The Prosecution Of International Crimes In Respect Of The Democratic Republic Of The Congo: Critical Evaluation Of The Factual Background And Specific Legal Considerations

ABSTRACT

Since 1996 approximately 5.4 million citizens of the Democratic Republic of the Congo (DRC) have lost their lives as a result of the humanitarian crisis currently going on. Various warring ethnic groups have been committing terrible crimes against international law. War crimes and crimes against humanity such as rape, murder, recruitment of child soldiers and indiscriminate attacks on the civilian population have caused unspeakable suffering to civilians, especially in the eastern part of the country. Domestic institutions, the judiciary and the prosecution department, have not been able to address impunity because of being either in a state of total collapse or too weak to confront the strong warlords. As a result, when the International Criminal Court (ICC) became operational on 1 July 2002, the DRC authorities revived their desire to address the atrocities. Consequently, the crimes were referred to the ICC in 2004 and three DRC citizens are now undergoing trials at the ICC in two cases. The first part of this study evaluates the historical events that led to the referral of the DRC situation to the ICC. This includes the background of the conflict and the extent to which international crimes have been committed. Both regional and domestic attempts and initiatives to address the conflict are discussed, with specific reference to peace agreements and restorative justice mechanisms. The second part of the study deals with the prosecution of the perpetrators by the ICC. It examines the approach of the PreTrial Chamber to two legal issues, the principle of complementarity and modes of criminal participation as part of the ICC Statute. In this regard, the study makes a critical evaluation of two preliminary decisions confirming the charges against Lubanga, Katanga and Chui before the cases proceeded to the trial stage.