La loi de mise en œuvre: 2010-2011

The legislative history of efforts to implement the Rome Statute illustrates the political stakes of judicial reform in the DRC. Such legislation would better align the Congo’s domestic legal framework with international standards and help empower judicial institutions to cope with the challenges of prosecuting international crimes. However, despite the Congolese government’s professed support for the ‘struggle against impunity’ and the intense lobbying efforts of Congolese civil society groups and international organisations, Rome Statute implementing legislation (la loi de mise en oeuvre du Statut de Rome) remained elusive for over a decade.

A number of implementing bills have been considered during this time. Two draft bills were discussed between 2001 and 2002, but they never received the approval of President Kabila.Footnote ²³ (It is worth remembering that the political situation in the DRC was extremely volatile in 2001–2002, with Kabila’s Kinshasa-based government controlling only parts of the country.) Different versions of a governmental projet de loiFootnote ²⁴ were prepared together with members of civil society between 2003 and 2004, and finally brought before parliament in 2005. But the bill was never put to a formal vote in the National Assembly or in the Senate, presumably because of the government’s lukewarm support.Footnote ²⁵ In 2008, two members of the National Assembly, Professor Nyabirungu and Honourable Mutumbe, drafted a revised version of the law (une proposition de loi).Footnote ²⁶ Though negotiations reached an advanced stage, parliament did not pass the bill during its five-year term, which expired in November 2011.Footnote ²⁷

The 2008 version of the draft legislation would have introduced a series of technical reforms to harmonise the relationship between the ICC and the Congolese domestic system. It had four main objectives:Footnote ²⁸ first, it would textually incorporate the Rome Statute’s classification of international crimes into domestic criminal law.Footnote ²⁹ Congolese courts would no longer have to choose the applicable law each time, which would ultimately lead to a more unified and coherent case law in this area. Second, civilian courts – not military tribunals – would have sole jurisdiction over international crimes. This would include trials of members of the military or the police.Footnote ³⁰ The (civilian) Courts of Appeal would be competent in the first instance, with appeals adjudicated directly by the Supreme Court (or the Court of Cassation, if and when the judicial reforms of the 2006 Constitution are implemented). Third, a number of fair trial guarantees, especially relating to defendant rights, victim participation and witness protection, would be guaranteed at the domestic level for the first time.Footnote ³¹ Lastly, a coherent framework regulating collaboration between the ICC’s field units and domestic Congolese judicial and governmental authorities would be established.Footnote ³²

Yet these seemingly technical reforms have encountered considerable political resistance. After March 2008, when it was first presented before the National Assembly, the implementation bill did not come up for discussion for over two years.Footnote ³³ During that period, the president of the National Assembly declined to place the law on the parliamentary agenda despite the efforts of international actors and local civil society groups. For reasons that are not entirely clear, in November 2010 a preliminary debate on the bill was finally scheduled in the lower chamber of parliament.

Many parliamentarians opposed the bill, and the aims of implementing Rome Statute legislation were marginalised by a debate about the status of the death penalty in the DRC. Many MPs argued (incorrectly) that incorporating the Rome Statute into domestic law would force Congo to abolish the death penalty.Footnote ³⁴ Other objections concerned the involvement of outside actors in advocating for the bill’s passage, which was described as a form of neo-colonialism and as a threat to national sovereignty. Only after the bill’s drafters returned the discussion to substantive issues relating to the proposed reforms did the National Assembly address issues such as the bill’s handling of sexual violence, the privileges and immunities of Congolese officials, amnesty provisions, universal jurisdiction and the age of criminal responsibility. After a heated and fractious debate, the National Assembly’s members voted to declare the implementation bill ‘admissible’ (recevable).

The Congolese media hailed the vote as a major achievement, but in fact it had little practical significance at that stage. The bill was only transferred to the Political, Administrative and Judicial (PAJ) Committee for further discussion. Admissibility votes are usually a formality in the legislative process, and so despite the optimistic rhetoric of many NGOs surrounding the vote,Footnote ³⁵ the debate made it clear that implementing the Statute could not be taken for granted.Footnote ³⁶ The vote also illustrated that the challenge of incorporating the Statute into domestic criminal law is primarily political. In a country with a troubled history of colonial exploitation, some lawmakers had reservations about the international community’s efforts to promote justice. Some political parties were also aware that adjusting the legal framework put their representatives at direct risk of prosecution. Another challenge lay in the Congolese military’s reluctance to relinquish jurisdiction over international crimes. The DRC remains a country in which the military and the government have close ties, and there is a mutual interest in being able to exercise control over prosecutions of international crimes.Footnote ³⁷

The Congolese chapter of the Coalition for the International Criminal Court sought to address these concerns by organizing a workshop for members of the PAJ Committee, in which it addressed the bill’s aims and the need for swift action. This was strengthened by the government’s claims that justice reform would be one of the main items on the parliamentary agenda for the spring legislative session. However, two issues hindered further progress: the looming national elections scheduled for November 2011 and the government’s rival projet de loi establishing ‘special chambers’ in the Congolese courts.

Specialised chambers, the Special Court and the ICC

In October 2010 the United Nations published a ‘mapping report’ documenting several hundred instances of unresolved crimes and human rights violations in the DRC. One of its recommendations was the establishment of hybrid chambers in the Congolese courts.Footnote ³⁸ Though the possibility of creating an international or hybrid court had already been mooted after the 2002 peace accords, this time the idea was taken up with more enthusiasm. The MoJ prepared a projet de loi on establishing ‘specialised chambers’ in the Congolese courts with jurisdiction over international crimes, whose preamble acknowledged that the Rome Statute was inoperative for crimes committed before 2002, and that the government had fallen short in its efforts to combat impunity.Footnote ³⁹

The draft bill (as well as its subsequent amended versions)Footnote ⁴⁰ raised a number of intriguing questions about the principle of complementarity.Footnote ⁴¹ Hybrid tribunals and internationalised courts had been tried elsewhere, but not in countries with ongoing ICC investigations. Among other things, the draft bill sought to clarify the relationship between domestic governmental authorities and the proposed court, as well as between the proposed court and the ICC. But two issues proved more difficult to resolve.

First, the chambers’ proposed jurisdictional ambit waxed and waned over the course of the bill’s drafting. At one point it was mandated to investigate all crimes ‘ever committed’ in Congo;Footnote ⁴² it then shrank to a far more limited ten-year timeframe (1993–2003, in line with the scope of the UN Mapping Report), only to expand again to cover crimes committed from 1993 to the present.Footnote ⁴³ In doing so, it created a novel legal situation, in which the ‘specialised chambers’ would exercise primary jurisdiction over international crimes, with secondary jurisdiction devolved to Congo’s civilian courts, and the ICC enjoying (presumably) tertiary jurisdiction.Footnote ⁴⁴ The complementarity principle thus broke new ground under the proposed legislation, with a mixed national-international jurisdiction co-exercising judicial powers over cases within the ICC’s remit.

Second, the MoJ struggled to find a viable legal basis for prosecuting acts committed over such a long period of time. Drafts of the specialised chambers’ bill incorporated the Rome Statute’s definitions of international crimes, and applied them retroactively to crimes committed before 2002, which would have violated the principle of nullum crimen sine lege.Footnote ⁴⁵ The bill’s reference to the implementing bill among the chambers’ sources of law – in addition to the Rome Statute’s definitions of international crimes incorporated directly into the bill – only added to the confusion: it unnecessarily duplicated references to the same definitions of crimes, and incorrectly assumed that the two bills could be passed simultaneously.

The politics surrounding the two bills compounded these legal difficulties. The discussion about the DRC’s legacy of impunity unfolded against the backdrop of the country’s democratic elections scheduled for November 2011. In a paradoxical turn of events, parliament refused to endorse the government-backed bill, while the government obstructed parliament’s efforts to enact the Rome Statute implementing bill. The Minister of Justice, Luzolo Bambi Lessa, defended the Special Court (as it was then called) in parliament in June and August of that year.Footnote ⁴⁶ But parliamentarians from all sides of the political spectrum criticised the government’s proposal, arguing that it would be dependent on external aid and cast Congo’s own justice system in a negative light. It is also likely that many parliamentarians resented the MoJ’s project, which would have marginalised parliament’s implementing bill.Footnote ⁴⁷

The fraught legislative histories of these two bills illustrate how efforts to incorporate international criminal law at the national level produce both legal difficulties and political resistance. In the DRC the seemingly technical task of transposing the Rome Statute’s principles into domestic law occurred in the shadow of a number of institutional conflicts between competing repositories of power. The MoJ represents the interests of the president and the executive, which is in turn closely tied to the military establishment. On the other hand, some political parties had little incentive to support initiatives that could implicate their own members, while other parliamentarians balk at legislative proposals that could strengthen the government’s role in administering justice for international crimes. These and other institutional conflicts are the hidden dimension of seeking accountability for international crimes in the DRC.Footnote ⁴⁸

A new interpretive tool

The Congolese legislature enacted the new MCC several months after President Kabila ratified the Rome Statute.Footnote ⁵⁰ Given the temporal proximity of the two events – March and November 2002 – one might expect the definitions of international crimes in the military code to reflect the definitions contained within the Statute. Quite the opposite is true. The definitions not only diverge, they also conflict with principles of customary international law, and in some cases are less clear than the 1972 CMJ. These differences raise questions as to why the Congolese legislature enacted the MCC in its current form.

Among these divergences, perhaps the most striking is the definition of crimes against humanity, which the MCC conflates with war crimes.Footnote ⁵¹ For instance, while IHL is the body of law applicable to armed conflict, according to the MCC, ‘crimes against humanity are grave breaches of [IHL]’, which can be ‘… committed against all civilian populations before or during war’. In fact, it is not possible to commit violations of IHL ‘before … war’, as the MCC suggests. There are also two separate lists of acts constituting crimes against humanity in the MCC but, unlike the loi de mise en œuvre, neither one replicates the acts criminalised in the Rome Statute. The first list invokes the Geneva Conventions, and enumerates acts that are usually considered war crimes in international law.Footnote ⁵² The second list resembles the notion of crimes against humanity in the Rome Statute,Footnote ⁵³ but with several intriguing differences: apartheid and forced disappearances do not appear in the MCC, but ‘serious devastation of wildlife, plant life, soil and subsoil resources’ and ‘destruction of natural and cultural universal heritage’ are criminalised. It also makes a pioneering attempt to criminalise aggression as a crime against humanity.Footnote ⁵⁴ In short, while the MCC’s concept of crimes against humanity departs from accepted norms of international law and the definitions established in the Rome Statute, in certain areas it is also more expansive than the Statute itself.

The level of detail with which the MCC defines crimes against humanity (albeit incorrectly in many instances) stands in marked contrast with its laconic regulation of war crimes. In one short provision, the MCC says: ‘War crimes should be understood as any transgression of the law of the Republic committed in time of war and contrary to the laws and customs of war.’Footnote ⁵⁵ It is significant that there is no penalty for war crimes in this provision. Under Congolese criminal law and in line with the continental tradition of criminal law, there is no crime without a specific penalty (nulla poena sine lege, the principle of legality of penalties).Footnote ⁵⁶ This means that, in theory at least, any prosecution of war crimes in the DRC would violate this fundamental principle of criminal law.

It is unlikely that the MCC’s textual ambiguities are accidental given the intense discussions surrounding international criminal law at the time of its drafting.Footnote ⁵⁷ The Congolese legislature enacted the MCC just six months after President Kabila ratified the Rome Statute and three weeks before the Rome Statute was promulgated in the Journal Officiel.Footnote ⁵⁸ Two separate parliamentary bills incorporating the Rome Statute into domestic law had already been proposed in 2001 and 2002. In these bills the Rome Statute’s definitions of international crimes were replicated at length, with only minor variations. Moreover, two high-level conferences organised by the MoJ in Kinshasa and Lubumbashi discussed these matters in late 2002, and the preamble to the MCC also expressly invokes the Statute.Footnote ⁵⁹

Thus, the MCC’s distortions may well have been deliberately introduced by the Congolese legislature. For instance, the decision not to provide penalties for war crimes suggests that the military authorities remained wary of drastic reform and the threat of accountability.Footnote ⁶⁰ A resumption of hostilities was not out of the question as much of the DRC remained under de facto military rule in 2002; indeed, the ink was still drying on the Sun City accords.Footnote ⁶¹ In sum, despite some of the MCC’s progressive provisions, it appears that the Code’s regulation of international crimes primarily reflected the entrenched interests of the Congolese military, which had little interest in aligning it with the ICC.

Case law: using the Rome Statute to interpret domestic law

The military justice system began investigating international crimes around the time that the ICC’s first arrest warrants were issued. Though there was no direct causal relationship between these investigations, since then the Rome Statute and international criminal law have been a source of inspiration for Congolese military tribunals. Confronted with the MCC’s inconsistencies and a lack of prosecutorial and judicial experience, the military authorities have turned to international practices to fill these gaps. Applying the Statute to domestic trials in the DRC has produced a number of progressive developments, such as increased protection of victims and witnesses, as well as innovative interpretations of the definition of rape. However, it has also led to some misapplications of other legal norms and principles, notably with respect to the relationship between domestic and international law or the fair trial rights of defendants. This section explores how the Rome Statute has featured in the case law of domestic military tribunals.

Despite the DRC’s conflict-ridden past, no judicial decision on international crimes was made under the 1972 JMC.Footnote ⁶² In fact, only two international crimes trials have ever addressed events preceding the entry into force of the revised MCC and the transitional constitution of 2003, and neither has dealt with the atrocities of the First and Second Congo Wars.Footnote ⁶³ The pro-Kabila Court of Military Order (Cour d’Ordre Militaire), which operated during this time (1997–2003), made little effort to ground its judgments in sound domestic criminal law, let alone in international law.Footnote ⁶⁴ Likewise, other de facto jurisdictions administered by rebel groups, such as the military courts of RDC-Goma and MLC, were more concerned with political contingency and short-term gain than substantive criminal law and due process.Footnote ⁶⁵ The situation began to change towards the end of the transitional period and shortly before the entry into force of the 2006 Constitution. In March 2006, Lubanga, a militia leader from Ituri province, was arrested and transferred to The Hague. Shortly before that, charges of international crimes were also brought against him within the DRC’s military justice system.

The Military Tribunal in Equatorial Province was the first to make use of the Rome Statute in an international crimes trial.Footnote ⁶⁶ Since then, military tribunals in four other provinces – Katanga, Oriental Province, South Kivu and North Kivu – have also applied the Statute to clarify points of law and procedure in around fifteen separate trials for war crimes and crimes against humanity.Footnote ⁶⁷ In the absence of institutionalised case reporting in the DRC it is not possible to establish a comprehensive list of such cases. Tribunals are reluctant to share information about prosecutions of members of the military, and while the media tries to keep the public aware of such developments, many court documents and trial transcripts remain inaccessible or lost; in some instances, the documents may not have existed in the first place.Footnote ⁶⁸

The MCC’s definitional flaws seem to lie at the heart of the military justice system’s embrace of the Rome Statute. In Mutins de Mbandaka, the judges candidly explained that the MCC ‘conflates crimes against humanity with war crimes, which, incidentally, is clearly defined by the Rome Statute of the International Criminal Court’.Footnote ⁶⁹ In Bongi, the tribunal was equally clear that ‘this internal legislation, namely the military criminal code … has, however, a glaring loophole and does not criminalise war crimes, which are left with no sanction … in this situation, a remedy to these loopholes must be found by invoking the Rome Statute’.Footnote ⁷⁰

The courts have also articulated other rationales for applying the Rome Statute. In Songo Mboyo, the tribunal noted that ‘the Rome Statute of the ICC is very favourable to the suspects eliminating capital punishment and providing efficient protection mechanisms for victims [meriting] its application in the ongoing proceedings’.Footnote ⁷¹ The tribunal in Oriental Province argued in similar terms that, ‘the provisions of the Rome Statute are more humanitarian, in effect, less severe with respect to its penalties, there being no capital punishment’.Footnote ⁷² In the Kibibi decision, these various strands of argumentation were brought together: ‘This legal instrument [i.e., the Rome Statute] is more explicit with respect to the definition of concepts, more favourable to suspects in that there is no death penalty and better adapted in that it foresees clear mechanisms for victim protection.’Footnote ⁷³

While the military tribunals are fairly clear about why it makes sense to apply the Rome Statute – an international treaty – to domestic prosecutions, they have more difficulty explaining how this is possible in legal terms.Footnote ⁷⁴ Some tribunals have quoted Articles 153 (‘courts may also apply international treaties’) and 215 (‘international treaties have superior authority [autorité supérieure] over regular laws’) of the 2006 Constitution, but the judges seem to view these provisions as self-explanatory. There is little legal analysis of how an international treaty can or should displace domestic law. The theory of monism, arguably the strongest argument in favour of the Rome Statute’s direct application, is mentioned only in the Bongi decision.Footnote ⁷⁵ Notably, the majority of tribunals make only passing and incomplete references to the DRC’s ratification of the Rome Statute, or to its self-executing character in Congolese domestic law.Footnote ⁷⁶

The legality of the direct application of the Rome Statute’s Elements of Crimes (EoC) and Rules of Procedure and Evidence (RPE) to displace binding domestic law is equally problematic. None of the judgments examine the legal status of the EoC under international law or its relationship to Congolese criminal law and procedure. For instance, the Bavi and Kahwa decisions determine culpability on the basis of the EoC, but fail to mention it as a source of law.Footnote ⁷⁷ Likewise, the Bongi decision, which rigorously analyses the constitutive elements of pillage and homicide as war crimes by applying the five-pronged test from the EoC, fails to acknowledge it as the source of this new legal standard.Footnote ⁷⁸ Some judgments go even further and make direct use of the Rome Statute’s RPE.Footnote ⁷⁹ For instance, in Kibibi the Military Court of South Kivu, after endorsing the Songo Mboyo and Mutins de Mbandaka decisions, applied the rules relating to victim protection and testimony.Footnote ⁸⁰

While it is clear that, in instances like these, the tribunals are filling significant gaps in the Congolese criminal procedure, the questionable legality of transposing an international criminal tribunal’s internal set of rules to displace binding domestic law seems somewhat lost in the excitement surrounding international criminal justice. For instance, the Kibibi trial lasted just two weeks, which raises questions about the tribunal’s respect of fair trial standards and defendants’ rights. The military judges administering international crimes trials in the DRC have also struggled to articulate a coherent legal basis for the Rome Statute’s application to Congolese law. Although this, on its own, does not undermine the legitimacy of the tribunals’ judgments, it does point to a flexible understanding of how international law can be used – and potentially abused – to enhance domestic justice.Footnote ⁸¹

Thus far, the Rome Statute has been applied to a variety of charges in both war crimes and crimes against humanity trials; there have been no trials of genocide. Application of the Rome Statute has proved more successful in trials involving crimes against humanity. On several occasions, tribunals have referred to the Statute and the case law of the International Criminal Tribunal for Rwanda (ICTR) to interpret the notion of ‘systematic’ and ‘widespread’ attacks against civilians.Footnote ⁸² By contrast, the military justice system has had more difficulty prosecuting war crimes cases. In fact, indictments for war crimes have been thrown out in the majority of cases (with only the charges concerning ordinary crimes or crimes against humanity upheld).Footnote ⁸³ The Mitwaba trial illustrates these challenges: the civil parties brought war crimes charges,Footnote ⁸⁴ while the prosecutors, who doubted it would be possible to convince the judges that an armed conflict was still ongoing in 2005, opted for crimes against humanity.Footnote ⁸⁵

The notion of armed conflict has also been a recurring and contentious issue. The tribunals have struggled with the threshold questions of whether the DRC continues to be in a state of war after the 2002 peace accords (and the Rome Statute’s ratification), and if so, whether the armed conflict should be classified as international or non-international. In the Bongi trial, the judges performed a thorough analysis of the legal framework applicable to international and domestic conflicts, and conceded that ‘foreign armies, including those of Uganda and others have aggravated this situation by providing war materials, funds and personnel to one or other armed group’; yet the tribunal concluded that ‘all hypotheses of war crimes committed in the context of an international armed conflict are to be excluded because the FRPI [Patriotic Resistance Forces of Ituri], the UPC army [Union of Congolese Patriots], the FNI army [National and Integrationist Front], the PUSIC army [Party for Unity and Safeguarding of the Integrity of Congo] are, in fact, only domestic militias or armed groups fighting against the Congolese armed forces’.Footnote ⁸⁶ In the Bavi case, the judges cited both the ICTY’s Tadic and the ICTR’s Akayesu and Bagilishema jurisprudence, and also concluded that there was an internal conflict in Ituri.Footnote ⁸⁷ Notably, none of the tribunals have looked to the ICC’s confirmation of charges against Lubanga to help circumscribe the parameters of armed conflict in Congo, which is surprising given the tribunals’ general willingness to refer to Court practice.Footnote ⁸⁸

The tribunals’ reluctance to detail the causal link between military activities and armed conflict, or to re-consider the duration of ‘international armed conflict’ in the country (June 2003 being the cut-off point suggested in the ICC’s Lubanga decision),Footnote ⁸⁹ has several consequences. For victims there is little guidance as to which charges and claims to pursue before the Congolese tribunals.Footnote ⁹⁰ It would also suggest that the military justice system is invested in downplaying the continued existence of hostilities in the country, as this would be a tacit acknowledgment of the government and military’s failures. It could also be interpreted as an effort to shield members of the military from war crimes prosecutions. The reluctance to extend the duration of international armed conflict makes prosecution of foreign perpetrators or linking atrocities to foreign armies more difficult.

The relationship between the ICC and national jurisdictions is governed by the principle of complementarity. Although it forms part of the admissibility criteria for adjudicating crimes before the ICC, complementarity has also been understood more broadly as a burden-sharing relationship in which the ICC can and should encourage domestic prosecutions.Footnote ⁹¹ The trial of Lubanga is interesting because of its purported ‘catalysing’ effect on domestic prosecutions of analogous cases. The suspect was transferred to The Hague to stand trial for conscripting and enlisting child soldiers, which was an offence that the MCC does not criminalise. According to the Office of the Prosecutor (OTP), it stepped in because the Congolese military tribunals were unable to prosecute.Footnote ⁹² Since then, two domestic trials have included charges of child conscription. In Biyoyo the tribunal refused to apply the Rome Statute’s definition of this crime, and instead convicted the defendant for ordinary crimes, including ‘illegal detention of a person’ and ‘kidnapping’.Footnote ⁹³ In Gedeon Kungu, prosecutors requested an indictment for the war crime of ‘enlisting … about 300 children below the age of 15, among whom 150 have been identified and demobilized’;Footnote ⁹⁴ but the military tribunal threw out these charges, and issued a conviction only for ordinary military crimes, terrorism and crimes against humanity.Footnote ⁹⁵

In light of eastern Congo’s reputation as the ‘rape capital of the world’, it would seem reasonable to expect many cases involving charges of rape. Surprisingly, rape as a war crime has been sanctioned in only a handful of cases: in Bavi, for instance, the tribunal applied the Rome Statute’s EoC and used international case law to establish the defendant’s command responsibility for ordering his soldiers to commit rape.Footnote ⁹⁶ In Kilwa the judges rejected all charges of war crimes, including rape.Footnote ⁹⁷ But this low figure is misleading. So far, Congolese military tribunals have been more willing to classify rape, and especially mass rape, as a crime against humanity. This trend began in 2006 with Songo Mboyo, one of the earliest judgments, and continued through 2011, with the Kibibi verdict (which found eleven members of the Congolese armed forces guilty of raping eighty-nine women) and the conviction of two members of the Democratic Forces for the Liberation of Rwanda (FDLR) of, among others, rape as a crime against humanity.Footnote ⁹⁸

Cases involving charges of rape have featured progressive and unconventional uses of international law and the Rome Statute.Footnote ⁹⁹ In Songo Mboyo, the Rome Statute served to advance a novel legal interpretation of ‘[r]ape as an inhuman act [which] is defined differently under domestic and international law. In fact, the interpretation provided by the Elements of Crimes … considerably extends the notion of rape to also include any other inhuman act with gender-specific connotations.’Footnote ¹⁰⁰ The EoC allowed the judge to criminalise all forms of rape, including against men,Footnote ¹⁰¹ and to give greater weight to the testimony of rape victims than is usually permitted in the Congolese justice system.Footnote ¹⁰² Both Songo Mboyo and the Mutins de Mbandaka decision, another case involving charges of rape,Footnote ¹⁰³ assess the credibility of rape victims’ first-hand testimony and conclude that it should usually be privileged over that of other trial participants.Footnote ¹⁰⁴ These are creative and progressive instances of judicial decision-making, though – as explained above – the legality of the tribunals’ direct application of the EoC to displace binding domestic law raises questions.

A growing body of case law has matured in the last few years. The attention surrounding the ICC’s work in the DRC, and the transfer of a few militia leaders to stand trial in The Hague, have made the Rome Statute a source of inspiration for Congolese judges and prosecutors. The military judicial system has drawn original insights from the Statute and ICL jurisprudence to supplement the domestic legal framework, and to address its lack of experience in dealing with complex international crimes trials. It is also encouraging that the military has begun holding members of its own armed forces (not just militias) accountable. But serious challenges remain: in some trials there have been evidentiary deficiencies, and facts are not always construed in the light of the applicable law. Judges have also evinced a rather liberal understanding of how and why international law should displace domestic legislation, leading to both progressive interpretations of some legal norms (for instance, the definition of rape) and regressive infringements of others (fair trial rights of defendants). Victim and witness protection is still in its infancy, and the penitentiary system allows too many perpetrators to escape. Lastly, international crimes are prosecuted in an uneven and selective manner, and some perpetrators, especially high-ranking members of the Congolese military, remain beyond the reach of the judicial system.Footnote ¹⁰⁵