Prosecuting International Crimes in Africa - PULP - University of ...

Positive complementarity and the fights against impunity in Africa 259
to enhance the capacity of national jurisdictions to investigate and
prosecute serious crimes of concern to the international community. 65
3 Positive complementarity and voices from the
field
3.1 Democratic Republic of the Congo and positive
complementarity
The Democratic Republic of the Congo (DRC) signed the Rome Statute on
8 September 2000 and ratified the treaty on 11 April 2002. On 19 April
2004, the DRC referred the situation to the prosecutor of the ICC who
announced an intention to open investigation on 23 June 2004. The ICC
is investigating crimes committed from 1 July 2002 when the Rome Statute
entered into force.
Shortly after the DRC ratified the Rome Statute, the Congolese
Parliament amended the country’s Military Criminal Codes, and granted
military courts exclusive jurisdiction over international crimes. 66 As a
monist state, international instruments ratified by the DRC apply directly
to the country as long as these are not contrary to law and custom. 67 While
the Preamble to the revised Code acknowledges that the DRC had ratified
the Rome Statute, it did not adopt the Statute’s definitions of genocide,
war crimes, and crimes against humanity. Instead, the Code proposed
alternate, unclear definitions. 68 Military courts in the DRC have exclusive
jurisdiction over genocide, war crimes and crimes against humanity, even
if the perpetrator is a civilian. 69 There have been concerns about military
courts and their jurisdiction over civilians as it violates the Principles and
Guidelines on the Right to a Fair Trial and Legal Assistance in Africa. 70 It
is believed that the Rome Statute Bill currently before the DRC Parliament
(as of November 2010) will resolve this problem as it would transfer
jurisdiction over international crimes to national courts and make
65
Assembly of States Parties Resolution RC/Res 1 adopted at the 9th plenary meeting on
8 June 2010; http://www.icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-Res.1-
66
ENG.pdf (accessed 11 August 2010).
Loi 023/2002 du 18 Nov 2002 portant Code Judiciaire Militaire and Loi 024/2002 du
67
68
18 Nov 2002 portant Code Pénal Militaire.
Arts 153 and 215 Constitution of Democratic Republic of Congo, 2006.
M Adjami and G Mshiata ‘Democratic Republic of the Congo: Impact of the Rome
Statute and the International Criminal Court’ International Centre for Transitional
69
Justice Briefing Paper, May 2010 (ICTJ DRC Briefing Paper).
International Centre for Transitional Justice (ICTJ) ‘The Democratic Republic of
Congo must adopt the Rome Statute implementation law’ April 2010; http://
www.ictj.org/static/Factsheets/ICTJ_DRC_RomeStatuteBill_fs2010.pdf (accessed 10
70
September 2010).
Principle L(c) of the Principles and Guidelines on the Right to a Fair Trial and Legal
Assistance in Africa, adopted in 2001; M Wetsh’okonda Koso ‘Military justice and
human rights: An urgent need to complete reforms’ Open Society Initiative for
Southern Africa (2010) 44.