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.