The International Criminal Court (ICC) is by essence complementary to national criminal jurisdictions of States Parties. It is only seized if the State party is unwilling or unable genuinely to carry out the investigation or the prosecution (Art. 17(1) (a and b) of the Rome Statute).
The Democratic Republic of the Congo falls into the situation described in Article 17(1) (a and b), that of being unable genuinely to carry out investigations or prosecutions against alleged perpetrators of war crimes, crimes against humanity, or genocide. This is why the DRC referred its situation to the ICC Prosecutor after one or more crimes under the jurisdiction of the Court seemed to have been committed and had asked the Prosecutor to investigate this situation to determine whether one or more of the identified persons should be accused of having committed such crimes.
In this case, the ICC only tries military commanders and other superiors (Art. 28 (a and b)). In no way does this mean that those under their effective command and control who took part in the perpetration of war crimes, crimes against humanity and genocide as co-perpetrators or accomplices are thus considered innocent or should not be prosecuted and tried! This is where the responsibility of the State Party to the Rome Statute of the ICC is relevant. Indeed, the State must take every possible step so that the alleged perpetrators of the crimes are genuinely prosecuted while their superiors are tried by the ICC.

To date, the DRC is the country that has most benefitted from the action of the ICC (of all the cases before the ICC, three have been referred by the DRC, including The Prosecutor v. Thomas Lubanga Dyilo, The Prosecutor v. Bosco Ntaganda and The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui). However, the DRC has done little else to demonstrate its firm determination to fight impunity for serious crimes on its territory even though governmental authorities claim the DRC is the only African country to cooperate with the ICC. This is no favor for the Court.
The Congolese army, the national police and every other State-supported institution are full of military officials and civilians suspected of having committed international crimes-crimes committed alongside those being tried by the Court.

The case of Bosco Ntaganda, whom the Congolese government does not want to refer to the ICC in the name of “peace building” (despite an ICC warrant for his arrest) is a sign that casts doubt upon the determination of the DRC to fight against impunity for international crimes. Real and long-lasting peace can only result from justice and it thus has to be implied by a fight against impunity, which means punishing perpetrators of crimes and granting compensations to the victims. Thinking differently amounts to being wrong!

The process of harmonization between national law and the Rome Statute of the ICC confirms the principle of complementarity included in the Rome Statute. The inclusion of crimes under the jurisdiction of the Court in national law is really what makes the ICC a court of last resort while attesting the willingness of the State to genuinely prosecute on its territory the alleged perpetrators of crimes falling within the jurisdiction of the Court. As a reminder, the DRC has still not adopted nor promulgated the implementation bill for the Statute of the ICC which would guarantee that prosecutions are initiated to fight against such crimes at the national level.

The DRC should prosecute criminals under its jurisdiction- and in doing so-participate in the prevention of new crimes. The harmonization between national Congolese law and the Rome Statute of the International Criminal Court is a precondition.

Yet, the DRC will have to go even further in is stated “willingness” to fight against impunity for serious crimes by applying the principle of universal jurisdiction as other States parties, such as Belgium, Germany, Senegal and the United Kingdom already do. This would enable Congolese courts to prosecute the perpetrators of international crimes wherever the crimes was committed in the world.

Prince Albert Kumwanba N’Sapu is a researcher with the Congolese NGO Action Contre l’Impunité pour les Droits Humains (ACIDH/RDC).

Translation from French is informal and provided by CICC secretariat.

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After the death of its President, Lansana Conté, in December 2008, Guinea experienced a coup d’état led by Moussa Dadis Camara, head of the Guinean junta. After taking power, Camara promised to refrain from running for office during the transitory period expected to end in January of 2010. In September 2009, however, Dadis Camara announced he would be candidate for the presidential elections.

On 28 September 2009-Independence Day-activists from the Guinean opposition reacted to this announcement by organizing a demonstration in a stadium of Conakry, the Guinean capital city. The demonstration was soon quelled by soldiers who allegedly shot at the crowd. According to Thierno Maadjou Sow, President of the Guinean Organization for Human Rights (OGDH), the military repression resulted in the “deaths of some157 people and left 1,253 wounded” while many women were raped.

The international community widely condemned Dadis Camara’s military junta for the alleged crimes. The Guinean Head of State dismissed allegations by saying Camara did not control the army.

On 14 October 2009, the Prosecutor of the International Criminal Court (ICC) said the situation in Guinea, including the repression of the demonstration of 28 September 2009, was under preliminary examination.

According to Fatou Bensouda, Deputy Prosecutor of the ICC, the Office of the Prosecutor has at its disposal elements indicating that rapes were committed: Women were abused or otherwise brutalized in Conakry’s stadium, apparently by men in uniform who used their arms, Bensouda said.
Aymeric Rogier, investigator at the ICC recalls that at this stage the examination of the situation in Guinea has not yet reached the investigation phase: “We are only in the midst of the preliminary phase, the one during which we gather, evaluate, and analyze pieces of information, especially to determine whether the abuses that were committed can fall within the jurisdiction of the ICC,” he explained.

Guinea is not the only situation to be under preliminary examination by the Office of the Prosecutor (OTP). Apart from the four situations under investigations by the ICC, the OTP is allegedly analyzing information about at least nine situations on four continents.

We all wait to see if the ICC will really try to prosecute the highest leaders of the alleged crimes and whether Guinea will be willing and able to prosecute the alleged perpetrators at the national level. According to the African Encounter for the Defense of Human Rights (RADDHO), an NGO member of the Coalition for the International Criminal Court (CICC), “In the face of the failure of the judicial system”, the ICC would be “the only jurisdiction to have the capacity to investigate and prosecute the perpetrators of the crimes against humanity that were consistently committed in Guinea.” In any case, it is crucial that those responsible be tried - whether before the ICC or not.

Adélaïde Blot is a fourth year student of translation at the ISIT (Institute of Intercultural Management and Communication) in Paris.

Translation from French is informal and provided by CICC secretariat.

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The International Criminal Court (ICC) handed down an Appeal Judgment this afternoon that effectively excludes crimes of sexual slavery and inhuman treatment from the on-going trial of rebel leader Thomas Lubanga, from Ituri, Democratic Republic of Congo (DRC).

Thomas Lubanga is on trial in The Hague for recruiting and actively using children under 15 years as soldiers in his rebel group, the UPC, during the conflict in North Eastern DRC in 2002-3. However, it is widespread knowledge that girls were also recruited and used by rebel groups, including the UPC, as soldiers as well as sex slaves or “wives”. “They have the added burden of cooking, cleaning and sex service on top of soldiering,” clarified one witness during the on-going trial.

Girls as young as 11 were kidnapped brought to camps and allocated to commanders who systematically and brutally abused them. “Commanders would get them pregnant, and these girls had to leave the camp and go to the village” explained another witness. Girl victims have testified in closed sessions due to their extreme vulnerability.

Through the ICC’s innovative procedure, which has allowed 97 former child soldiers to be represented in the Court process, victims’ lawyers filed an application trying to have sexual slavery and inhuman treatment recognised as part of the case. This would begin to break the silence about the use of girls by rebel groups and it would also allow girls to benefit from reparation that the ICC and its pioneering Trust Fund for Victims might award if there is a conviction. If this trial is about the active use of children in hostilities, it must recognize the experience of girls. It is a shame the Prosecutor failed to include sexual violence charges from the outset. Nonetheless, there should be a mechanism to modify the scope of the prosecution if facts come to light during the trial, as they have here.

By Mariana Goetz
Program Adviser, REDRESS

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On 2 December 2009, the Appeals Chamber of the International Criminal Court (ICC) delivered a summary of the judgment reversing the decision of Pre-Trial Chamber II that had granted the request of Jean-Pierre Bemba Gombo for interim release. It is worth recalling that Pre-Trial Chamber II had asserted that “changed circumstances” had warranted the modification of its previous ruling on detention.

Credit: ICC-CPI

Logic would have it that the conditions of setting any interim release are initially fixed before even ruling on such a possibility. One of these conditions included the will and the availability of a designated state party to receive the accused on its territory. However, the Appeals Chamber underscored the lack of cooperation on behalf of the states in question. With the conditions not met, the interim release could quite simply not be carried out.

News of this reversal spread quickly in Central African Republic and brought relief to scores of victims. As for human rights organizations on the ground, they had voiced their concern over Jean-Pierre Bemba ’s then-impending release. The concern was first and foremost about safety, not only the safety of victims themselves, but for all those assist ing them (legal representatives, intermediarie s, et cetera ).

The recent ICC decision has only reinforced victims ‘ hope to see justice . Victims now await for the opening of the Bemba trial scheduled for April 2010.

Sebastien Mboutou, Lead Central Africa Member of the Central African Coalition for CPI

Translation from the original French is informal and provided by the CICC Secretariat.

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