Domestic, Democratic Republic of the Congo Gisela Sin Gomiz Domestic, Democratic Republic of the Congo Gisela Sin Gomiz

Batumike et al. (“Affaire Kavumu”), RPA N° 139/2018 - Democratic Republic of the Congo

Background

This was an appeal of convictions obtained before a special sitting of the Military Court of Bukavu in December 2017. The trial court had found that the 11 defendants were members of a militia known as Jeshi La Yesu, which was active in the region of South Kivu under the leadership of a provincial lawmaker, Frédéric Batumike, and many of the charges on which they were convicted were related to acts of insurrection and attacks on the Congolese armed forces and local political figures. The most significant aspect of the case from a children’s-rights perspective was the conviction of Batumike and ten others for rape as a crime against humanity arising out of the militia’s practice, between 2013 and 2016, of kidnapping very young girls (aged 18 months to ten years) in Kavumu and raping them in order to gather their blood for its supposed ritual power to make them impervious to bullets.

Civil society groups had a fundamental role in this case. Local actors (leaders of local associations, teachers, lawyers, NGO representatives and human rights defenders) advocated for international actors and the State to get involved in the case, denounced and documented the violations and stood alongside with the victims. Experts from international organisations, among which Physicians for Human Rights (PHR) and Trial International, collaborated with local experts in the investigations and in building and defending the case.

Reasoning

The High Military Court upheld the convictions of all 11 defendants found guilty of rape as a crime against humanity as defined in Article 7.1(g) of the Rome Statute of the International Criminal Court. The Court held that the rapes could be prosecuted as a “widespread and systematic” crime against humanity even though they occurred at different times over a period of years, as long as they were part of “a plan conceived to further the policy decreed by” the militia (p. 63). The Court also recognized that all members of the militia could be criminally liable provided that one member was involved in an act that was part of the “plan” of the larger organization (p. 73).

Remedy

The High Military Court upheld the sentence of penal servitude for life for all 11 defendants found guilty of rape as a crime against humanity. It also upheld the trial court’s award of compensation in an amount equivalent to 5,000 USD to each of the 37 child victims. The Court, however, rejected the victims’ request that it hold the Congolese state civilly liable, partly on the grounds that the state was itself engaged in armed conflict with Jeshi La Yesu and that the militia had attacked Congolese soldiers. 

Role of children

Local clinicians, supported by Physicians for Human Rights (PHR) and Trial International, conducted forensic examinations of the victims and recorded their testimonies out of court following child-protective best practices. The case represented one of the first uses of such protections in the DRC. 

Enforcement and other outcomes

The High Military Court recognized and explicitly ordered financial compensation to be paid to the child victims for the serious physical, emotional, and developmental harms they suffered (p. 74). Each of the victims was awarded compensation in an amount equivalent to 5,000 USD by the trial court, and this award was upheld by the High Military Court. The severity of the sentences given to the defendants and the High Military Court’s reaffirmation that their crimes met the thresholds of gravity and systematicity to constitute crimes against humanity under the Rome Statute represent a significant contribution to both Congolese and international criminal case law. Concerns remain, however, as to the ability of the victims to recover the sums awarded to them from defendants who lack the financial means to pay.  

Significance of the case from a CRSL perspective

The case represented a reaffirmation of the dignity and welfare interests of the young girls of Kavumu. The High Military Court recognized not only the physical but also the emotional and developmental harms inflicted on the victims, including stigmatization, loss of self-esteem, impaired personal development, and poor school performance.

The case, built on the multisectoral work of several civil society organisations, which collected evidence and promoted, carried out investigations into the crimes committed by the armed militia and advocated for these to be investigated by the authorities. The case also included a groundbreaking use of medico-legal best practices. Trainings offered by Physicians for Human Rights (PHR) through its Programme on Sexual Violence in Conflict Zones helped professionals from Panzi General Hospital to document the findings from the victims. Physicians for Human Rights (PHR) also mobilized a task force formed by civil society stakeholders, such as health professionals and lawyers, police officers, local community activists, local non-governmental organisations, MONUSCO and Trial International, and facilitated expert consultations to support the forensic evaluations and the police investigations. The local movement V-Men, led by local health professionals from the Panzi Hospital, carried out an awareness-raising campaign. Physicians for Human Rights (PHR) and Trial International organized a consultation with 36 child victims with the support of paediatric psychologists and physicians authorized by the Court, through which they collected video interviews, following strict procedures to ensure that children were not retraumatised and obtaining informed consent at every stage of the process, which served in the place of the children’s appearance in Court.

Finally, the case represents a strong precedent both in the DRC and worldwide for the use of international criminal law and significant domestic criminal sanctions to punish widespread and serious harms to children by armed groups. The conviction of Batumike was the first conviction of a sitting lawmaker in the DCR for sexual violence as a crime against humanity and resulted from a decision from the Court to strip him of his parliamentary immunity. Both the trial court’s verdict and the High Military Court’s decision were heavily publicized as examples of the fight against impunity and models for the successful prosecution of similar cases in the future.

Country

Democratic Republic of the Congo

Forum and date of decision

High Military Court

July 26, 2018

CRC provisions and other international law provisions/sources

Domestic law provisions

Related information

The applicants:

  • State of the Democratic Republic of Congo

  • The Military Prosecutor

  • 42 plaintiffs whose identity is not revealed to protect their privacy right; the claim is litigated under pseudonyms

 The defendants:

  •  F. Batumike Rugimbanya

  • J. M. Lwaboshi Mulimbwa

  • J. Magadju Masirika

  • L. Mobutu Cibinda Basoda

  • E. M. Mushagalusa Mirindi Musale

  • P. Safari Kalere

  • J. Bufole Bulimbi

  • L. Ciza Cishagara

  • L. Mugaruka Bunane

  • N. Polepole

  • P. O. Zirimingi Mirindi

  • P. Chiamboki Malira

  • K. Shamavu Mutera

  • C. Zihindula Moussa

  • B. Imani Malinda

  • J. Shamanvu Midero

  • I. Sumahili Zairois

  • G. Ngufu Mudugu

  • J. Malashi

  • D. Mushobekwa Muhanzi

Civil Society Organisations that supported the victims:

Case documents

Batumike et al. (“Affaire Kavumu”), RPA N° 139/2018 (in French)

Secondary documents

TRIAL International, “Kavumu Trial: High Military Court Confirms All Condemnations,” July 26, 2018. <https://trialinternational.org/latest-post/kavumu-hmc-confirms-all-condemnations/>

TRIAL International, “Kavumu Case: The Key Role of Local Actors,” Jan. 23, 2018. Available at <https://trialinternational.org/latest-post/kavumu-case-the-key-role-of-local-actors/>

TRIAL International, “Justice is Delivered for the Children of Kavumu,” Dec. 13, 2017. Available at <https://trialinternational.org/latest-post/justice-is-delivered-for-the-children-of-kavumu/>

TRIAL International, “Kavumu Case: Young Girls Abducted at Night and Raped,” Oct. 13, 2017. Available at <https://trialinternational.org/latest-post/kavumu-case-young-girls-abducted-at-night-and-raped/>

Physicians for Human Rights, “Medical-Legal Collaboration Leads to Justice in Serial Rape Case in Democratic Republic of the Congo,” June 19, 2019. Available at <https://phr.org/news/medical-legal-collaboration-leads-to-justice-in-serial-rape-case-in-democratic-republic-of-the-congo/>

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Domestic, India Gisela Sin Gomiz Domestic, India Gisela Sin Gomiz

Bachpan Bachao Andolan v. Union of India and Others [2011] INSC 403; Writ Petition (C) No. 51 of 2006 - India

Background

Bachpan Bachao Andolan (“the petitioner”) is an NGO that has campaigned for the removal of children from circuses in India since 1996. The petitioner conducted a study on child labour in Indian circuses starting in 2002, which found that children were trafficked from poor parts of India and Nepal and subjected to physical, emotional and sexual abuse in circuses. The petitioner descibed rights violations related to the following broad categories: (i) insufficient space, (ii) quantity and quality of food, (iii) erratic sleep times, (iv) unhygienic sanitary conditions, (v) no provision of health care, (vi) danger due to high risk factor of work, (vii) poor/manipulated salaries, (viii) bound by long term contracts, (ix) loss of all-round development (incl. education, play, recreation) by isolation from outside world.  

The petitioner filed this case seeking an order requiring the Indian government to (i) issue appropriate guidelines for the persons engaged in circuses; (ii) to conduct raids in all circuses to liberate the children and to investigate violations of their rights; (iii) appoint special forces to ensure actions and check on cross border trafficking; (iv) apply the provisions of the Juvenile Justice Act and make the violations offences under the Indian Penal Code /Juvenile Justice Act; (v) empower child welfare committees to award compensation to all victims rescued, and (vi) lay out guidelines prohibiting the employment/engagement of children up to the age of 18 in any form in circuses.

Reasoning

The petition was very broad in scope, and the judgment sets out the petition elaborately. However, the court decided to focus on the issue of children working in circuses, and in particular, the violation of the right to education of such children. The court noted that under the 2005 Constitution of India the right to education was now a fundamental right.

The Court found that “[f]rom the […] submissions made by the learned Solicitor General it is abundantly clear that the Government of India is fully aware about the problems of children working in various places particularly in circuses” (para. 67). The court indicated its intention to deal with the broader problem of children’s exploitation systematically, but limited its ruling to children working in circuses in the first instance.

Remedy

The court ordered: (i) the Central government to issue suitable notifications prohibiting the employment of children in circuses; (ii) respondents to conduct raids on all circuses to liberate the children living in them; (iii) the respondents to ensure that the rescued children live in protective homes until the age of 18; (iv) the respondents to contact the parents of children to enable their return home where possible; and (v) the respondents to provide proper schemes of rehabilitation for rescued children; (vi) the Secretary of the Ministry of Human Resources Development, Department of Women and Child Development to file a report on compliance with the court within ten weeks.

Role of children

Children did not act as party to the case, but a child rights NGO filed the public interest petition.

Enforcement and other outcomes

 In 2015, several years after the first order, the Supreme Court found that there had been a failure of compliance with its earlier orders relating to children in circuses. The judgment in 2015 mentions an order dated 12 December 2014, which led to a meeting being convened by the Secretary, Ministry of Women and Child Development and attended by the Secretary, Minister of Labour, as well as by several officers from the various States. As part of its monitoring role, the Supreme Court issued notices for the Union government and all the states to file affidavits, but the only state that complied within the time frame was the State of Punjab. After considering a report of the Ministry of Women and Child Development, the Court issued a directive that the Central Government should monitor the activities of the circuses through National Commission for the Protection of Child Rights and State Governments, and indicated that the petitioner or any other person was at liberty to approach the court or any other appropriate authority if any instance of child labour or child abuse was found in any circus.

Significance of the case from a CRSL perspective

The case was recognized as a landmark decision to protect children coerced to work in circuses. In particular, the Supreme Court noted that the government was fully aware of the problems children face working under such conditions.

Also, only shortly after the decision (on May 5, 2011), India ratified the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Palermo Protocol) after having signed it already on December 12, 2002. The outcome of this case served as a catalyst for this move. Prior to the judgment, India had struggled with a comprehensive definition for the crime of human trafficking.  In the aftermath of the 2012 Delhi gang rape case, a committee known as the  Justice Verma Committee  was set up to review and make recommendations to update the Indian Criminal Law. In 2013 the Committee released its report, and recommended the adoption of the definition of human trafficking used in Bachpan Bachao Andolan v Union of India case. The Committee pressed upon Parliament the need to update the national laws concerning human trafficking.

Country

India

Forum and date of decision

Supreme Court of India

April 18, 2011

CRC provisions and other international law provisions/sources

Domestic law provisions

Related information

For the petitioner:

For the Respondent:

Amici curiae:

Case documents

Secondary documents

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