Taking Leaves out of the International Criminal Court Statute: The Direct Application of International Criminal Law by Military Courts in the Democratic Republic of Congo

Abstract

Article 215 of the Constitution of the Democratic Republic of Congo (DRC) is the entry point for international law into the DRC legal complex. It provides that international treaties and agreements duly ratified by the state predominate over Acts of Parliament. Cases and studies involving the direct effect or self-executing norms of international law in domestic cases are rare in the DRC. The correct ways of applying Article 215 of the Constitution and international law in domestic cases have not yet been authoritatively settled. The basic dilemma is whether courts should read the provisions of relevant international treaties into disputed provisions of DRC laws or read the disputed provisions in the light of the relevant treaty provisions.Using as a case study the emerging practice of DRC military courts of directly applying international criminal law in domestic cases, the article argues that carelessly cutting and pasting formulations found in international treaties into the texts of applicable municipal laws infringes state sovereignty. Instead, the article proposes a strategy that would avoid unpleasant friction between international criminal law and municipal law, while encouraging cultural pluralism and the judicious intervention of international law in municipal law.