A Tug of War for Justice — Confusion over Complementarity and Cooperation in the Congo

Patryk I. Labuda joins JiC for this timely and important update on critical events relating to international criminal justice in the Democratic Republic of Congo (DRC). Patryk is a Ph.D. Candidate at the Graduate Institute of International and Development Studies and a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights.

A family flees violence and heads towards Goma in the Eastern DRC (Photo: James Akena / Reuters)

A family flees violence and heads towards Goma in the Eastern DRC (Photo: James Akena / Reuters)

The Democratic Republic of Congo (DRC) has been the most active state party to the International Criminal Court (ICC). Twelve years after President Kabila referred his country to the ICC, three Congolese nationals — Thomas Lubanga, Germain Katanga, and Mathieu Ngudjolo — have been tried and another, Bosco Ntaganda, is currently on trial before the Court. A fifth Congolese, Jean Pierre Bemba, is also being tried in The Hague but on charges stemming from the situation in the neighbouring Central African Republic. He and three other DRC nationals also face obstruction of justice charges relating to Bemba’s case. In total, the ‘Congolese cases’ account for over half the ICC’s trials to date.

Yet even by these standards, the last few weeks in the DRC have seen remarkable developments that go to the very heart of the ICC’s mandate and raise interesting questions for the international criminal justice project more generally. First of all, after nearly fifteen years of political horse-trading, the Congolese authorities finally incorporated the Rome Statute into domestic law. On 2 January 2016, President Kabila officially promulgated a series of legislative bills, known collectively as la loi de mise en œuvre du Statut de Rome, which brings key aspects of Congolese criminal law into line with international standards. Long resisted by parts of the DRC’s political establishment, the bills’ adoption concluded a lengthy struggle led by Congolese civil society and international NGOs under the banner of complementarity, i.e. the principle that gives states priority to prosecute international crimes. Though not a legal obligation flowing from the Rome Statute itself, it is widely believed that domesticating the ICC’s definitions of crimes, procedural safeguards, and other cooperation obligations will enable national judicial systems to more effectively meet the challenges of prosecuting international crimes domestically.

It quickly became apparent that these moves were more than just a symbolic victory for the international justice and human rights community. Although international crimes have already been prosecuted before some Congolese military tribunals, the first test of this new legislation may come sooner than anyone anticipated.

On 19 December 2015, the ICC announced that Katanga and Lubanga had been transferred back to the DRC to serve out their sentences. This caught many ICC observers by surprise. It has long been assumed that international criminal defendants not only prefer trials before international tribunals (considered more impartial than their domestic counterparts) but also that the conditions at Scheveningen prison, used by the ICC as well as other tribunals in The Hague, are relatively comfortable — especially when compared to prisons in the DRC.

Yet what is most surprising about Katanga and Lubanga’s transfer is that both risk prosecution by the Congolese authorities once they complete their ICC-mandated sentences. It should be remembered that Lubanga and Katanga were already under investigation in the DRC before their surrender to the ICC. A the time, this prompted some observers to question whether the ICC’s exercise of jurisdiction in these cases was in conformity with the principle of complementarity, which seemed to require that the ICC defer to the Congolese investigations. The question today is whether the Congolese authorities can re-open those investigations when Katanga and Lubanga are back in Congo. Sure enough, just a few days after their transfer to Kinshasa, Human Rights Watch reported that the Congolese government plans to try Katanga once his ICC-mandated sentence expires. Given that the former rebel commander is set to be released later this month, his decision to willingly go back to the DRC seems astonishing and incomprehensible in equal measure.

If and when it materializes, Katanga’s domestic trial before the High Military Court in Kinshasa raises further questions about the nature of complementarity. For one, the military judges will surely apply the recently domesticated Rome Statute in this case. La loi de mise en œuvre introduced a number of fair trial guarantees that had hitherto been conspicuously absent from the Congolese code of criminal procedure. While Congolese military tribunals have in the past applied some Rome Statute principles in some trials, this will mark the first time that Congolese defendants are held to account in conformity with internationally recognised principles of due process.

But the real question is how Katanga’s (and presumably, at some point in the future, Lubanga’s) trial can be squared with the principle of double jeopardy. Article 20 (2) of the Rome Statute provides that “[n]o person shall be tried by another court for [international crimes] for which that person has already been convicted or acquitted by the [ICC].” This provision is hardly a model of clarity. Crimes against humanity and genocide are by their very nature composites of multiple crimes, so it is not very hard to argue that defendants were prosecuted for only one underlying crime (for instance, murder as a crime against humanity) but not another (for instance, rape as a crime against humanity).

Given the ICC Prosecutor’s practice of charging suspects with only a few crimes (usually those easiest to prove), there is a very real prospect that people convicted or acquitted by the ICC will, after their release, face domestic prosecutions in relation to charges that the ICC ‘missed’. Not only is this a serious challenge to the idea of equitable justice, but it also undermines the principle of complementarity: what is the point of international trials if people tried in The Hague then face domestic prosecutions for conduct closely related (though not identical) to the crimes pursued by the ICC? How the Congolese answer this question may have knock-on effects in other situations where defendants, after serving their sentences, will presumably have second thoughts about the prospect of returning home.

As news of Katanga and Lubanga’s transfer to Kinshasa broke, another remarkable story was unfolding in the DRC. On 7 December 2015, the Congolese government announced it had custody of Ladislas Ntaganzwa. Wanted on charges of genocide and crimes against humanity and on the run for nearly twenty years, Ntaganzwa is one of nine fugitives who managed to evade justice before the International Criminal Tribunal for Rwanda (ICTR). In 2012, ahead of the ICTR’s planned closure, Ntaganzwa’s case was transferred back to the Rwandan prosecution authorities, but little was known about his whereabouts… until now.

Since Ntaganzwa’s arrest in eastern Congo several weeks ago, Rwanda has moved forward with a formal extradition request for him. But the Congolese are stalling. In Kinshasa, where he is currently being detained, rumours abound that the Congolese want to swap Ntaganzwa for Laurent Nkunda, a former militia leader who wrought havoc in eastern Congo in the 2000s but who escaped to Rwanda in 2009. Citing Rwanda’s failure to comply with earlier arrest warrants and extradition requests, Congo insists the controversy has to be resolved amicably.

While this tug of war over Ntaganzwa’s extradition may seem like a regional tempest in a teapot, it raises very interesting questions about the nature and scope of cooperation obligations under international criminal law. It should be remembered that, under the UN Security Council resolutions establishing the ICTR, states had an obligation to cooperate with the Arusha-based tribunal. There is no doubt that this obligation would have also encompassed the duty to extradite Ntaganzwa so long as the case remained before the ICTR. However, now that the ICTR has officially closed (with the Mechanism for International Criminal Tribunals performing only its residual duties) and the Ntaganzwa case has been referred back to Rwanda, it is less clear what legal rules apply. Does the DRC still have an obligation to unconditionally extradite Ntaganzwa to Rwanda? Or can the DRC negotiate his transfer in line with general extradition rules?

There is an additional twist to this story. When Congo demanded Nkunda’s extradition several years ago, Rwanda refused to comply, citing the fact that the Congolese criminal code still had the death penalty. While this is a perfectly valid legal, as well as human rights-friendly, justification under general rules of extradition, it struck many observers as disingenuous. After all, Rwanda only joined the abolition club in 2007, whereas Congo has respected a moratorium on the death penalty since 2003. Though it is likely that the Ntaganzwa controversy will be resolved through diplomatic channels, one senses that the Congolese authorities are relishing the opportunity to teach Rwanda a lesson or two about extradition.

These kinds of disputes are not unexpected, and yet one point is worth highlighting. When it ratified the ICC Statute, few people expected the DRC to be a major player in the development of international justice. If the last few weeks are any indication, the central African country will continue to influence our understanding of complementarity, cooperation and other key concepts in international criminal law.


About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Complementarity, Democratic Republic of Congo, Germain Katanga, Guest Posts, International Criminal Court (ICC), International Criminal Justice, Rwanda, Thomas Lubanga and tagged . Bookmark the permalink.

3 Responses to A Tug of War for Justice — Confusion over Complementarity and Cooperation in the Congo

  1. el roam says:

    Thanks for a very interesting post . Just worth to mention the :

    ” International Covenant on Civil and Political Rights ” ( I can only presume that Kongo is ratified on ) and article 14 ( 7) which reads as follows :

    7. No one shall be liable to be tried or punished again for an offense for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

    End of quotation :

    So , can also be of course , the source for prohibition of ” Double jeopardy ” .

    However , the very question yet stays the same . What happen if multi offenses occur , even within the same general ” framework ” while the offender , has been tried in the ICC , just for part of them .
    What is surly contradicting the due process or general principles of criminal procedure, is to punish for what I call: ” folded offenses “. This occur when the same offense , is bearing different ones , but upon the same factual and mental configuration or action , for example :

    You can’t indict a person for assault or battery, while it was folded already within a rape committed by him. Every rape , includes assault , yet , the punishment for rape , must of course include the assault , and no separate charges shall be pressed on it .

    It is interesting to mention for example , the Israeli : ” Criminal Procedure Law [Consolidated Version], 1982 “( common law ) dictating clearly so :

    ” Double jeopardy

    5. A person will not be tried for an act if he has previously been acquitted or convicted of an offence related to the same act; however, if the act caused the death of another person he will be tried for it even if he has previously been convicted of another offence related to the same act. For the purposes of this section, “conviction” includes placing a person on probation without his having been convicted.”

    So clearly : if the act caused the death , he shall be tried again , conditioned that already been tried for another act within the affair of course .

    So , very problematic issue , I must admit …..


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