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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