁹

This constitutional provision was supplemented in 2006 by revised Congolese criminal legislation on sexual violence, which introduces new crimes of sexual violence, notably rape with objects, something that had not been envisaged in the previous legislation. It also criminalises mass rapes.⁹⁷⁰ This law does not, however, apply to the period 1993-2003.

Acts of sexual violence committed during this period are covered by the provisions of the 1940 Congolese Criminal Code.⁹⁷¹ This code contains a restrictive definition of rape that does not cover the full range of sex crimes. Other cases of sexual violence are covered by measures of “indecent assault” or “outrage against public dignity”. The judge then has to cite aggravating circumstances where necessary.⁹⁷²

2. International law

Rape and other forms of sexual violence constitute a breach of the rules of international humanitarian law⁹⁷³ and the international and regional human rights standards contained in a series of specific instruments adopted by the DRC.⁹⁷⁴

The recognition of rape and other acts of sexual violence as crimes under international law has been confirmed by their inclusion in the statutes of the different international courts and tribunals and in their legal interpretations. The statutes governing the ICTY⁹⁷⁵ and the ICTR,⁹⁷⁶ the Special Panels for Serious Crimes in East Timor⁹⁷⁷, the Special Court for Sierra Leone (SCSL),⁹⁷⁸ the Special Tribunal for Cambodia⁹⁷⁹ and the Rome Statute of the ICC all list rape, and other expressly stated forms of sexual violence, as crimes under international law.

The DRC ratified the Rome Statute establishing the ICC on 11 April 2002. According to the Rome Statute, depending on the wider context in which the crimes are committed, rape, sexual slavery, enforced prostitution, forced pregnancy, forced sterilisation and any other form of sexual violence of a comparable severity can constitute a crime against humanity and a war crime.⁹⁸⁰

Apart from these explicit references to rape and other forms of sexual violence, the legal interpretations of the ICTY and the ICTR, the Special Panels for Serious Crimes in East Timor, the SCSL and the Elements of Crimes of the Rome Statute all anticipate that acts other than those expressly listed may also form the basis for convictions.⁹⁸¹ The case law of the ICTY and the ICTR thus demonstrates that acts of sexual violence may also be considered as acts of genocide,⁹⁸² of direct and public incitement to commit genocide,⁹⁸³ of torture,⁹⁸⁴ of persecution,⁹⁸⁵ of slavery,⁹⁸⁶ of inhuman acts,⁹⁸⁷ of cruel⁹⁸⁸ or inhuman⁹⁸⁹ treatment in the context of crimes against humanity, and as outrages upon personal dignity⁹⁹⁰ or slavery⁹⁹¹ in the context of war crimes. Moreover, even an individual case of serious sexual violence may be prosecuted as a crime against humanity if it was committed as an integral part of a more widespread and systematic attack on a civilian population.⁹⁹²

International human rights law also establishes a prohibition on acts of sexual violence in armed conflicts. In 1992,⁹⁹³ the Committee on the Elimination of Discrimination against Women recognised that gender-based violence, which impairs or nullifies the enjoyment by women of individual rights and fundamental freedoms under general international law or under human rights conventions, was constitutes discrimination within the meaning of Article 1 of the Convention on the Elimination of Discrimination against Women. These rights and freedoms include the right to equal protection, according to humanitarian standards, in time of international or internal armed conflict.⁹⁹⁴

In its Resolution 1325 (2000) of 31 October 2000, the Security Council reaffirmed the need to fully implement international humanitarian and human rights law that protects the rights of women and girls during and after conflicts and called on all parties to armed conflict to take special measures to protect women and girls from gender-based violence, particularly rape and other forms of sexual abuse.⁹⁹⁵

Moreover, with the adoption of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, the definition of gender-based violence now includes a prohibition of all violence against women, in any political dimension and at any time, including armed conflict or war.⁹⁹⁶

In its Resolution 61/143 of 19 December 2006, the General Assembly stressed that States had to eliminate gender-based violence, particularly in order to ensure protection of the human rights of women and girls in situations of armed conflict, post-armed conflict settings and refugee and internally displaced person settings, where they are the main focus of violence.⁹⁹⁷ This process culminated in the Security Council recognising, in its Resolution 1820 (2008) of 19 June 2008, that sexual violence was an issue of national security. This resolution notes that women and girls are the particular focus of sexual violence, and emphasises that such violence may significantly exacerbate conflicts and impede peace processes.

Legal practice

The combined action of national and international, conventional and customary legal instruments should therefore enable the acts of sexual violence committed in the DRC between 1993 and 2003 to be punished. All the more so given that, in the context of the International Conference on the Great Lakes Region’s Protocol on the Prevention and Suppression of Sexual Violence against Women and Children,⁹⁹⁸ the DRC has undertaken to punish the perpetrators of acts of sexual violence committed during armed conflict in particular. However, in practice, impunity is still the rule.

A case study in South Kivu Province undertaken by MONUC’s Human Rights Division in 2007⁹⁹⁹ is enlightening and demonstrates the extent of the impunity that perpetrators of acts of sexual violence enjoy, along with the little importance given to, and delays in, the cases of sexual violence that do reach the courts. Between 2005 and 2007, 287 cases were recorded by the judicial authorities which, according to statistics obtained from hospitals, clinics and other medical centres in the province for 2005 alone, represented less than 1% of the cases of rape. Of those 287 cases that were referred to the justice system, investigations were underway in around 56% of them. In 60% of these cases, the investigations had been ongoing for more than one year. In the 60 cases that were ready to be tried by the courts in 2007, 80% of the alleged perpetrators were on conditional release and had failed to present themselves to the courts since their release. Only 64 cases had been tried, of which 58 resulted in convictions. Even in these cases, many of the perpetrators subsequently escaped and the victims never received the damages that the courts had awarded them by way of redress.¹⁰⁰⁰

It should, however, be noted that, since the Rome Statute was ratified, some military courts have referred to its provisions in order to classify sexual violence as a crime under international law, as in the 2006 decisions relating to the cases of Songo Mboyo, and the Mbandaka and Lifumba-Waka mutinies.¹⁰⁰¹

In Orientale Province, despite the multitude of acts of sexual violence committed by all parties to the conflict, it would seem that the Gety and Bavi case in 2006 was the only one in which soldiers were convicted of rape as a war crime. In North Kivu, the 2009 Walikale trial was also a rare exception in the prevailing climate of impunity. In that case, the 11 FARDC defendants, six of whom were on the run, were convicted on 24 April 2009 by the Goma garrison Military Court of crimes against humanity for the rape of some 20 Pygmy women, in application of the Rome Statute. The judge referred to the case law of the international courts to define the principles of rape according to international criminal law.¹⁰⁰² Importantly, the judge applied the provisions of the Rome Statute to hold the perpetrators’ senior officers responsible, considering that “they tolerated the criminal actions of their subordinates when these latter were in violation of international law”.

However, despite some progress and as with cases of sexual violence in general, most of these cases continue to suffer from a lack of impartiality and independence.¹⁰⁰³

The fact that there are few or no charges relating to acts of sexual violence in the arrest warrants issued by the ICC only contributes to minimising the importance of these crimes and to confirming a culture of impunity that the Court was intended to overcome. It is therefore surprising that the cases being brought against Thomas Lubanga and Bosco Ntaganda include no charges for sex crimes and that, whilst those against Germain Katanga and Mathieu Ngudjolo Chui do include such charges, they do not reflect the widespread nature of this kind of violation beyond the Bogoro attack for which they are being prosecuted. In fact, as demonstrated by transcripts of the hearings from the Lubanga trial, the women conscripted into the armed groups were repeatedly raped and reduced to the position of sex slaves by their commanders.¹⁰⁰⁴