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

58 Chapter 2
interpreted article 4 thereof (which is in pari materia with the 2005 law) to
outlaw the immunity of state officials as raised by Mengistu. The High
Court and Federal Supreme Court sentenced Mengistu to death for
genocide. 129 In the judgment, the High Court interpreted the Genocide
Convention and stated that the courts in Ethiopia were authorised to
prosecute Mengistu for the crime of genocide 130 despite the fact that acts
of genocide found in article 281 of the Penal Code of Ethiopia, 1957, had
exceeded and contravened the requirements under the Genocide
Convention. 131
The Democratic Republic of the Congo (DRC), a state party to the
Rome Statute since 2002, is currently considering the enactment of a law
implementing the Rome Statute. A Bill to that effect is yet to be passed by
Senate. The DRC has had two draft Bills on the implementation of the
Rome Statute: the first drafted in 2001 and the second drafted in 2002. In
this section, both draft Bills are considered.
In 2001, the DRC prepared the Implementation of the Statute of the
International Criminal Court Draft, aimed at integrating the norms of the
Rome Statute into the Congolese law following the ratification of the
Rome Statute on 30 March 2002. It also required judicial cooperation
between the ICC and Congolese institutions. The prosecution and
punishment of international crimes recognised under the Rome Statute
were aspects that the draft law was meant to address.
Article 9 of the 2001 Draft Legislation provides that it ‘applies to all in
like manner, with no distinctions made based on official capacity’. It
expressly states that the ‘immunities or rules of special procedures
associated with persons of official capacity, by virtue of internal or
international law, do not prevent the judge from exercising his or her
competence with regards to the person in question’. 132 In October 2002,
the DRC drafted a bill to replace the draft Bill of 2001, called Draft Law
Implementing the Rome Statute of the International Criminal Court, Draft
2 of October 2002. 133 The 2000 Draft Bill has not yet been promulgated
into law. Its purpose is to prosecute and punish those crimes addressed by
the Rome Statute, and to regulate judicial cooperation with the ICC.
129 On the analysis of Mengistu trial, see FK Tiba ‘The Mengistu genocide trial in
Ethiopia’ (2007) 5 Journal of International Criminal Justice 513-528.
130
ILDC 555(ET 1995), 77.
131 Special Prosecutor v Col Haile-Mariam and 173 Others Preliminary Objections, Criminal
File 1/87, Decision of Meskerem 29, 1988 EC (GC).
132
Art 9 Implementation of the Statute of the International Criminal Court Draft 1 of
2001. The draft law is annexed in GM Musila Between rhetoric and action: The politics,
processes and practice of the ICC’s work in the DRC (2009) 91-113.
133
Draft Law Implementing the Rome Statute of the International Criminal Court 2 of
October 2002, modified by the convocation organised by the Ministry of Justice of the
Democratic Republic of the Congo on 21 to 23 October 2002 in Kinshasa and on 24
and 25 October 2002 in Lubumbashi. The Draft Law is also annexed in Musila (as
above).