Democratic Republic of the Congo
Practice Relating to Rule 157. Jurisdiction over War Crimes
The Democratic Republic of the Congo’s Military Judiciary Code (2002) provides:
The military jurisdictions are competent to judge offences committed, since the opening of hostilities, by nationals or agents in the service of the administration or interests of the enemy, on the territory of the Republic or in any zone of war operation:
- either against a Congolese national or a person protected by the DRC [Democratic Republic of the Congo];
- or to the detriment of the goods of all the persons above or all Congolese legal persons, if these offences, even if committed at the occasion or under the pretext of the state of war, are not justified by the laws and customs of war.
In 2000, in its application instituting proceedings in the Arrest Warrant case
before the ICJ, the Democratic Republic of the Congo requested that the ICJ “declare that (Belgium) shall annul the international arrest warrant”.
The arrest warrant had been issued in absentia by a Belgian judge against the Minister for Foreign Affairs of the Democratic Republic of the Congo on the basis of Belgium’s Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols as amended. In its application, the Democratic Republic of the Congo criticized the fact that, under the terms of the arrest warrant,
the investigating judge claims jurisdiction in respect of offences purportedly committed on the territory of the DRC [Democratic Republic of the Congo] by a national of that State, without any allegation that the victims were of Belgian nationality or that these acts constituted violations of the security or dignity of the Kingdom of Belgium.
The Democratic Republic of the Congo further stated that the arrest warrant constituted a “violation of the principle that a State may not exercise [its authority] on the territory of another State and of the principle of sovereign equality among all Members of the United Nations”.
The Democratic Republic of the Congo went to say:
The universal jurisdiction … contravenes the international jurisprudence established by the judgement of the Permanent Court of International Justice (PCIJ) in the Lotus case … According to the judgement, this principle means that a State may not exercise its authority on the territory of another State. This rule is now corroborated by Article 2, § 1 of the Charter of the United Nations … The only instances in which general international law allows, exceptionally, that a State may prosecute acts committed on the territory of another State by a foreigner are, first, cases involving violation of the security or dignity of the first State and, second, cases involving serious offences committed against its nationals.
In its oral pleadings, the Democratic Republic of the Congo further stated: “Universal jurisdiction – in so far as domestic courts have such jurisdiction – can apply only if the person prosecuted is present on the territory of the prosecuting State. This is a well-established principle.”
In later pleadings, the Democratic Republic of the Congo made the point that:
The real test of the concept of universal jurisdiction is the genuine universalization of the prosecution of crime. Further, that is precisely the meaning intended by those who drafted Article 146 [of the 1949 Geneva Convention IV]. The idea was not that a single State should take responsibility for prosecuting and trying all international crimes. It was that all States should fulfil their obligation to search for, each on its own territory, the guilty parties, so that there is no territory left where they can escape judgment for their crimes … Yes, States do have an obligation of universal jurisdiction, which arises in response to another obligation, that of contributing to the suppression of international crimes. Naturally, however, there must be identifiable grounds for the latter obligation … We shall merely say that Article 146 [of the 1949 Geneva Convention IV] imposes a clear obligation on all States both to enact appropriate legislation and to search for persons having committed grave breaches of the said Conventions … The DRC [Democratic Republic of the Congo] takes note of the fact that Belgium does not claim that it indicted the DRC’s Minister for Foreign Affairs when he was not present in the territory of Belgium as a result of an obligation on Belgium to do so. It is evident that the obligation of States to extend their universal jurisdiction to encompass the punishment of some international crimes does not go so far as to include such an eventuality. Neither legislation nor practice provides grounds for such an extension. Article 146 [of the 1949 Geneva Convention IV] without being fully explicit, would appear to confirm our view … It is therefore indeed the logic of international law which prevents the obligation on a State to establish its universal jurisdiction for the punishment of international crimes from being extended to encompass an obligation to exercise jurisdiction in all cases, including those in which the suspect is not present in its territory … Belgium agrees with the Democratic Republic of the Congo that in the present case universal jurisdiction is a freedom, not an obligation.
In its final oral pleadings, the Democratic Republic of the Congo stated:
When it comes to the international scope of domestic jurisdictions in criminal matters for acts committed abroad by foreigners, in particular in cases of international crimes, their competencies will necessarily run against the sovereignty of another State; such procedure must have a conventional or customary foundation authorising its action … [and that] the extension of such a competence to the hypothesis that the person concerned is not in the territory lacks a confirmed legal basis.