¹ See Burke-White, William W, ‘A Community of Courts: Toward a System of International Criminal Law’ (2002) 24 Michigan Journal of International Law 1, 4Google Scholar. Burke-White notes that a ‘decentralized, horizontal enforcement system is a positive development with the potential to greatly strengthen the enforcement of international criminal law’.

² Zahar, Alexander and Sluiter, Göran, International Criminal Law (Oxford University Press 2008) 483Google Scholar.

³ Until 2005, prosecutions for war crimes in Bosnia and Herzegovina were conducted in the courts of its two political entities – the Federation of Bosnia and Herzegovina and the Republika Srpska. However, with persistent difficulties in prosecuting, even at the state level, a joint initiative between the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Office of the High Representative (OHR) was carried out in order to enable a more effective system of combating impunity for war crimes in the state courts. In 2004, the Court of BiH was established within the criminal division of the state Court of BiH for the purpose of prosecuting cases from the war that were deemed highly sensitive: Organization of Security and Co-operation in Europe (OSCE) Mission to Bosnia and Herzegovina (BiH), ‘War Crimes Trials before the Domestic Courts of Bosnia and Herzegovina: Progress and Obstacles’, March 2005, 10, http://www.oscebih.org/documents/osce_bih_doc_2010122311024992eng.pdf.

⁴ Currently in the DRC jurisdiction over international crimes is in hands of the military courts. It is the goal of parliament to eventually place jurisdiction over these crimes in the hands of the civilian courts; as of the date of writing, however, this has not been accomplished.

⁵ Rome Statute of the International Criminal Court (entered into force 1 July 2002) 2187 UNTS 90 (ICC Statute).

⁶ Rome Agreement signed on 18 February 1996 by BiH, Croatia and the Federal Republic of Yugoslavia, Agreed Measures, http://www.ohr.int/other-doc/fed-mtng/default.asp?content_id=3568.

⁷ Burke-White, William W, ‘The Domestic Influence of International Criminal Tribunals: The International Criminal Tribunal for the Former Yugoslavia and the Creation of the State Court of Bosnia and Herzegovina’ (2007) 46 Columbia Journal of Transnational Law 279, 344Google Scholar.

⁸ Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Charter of the International Military Tribunal, 8 August 1945, 82 UNTS 279, art 10.

⁹ Report of the Secretary-General pursuant to para 2 of Security Council Resolution 808(1993), UN Doc S/25704 (3 May 1993), adopted by the Security Council in Resolution 827 (25 May 1993) para 2.

¹⁰ Morris, Virginia and Scharf, Michael P, An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia, vol 1 (Transnational 1995) 126Google Scholar. Similarly, the Rules of Procedure for the ICTY allow for the prosecutor to request information regarding investigations and/or criminal proceedings instituted in the national courts for crimes that fall within the jurisdiction of the tribunal in order to determine whether to make a claim for deferral of a case to the competence of the tribunal. Additionally, the tribunal is granted the power to refer indictments from the tribunal to national courts as long as the relevant national court is deemed suitable.

¹¹ Burke-White (n 7) 312.

¹² Rome Agreement (n 6) para 5.

¹³ See generally Burke-White (n 7). Burke-White described the jurisdictional relationship between the ICTY and the Court of BiH, as set out in the Rules of the Road, as a form of absolute international primacy. The type of relationship shifts the incentive away from building the capacity of the national courts to prosecute for international crimes.

¹⁴ ibid 320. The ICTY Rules of Procedure were amended to allow the ICTY to send cases back to national jurisdictions, monitor domestic proceedings and remove cases back to the international forum only if key targets were not met.

¹⁵ ibid.

¹⁶ ICC Statute (n 5) art 17.

¹⁷ See generally Open Society Justice Initiative, ‘Putting Complementarity into Practice: Domestic Justice for International Crimes in DRC, Uganda, and Kenya’, Open Society Foundations, 2011, http://www.opensocietyfoundations.org/sites/default/files/putting-complementarity-into-practice-20110120.pdf.

¹⁸ For a discussion of how the Statute's admissibility rules affect the incorporation of international criminal law into national systems see Kleffner, Jann K, ‘The Impact of Complementarity on National Implementation of Substantive International Criminal Law’ (2003) 1 Journal of International Criminal Justice 1, 86CrossRefGoogle Scholar.

¹⁹ Maria Inmaculada Francisco Francisco, Aspects of Implementing the Culpability Principle both under International and National Criminal Law (Wolf Legal Publishers 2003) 20.

²⁰ Criminal Code of Bosnia and Herzegovina, 1 March 2003.

²¹ Criminal Code of the Socialist Federal Republic of Yugoslavia, 1 July 1977.

²² The definition of crimes against humanity under the ICC Statute is more expansive than it is under the Statute of the ICTY in that it includes enforced disappearance and the crime of apartheid in its enumerated acts.

²³ Art 180 of the Criminal Code of BiH uses the same language as the ICTY Statute in conferring individual criminal liability for ‘a person who planned, instigated, ordered, perpetrated or otherwise aided and abetted in the planning, perpetration or execution of a criminal offence’.

²⁴ ICC Statute (n 5) art 25.

²⁵ Journal Officiel de la République démocratique du Congo, instruments internationaux et régionaux relatifs aux droits de l'homme ratifiés par la République démocratique du Congo, 43rd year, special edition, 5 December 2002.

²⁶ See generally Avocats Sans Frontières, ‘Case Study: The Application of the Rome Statute of the International Criminal Court by the Courts of the Democratic Republic of Congo’, ASF, March 2009, 23, 43, http://www.asf.be/wp-content/publications/ASF_CaseStudy_RomeStatute_Light_PagePerPage.pdf. The Military Penal Code, arts 165–172, proscribe crimes against humanity and arts 173–175 proscribe war crimes. The Code seemingly merges crimes against humanity and war crimes under one heading. For example, art 165 states that crimes against humanity include grave violations of international law against civilian populations during times of war, but the offences do not necessarily have to have been committed during wartime in order to be considered as such. Art 165 further defines crimes against humanity as ‘serious crimes against … the people and property protected by the Geneva Conventions of 12 August 1949 and the Additional Protocols of 8 June 1977’. The article also provides a list of 18 prohibited acts that include acts recognised under treaty and custom as war crimes. Furthermore, art 169 lists offences similar to those enumerated under ICC Statute, art 7; however, the Military Code omits the offences of ‘enforced disappearance of persons’, ‘apartheid’ and ‘other inhumane acts’. War crimes are defined as ‘all offences of the law of the Republic committed during war and that are not justified by the laws of customs of war’.

²⁷ In accordance with the Constitution de la Transition, 2003 (DRC), art 193, and Constitution of the Democratic Republic of Congo, 2006, art 215, ‘Lawfully concluded treaties and agreements have, when published, an authority superior to that of the law, subject for each treaty and agreement to the application by the other party’.

²⁸ Open Society Foundation Report (n 17) 20. The Open Society Report states that an official in the military justice system refers to the unpredictable ways in which judges deal with conflicts between domestic law and treaty law as ‘random enforcement’.

²⁹ Court of BiH, Prosecutor v Stupar and Others, First Instance Verdict, X-KR-05/24, 29 July 2008.

³⁰ Court of BiH, Prosecutor v Trbić, Decision on Referral of Case under Rule 11bis, ICTY-05-88/1-PT, 27 April 2007.

³¹ Court of BiH, Prosecutor v Rašević and Todović, First Instance Verdict, X-KR/06/275, 28 February 2008.

³² See the UN ICTY website at http://www.icty.org/sid/10312.

³³ ICTY, Prosecutor v Furundžija, Judgment, IT-95-17/1-T, Trial Chamber, 10 December 1998, [177].

³⁴ ibid para 180. The ICTY trial chamber in Furundžija cited the Sexual Offences Acts 1956 to 1992 (UK). The definition of rape under UK law hinges upon the lack of consent of the victim, while the definition of rape under other jurisdictions, such as that expressed in the US Model Penal Code and Dutch Law, include force or the threat of harm rather than lack of consent.

³⁵ ibid.

³⁶ ICTY, Prosecutor v Kunarac and Others, Judgment, IT-96-23 & 96-32/1-A, Appeals Chamber, 12 June 2002 (Kunarac), [127].

³⁷ ibid para 133.

³⁸ Art 173(1)(e) of the Criminal Code of BiH states: ‘coercing another by force or by threat of immediate attack upon life or limb, or the life or limb of a person close to him, to sexual intercourse or an equivalent sexual act’.

³⁹ Court of BiH, Prosecutor v Janković, First Instance Verdict, X-KR-05/161, 16 February 2007.

⁴⁰ ibid 72.

⁴¹ ibid 67.

⁴² Court of BiH, Prosecutor v Lelek, First Instance Verdict, X-KR/06/202, 23 May 2008.

⁴³ ibid 36. Citing ICTR, Prosecutor v Akayesu, Judgment, ICTR-96-4-T, Trial Chamber I, 2 September 1998 (Akayesu), [594]; Kunarac (n 36) [485], [497].

⁴⁴ ibid.

⁴⁵ See ICC, Prosecutor v Bemba Gombo, Decision Pursuant to Art 61(7)(a) and (b) of the ICC Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Pre-Trial Chamber II, 15 June 2009, [204]. The pre-trial chamber stated that ‘the specific material elements of the act of torture, namely severe pain and suffering and control by the perpetrator over the person, are also the inherent specific material elements of the act of rape’.

⁴⁶ ICTY, Prosecutor v Delalić and Others, Judgment, IT-96-21-T, Trial Chamber, 16 November 1998 (Čelebići case), [496].

⁴⁷ Military Tribunal of Ituri District, Military Prosecutor v Kahwa Panga Mandro Ives and Others, First Instance Verdict, RP 039/3006, RMP 227/PEN/2006, 2 August 2006, 24; Military Tribunal of Haut-Katanga, Military Prosecutor v Kyungu Mutanga Gédéon and Others, First Instance Verdict, RMP 0686/MAK/09, 5 March 2009, 70.

⁴⁸ Military Tribunal of Mbandaka, Military Prosecutor v Eliwo Ngoy and Others, First Instance Verdict, RMP 154/PEN/SHOF/05, RP 084/2006, 12 April 2006 (Songo Mboyo case).

⁴⁹ Prosecutor v Akayesu (n 43).

⁵⁰ ibid para 580.

⁵¹ Songo Mboyo case (n 48) 34.

⁵² ibid.

⁵³ Military Tribunal of Katanga, Military Prosecutor v Ademar and Others, First Instance Decision, RP 0064/2005/NMB, 28 June 2007.

⁵⁴ See Military Tribunal of Kisangani, Military Prosecutor v Blaise Bongi Massaba, First Instance Verdict, RP 018/RMP212/PEN/2006, 24 March 2006; Prosecutor v Kahwa Panga Mandro (n 47).

⁵⁵ Law No 06/018, 2006 (DRC). The preamble to the law specifically states that the violence that occurred throughout the DRC between the years 1996 and 1998 presented the need for modification in the domestic Penal Code in order for it to provide protection for the most vulnerable persons, especially those women, children and men who are victims of sexual violence. Additionally, it states that it provides a definition of rape that is in keeping with applicable international norms.

⁵⁶ Human Rights Watch has reported that since January 2009 and the start of the UN-backed military operations in the eastern DRC, there has been a massive increase in sexual violence against civilians committed by government and rebel forces alike: see Human Rights Watch, ‘DRC: Clinton Should Highlight Rape and Justice Issues’, 10 August 2009, http://www.hrw.org/news/2009/08/10/drc-clinton-should-highlight-rape-and-justice-issues.

⁵⁷ Songo Mboyo case (n 48).