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

260 Chapter 12
provision for victims’ participation and due process guarantees in domestic
proceedings in the DRC. 71
Despite these limitations, the military courts have proceeded to
adjudicate over crimes committed in the DRC. The military court of the
garrison of Haut-Katanga, Katanga Province, on 5 March 2009 convicted
the Mai Mai commander Gédéon Kyungu Mutanga and twenty other Mai
Mai combatants for crimes on major charges, including crimes against
humanity. 72 According to Human Rights Watch (HRW), ‘[t]he military
trial was also significant because the judges applied the definition of crimes
against humanity as found in the Rome Statute of ICC [...] and its
application by the military court illustrates the ICC's impact beyond its
own trials in The Hague’. 73
Furthermore, the military courts have also invoked the provisions of
the Rome Statute in cases like Mutins de Mbandaka, 74 Songo Mboyo, 75
Bongi, 76 Kahwa 77 and Bavi, 78 involving crimes under the Rome Statute. 79
In these cases, victims participated as either witnesses or through their
legal representatives and some of them who were interviewed were happy
to see that the perpetrators of the crimes were brought to justice by the
DRC government. 80
In furtherance of the principle of positive complementarity, the OTP
can assist the DRC national judicial system to prosecute crimes under the
Rome Statute. The strengthening of the DRC legal system and sharing of
case files related to crimes committed in the DRC could be an opportunity
for the court to build the capacities of national systems. The case of
Thomas Lubanga Dyilo serves as an illustration.
71
ICTJ (n 69 above).
72 Report of the Secretary-General of the UN to the General Assembly on Children and
armed conflict, A/64/742–S/2010/181 64th session Agenda item 65(a), Promotion
and protection of the rights of children, para 26, http://www.reliefweb.int/rw/
RWFiles2010.nsf/FilesByRWDocUnidFilename/EGUA-85NMA2-full_report.pdf/
$File/full_report.pdf (accessed 10 September 2010).
73 HRW Press Release ‘DR Congo: Militia leader guilty in landmark trial: Crimes against
humanity conviction an important step for justice’ 10 March 2009, http://
www.hrw.org/en/news/2009/03/10/dr-congo-militia-leader-guilty-landmark-trial
(accessed 10 September 2010).
74 TMG de Mbandaka Affaire Mutins de Mbanaka 12 January 2006, PR 086/05 (First
tribunal); TMG de Mbandaka, Affaire Mutins de Mbandaka, 20 June 2006, RP 086/05 -
RP 101/06 (Appeal tribunal) and CM de l’Equateur, Affaire Mutins de Mbandaka, 15
June 2007, RPA 615/2006 (Final appeal).
75
TMG de Mbandaka, as above, Affaire Songo Mboyo, 12 April 2006, RP 084/05 (first
tribunal) and CM de l’Equateur, Affaire Songo Mboyo, 7 June 2006, RPA 014/06
(Appeal tribunal).
76
TMG de l’Ituri Affaire Bongi, 24 March 2006, RP 018/06.
77 TMG de l’Ituri Affaire Kahwa, 2 August 2006, RP 039/06.
78 TMG de l’Ituri Affaire Bavi, 19 February 2007, RP 101/06.
79
For a discussion of the cases and the direct application of the Rome Statute in DRC see
Avocats Sans Frontieres ‘The application of the Rome Statute of the International
Criminal Court by the courts of Democratic Republic of the Congo’ (2009) (ASF DRC
Report).
80 ICTJ DRC Briefing Paper (n 69 above).