1. Introduction
The current system of international criminal law enforcement as embodied by the International Criminal Court (ICC) involves a complementary relationship between national and international courts. The domestic court system is the primary forum for enforcement while international courts act as complementary jurisdictions. The principle of complementarity foresees a system in which national and international courts interact with one another while working towards the mutually held goal of preventing impunity for international crimes. Generally speaking, the interaction between the national and international courts has served to enhance the systems of criminal law in both the national and international realms by sharing information and providing influential reference points for each other vis-à-vis judicial decision-making.Footnote 1 In the decades since the advent of the ad hoc international tribunals for Yugoslavia and Rwanda, and the creation of the ICC, international courts have had a normative influence on national courts prosecuting international crimes. This influence has been achieved through a variety of means, including the incorporation of international legal concepts into domestic legislation and the reliance of national courts upon international jurisprudence in their rulings. Normative influence has varied between jurisdictions largely because there is no universal mechanism for incorporating international law into domestic legal codes.Footnote 2
This article compares the normative influence of international courts and jurisprudence on the courts of two distinct national systems – the state Court of Bosnia and Herzegovina (BiH)Footnote 3 and the military courts of the Democratic Republic of Congo (DRC) – in order to see how the international framework has been applied in two very different settings.Footnote 4 These jurisdictions are significant in that they illustrate different approaches to incorporating international law into their domestic systems. The Court of BiH has adopted and applied a new criminal code that incorporates substantive international legal norms based in large part on the statutes of existing international tribunals; the various military courts in the DRC have differed in their approach, with some applying the current Military Penal Code and others directly applying the ICC Statute.Footnote 5
The Court of BiH has been influenced and motivated by the International Tribunal for the former Yugoslavia (ICTY). The Rome Agreement of 18 February 1996 established the ICTY as the primary forum for prosecuting international crimes committed during the war in the former Yugoslavia.Footnote 6 The military courts of the DRC, on the other hand, have made up the primary forum for prosecuting international crimes that were committed throughout the last decade of violence and conflict. The DRC has acceded to the ICC Statute, but has yet to adopt legislation to incorporate the crimes of the ICC Statute into its national legal codes. Both jurisdictions have been impacted in a normative way by international courts, despite being in very different contextual and direct relationships with the ad hoc international tribunals and the ICC. The nature of this impact is in terms of bringing the national courts further in line with norms of international criminal law. This is not to say there is uniformity amongst the courts, but rather the jurisdictions have moved towards a more harmonious application of international law.
2. The Relationship between Domestic and International Courts
William Burke-White states that ‘the nature of the jurisdictional relationship between domestic and international courts is a key factor in explaining the variance in the direction and intensity of an international criminal tribunal's domestic impact’.Footnote 7 The jurisdictional relationship between international courts and national courts in working towards preventing impunity for international crimes has evolved over time since the advent of the Nuremberg tribunals. The Charter of the International Military Tribunal at Nuremberg did not specify the relationship between the tribunal and relevant national courts; it did state, however, that ‘where a group … is declared criminal by the Tribunal, the competent national authority of any Signatory shall have the right to bring individuals to trial for membership therein before national, military or occupation courts’.Footnote 8 Thus, the international tribunal held the primary jurisdiction and had the power to grant jurisdiction to the national court. The picture changed somewhat with the advent of the ICTY and International Criminal Tribunal for Rwanda (ICTR); they were granted concurrent jurisdiction with relevant national courts, with the tribunals having primacy over the national courts. Finally, under the ICC, the pendulum has swung to place primary jurisdiction with national courts. The principle of complementarity, as espoused by the ICC Statute, prescribes concurrent jurisdiction between the ICC and national courts and maintains that the national courts should be the focus of prosecution, with the ICC serving as the court of last resort.
2.1 The State Court of Bosnia and Herzegovina and the Primacy of the ICTY
The state Court of BiH is currently the forum for the majority of cases prosecuted for crimes committed in BiH during the war in the former Yugoslavia. The relationship between the national courts in the former Yugoslavia and the ICTY is prescribed under Article 9 of the ICTY Statute.Footnote 9 Article 9 designates concurrent jurisdiction between the ICTY and the national courts in the former Yugoslavia, with the ICTY having primacy over the national courts. The ICTY's primacy allows for it, at any point in the proceedings of a national court, to formally request the national court to defer jurisdiction to the competency of the ICTY. Generally speaking, Article 9 was meant to instruct a relationship that would encourage the national courts to maintain a substantial responsibility to prosecute, yet convey jurisdictional supremacy to the ICTY that could be asserted under various circumstances.Footnote 10
In 1996 the countries of the former Yugoslavia signed the Rome Agreement to advance the peace process established by the Dayton Accords. The agreement established a system of review, referred to as the Rules of the Road, which fostered international oversight over the national courts and established the absolute primacy of the ICTY.Footnote 11 The Rules of the Road stipulated that arrest and detention of suspects could proceed in the national courts as long as one of two conditions was met: the suspect had previously been indicted by the ICTY, or the indictment had been reviewed by the ICTY and was found to be consistent with international legal standards.Footnote 12 Representatives of Bosnia and Herzegovina ensured compliance with the terms of the agreement and agreed to turn over all cases to the ICTY for review. The Rules of the Road typified a relationship that was very limiting for the national courts, as well as counterproductive to any mandate for the national courts to go ahead with prosecuting international crimes.Footnote 13
This system remained in place until October 2004, at which time the advent of the completion strategy at the ICTY mandated the transfer of the review of all cases to the relevant national courts. The completion strategy of the ICTY altered the relationship between the tribunal and the state courts: the strategy shifted the focus to the national courts and created a different type of function for the ICTY. This function of the ICTY under the completion strategy is still one of monitoring and review of the national courts, but the altered relationship provides more incentive for the national court to act through such mechanisms as referral of cases.Footnote 14 William Burke-White likens the relationship between the ICTY and the national courts under the completion strategy to a relationship under the system of complementarity.Footnote 15
2.2 The DRC and Complementarity with the ICC
The principle of complementarity has solidified a two-tiered structure of challenging impunity in both the national courts and the ICC, with primacy now having shifted to the national courts. The Preamble and Article 1 of the ICC Statute recognise the duty of all states to exercise jurisdiction over those responsible for international crimes and determines that the ICC shall be complementary to national jurisdictions, serving as the forum for the prosecution of the most serious cases and the cases that the national courts are deemed unwilling or unable to prosecute.Footnote 16 It is the goal of the national courts to create a system that is more capable of preventing impunity, righting wrongs and making sure that there is indeed a ‘never again’.
In the DRC judicial system, jurisdiction for international crimes is currently in the hands of the military courts. It is therefore difficult to understand fully how the relationship between the civilian courts – the intended situs for the prosecution of international crimes – and the ICC will be established. The draft legislation relating to the ICC is intended to place jurisdiction over the crime in the civilian courts and map out further mechanisms of cooperation between the national courts and the ICC.Footnote 17 Once jurisdiction is established in the civilian courts, the relationship between the national courts and the ICC can be better fostered. However, it is likely to remain a more limited relationship than that of the ICTY and Court of BiH, at least initially. The ICC's role as the court of last resort does not extend the same capacity for review as it does under the Rules of the Road of the Rome Agreement. Certainly, from the perspective of normative impact on the substantive law of the national jurisdiction – in this case, the military courts of the DRC – the ‘unwilling and unable’ threshold provides for relatively little review capacity. The definition of international crimes would have to be non-existent or completely inconsistent with international norms to be suspect under the threshold.Footnote 18
3. The Mechanisms of Incorporation of International Law into the National Systems
The different mechanisms by which international criminal law is incorporated into domestic law include both the implementation of international legal norms into the national legal codes and the application and interpretation of the law in judicial proceedings. The following case studies analyse the way in which national courts in two distinct national jurisdictions – the Court of BiH and the military courts of the DRC – have utilised these mechanisms to incorporate international criminal law into their domestic system. Both jurisdictions have implemented international criminal law in the wake of mass violence and atrocities committed within their territories. Additionally, both jurisdictions use the statutes and jurisprudence of the international courts as guides in their own implementation and application of international criminal law. However, there is no strict standard on how states must implement international legal norms, and analysis of the jurisprudence of the Court of BiH and the military court of the DRC reveals that even with the normative influence of the international courts, the national systems are not uniform in their approach to implementing and applying international legal norms.
3.1 BiH: Incorporation of International Legal Norms into National Law
The incorporation of international criminal law into the domestic legal code is often the first step in the interplay between international law and national courts. International criminal law is not, generally speaking, self-executing,Footnote 19 and thus states must adopt legislation that incorporates international legal norms into their domestic legal systems. The statutes of the ICTY and ICTR, as well as the ICC Statute, have played an important role in influencing how international criminal legal norms have been implemented by national systems. The statutes have served as a catalyst for harmonisation by providing more comprehensive definitions of international crimes, including crimes against humanity that had not previously been codified under any international legal instrument.
The subject matter jurisdiction of the Court of BiH is derived from the Criminal Code of BiH that was adopted in March 2003.Footnote 20 This code took its substantive foundation from the pre-existing criminal code of the former Yugoslavia which had prescribed both war crimes and genocide.Footnote 21 Additionally, the code of BiH has relied upon the statutes of the international tribunals for filling in the lacunae of international legal norms. Crimes against humanity, previously undefined under the code of the former Yugoslavia, are defined under the Criminal Code of BiH in the exact manner as in the ICC Statute.Footnote 22 Furthermore, the BiH code has expanded the modes of individual criminal liability in the same vein as the Statute of the ICTY.Footnote 23 The responsibility of superiors for crimes committed by subordinates is now also a part of the Criminal Code of BiH. All of these additions reflect the normative influence of both the ICC and the ICTY in shaping the new BiH criminal code. It should be noted, however, that the normative influence of international courts is also limited, to some degree, by how the national system incorporates international norms. National courts, in general, may adopt different definitions of crimes. The Criminal Code of BiH, for example, has relied upon the ICTY Statute to define modes of liability for collective criminality. Thus, it will differ from the codes of other national systems that have followed the definitions of liability for collective criminality provided in the ICC Statute, which is more specific in its recognition of individual criminal liability for joint participation in a crime, as well as participation in a crime as part of a group with a common criminal purpose.Footnote 24
3.2 The DRC: Direct Application of the ICC Statute
The DRC ratified the ICC Statute in April 2002.Footnote 25 At the time of writing, parliament has drafted legislation to incorporate the crimes of the ICC Statute, but has yet to adopt it into the national legal code. The absence of such legislation, duly ratified, within the national legal system has created a complicated situation for the courts in terms of which law is currently applicable under the law. The majority of cases that involve international crimes appear before the military courts of the various regions. The subject matter jurisdiction of the military courts is derived from the Military Penal Code. This code is fairly inclusive of law which prescribes international criminal norms as they are defined under the draft implementing legislation. However, there are some key differences between the codes. The definitions of both crimes against humanity and war crimes under the Military Penal Code are confusing and do not generally comport with international standards.Footnote 26
A handful of courts in the DRC have taken a novel approach to ensuring that the law is compatible with international norms. Those military courts have chosen to apply the ICC Statute directly to proceedings, although the courts that have followed direct application have not applied a uniform legal reasoning for the direct application of the ICC Statute. The DRC is a monist legal system and many of the courts have relied upon provisions of the Constitution which state that duly ratified treaty law takes precedence over domestic law where conflicts between laws arise,Footnote 27 while others have pointed to the fact that the ICC Statute offers clear definitions of crimes against humanity and war crimes where the domestic legislation is confusing.Footnote 28 Thus, depending upon which law the judges decide applies to a particular case, certain acts may be punishable in one court but not in another.
The result of the various approaches towards the application of older and newer codes is a disparity between the national jurisdictions – and, at times, between courts within the same jurisdiction – regarding which crimes are proscribed under the law. Those national courts that have supported the application of ICC Statute-inspired legislation are generally more inclusive in terms of which crimes are included. Thus, the national courts that have relied upon legislation and law that was in place prior to the ICC Statute regime may face issues of under-inclusion in terms of which crimes are punishable under the law. In general, thus far, it appears that issues of under-inclusion or discrepancies between jurisdictions and courts are not as dire with regard to the scope of applicable crimes. Despite the fact that certain crimes are not proscribed under law – for example, crimes against humanity – most criminal acts do fall within some common aspects of war crimes or other crimes punishable under the codes. A greater effect may be seen in how the discrepancies affect which modes of liability are punishable under the national law. The collective criminality inherent in war and mass atrocity has precluded modes of liability that reflect the hierarchical structures involved in the perpetration of the criminal acts.
4. The Impact of International Jurisprudence on Defining Crimes in National Courts
The normative impact of international tribunals is, of course, not limited to the influence of the statutes on how international offences are drawn under national legislation. Perhaps the greatest impact is in the courtroom at the hands of the judges, for it is there that the jurisprudence of the international courts is alternately embraced or rejected. As stated earlier, the legal codes of many national jurisdictions now include a bevy of international crimes that until now were not codified under national law, providing fertile ground for the international tribunals' jurisprudence to have an impact on the national courts. With little else to serve as guidance other than this jurisprudence, relevant case law from the tribunals would seem to be the best authority for the national courts in the application of law. Indeed, this normative influence is more keenly felt in most of the national jurisdictions where the offences charged do not have a codified tradition.
It is primarily in this realm – the degree of influence that international jurisprudence plays in the national courts – where the similarities and differences between the BiH and DRC jurisdictions emerge. The Court of BiH exhibits a rather extensive reliance upon the jurisprudence of the ICTY as a guiding tool in defining the elements of the crimes charged. Conversely, the military courts of the DRC have a more haphazard approach in utilising international jurisprudence. A small minority of the military courts have relied upon the jurisprudence of the ICTY and ICTR to aid in defining elements of crimes. Where international jurisprudence has been utilised by many national courts, a normative effect can be seen with regard to how those national courts define the elements of international crimes. This has proved to be particularly useful where the national systems have had little or no history in prosecuting for international crimes. For both the Court of BiH and the military courts of the DRC, relying on the jurisprudence of international courts has played a key role in those courts in fleshing out the definitions and elements that make up their prescribed international crimes. An examination of cases from both jurisdictions reveals how the normative influence of the international courts has brought the national courts further in line with the international courts in defining and applying current international norms.
4.1 Bosnia and Herzegovina
4.1.1 Individual Criminal Responsibility for Genocide
Prosecuting for genocide committed in Srebrenica, Bosnia and Herzegovina has been an important part of challenging impunity for crimes committed in the war in the former Yugoslavia. The Court of BiH has heard a handful of cases in which individuals were charged in connection with genocide in Srebrenica. One of the key issues in several of the genocide cases that have appeared before the Court of BiH was how to define the individual criminal responsibility as part of a collective group carrying out the crime of genocide. On this issue, the court has relied heavily upon the jurisprudence of the international courts to aid in fleshing out how collective criminality is defined.
The first two cases before the Court of BiH to deal with individual criminal responsibility for genocide were Prosecutor v Stupar Footnote 29 and Prosecutor v Trbić.Footnote 30 In both cases, the court determined that the liability of the accused was based on their participation in a joint criminal enterprise (JCE). The court had previously determined, in Prosecutor v Rašević and Todovoć, that JCE was a part of customary international law and therefore a form of liability under Article 180(1) of the Criminal Code.Footnote 31 The court did limit the extension of JCE applicable to JCE I and JCE II. Nevertheless, it is a distinct example of a normative impact of the ICTY on the Court of BiH as the language and definition of JCE liability by the court was very much a construct of the ICTY.
4.1.2 Rape and Sexual Violence
Prosecuting for rape and sexual violence has also been an important part of preventing impunity for international crimes. In the aftermath of war, reports from the field and testimony of victims painted a devastating picture of rape used as a weapon. The ICTY heralded its own record in prosecuting individuals for what it has referred to as the systematic rape and sexual enslavement of women during the war.Footnote 32 Despite the tribunal's efforts, however, individuals in the field noted the lack of prosecution for crimes of rape. The Court of BiH has now become the primary venue for prosecutions for rape as a crime against humanity in Bosnia and Herzegovina. By the end of 2010, 15 individuals had been convicted by the court for crimes of rape and sexual violence. Substantively speaking, the court has followed the evolution of international law in defining the elements of the crime of rape. The judgments in these cases do not rely on the jurisprudence of the ICTY to the same extent as in those cases involving charges of genocide. However, they have followed the manner in which the crimes of rape and sexual violence have evolved in the international courts.
Rape as an international offence had not been defined explicitly under international law until it was addressed in the ICC Statute‘s Elements of Crimes. The jurisprudence of the ICTY reflects the evolution of the tribunal's own definition within the context of war and mass atrocity. The ICTY first considered national norms in order to determine the basis for the elements of the crime.Footnote 33 In general, the definition of rape under national jurisdictions includes the physical acts committed with an element of force or coercion, or without the consent of the victim.Footnote 34 The issues of force or consent are construed more or less broadly throughout the jurisdictions. ICTY jurisprudence reflects a running dialogue on the weight which use of force or lack of consent should carry in the definition of rape under international law. The earliest decisions regarded force as the proper element of the offence,Footnote 35 while later decisions regarded lack of consent as the proper element,Footnote 36 taking into account the unique factors of the offence in time of war. In other words, the context of war may inherently negate the necessity of proving force or lack of consent. The ICTY appeals chamber in Prosecutor v Kunarac upheld consent as the proper construction of the mental element but noted that certain contexts, many of which are present in time of war, are so coercive as to completely negate consent.Footnote 37
The national legislation of BiH defines the mental element of rape as a crime against humanity in terms of physical use of force.Footnote 38 In Prosecutor v Janković,Footnote 39 the court determined that the accused carried out the physical act of rape with the knowledge that it was done without the victim's consent.Footnote 40 Thus, the court seemingly added another viable descriptive element to the crime. As it does not state whether the mental element of consent as established by the court is in lieu of the mental element of force as written in the Statute, it is conceivable that the court can further define the mental element of the crime through either lens. Interestingly, while the court chose to define the mental element in terms of consent, it then went on to elaborate, as the Kunarac chamber had done previously, that the circumstances were such as to completely negate the victim's ability to consent, thus depriving her of her sexual autonomy.Footnote 41 The Janković verdict did not rely specifically on ICTY jurisprudence but the language utilised by the court to describe rape as a crime against humanity mirrors the jurisprudence of the ICTY, particularly in establishing that the context of war can create an environment that is inherently coercive. Thus, the paradigms effective in the domestic sphere may not be as adequate in describing the crime. Both the international and national courts are moving in a similar fashion towards a more useful definition for the context of war, based upon the elements provided from various domestic jurisdictions with the inclusion of contextual factors.
One recent evolution in the conceptualisation by international courts of rape in time of war is the adoption of descriptive and legal language to qualify the crime as something greater than its original meaning. To that end, the international tribunals have likened the act of rape to the act of torture. The Court of BiH has made similar findings. In Prosecutor v Lelek,Footnote 42 the court recalled that the ICTY and ICTR both stated that, in accordance with customary international law, in order for there to be a determination that torture was committed, it must be found that the perpetrators inflicted severe pain and suffering for the purpose of ‘obtaining information or a confession, punishing, intimidating or coercing the victim or a third person, or discriminating on any ground against the victim or a third person’.Footnote 43 The court then concluded that ‘some actions per se imply suffering on the part of those subjected to them. Rape is such an act; sexual violence inevitably leads to severe pain or suffering and thus the qualification of this act as torture is justified’.Footnote 44 The language of the Court of BiH even goes slightly further than the language of the ICTY, in that it seems to imply a per se understanding of rape as a crime against humanity as tantamount to torture as well. The ICC pre-trial chamber has taken a similar stance.Footnote 45 It is feasible to assume that the interplay between international and national courts has helped to further this evolving contextualisation of the crime. The seeds of viewing rape as a crime against humanity which requires greater severity than that which is implied by the objective elements of the crime were sown by the ICTY trial chamber in the Čelebići case.Footnote 46
4.2 The DRC
The military courts of the DRC have carried out only a limited number of prosecutions for international crimes. Despite the dearth of prosecutions, international law and jurisprudence have gained influence in the military, helping to define the relevant crimes charged. The courts that have embraced this influence are generally those that have chosen to directly apply the ICC Statute to the proceedings. Compared with the Court of BiH, the military courts have not to a great extent utilised international jurisprudence to support their own verdicts and legal reasoning. However, in the instances where a more international approach has been taken, certain transformations have become apparent. For example, the courts that have invoked the ICC Statute and international jurisprudence as normative guidelines have, in turn, generally provided a more thorough rendering of their judgment, explaining the application of the law and the legal reasoning behind the verdict, as opposed to the typical verdicts in the military courts of the DRC, which are often sparse when it comes to legal reasoning and principled determinations of law. Thus, the recent judgments that provide a more comprehensive explanation in terms of the substantive law are a step towards creating a more coherent understanding of how international law is utilised in the national courts. This is an important step for the national courts and provides a potential framework for them to move from a relatively strict reliance on the international courts to an integrated approach that encourages the national courts to engage in judicial construction for its own legal system.
4.2.1 Crimes against Humanity
Defining the elements of crimes against humanity is a particularly prescient area in which some of the courts have utilised the ICC Statute and the jurisprudence of the international courts as normative frameworks. A handful of military courts have stated that the existing definitions of crimes against humanity and war crimes in the Military Penal Code are confusing and not in line with international norms.Footnote 47 Courts that directly applied the ICC Statute and relied upon the jurisprudence of the ad hoc tribunals have a better understanding of how the elements of crimes against humanity are defined and how to apply them to the facts.
The Military Court of Mbandaka has shown a willingness to embrace the work of the international tribunals as an aid in defining international crimes in its own court. In the Songo Mboyo case,Footnote 48 for example, this court relied upon the findings of the ICTR trial chamber in Akayesu Footnote 49 to establish the elements of a crime against humanity as a widespread and systematic attack against a civilian population. The military court adopted the ICTR trial chamber's assertion that an attack may be considered widespread in nature based on the multiplicity of victims, and may be systematic in nature if it is carried out in a regular pattern pursuant to a common policy implemented by public or private resources.Footnote 50 The defence had argued against a finding of crimes against humanity because the acts committed by members of the military of the DRC were not carried out while furthering a policy of the DRC or any other organisation involved in the conflict.Footnote 51 The court rejected this argument and found that the plurality of civilian victims targeted by the military forces constituted a widespread attack against the civilian population of Songo Mboyo.Footnote 52 The reliance on the Akayesu judgment aided the military court in forming a definition of the elements in line with international norms and in applying it to the events of the case. Furthermore, the judgment provided a more thorough explanation of the law and the facts than did previous military court judgments.
Compare the findings of the Military Court of Mbandaka to courts – such as the Military Court of Katanga in Lubumbashi – where a less internationalist approach was taken. The verdicts handed down by those courts reflect confusion as to which law is applied and how the facts have been interpreted. The Military Court of Katanga at Lubumbashi in the Kilwa caseFootnote 53 created confusion by not supplying supported legal arguments for the judgment that acquitted members of the Congolese army charged with war crimes. While the court had directly applied Article 8 of the ICC Statute to the proceedings, it failed to specify the crimes with which the accused was being charged. Thus, the court provided no legal definitions for the elements of any alleged war crimes. The result is a judgment rife with confusion and lacunae regarding how any of the facts provided fulfil (or do not fulfil) the required elements of war crimes. The judgment from the Military Court at Mbandaka avoids this confusion by providing a thorough analysis and drawing on the persuasive authority of the international tribunals. This is an important step in legitimising international criminal norms within the national law because of the framework it provides for future military court decisions. The courts of the DRC do not have a history of relying on foreign jurisprudence, whether international or national. The Military Court of Mbandaka has seemingly opened that door at bit further. The Military Court of Kisangani cited the finding of the Mbandaka court to support the direct application of the ICC Statute in one of its own cases, and similarly relied upon the Akayesu trial chamber to establish the elements of crimes against humanity.Footnote 54
4.2.2 Rape and Sexual Violence
In an approach similar to that of the Court of BiH, the military courts of the DRC have used international jurisprudence as a catalyst for bringing the definition of rape under national law closer to the recognised international norm by criminalising rape and sexual violence against men. Ultimately, the DRC published a separate law on sexual violence in order to have a more inclusive definition of the offence within the domestic legal code.Footnote 55 This is an especially significant legal development for a country that has seen a great rise in the use of sexual violence as a weapon of mass violence.Footnote 56 The amended law on sexual violence was brought into effect in 2006 and was therefore not applicable to acts that occurred during the two major civil wars which preceded that date.
However, some of the military courts have recognised the gravity and importance of maintaining international norms regarding the substantive definitions of rape and sexual violence. To that end, a handful of courts have chosen to apply the ICC Statute directly to charges of rape. For example, the Military Court of Mbandaka directly applied the ICC Statute in a case against seven members of the Congolese military who were charged with rape as a crime against humanity for the alleged mass rape of 119 women.Footnote 57 This was the first time that rape as a crime against humanity had been charged in a court in the DRC, so it was important that the court opted to uphold the more expansive definition of the crime that had evolved under international law. The direct application of the ICC Statute affected the outcome of the case. The defence had argued against the charge of rape for one of the officers who had committed acts against a male victim, insinuating that the crime of rape was meant only to protect female victims. The court rejected this argument and applied the elements as defined under the Elements of Crimes, which are inclusive of male, as well as female, victims of sexual violence.
While the Court of BiH and the military courts of the DRC have employed different methods in incorporating international law into their domestic legal codes, the end results have been similar with regard to the substantive law on rape and sexual violence. Perhaps this area of law was ripe in the sense that the offence had not been thoroughly defined under international law. Regardless, both jurisdictions have utilised instruments in the form of statutes and jurisprudence from the ad hoc tribunals to aid in defining the crimes alleged and, in the process, have moved their domestic law closer to recognised international norms on the subject of the law of rape. While the effect has not been the adoption of a uniform definition in the two jurisdictions, there has arguably been a harmonising effect in bringing the domestic definitions closer to the recognised international norm and helping to fill in the lacunae left by less expansive national definitions of these crimes.
5. Conclusions
The Court of BiH and the military courts of the DRC are engaged in the formidable task of challenging impunity for violations of international law committed on their territories. Both jurisdictions have suffered under the yoke of mass atrocity and have been forced to rebuild their judicial systems to accommodate the goal of exacting justice. This article has examined a very small part of the process of how international law and jurisprudence have impacted on the achievement of this goal. The Court of BiH and the military courts of the DRC have all felt the normative impact of international law and jurisprudence on their own proceedings, although the impact on the Court of BiH has been greater than on the military courts of the DRC. Part of this disparity may be because the BiH has been engaged in a far more intricate and connected relationship with the ICTY than the military courts of the DRC have had with the ICC.
Despite these disparities, it is clear that, from the substantive legal perspective, part of the normative impact which international jurisprudence has had on national courts is the bringing of law and practice closer in line with international norms. From the legislative perspective, the amended criminal codes of BiH and the invocation of the ICC Statute by a handful of the military courts in the DRC have provided a blueprint for definitions of international crimes for both jurisdictions. The amended Criminal Code of BiH has filled in lacunae by providing a definition for crimes against humanity, and the ICC Statute has assisted some military courts in the DRC in providing less confusing definitions of international crimes than the national legislative counterpart.
Equally, the use of international jurisprudence as a reference in legal decision-making in the national courts has acted as a catalyst in bringing the national definitions of the crimes in line with international norms. This is seen primarily in the context of crimes that are uncharted territory for the national courts. For example, both genocide in the Court of BiH and crimes against humanity in the military courts of the DRC have little or no national history on which to draw. Both jurisdictions relied upon the jurisprudence of the international tribunals to assist in defining and applying the elements of the crimes. The law on rape and sexual violence is another example. Defining the elements of rape and sexual violence during mass violence has been a relatively new task for international and national courts. Both BiH and the DRC have been greatly affected by those crimes as a weapon of mass violence and war; challenging impunity for these acts is an important step for both countries. The Court of BiH and some of the military courts of the DRC have utilised international law and jurisprudence to define rape to fit the context of war and mass violence and to fill in lacunae in their own national law. This is an important step forward for the national courts in seeking retribution.
While the normative impact of the international jurisprudence has led to a degree of harmonisation, some drawbacks are still apparent in both jurisdictions. The Court of BiH is so closely linked in many ways to the ICTY that it is difficult to imagine it without the tribunal's influence. From the substantive perspective, it failed to answer a legitimate legal question regarding the intent of a commander in a charge of genocide under command responsibility. The question had not been posed before the ICTY, so there was no prevailing international law on the subject. The court chose not to make a general ruling on the legal question and presumably left it open for further discussion. As the work of the ICTY winds down, the Court of BiH is increasingly its own entity. The future may provide opportunities for the court to further establish its independence.
Conversely, the major difficulty facing the courts of the DRC is the paucity of influence. The courts still have a substandard track record for prosecutions, with only a handful of cases having actually reached the courts. In dealing with those cases, the courts have directly applied the ICC Statute and/or international jurisprudence in only a fraction of them. Thus, there are still major discrepancies between the courts regarding the law that is to be applied and how the acts alleged are defined under the law. Additionally, some of the jurisprudence from the military courts has been inconclusive and lacking in sound legal reasoning. Where international jurisprudence has been employed as a guide, more thorough and conclusive judgments have been produced. Equally, in those cases where the military courts have exercised their own agency in adopting prescient legal reasoning to support the way in which they have applied and defined the elements of crimes, a better understanding of how international criminal law is construed in the courts has been achieved. Hopefully, with the eventual passage of the draft legislation incorporating the ICC Statute, a clearer picture of how the relationship between the ICC and the national civilian courts can be fostered will emerge and further steps will be taken to challenge impunity at the national level.
