Speech at the Assembly of States Parties, International Criminal Court

Stephen J. Rapp
Ambassador-at-Large for War Crimes Issues 
New York, NY
December 7, 2010

Thank you Mr. President,

On behalf of the United States observer delegation, I am honored to address this session of the Assembly of States Parties, the first since the historic Review Conference in Kampala. Although the United States is not a party to the Rome Statute, we sent a large delegation to Kampala, and participated actively in the stocktaking exercise, in the many important and stimulating side events, and in the substantive discussions of amendments to the Rome Statute. We were the only non-State party to make a pledge in Kampala. Along with the States parties, we remain grateful to the Government of Uganda for the extraordinary hospitality it extended to our delegation, as to all participants in the Review Conference. And of course the achievements of Kampala owe a great debt to the strength, sensitivity, and skill provided by the President, Ambassador Christian Wenaweser.

Much of discussion about Kampala has focused on the amendments that were adopted by the Review Conference. They were the result of compromise, and that has naturally left many unsatisfied. My delegation has previously discussed its concerns, including at the conclusion of the Kampala conference and in its statement to the General Assembly on October 29; while we continue to believe these issues will need to be addressed, we want to focus our comments here on the other key agenda item in Kampala—assessing the achievements of international justice to date and the challenges ahead, with a view toward strengthening the global system of accountability for genocide, war crimes, and crimes against humanity.

The task going forward, Mr. President, is to transform the broad principles of justice reaffirmed in Kampala into a program of action, drawing on the dedicated efforts not only of States Parties but also of non-party States committed to the same principles of justice and accountability.

Mr. President, among the principles reaffirmed in Kampala, one has importance that warrants special mention—the primacy of victims and communities affected by “unimaginable atrocities that deeply shock the conscience of humanity.” As States parties and concerned non-party States work to fulfill the stocktaking commitments undertaken in Kampala--whether in discharging obligations to cooperate with the Court or through efforts to support positive complementarity—we must ensure that we do so in a manner that honors the righteous demand for justice by those against whom atrocities have been perpetrated.

What does this mean in concrete terms?

First, in the realm of cooperation with the Court, States should take urgent and concerted steps to ensure that victims and other witnesses who are at risk because of their testimony before the ICC, as well as others who are imperiled through their association with ICC witnesses, are fully protected from harm. States will need do this indirectly and directly: working to empower national authorities to play this role and taking timely measures to protect witnesses in countries that are not yet willing or able to do so themselves. In some instances, we must protect witnesses from national authorities bent on thwarting their truthful testimony. Those who intimidate or seek to bribe witnesses may do well to remember that the Rome Statute provides for the prosecution of individuals who commit “offenses against the administration of justice.”

Mr. President, the international community has honored the uniquely important role of frontline human rights defenders and has rallied to protect defenders when they are in danger because of their advocacy. My government believes that we must similarly galvanize our efforts to ensure the effective protection of those whose participation is absolutely necessary for the success of international criminal justice—the men, women and even children who can bear witness against suspects charged, in the words of Justice Robert Jackson, the US chief prosecutor at Nuremberg, with committing “wrongs … so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored.”

Second, it is intolerable that there are individuals who are the subject of existing ICC arrest warrants or summonses that have remained at large, year after year, without fear of reckoning or account. Mr. President, this state of affairs challenges the Court’s efficacy and betrays victims’ confidence. All too often, suspects enjoying extended impunity have continued to exact murderous and rapacious violence. We must not allow this to continue.

Third, while working to ensure that the ICC successfully concludes the prosecutions it has already begun, we must recognize that its lasting impact will turn in large measure on the degree to which justice in The Hague is complemented and carried forward by national courts. Last month we commemorated the 65th anniversary of the opening of the Nuremberg trials, without which it is scarcely possible to imagine the trials underway in The Hague, Arusha, Phnom Penh and elsewhere. Nuremberg is not only our inspiration and foundation for prosecuting the perpetrators of atrocities, it also continues to teach us important lessons about what it means to succeed in the demanding project of international justice. One of the most important lessons of Nuremberg is that, for international prosecutions to have a lasting and real difference in the daily lives of people, they need to be followed by trials in the places where the perpetrators lived, where they can be judged by the people whose humanity they betrayed.

And so, Mr. President, the United States believes that one of the signal achievements of Kampala was that it elevated our attention to “positive complementarity.” We now know that it is not enough to hope that international courts will catalyze domestic accountability; we must actively work to assist societies ravaged by violence to stand up their own system of protection and accountability.

Recent months have brought an important test of our commitment to this principle—and an opportunity to realize its aims. The Government of the Democratic Republic of the Congo—which, along with Norway and the United States, co-sponsored a side event on positive complementarity in Kampala—has recently proposed the establishment of specialized mixed chambers within its civilian judiciary, which would have primary jurisdiction over Rome Statute offenses. The United States government welcomes the DRC’s initiative, which recognizes the value that foreign judges, sitting alongside Congolese jurists, can bring during a transitional period.

Mr. President, last week I had the honor to participate in an international workshop hosted by the DRC government in Kinshasa to explore, along with other States and allies, how such chambers might best be designed with a view to combating impunity. While the details of this proposal remain to be fleshed out, my government is firm in its commitment to work with the DRC and other partners to stand up a strong and effective domestic war crimes chamber.

We owe this much to governments, like that of the DRC, that seek our assistance in meeting the formidable challenge of lawless violence. We owe to it to the men, women and children who, after enduring savage depredations we can hardly bear to imagine, have the right to demand the justice which they have been promised. But finally, we owe to all of humankind to make the institutions of international and national justice so effective that individuals will be deterred from committing acts of genocide, war crimes, and crimes against humanity.

Thank you.