Chapter 3: The jurisdiction of the Congolese judiciary to try war crimes
3.2 Prosecution of war crimes
3.2.3 Some judicial decisions
witnesses have been previously heard, prosecuted and indicted for making false accusations against the accused.276
The next section highlights the Military Courts‟ activities in the DRC.
Ever since the entry into force of the new Military Criminal Code of 18 November 2003 and as a result of the reform, which commenced in 2003, there have been very rare cases of279 prosecution for international crimes in general and for war crimes in particular.
Although Congolese courts have rendered some decisions, none amongst these can really be cited as the prosecution of war crimes. There are a number of criticisms of the way the four cases that are most often cited as the first steps towards justice against impunity in the DRC have been conducted.280
3.2.3.1 The Ankoro case
This case is related to crimes committed in Katanga at Ankoro from 10 to 22 November 2002 during clashes between the Congolese army and the Mayi-Mayi,281 which resulted in the killing of numerous innocent civilians, looting, and the destruction of public and private property. The soldiers involved were arrested and tried. Curiously of the seven alleged suspects, six were acquitted and only one was convicted of murder and arson and sentenced to just a few months imprisonment. The shift from the application of the military code to ordinary codes, as well as the decision to release the six other persons indicted is really questionable in this case.
Therefore this case can hardly be regarded as a reference in terms of decisions.282
3.2.3.2 The Khawa case
In this case, Khawa Panga Mandro Ives of the Party for Unity and the Safeguarding of Congo's Unity was prosecuted for having allegedly committed war crimes at Zumbe
279 The few cases that have been prosecuted were essentially the result of pressure exerted by NGOs and thanks to the MONUC, which provided the necessary logistic and material means for the transportation of magistrates. See UNOHCRH (note 3 above; 398); M Wetsh‟okonda Koso (note 255 above; 12).
280 M Wetsh‟okonda Koso (note 255 above; 12); UNOHCRH (note 3 above; 410); CAD „La répression des crimes internationaux par les juridictions congolaises‟ 71-72 available at
http://www.iccnow.org/documents/CAD_LaRepressiondesCrimes_Dec2010.pdf, accessed on 10 May 2011.
281 See M Wetsh‟okonda Koso (note 221 above; 50).
282 See Ankoro Case, RP n 01/2003 and RP 02/2004, decision of the Military Court of Katanga of 20 December 2004; UNOHCRH (note 3 above; 396).
village in the Ituri District, Orientale Province (DRC) on 15 and 16 October 2002, for having burnt and destroyed a school, hospital, and Catholic as well as Protestant churches at Zumbe.283
Khawa had been tried and sentenced for war crimes. In his decision of 2 August 2006, the judge had directly applied the provisions of article 8 (2) (b) XX & 77 of the Rome Statute.284 The plea and reasoning made by the bench in this case is very courageous and technically interesting as it may inspire other judges to look to how to fight impunity for war crimes beyond the Congolese legal framework only. However it is regrettable that the effective execution of this Decision was blocked or paralysed by several appeals and complicated by incestuous relationships between the civil and military judiciary.285
3.2.3.3 The Milobs case
Although it is related to war crimes committed after 2002, this case is interesting for the way the judge adjudicated by looking in international law, notably conventions and jurisprudence to find legislation to prosecute alleged war crimes perpetrated at Mongwalu in Ituri District, Orientale Province, by members of Militia (Integrationistes Front of Nationalists) who tortured and killed two MONUC Military Peacekeepers in May 2003.286 Although the accused were found guilty of war crimes in accordance with article 8 of the Rome Statute on 19 February 2007, the Decision seemed less elaborated in respect of legal criteria for the protection of UN personnel in a conflict zone.287
283 Khawa Case Khawa Case, RP n 039/2006, Judgement of Military Tribunal of Garrison of Ituri of 2 August 2006.
284 Ibidem 27.
285 UNOHCRH (note 3 above; 404, 405).
286 Milobs case RP n 103/2006, Judgement of 19 February 2007 of Military Tribunal of Garrison of Ituri, UNOHCRH (note 3 above; 397).
287 CAD (note 280 above; 60-62).
3.2.3.4 The Songo Mboyo case
In the same vain as Milob, this case is related to crimes perpetrated after 2002, more precisely acts of violence and looting committed by military personnel because their salaries had been stolen. They became angry, attacking civilians and raping several women, in the Province of Equateur at Songo Mboyo on 21 and 22 December 2003.
The reasoning given in the decision of the Military Tribunal on 12 April 2006 to sentence those responsible is very insightful and worthwhile.288 This decision provides mechanisms for prosecuting international crimes by applying international law in a national judiciary to curb impunity for mass atrocities in the DRC.
Wetsh‟okonda Koso notes that “This decision has made case law, several other military courts have since referred to it in order to apply the Statute of the ICC directly, and thereby remedy its absence in national Congolese law”.289
However, this decision was not perfect. Although a courageous will to fight impunity for crime was demonstrated, the qualification of those acts of violence as crimes against humanity in this decision was criticised and was considered too vague.290 Furthermore the prosecution was hampered by delays and worst of all: “of the 78 presumed perpetrators originally identified by MONUC, only six were sentenced, and these individuals later escaped”.291
In spite of this interesting decision the effectiveness of the prosecution of international crimes remains a serious challenge for the Congolese judiciary. At this point in time there can be little hope that gross crimes in general and war crimes in particular committed between 1996 and 2002 in the DRC could be prosecuted.
Even though numerous international crimes were committed between March 1993 and June 2003 in the DRC as documented in the UN Report of Mapping “military
288 Songo Mboyo case RP n 084/2005, Judgement of 12 April 2006 of Military Tribunal of Garrison of Mbandaka.
289 Wetsh‟okonda Koso (note 221 above; 51).
290 CAD (note 280 above; 48-49).
291 UNOHCRH (note 3 above; 398).
tribunals only dealt with two that were classified as war crimes, one of which ended in the acquittal of all those accused”.292