The Legal Landscape for Addressing Rampant Sexual Violence in the DRC

October 18, 2010

This report was prepared by Osler, Hoskin, and Harcourt, LLP, as pro bono counsel, at the request of AIDS-Free World. The report served as a platform for AIDS-Free World to conduct advocacy demanding more accountability from MONUC and MONUSCO with respect to crimes of sexual violence in the Democratic Republic of Congo. The overview of the report is below; the full report can be downloaded here (PDF, 374 KB).

A brutal civil war has ravaged the Democratic Republic of the Congo (“DRC”) since the mid- 1990s. A five-year conflict placed government forces and their allies (Angola, Namibia and Zimbabwe) against rebels supported by Uganda and Rwanda. A peace agreement was signed in 2002 and a transitional government established in 2003, raising hopes that the conflict was coming to an end. Although the war is now generally contained, the conflict has re-emerged in the eastern part of the country. Men, women, and children continue to be targeted for crimes of sexual violence; the Eastern Congo has been called the rape capital of the world. Approximately 22% of the women who are raped contract HIV.

First, this memorandum outlines the domestic legal framework pertaining to rape and sexual violence, and how it facilitates prosecution for these offences on both an individual and systemic level. It also outlines the domestic legislation that deals with these offences within the context of international crimes, including war crimes, genocide, and crimes against humanity.

Second, we have included a brief overview of some prominent non-legislative initiatives by local and international organizations and governments so as to add context to the work being done on the ground in the DRC to address the issues.

Third, we outline and analyse the role of the United Nations (“UN”). In particular, we review the legal mandate of UN peacekeepers, more formally known as the United Nations Organization Mission in the Democratic Republic of the Congo (“MONUC”), to address rape and sexual violence. Specifically, we discuss the various resolutions of the UN Security Council (“Security Council”) that authorize and empower MONUC to deal with these crimes. By way of example, we discuss briefly the Security Council’s recent efforts to combat rape and sexual violence in other war zones, namely, Yugoslavia and Rwanda.

Finally, we examine the international treaties relevant to the prosecution of rape and sexual violence. The DRC is a monist state, which means that it does not require domestic legislation to implement its international treaty obligations. In particular, we focus on the remedies available under the Rome Statute of the International Criminal Court (“Rome Statute”), which created the International Criminal Court (“ICC”) in 2002. However, in practical terms, the local courts have been reluctant to act without the benefit of domestic legislation.

The domestic laws of the DRC are not inhibiting the prosecution of rape and sexual violence. What is missing is political and judicial will. In part, the dearth of international attention on the subject of rape and sexual violence in the DRC, until recently, has helped foster a culture of impunity. Until recently, the DRC government has exhibited little political will to do anything to address this problem, and the international community needs to apply more pressure and encourage the government to act.

Overview of the Domestic Legal Regime
The Code Pe´nal Ordinaire outlaws rape and sexual violence. Amendments to the Code Pe´nal in 2006 substantially increased the penalties for those crimes (extended incarceration, increased fines), and expanded the definition of rape and sexual violence. The DRC also provides for the domestic prosecution of rape and sexual violence in military courts and in the ICC pursuant to the Rome Statute. The deliberate transmission of sexually transmitted diseases is prohibited, and subject to a sentence of life imprisonment and fine of 200,000 Congolese Francs (approximately U.S. $233).

Overview of the Role of the United Nations in the DRC
The United Nations and its agencies have been paying increasing attention to the situation in DRC as part of their efforts to end all forms of violence against women. This includes taking action against sexual violence in conflict regions, which has arguably been most pervasive of late in the DRC. MONUC has a broad mandate to protect civilians generally, and women and children in particular. There is, however, some disparity in the language that authorizes the use of force in protecting each of these groups. The mandate expires in December 2009 (and will presumably be renewed). It would be useful to encourage the United Nations to reconcile these linguistic differences in the new mandate.

Overview of the International Legal Regime Prohibiting Rape and Sexual Violence
The establishment of individual tribunals to deal with war crimes that were committed during each conflict has pros and cons to consider within the context of the DRC and, on balance, we do not recommend promotion of an independent tribunal to prosecute rape and sexual violence that have occurred in the DRC.

For the purposes of prosecuting rape and sexual violence, the most significant international development is actually decidedly local, with legislation pending before the Parliament of the DRC to implement the Rome Statute. Because the ICC deals only with the most egregious offences (and has, in fact, investigated officials in the DRC and is ready to begin a trial in November, 2009), it is necessary for the domestic courts to handle the day-to-day prosecution of rape and sexual violence. To date, those institutions have been surprisingly feckless in this regard. Implementing the Rome Statute may serve to strengthen the resolve of prosecutors and the judiciary to prosecute and convict more offenders.

Download the report here. (PDF, 374 KB)