Wednesday, November 14, 2018

Congolese military justice and the 2018 Nobel Peace Prize

The 2018 Nobel Peace Prize award to Dr. Denis Mukwege (DR Congo) and Nadia Murad (Iraq) brings the entire world’s attention to sexual violence in armed conflict.  Prof. Helen Durham brilliantly sums up the development of international mechanisms for holding perpetrators accountable in her October 11, 2018 ICRC Humanitarian Law and Policy blog post.

Therein, she aptly notes that “..whilst the impact of the jurisprudence of international courts and tribunals on this issue has been significant, domestic systems are critical to any discussion of accountability, and States must ensure that it is possible to investigate, prosecute and punish wartime sexual violence under their domestic law.”  (Emphasis in original, footnote omitted.)

In this regard, Dr. Mukwege recently praised the strides made by the Congolese military justice system.  See “Lutte contre les violences sexuelles: Dr Mukwege félicite la justice militaire”, Radio Okapi, 5 September 2018.

Only in February 2016, nearly 14 years after its ratification by the DR Congo in April 2002, was the Rome Statute domesticated by amendments to the Congolese Penal Code.  However, domestic prosecution of these most grievous of crimes was not delayed, thanks to the bold initiative of Congolese military magistrates to apply the Rome Statute directly in courts-martial via the DR Congo Constitution’s supremacy clause.  By prosecuting and obtaining convictions in Congolese courts on charges brought directly under the Rome Statute’s substantive provisions, Congolese military magistrates actuated the principle of ICC complementarity to domestic systems, and have spawned a body of domestic Congolese jurisprudence. 

The development of this law is thematically chronicled by Professor Jacques B. Mbokani of the University of Goma, in his study Congolese Jurisprudence under International Criminal Law: An Analysis of Congolese Military Court Decisions Applying the Rome Statute (Johannesburg: Open Society Initiative for Southern Africa, and African Minds, 2016 (French original) and 2017 (English translation)), and his recent follow-on La Jurisprudence congolaise relative aux Crimes de Droit international 2016-2018 (Kinshasa: Club des amis du droit du Congo, 2018 (discussing cases brought since domestication of the Rome Statute)).

A testament to Congolese military justice’s international leadership in actuating ICC complementarity by domestically implementing International Criminal Law, including the repression of sexual violence in armed conflict, is the fact that one of its senior magistrates was selected as the inaugural Chief Prosecutor for the Special Criminal Court for the Central African Republic.

In the mixed post- and ongoing conflict environment of the DRC, military justice is crucial to the Congolese justice sector writ-large.  The lion’s share of overall criminal jurisdiction lies in military courts: they have unique personal jurisdiction over not only the armed forces, but also over all “forces of order” including the police; as well as subject matter jurisdiction over any crime committed with a “weapon of war”, meaning any firearm.  Only since 2013 has legislation been adopted to begin sharing jurisdiction over Rome Statute-defined crimes with civilian courts, and the civilian criminal justice sector looks to the military for guidance, training and precedent in exercising its newly acquired concurrent jurisdiction.

Though the gains realized by Congolese military justice these past 10+ years have been great, continued support from the international community remains critical as the Congolese continue to build a foundation for their criminal justice system throughout the vast territory of the DRC, in order to ensure enduring accountability for the most grievous of crimes, including wartime sexual violence.

David A. Buzard, Esq.
Norfolk Virginia | Kinshasa DR Congo

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