Prosecuting rape as war crime in the Democratic Republic of the Congo: lessons and challenges learned from military tribunals

Several armed conflicts have marked the past two decades in the Democratic Republic of the Congo (DRC). As a result, the DRC is facing an unprecedented humanitarian disaster with the death of hundreds of thousands of people, the large-scale displacement of civilians and the rape of thousands of women, girls and men. These armed conflicts have led to the metamorphosis of the concept of ‘crime’ with the emergence of new forms of sexual violence, particularly the widespread sexual violence used by armed groups as a tactic of war. In response to this avalanche of sexual violence, the DRC has taken a series of legislative measures. It began with the ratification of the Statute of the International Criminal Court (Rome Statute) on 11 April 2002. This was followed by the promulgation of the Military Judicial Code and the Military Criminal Code on 18 November 2002 (MJC and MCC, respectively) criminalizing, inter alia, war crimes, crimes against humanity and genocide. In 2006, the Congolese legislator criminalized various forms of sexual crimes as defined by international law in the Military Penal Code. On 31 December 2015, the Congolese authorities promulgated Law No. 15/022, amending and supplementing the Military Penal Code, for the implementation of the Rome Statute. Through this Law, the legislator has included in the Congolese Ordinary Criminal Code rape and other sexual assaults constituting war crimes, and in some circumstances, crimes against humanity. In terms of prosecutions, around 40 cases of rape classified as war crimes and crimes against humanity have been tried by Congolese military courts, and a few other cases are being investigated. This article seeks to assess the progress made by the DRC in prosecuting rape as a war crime and the challenges to such prosecutions