Eleventh Session of the Assembly of States Parties of the International Criminal Court Interactive Plenary Discussion on Complementarity

Stephen J. Rapp
Ambassador-at-Large for War Crimes Issues 
The Hague, Netherlands
November 19, 2012

Thank you, Madame Clark. I am honored to address you on behalf of the United States observer delegation.

It is crucial to be discussing the principle and the practice of complementarity here at the meeting of the Assembly of States Parties of the ICC. Although the ICC plays an important role in the system of international criminal justice, national courts have the primary role to play in ensuring justice for victims of atrocities. Indeed, the principle of complementarity is at the core of the ICC Statute. I would also highlight the importance of states parties and non-states parties alike remaining committed to strengthening domestic judicial capacity. Beyond furthering accountability, a strong national justice system is conducive to peace, stability, the consolidation of democracy, and economic development.

This project is not one that can be undertaken solely through bilateral efforts; rather, we must act together in a concerted and coordinated fashion, pool our resources, and share our best practices, ideas, and expertise. All nations have something valuable to bring to this conversation. Although this initiative should be a priority for the ASP, it must also continue to be taken up by other multilateral fora, the development community, civil society, regional organizations, and others in the service of justice. In particular, as was discussed at the Greentree event last month, enhancing domestic judicial capacity requires integrating rule of law programs with broader development assistance.

To this end, we encourage all States to identify opportunities to work with national authorities to strengthen domestic judicial systems across a range of technical areas, from forensic investigations, to witness protection, to educating prosecutors, judges, and defense attorneys on international criminal law and due process principles. Mixed investigative teams or judicial panels—comprising international and national staff working side by side—can be an effective model for justice systems emerging from conflict. As national prosecutions increase, strengthening mutual legal assistance frameworks and encouraging cooperation between national judicial authorities can also be appropriate.

Let me speak briefly about some of the programs and policies the United States supports, using our efforts in the Democratic Republic of the Congo as an example. We have long worked on complementarity issues in the DRC even as we support the ICC’s cases there. We have always recognized that most of the work toward justice in the DRC will have to be at the national level, including with hybrid institutions that support national courts with international expertise, personnel, and assistance. We hope we can join together in building strong justice institutions and that these endeavors will provide lessons applicable elsewhere as we seek to bolster the principle of complementarity and strengthen the community of courts around the world that prosecute perpetrators of the worst crimes.

Our work in the DRC involves four main lines of effort:

First, funding and supporting specific courts and justice programs:

The United States has provided approximately $3.5 million dollars over the last three years to implementing partners in the eastern DRC, to provide legal representation to survivors of sexual and gender-based violence and to build the capacity of justice sector officials to competently and fairly adjudicate civilian and military sexual and gender based violence cases in North Kivu province. The Department of State will continue to support the legal aid clinic, mobile courts, and mobile investigation teams through 2014. These courts and legal service providers offer a powerful form of justice for victims of heinous crimes in the eastern DRC and strengthen the DRC’s overall domestic judicial system. Our efforts are complemented and bolstered by private funders and philanthropic organizations that help successfully pilot new courts and justice programs. The Department is also funding a program to strengthen the military judicial response to sexual violence in North and South Kivu. Specifically, we are supporting UNDP to ensure that sexual violence cases falling under military jurisdiction are diligently investigated, prosecuted, and tried under the requisite legal framework.

Second, using the tools of diplomacy to promote complementarity. Over the past years, in my capacity as Ambassador-at-Large for War Crimes Issues, I have travelled seven times to the DRC to meet with governmental and nongovernmental actors, to facilitate better coordination and support for accountability efforts. In the DRC, I have engaged diplomatically with parliamentarians, the ministry of justice, and leading civil society members to support their legislative efforts to incorporate international crimes into their domestic code and to create a mixed chamber for the DRC; to support ongoing prosecutions of perpetrators of serious crimes by military prosecutors; and to support joint efforts by the UN and national authorities, such as the UN peacekeeping mission in the DRC’s Prosecution Support Cells.

Third, providing technical and legal assistance to national authorities. Such assistance can come in the form of technical advice on national legislation or through supporting forensic investigators, police, and witness protection experts. In the DRC, the United States has engaged with the legislative review process conducted by parliamentarians, civil society, and the Ministry of Justice. The United States funds justice programs in the eastern DRC, as I mentioned, including psycho-social services for survivors connected to the legal aid clinics.

Fourth, improving fugitive tracking efforts: Enhancing efforts to track war crimes fugitives is essential to fighting impunity. The United States has assisted the UN in compiling rigorous dossiers on key perpetrators and fugitives, which can serve as a focus of concerted attention by the international community. In the DRC, this has contributed to the recent US and UN travel ban and assets freeze against Sultani Makenga, a military leader of the M23 rebel group, whose name the United States and France submitted to the UN sanctions committee for committing extensive atrocities against the civilian population. In addition, the UN Security Council and the High Commissioner on Human Rights Navi Pillay cited four other senior officers who have in the past participated in atrocities against civilians and who should be brought to justice. These are: Bosco Ntaganda, Baudouin Ngaruye, Innocent Zimurinda and Innocent Kaina.

The United States government will do everything possible to help the government of the DRC bring to justice those responsible of such acts.

Our work on complementarity does not just take place elsewhere. As the White House announced on April 23 during the launch of the interagency Atrocity Prevention Board, “we will hold accountable perpetrators of mass atrocities and genocide and support others who do the same.” Under the aegis of the APB, the United States is developing proposals that would strengthen our ability to prosecute perpetrators of atrocities and permit the more effective use of immigration laws and immigration fraud penalties to hold accountable perpetrators of mass atrocities.

To conclude, we reiterate our strong commitment to the principle of complementarity, not only in principle, but in practice. We urge all states, funders, and civil society partners to identify concrete steps – such as the ones I have outlined today – to realize the promise of complementarity and strengthen the continuum of justice.