A/HRC/38/31
the United Nations Children’s Fund (UNICEF), as at 30 August 2017, 1,220 boys and 658
girls had been recruited and used by the Kamuina Nsapu militia. However, the team
believes the numbers are in fact much higher and the recruitment is ongoing. Many children
have been abducted, wounded, mutilated, detained or executed. Some have seen their
parents beheaded or beaten, or their mothers raped. Many of them have been forced to fight
on the front line without weapons or with dummy weapons, knives or, occasionally,
traditional rifles. They have been forced to kill and decapitate bodies. The physical and
psychological trauma and stigmatization suffered by these children will require long-term
care. This massive use of children belonging to the same ethnic group has multiple
consequences for their community and creates a climate of suspicion towards them, which
can generate extreme reactions.
94.
UNICEF estimates that, since the beginning of the crisis in Kasaï, 416 schools and
224 health centres have been looted or destroyed. Schools and other educational
establishments were prime targets of the Kamuina Nsapu militia.
95.
A significant number of victims of sexual violence, mainly rape, have described the
difficulties that they have faced. In addition to the medical and psychological problems they
suffer, survivors are also ostracized by their families and communities owing to the weight
given to tradition and the resulting economic and social challenges. Many women have
been raped in front of their husbands, children or other family members. It is therefore the
entire social fabric of Kasaï that is suffering the consequences of this sexual violence. Most
rape victims are reluctant to report their ordeal for fear of stigmatization and owing to a
general feeling of mistrust towards the justice system and a lack of effective reparation.
IX. Legal characterization
96.
The acts of violence committed against civilians are violations of human rights and
international humanitarian law that constitute international crimes.
A.
Crimes against humanity
97.
Article 7 (1) of the Rome Statute of the International Criminal Court defines crimes
against humanity as acts committed as part of a widespread or systematic attack directed
against any civilian population, with knowledge of the attack. “Attack directed against any
civilian population” means a course of conduct involving the multiple commission of acts
referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a
State or organizational policy to commit such attack. The adjective “widespread” connotes
the large-scale nature of the attack and the existence of a certain number of victims,
whereas the adjective “systematic” refers to the organized nature of the acts of violence and
improbability of their random occurrence. The presence of combatants among the civilian
population does not deprive this population of its civilian status.
98.
The attacks perpetrated by the defence and security forces, the Kamuina Nsapu
militia and the Bana Mura militias as described in the preceding sections were carried out
against civilian populations in a widespread and systematic manner, pursuant to a State or
organizational policy to commit such an attack. These attacks thus constitute crimes against
humanity, including murder, rape or any other form of sexual violence of comparable
gravity, enslavement, including for sexual slavery, persecution and other inhuman acts.
B.
War crimes
99.
Under article 8 (2) (c) and (e) of the Rome Statute, war crimes are defined, in the
case of an armed conflict not of an international character, as serious violations of article 3
common to the four Geneva Conventions of 1949 against persons taking no active part in
the hostilities, and other serious violations of the laws and customs applicable in armed
conflicts.
16
GE.18-10936
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