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

Positive complementarity and the fights against impunity in Africa 261
On 19 March 2005, DRC issued an arrest warrant against Thomas
Lubanga Dyilo, charging him with the crime of genocide 81 and crimes
against humanity, 82 including the crimes of murder and illegal
detention. 83 He was detained in the DRC when the ICC arrest warrant was
issued and Thomas Lubanga Dyilo was charged with the war crimes of
recruitment and enlistment of children as child soldiers. In its decision to
issue an arrest warrant against Thomas Lubanga Dyilo, the Pre-Trial
Chamber stated: 84
[F]or the purpose of the admissibility analysis of the case against Mr Thomas
Lubanga Dyilo, the Chamber observes that since March 2004 the DRC
national justice system has undergone certain changes, particularly in the
region of Ituri where a Tribunal de Grande Instance has been re-opened in
Bunia. This has resulted inter alia in the issuance of two warrants of arrest by
the competent DRC authorities for Mr Thomas Lubanga Dyilo in March
2005 for several crimes, some possibly within the jurisdiction of the Court,
committed in connection with military attacks from May 2003 onwards and
during the so-called Ndoki incident in February 2005. Moreover, as a result of
the DRC proceedings against Mr Thomas Lubanga Dyilo, he has been held in
the Centre Pénitentiaire et de Rééducation de Kinshasa since 19 March 2005.
Therefore, in the Chamber’s view, the Prosecution’s general statement that the
DRC national judicial system continues to be unable in the sense of article
17(1) (a) to (c) and (3) of the Statute does not wholly correspond to the reality
any longer.
Under positive complementarity, the OTP would have encouraged the
DRC government to include the crime of conscription and the enlistment
of child soldiers in the charge sheet against Thomas Lubanga Dyilo. 85 This
is because at the time the OTP made application for the arrest of Thomas
Lubanga Dyilo, the DRC national justice system was working and the
state was meeting its international obligation in terms of addressing
impunity. 86 The court only proceeded against Thomas Lubanga Dyilo
because the DRC did not indict him on the conscription and enlistment of
child soldiers. 87
The OTP is beginning to appreciate the need for positive
complementarity in its activities. For example, in September 2008, the
OTP announced the opening of a third case in the DRC, focusing on
alleged crimes committed in Kivu provinces by a multiplicity of
81 Art 164 DRC Military Code.
82 Arts 166 - 169 DRC Military Code.
83 Prosecutor v Dyilo (n 40 above) Decision on the Prosecutor’s Application for a Warrant
of Arrest, art 58 para 33.
84 Prosecutor v Dyilo (n 40 above) para 36.
85 N Jurdi ‘The prosecutorial interpretation of the complementarity principle: Does it
really contribute to ending impunity on the national level?’ (2010) 10 International
Criminal Law Review 73, 90.
86 W Schabas ‘Complementarity in practice: Some uncomplimentary thoughts’ (2008) 19
Criminal Law Forum 5, 25.
87 Prosecutor v Dyilo (n 40 above) para 37.