International Justice at the Heart of Democratic Transition

The Prosecutor of the International Criminal Court (ICC), Luis Moreno Ocampo, has just made official that he received a letter signed by the DRC President Joseph Kabila on 3 March, referring to him the situation of crimes committed on its territory since the entry into force of the Statute of the ICC, on 1 July 2002.

FIDH and its member orgaisations in the DRC – ASADHO, Ligue des Electeurs, and Groupe Lotus – welcome this referral, which proves the commitment of DRC authorities to the fight against impunity for the most serious crimes. It also shows that there can be no democratic transition without a warranty of the victims’ fundamental right to an effective remedy.

FIDH, ASADHO, Ligue des Electeurs, and Groupe Lotus recall that the ICC is the first international criminal jurisdiction to acknowledge and guarantee the victims’ right to participate, to be legally represented, and to receive reparation. Our organisations intend to make use of these prerogatives by accompanying and supporting Congolese victims before the appropriate domestic institutions and the ICC.

Our organisations also recall that the ICC is complementary to national criminal jurisdictions, with states being primarily responsible for investigations and prosecutions of war crimes, crimes against humanity and genocide committed on their territory or by their citizens. As such, the fact that the DRC government made a referral to the ICC is an important step forward but does not represent the end of impunity.

The ICC Prosecutor, Luis Moreno Ocampo, confirmed in his « Paper on some policy issues before the Office of the Prosecutor », that the ICC will only prosecute « those who bear the greatest responsibility for the[se] crimes ». This may « leave an ’impunity gap’ unless national authorities, the international community and the Court work together to ensure that all appropriate means for bringing other perpetrators to justice are used. »

FIDH, ASADHO, Ligue des Electeurs, and Groupe Lotus recall that, according to Article 27 of the ICC Status, no immunity should stand in the way of recognizing individual criminal responsibility for the most serious crimes that fall under the jurisdiction of the ICC.

The news of the RDC transitional authorities’ referring the situation to the ICC represents an extraordinary source of hope for victims of these heinous crimes, who are not to be disappointed.

FIDH, ASADHO, Ligue des Electeurs, and Groupe Lotus therefore make the following recommendations:

I - To the transitional authorities in the DRC

- 1. To promptly adopt the draft legislation implementing the ICC Statute in domestic law, as elaborated in July 2003 by the Permanent Commission for the Reform of Congolese law. This legislation includes the definition of crimes in accordance with the Rome Statute, the general principles of criminal law, and cooperation measures between the DRC and the different organs of the ICC;
- 2. To consult with Congolese associations working to promote and defend human rights, so as to allow them to express their views on the draft implementing legislation;
- 3. To ratify the ICC Agreement on Privileges and Immunities, allowing to ensure that Court officials and staff enjoy certain privileges and immunities necessary for the effective functioning of the Court.

II - To the ICC organs

To the Registry:
- 4. To inform, in due time, victims of their rights to be represented, to be protected, to participate in proceedings, and to request reparations before the ICC;
- 5. To set up, in due time and before the Prosecutor opens an investigation, a specific protection programme for victims, witnesses and any person at risk on account of testimony given by a witness.

To the Office of the Prosecutor:
- 6. To implement a regional prosecutorial strategy which would link the individual criminal responsibility of perpetrators of crimes committed in the DRC to the one of perpetrators of crimes committed in neighbouring countries, particularly in the Central African Republic.

To the Registry and to the Office of the Prosecutor:
- 7. To ensure an efficient coordination of their activities and of their public outreach on the situation in the DRC, paying particular attention to information for victims and witnesses.

III - To experts from the mission of Organisational Audit of the DRC justice system, set up by the European Commission

- 8. Analyse and give recommendations on the capacity of national judicial authorities to investigate and prosecute the alleged perpetrators of crimes of genocide, war crimes, and crimes against humanity, in conformity with Article 17 of the ICC Statute and with the principle of complementarity governing relations between the ICC and national jurisdictions.

IV - To the international community:

- 9. To support, in accordance with Security Council Resolution 1468 of 20 March 2003, the establishment of a United Nations Group of experts to « make recommendations ... on other ways to help the transitional government in the Democratic Republic of the Congo address the issue of impunity » for crimes committed on its territory before 1 July 2002.
- 10. To give special attention to the establishment of a special criminal jurisdiction with international character that guarantees the fundamental right to a fair trial and the right of victims to an effective remedy.

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