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
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)