In a landmark decision adopted in 2024 and disclosed in April 2025 in Communication No. 700/18 dealing with the Minova case v. Democratic Republic of Congo (only available in French), the African Commission on Human and Peoples’ Rights (“the Commission”) concluded to the responsibility of the DRC in the grave and massive violations of rights of more than 1000 civilians, most of them being women and girls, committed by its army between 2012 and 2013 when fleeing the “Mouvement du 23 mars” (M23). These violations perpetrated in Minova and surroundings (Eastern DRC) covered a wide range of “barbaric acts” (para. 125), such as rapes, including gang rapes, killings, destruction of property and homes, illegal occupation of lands, and extorsion of property. The military forces, comprising up to 8,000 soldiers, were directly involved in these violations; however, most of the perpetrators were acquitted at the domestic level by a military court.
The complaint was brought before the African Commission by the Institute for Human Rights and Developments in Africa (IHRDA) and the Association des femmes avocates défenseures des droits humains on behalf of the 1016 identified victims. It alleged that the DRC had violated the 1981 African Charter on Human and Peoples’ Rights (“the Charter”) and the 2003 Protocol to the African Charter on the Rights of Women in Africa (“the Maputo Protocol”).
The State did not take part in the proceedings and did not comment on either the admissibility or the merits of the complaint. The sad irony of the State’s refusal to appear must be highlighted: the DRC refused to collaborate with the Commission in this grounded quest for justice for survivors of atrocities committed by its army, while in 2023, it lodged an inter-State proceeding before the African Court against Rwanda, denouncing similar atrocities allegedly committed by M23 with the support of Rwanda.
However, following its usual practice, the Commission examined, proprio motu, whether the admissibility criteria set out in Article 56 of the Charter were met. In this regard, the case did not raise major issues, except concerning the time elapsed between the final decision delivered by the military court (2014) and the submission of the complaint to the Commission (2018). As stressed by the Commission, Article 56-6 of the Charter does not impose a specific deadline but only a “reasonable period from the time local remedies are exhausted”. The problem in the present case, nevertheless, was that if the final domestic judgment was issued in May 2014 (para. 54), the victims never received it through official channels. They only learned about the decision in an “unofficial” manner in February 2018. Therefore, considering the insecurity context, the fear of reprisals, and the lack of notification of the judicial decision, the Commission considered that the delay in submitting the petition was reasonable (paras. 68-69).
On the merits, the Commission concluded to the violations of almost all provisions raised by the complainants, except the claim based on Article 14-2(a) of the Maputo Protocol, which requests the adoption by States of “appropriate measures to provide adequate, affordable and accessible health services, including information, education and communication programmes to women especially those in rural areas.” (For an open-access commentary on the Maputo Protocol, here.) The remedies granted by the Commission and based on Article 25 of the Maputo Protocol consist in public apologies, public acknowledgement of the violations committed by the DRC military forces, investigation and prosecution of all the perpetrators and symbolic measures such as the erection of a building in memory of the atrocities (paras. 170-203).
The present post cannot dwell on all the important aspects of the decision of the Commission in the fight against impunity in DRC, including when atrocities are perpetrated by the State’s regular military forces. As recalled by a commentator on the decision, the fight against M23 is not just “a crisis of security” but a “crisis of humanity”, and the DRC remains accountable for the behaviour of its army in this context. However, the post will focus on what seems to be the most crucial conclusions regarding the Commission’s stance on its jurisdiction over the Maputo Protocol (1), on the (disappointing) analysis of conflict-related sexual violence as a form of torture (2), and on the innovative approach to the right of individual security in the context of military operations against M23 members (3).
1. The “Maputo Protocol as an integral part of the African Charter”
This is not the first decision where the Commission affirmed its jurisdiction not only to interpret but also to adjudicate individual complaints based on the Maputo Protocol, once duly ratified by the State. In a previous case dealing with maternal mortality in Nigeria (Community Law Centre and others (on behalf of five victims) v. Nigeria, communication no. 564/15, paras. 93 et seq.), the Commission established that the Maputo Protocol was “an integral part” of the African Charter (para. 95). It added that:
the Maputo Protocol finds its legal basis in the provisions of Article 18 (3) of the African Charter which provides that it is the duty of every State to eliminate all forms of discrimination against women and to ensure the protection of women’s rights, as provided for in international declarations and conventions. (para. 96)
However, this precedent was disappointing, and all the claims made by the complainants on the lack of access to sexual and reproductive health services, the lack of information on sexual health, and the failure to implement a strong and gender-sensitive health policy were rejected by the Commission.
On the contrary in the present Minova case, the Commission reaffirmed its jurisdiction to “interpret” the Protocol (para. 98). It provided an innovative analysis, not only of sexual violence as a breach of the dignity and integrity of the victims (Articles 3-1 and 4-1 of the Protocol) but also on the survivors’ right to housing (Article 16 of the Protocol), and the right to sustainable development (Article 19(c) of the Protocol), harmed by the pillage and destruction of their homes, shelters, harvest, confiscation of lands, as part of their “productive resources” (paras. 151 et seq.)
In this regard, the Commission does more than merely “interpret” the Protocol; this case confirms that, in addition to the jurisdiction of the Court over the instrument mentioned in Article 27 of the Protocol, the Commission has established its ability to receive individual complaints on the Protocol’s basis. Therefore, if the previous case of Community Law Centre and others (on behalf of five victims) v. Nigeria was frustrating on its merits, this Minova complaint opens the door to an additional path for litigating women’s and girls’ rights in Africa.
2. Rapes and gang rapes as forms of torture: Room for improvement in the Commission’s approach
In International Human Rights Law, it is well-established that rape might fall under the qualification of torture depending on the factual elements of the case (ECHR, Aydin v. Türkiye, 1997, paras. 81-83). In that regard, since the facts of the Minova case directly involve the DRC military forces, there is no doubt for the Commission that the rapes and gang rapes inflicted to hundreds of victims must be analysed as acts of torture in breach with Article 5 of the Charter and Article 3-1 of the Maputo Protocol (paras. 108-117).
Nevertheless, one can regret the outdated definition of torture used by the Commission and based on Article 1 of the UN Convention on Torture and Other Cruel, Inhumane and Degrading Treatment or Punishment (“the CAT”). Indeed, the perpetrator, as a public agent, was a key component of the definition adopted in the 1984 CAT, and the Commission expressly endorsed it (paras. 111, 116). This implies that for the African body, only violence committed by state agents according to the rules of international law of responsibility can qualify as an act of torture under the African Charter and the Maputo Protocol. On the other side, rape and gang rapes committed by a private person against another individual could at most be seen as an inhumane treatment.
This state-centric definition of torture is at odds with more recent developments on horizontal sexual violence, i.e. committed between two private persons, observed in the case-law of the Inter-American Court such as in the López Soto v. Venezuela judgment (2018) on rape and sexual slavery for instance committed by an individual. As summarised by D. Kravetz in her post, the facts were qualified as torture by the Inter-American Court, considering “the presence of intent, severe physical and mental suffering, and purpose to discriminate based on gender. [The Court] recalled […] that acts of violence against women by private actors can amount to torture when they are perpetrated with the State’s tolerance or acquiescence.”
In light of the wide-spread use of conflict-related sexual violence both by the DRC army and the M23 not only in 2012-2013 but more recently in 2025 (here), it would be important for the Commission to interpret rape as a form of torture, regardless of the state or non-state actors involved and for the M23, regardless of the potential support of Rwanda in this regard. In both situations, the State should be bound by the absolute prohibition of torture as an imperative norm of international law (jus cogens).
3. The innovative interpretation of the right to individual security
The right to individual liberty and security is protected by Article 4 of the African Charter, Article 6 of the Maputo Protocol, and Article 9 of the International Covenant on Civil and Political Rights, which the DRC has ratified. In practice, the interpretation of the right to liberty is well-established, while the content of the right to security is less developed. In the present case, the complainants claimed that the DRC military forces were responsible for the insecure climate when they fled from Goma to Minova, which was deliberately caused by their direct responsibility for the grave and massive violations described above. Quoting the General Comment no. 35 of the Human Rights Committee on Article 9 of the ICCPR, the Commission distinguished between “public security” – protection of the individual against abuses and violence committed by public agents – and “private security” – protection against violence inflicted to an individual by a private actor – (para. 124). In the Minova case, the Commission considered that the DRC’s responsibility was engaged for violating its negative and positive obligations to protect civilians in such a complex context (para. 124-126). Interestingly, at the reparation stage the Commission granted a measure of erection of a monument recalling to the military its role and raison d’être, i.e. the protection of the population (para. 199: “Never again. Military forces have the duty to protect us and not to humiliate us” – our translation from French).
Depending on future cases, the individual right to security in situations of armed conflicts and emergency situations as interpreted by the Commission is important and might also open the door to litigating the due diligence obligation of the States to prevent the population against violent threats and to restore peaceful conditions of life.
Litigating The Maputo Protocol in relation to Conflict-related Sexual Violence Before the African Commission on Human and Peoples’ Rights – Two Steps ahead and One Step Back
Written by Hélène TigroudjaIn a landmark decision adopted in 2024 and disclosed in April 2025 in Communication No. 700/18 dealing with the Minova case v. Democratic Republic of Congo (only available in French), the African Commission on Human and Peoples’ Rights (“the Commission”) concluded to the responsibility of the DRC in the grave and massive violations of rights of more than 1000 civilians, most of them being women and girls, committed by its army between 2012 and 2013 when fleeing the “Mouvement du 23 mars” (M23). These violations perpetrated in Minova and surroundings (Eastern DRC) covered a wide range of “barbaric acts” (para. 125), such as rapes, including gang rapes, killings, destruction of property and homes, illegal occupation of lands, and extorsion of property. The military forces, comprising up to 8,000 soldiers, were directly involved in these violations; however, most of the perpetrators were acquitted at the domestic level by a military court.
The complaint was brought before the African Commission by the Institute for Human Rights and Developments in Africa (IHRDA) and the Association des femmes avocates défenseures des droits humains on behalf of the 1016 identified victims. It alleged that the DRC had violated the 1981 African Charter on Human and Peoples’ Rights (“the Charter”) and the 2003 Protocol to the African Charter on the Rights of Women in Africa (“the Maputo Protocol”).
The State did not take part in the proceedings and did not comment on either the admissibility or the merits of the complaint. The sad irony of the State’s refusal to appear must be highlighted: the DRC refused to collaborate with the Commission in this grounded quest for justice for survivors of atrocities committed by its army, while in 2023, it lodged an inter-State proceeding before the African Court against Rwanda, denouncing similar atrocities allegedly committed by M23 with the support of Rwanda.
However, following its usual practice, the Commission examined, proprio motu, whether the admissibility criteria set out in Article 56 of the Charter were met. In this regard, the case did not raise major issues, except concerning the time elapsed between the final decision delivered by the military court (2014) and the submission of the complaint to the Commission (2018). As stressed by the Commission, Article 56-6 of the Charter does not impose a specific deadline but only a “reasonable period from the time local remedies are exhausted”. The problem in the present case, nevertheless, was that if the final domestic judgment was issued in May 2014 (para. 54), the victims never received it through official channels. They only learned about the decision in an “unofficial” manner in February 2018. Therefore, considering the insecurity context, the fear of reprisals, and the lack of notification of the judicial decision, the Commission considered that the delay in submitting the petition was reasonable (paras. 68-69).
On the merits, the Commission concluded to the violations of almost all provisions raised by the complainants, except the claim based on Article 14-2(a) of the Maputo Protocol, which requests the adoption by States of “appropriate measures to provide adequate, affordable and accessible health services, including information, education and communication programmes to women especially those in rural areas.” (For an open-access commentary on the Maputo Protocol, here.) The remedies granted by the Commission and based on Article 25 of the Maputo Protocol consist in public apologies, public acknowledgement of the violations committed by the DRC military forces, investigation and prosecution of all the perpetrators and symbolic measures such as the erection of a building in memory of the atrocities (paras. 170-203).
The present post cannot dwell on all the important aspects of the decision of the Commission in the fight against impunity in DRC, including when atrocities are perpetrated by the State’s regular military forces. As recalled by a commentator on the decision, the fight against M23 is not just “a crisis of security” but a “crisis of humanity”, and the DRC remains accountable for the behaviour of its army in this context. However, the post will focus on what seems to be the most crucial conclusions regarding the Commission’s stance on its jurisdiction over the Maputo Protocol (1), on the (disappointing) analysis of conflict-related sexual violence as a form of torture (2), and on the innovative approach to the right of individual security in the context of military operations against M23 members (3).
1. The “Maputo Protocol as an integral part of the African Charter”
This is not the first decision where the Commission affirmed its jurisdiction not only to interpret but also to adjudicate individual complaints based on the Maputo Protocol, once duly ratified by the State. In a previous case dealing with maternal mortality in Nigeria (Community Law Centre and others (on behalf of five victims) v. Nigeria, communication no. 564/15, paras. 93 et seq.), the Commission established that the Maputo Protocol was “an integral part” of the African Charter (para. 95). It added that:
the Maputo Protocol finds its legal basis in the provisions of Article 18 (3) of the African Charter which provides that it is the duty of every State to eliminate all forms of discrimination against women and to ensure the protection of women’s rights, as provided for in international declarations and conventions. (para. 96)
However, this precedent was disappointing, and all the claims made by the complainants on the lack of access to sexual and reproductive health services, the lack of information on sexual health, and the failure to implement a strong and gender-sensitive health policy were rejected by the Commission.
On the contrary in the present Minova case, the Commission reaffirmed its jurisdiction to “interpret” the Protocol (para. 98). It provided an innovative analysis, not only of sexual violence as a breach of the dignity and integrity of the victims (Articles 3-1 and 4-1 of the Protocol) but also on the survivors’ right to housing (Article 16 of the Protocol), and the right to sustainable development (Article 19(c) of the Protocol), harmed by the pillage and destruction of their homes, shelters, harvest, confiscation of lands, as part of their “productive resources” (paras. 151 et seq.)
In this regard, the Commission does more than merely “interpret” the Protocol; this case confirms that, in addition to the jurisdiction of the Court over the instrument mentioned in Article 27 of the Protocol, the Commission has established its ability to receive individual complaints on the Protocol’s basis. Therefore, if the previous case of Community Law Centre and others (on behalf of five victims) v. Nigeria was frustrating on its merits, this Minova complaint opens the door to an additional path for litigating women’s and girls’ rights in Africa.
2. Rapes and gang rapes as forms of torture: Room for improvement in the Commission’s approach
In International Human Rights Law, it is well-established that rape might fall under the qualification of torture depending on the factual elements of the case (ECHR, Aydin v. Türkiye, 1997, paras. 81-83). In that regard, since the facts of the Minova case directly involve the DRC military forces, there is no doubt for the Commission that the rapes and gang rapes inflicted to hundreds of victims must be analysed as acts of torture in breach with Article 5 of the Charter and Article 3-1 of the Maputo Protocol (paras. 108-117).
Nevertheless, one can regret the outdated definition of torture used by the Commission and based on Article 1 of the UN Convention on Torture and Other Cruel, Inhumane and Degrading Treatment or Punishment (“the CAT”). Indeed, the perpetrator, as a public agent, was a key component of the definition adopted in the 1984 CAT, and the Commission expressly endorsed it (paras. 111, 116). This implies that for the African body, only violence committed by state agents according to the rules of international law of responsibility can qualify as an act of torture under the African Charter and the Maputo Protocol. On the other side, rape and gang rapes committed by a private person against another individual could at most be seen as an inhumane treatment.
This state-centric definition of torture is at odds with more recent developments on horizontal sexual violence, i.e. committed between two private persons, observed in the case-law of the Inter-American Court such as in the López Soto v. Venezuela judgment (2018) on rape and sexual slavery for instance committed by an individual. As summarised by D. Kravetz in her post, the facts were qualified as torture by the Inter-American Court, considering “the presence of intent, severe physical and mental suffering, and purpose to discriminate based on gender. [The Court] recalled […] that acts of violence against women by private actors can amount to torture when they are perpetrated with the State’s tolerance or acquiescence.”
In light of the wide-spread use of conflict-related sexual violence both by the DRC army and the M23 not only in 2012-2013 but more recently in 2025 (here), it would be important for the Commission to interpret rape as a form of torture, regardless of the state or non-state actors involved and for the M23, regardless of the potential support of Rwanda in this regard. In both situations, the State should be bound by the absolute prohibition of torture as an imperative norm of international law (jus cogens).
3. The innovative interpretation of the right to individual security
The right to individual liberty and security is protected by Article 4 of the African Charter, Article 6 of the Maputo Protocol, and Article 9 of the International Covenant on Civil and Political Rights, which the DRC has ratified. In practice, the interpretation of the right to liberty is well-established, while the content of the right to security is less developed. In the present case, the complainants claimed that the DRC military forces were responsible for the insecure climate when they fled from Goma to Minova, which was deliberately caused by their direct responsibility for the grave and massive violations described above. Quoting the General Comment no. 35 of the Human Rights Committee on Article 9 of the ICCPR, the Commission distinguished between “public security” – protection of the individual against abuses and violence committed by public agents – and “private security” – protection against violence inflicted to an individual by a private actor – (para. 124). In the Minova case, the Commission considered that the DRC’s responsibility was engaged for violating its negative and positive obligations to protect civilians in such a complex context (para. 124-126). Interestingly, at the reparation stage the Commission granted a measure of erection of a monument recalling to the military its role and raison d’être, i.e. the protection of the population (para. 199: “Never again. Military forces have the duty to protect us and not to humiliate us” – our translation from French).
Depending on future cases, the individual right to security in situations of armed conflicts and emergency situations as interpreted by the Commission is important and might also open the door to litigating the due diligence obligation of the States to prevent the population against violent threats and to restore peaceful conditions of life.
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