Public Prosecutor v. Adémar Ilunga, Sadiaka Sampanda, Jean-Marie Kambaj Munsans, John Mwelwa Sabata, Mongita Lofete, Mwnza wa Mwanza, Tase Muhindo, Kayembe Kasongo, Ilunga Kashila, Pierre Mercier, Peter van Niekerk, Cedric and Anvil Mining Company Congo

Court	Military Court of Katanga, Congo
Case number	R.P. Nº 010/2006
Decision title	Judgment
Decision date	28 June 2007
Parties	Prosecutor Adémar Ilunga Sadiaka Sampanda Jean-Marie Kambaj Munsans John Mwelwa Sabata Mongita Lofete Mwnza wa Mwanza Tase Muhindo Kayembe Kasongo Ilunga Kashila Pierre Mercier Peter Van Niekerk Cedric Anvil Mining Congo
Other names	Case related to the Kilwa incident of 2004
Categories	Crimes against humanity, War crimes
Keywords	company, corporate liability, FARDC, human rights abuses
Links	Judgment

Summary

The village of Kilwa in Katanga province in the Democratic Republic of the Congo was the site of combat in October 2004. Having come under the control of rebel forces from Zambia belonging to the Revolutionary Movement for the Liberation of Katanga (MRLK), the troops of the Congolese Army (FARDC) were ordered by President Kabila to regain control over the village. After three hours of heavy shelling on 15 October 2004, the FARDC forces succeeded.

During the take over, it is alleged that they committed acts of pillaging, wanton destruction as well as illegal detentions and summary executions. Some 70 villagers were killed. The present decision was rendered by the Katanga Military Court after proceedings widely described by international observers as unfair and biased by political interferences and procedural irregularities. In its verdict, the Court found the commander in charge of the attack, Adémar Ilunga, and three soldiers guilty for the illegal arrest, detention, and murder of two persons. These crimes, however, were not committed during the attack of Kilwa. All the other accused were acquitted, the Court having concluded the victims were members of a rebel group killed during the attack. The Australian company, Anvil Mining Congo, was also accused, FARDC soldiers having used company property, including a plane, to lead the attack and commit the alleged crimes. However, the Court concluded that the FARDC had requisitioned the vehicles and acquitted Anvil and three of its employees.

Procedural history

On 12 October 2006, the Supreme Military Prosecutor decided to transfer the case to the Military Court of Katanga.

On 2 December 2006, the President of the Military Court of Katanga decided to arrange the opening of the trial for 12 December 2006.

On 14 February 2007, the Court rejected a motion for recusal of the President of the Court.

On 28 February 2007, the military prosecutor who conducted the investigation was transferred to another jurisdiction, resulting in the trial being adjourned. On 14 May 2007, the trial resumed with a different military prosecutor.

Related developments

In February 2008, the victims and their families were denied the right to appeal. The Court of Appeal in Lubumbashi reduced the sentences of Colonel Adémar and Capitain Sadiaka to five years’ imprisonment. Both are reinstated into the FARDC.

In November 2010, an application for a class action is made before the Quebec Court in Canada on behalf of the Kilwa victims. The application calls for compensation from Anvil Mining Company and alleges that the company, by providing logistical assistance, played a role in the human rights abuses committed by the FARDC. See also Global Witness, 'Congolese Victims File Class Action against Canadian Mining Company', 8 November 2010. A copy of the Class Action can be found here (in French only).

In April 2011, the Superior Court of Quebec ruled the case had sufficient links to Quebec in order to establish the court's jurisdiction to hear the case. On 24 January 2012 the Quebec Court of Appeals reversed and dismissed the case on the basis that it lacked the necessary legislation to allow the case to proceed. The plaintiffs appealed this dismissal and, on 1 November 2012, the Canadian Supreme Court announced that it would not hear the plaintiffs' appeal.

Legally relevant facts

On 13 October 2004, towards 2:00 AM, the village of Kilwa in Katanga province was attacked by rebel forces from Zambia belonging to the Revolutionary Movement for the Liberation of Katanga (MRLK) under the commander of Alain Kazadi Mukalay. The troops of the Congolese Army (FARDC) were overcome and control over the village passed into the hands of the MRLK.

On 14 Octover 2004, Mukalay announced the liberation of Katanga and proceeded to recruit men of all ages and to distribute the goods pillaged from the shops of the village including the stores of fuel belongnig to the company Anvil Mining Congo to the civilians living in Kilwa and amenable to his cause.

Acting on the instructions of the President of the DRC, the Commander of the 6th Military Regiment along with members of the 62nd Infantry Brigadebased at Pweto and commanded by Colonel Adémar Ilunga, launched a counter attack on the village. Anvil Mining Company was requisitioned by the Governor of Katanga Province to provide logistical support, which it did to the tune of 3 large lorries, a jeep and foodstuffs.

On 15 October 2004, the FARDC regained control over the village following heavy selling by both sides. The attack resulted in 15 deaths from within the FARDC and the death of Mukalay from the rebel side. Over 40 civilians and policemen favourable to the MRKL were captured and transferred to the custody of the 6th Military Regiment. Number of other civilians were killed or seriously injured in the course of the shelling (pp. 14-15).

The Accused all occupied various positions within the 62nd Infantry Brigade or the company Anvil Mining Congo (pp. 1-2).

Core legal questions

Are superior orders a defence to the war crime of murder?

Specific legal rules and provisions

Articles 5, 6, 173-174, Congolese Military Penal Code (In French only).
Articles 23(1), 43-44, 67(2), Congolese Criminal Code (In French only).
Articles 8(2) and 77 of the Rome Statute of the International Criminal Court.

Court's holding and analysis

The order to murder two suspected Mai-Mai rebels was manifestly illegal and therefore should not have been executed, even by members of the Armed Forces. It cannot therefore absolve the direct perpetrators of criminal responsibility (p. 26).

The Court held Adémar Ilunga, Commander of the 62^nd Infantry Brigade and three soldiers belonging to his brigade, Sadiaka Sampanda, Kasongo Kayembe and Ilunga Kashila guilty of the illegal arrest, detention and murder of two persons suspected of being Mai-Mai rebels (pp. 23-27). Adémar Ilunga and Sadiaka Sampanda were sentenced to life imprisonment; Kasongo Kayembe and Ilunga Kashila to 5 and 1 years’ imprisonment respectively as they were solely convicted of arbitrary arrest and detention (p. 30).

All the other Accused were acquitted, the Court having concluded that the victims were members of the MRKL (p. 17-19, 30).

The company Anvil Mining Congo and its three employees, Pierre Mercier, Peter Van Niekerk and Cedric, were acquitted the Court having concluded that the FARDC had requisitioned the vehicles (p. 27-28, 30).

Further analysis

RAID UK, 'Kilwa Trial: A Denial of Justice', Global Witness and Rights & Accountability In Development,2007;
Africa Report No. 103: 'Katanga: The Congo’s Forgotten Crisis', International Crisis Group, 2006.

Instruments cited

Law Nº 024/2002 of 18 November 2002 establishing the Congolese Military Penal Code (In French only).
Congolese Criminal Code of 1940.
United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 17 July 1998, Rome Statute of the International Criminal Court;