Which national courts should try international crimes?

The International Center for Transitional Justice has issued this report on a program they recently sponsored in the Democratic Republic of the Congo:

In cooperation with the High Judicial Council, the International Center for Transitional Justice (ICTJ) held a seminar today with senior representatives of the Congolese military and civilian judiciary and prosecutor’s office to discuss the dual jurisdiction of military and civilian courts over international crimes in the Democratic Republic of the Congo (DRC). 

The event brought together judges from the High Judicial Council, the Supreme Court of Justice, the Office of the Attorney General of the Supreme Court, as well as judges from the courts of appeals, military courts, attorney general offices and military prosecution offices from North and South Kivu and Orientale Province. 

Despite the official end of war, the DRC continues to be plagued by violence, with high rates of killing, rape, and forced displacement of civilians by armed groups. So far, the Congolese courts have faced a number of obstacles in prosecuting these crimes. 

Following the adoption of Organic Law N. 13/011-B in 2013, civilian courts, namely the Courts of Appeals, were granted jurisdiction over serious crimes, such as genocide, war crimes, and crimes against humanity, committed in the DRC. 

Previously, only Congolese military courts could prosecute these crimes, since the adoption of the Military Justice Code of 1972. As a result, military judges have developed a certain expertise in prosecuting these crimes. 

While international crimes are now under a dual jurisdiction of both the military and civilian courts, only a very limited number of such cases have been initiated before the Courts of Appeals. 

Seminar participants discussed the importance of sharing their experiences in order to overcome the institutional, political and legislative challenges and obstacles faced by civilian courts in investigating and prosecuting international crimes. They also analyzed the role of the High Judicial Council in supporting and facilitating cooperation between civilian and military courts in prosecuting cases. 

"'Experience sharing' between civilian and military jurisdictions is essential to overcoming the current technical and operational obstacles faced by civilian courts when investigating and prosecuting international crimes," said Anna Myriam Roccatello, ICTJ Deputy Program Director. 

Participants discussed the implementation of the Rome Statute of the International Criminal Court, the law on international crimes to be applied by the civilian courts, as well as criteria for the direct application of Rome Statute provisions by military courts. 

"Although the 2013 law on court organization and functioning grants the Courts of Appeals jurisdiction over genocide, war crimes and crimes against humanity, it does not explicitly outline the applicable legal provisions. The (civilian) Criminal Code does not include provisions on international crimes, or their definition," explained Myriam Raymond-Jetté, ICTJ’s Criminal Justice Program Officer in the DRC. 

Reflecting on the progress, challenges and obstacles of the dual jurisdiction system, participants issued a set of recommendations, addressed to Congolese institutions, regarding: the legislative reforms needed to harmonize national law with the Rome Statute; the monitoring of cases of international crimes initiated before military courts; the initiation of investigations and prosecution of international crimes by the civilian courts; and needed coordination between civilian and military courts in the implementation of their dual jurisdiction. 

The seminar was organized by ICTJ, in cooperation with the High Judicial Council and the United Nations Development Programme, with the financial support of the European Union.