Putting Complementarity into Practice: Domestic Justice for International Crimes in DRC, Uganda, and Kenya Copyright © 2011 Open Society Foundations. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means without the prior permission of the publisher. Published by: Open Society Foundations 400 West 49 th Street New York, New York 10019 USA www.soros.org For more information contact: Kelly Askin Senior Legal Officer International Justice Open Society Justice Initiative [email protected] 2 Table of Contents Acknowledgments 4 I. Executive Summary and Recommendations 5 II. Introduction 15 III. Democratic Republic of Congo 18 A. Complementarity Needs and Actions 20 B. Stakeholder Policymaking 41 C. Options for Realizing Complementarity in DRC 53 IV. Uganda 58 A. Complementarity Needs and Actions 59 B. Stakeholder Policymaking 76 C. Options for Realizing Complementarity in Uganda 81 V. Kenya 83 A. Complementarity Needs and Actions 84 B. Stakeholder Policymaking 103 C. Options for Realizing Complementarity in Kenya 108 VI. Conclusion: Lessons Learned 115 3 Acknowledgements This paper was written by Eric A. Witte, a consultant and senior associate of the Democratization Policy Council who in the past has worked as external relations advisor to the president of the International Criminal Court and political advisor to the prosecutor at the Special Court for Sierra Leone. It was edited by David Berry, with additional input from Kelly Askin, James A. Goldston, Tracey Gurd, Pascal Kambale, Sisonke Msimang, Binaifer Nowrojee, Chidi Odinkalu, Louise Oliver, Abdul Tejan-Cole, Robert Varenik, and L. Muthoni Wanyeki. The author relied on the generous input of many individuals and organizations. These include the American Bar Association Rule of Law Initiative, Avocates sans Frontières, The International Center for Transitional Justice, the International Commission of Jurists, the International Refugee Rights Initiative, the Kenya Human Rights Commission, the Kenya National Commission on Human Rights, the Law Society of Kenya, Parliamentarians for Global Action, the Public International Law and Policy Group, the Refugee Law Project (Uganda), the Uganda Coalition for the International Criminal Court, and Anton du Plessis at the Institute for Security Studies. The author is also grateful for the dozens of Congolese, Ugandan, and Kenyan government officials, representatives of international organizations, and national diplomats who took the time to share their information and views. Thanks also for the input and feedback of representatives of the European Commission and the governments of the United Kingdom, Denmark, Finland, and the Netherlands on drafts and a presentation of preliminary findings in a meeting on complementarity in Brussels on November 29, 2010. The Open Society Initiative for Southern Africa and the Open Society Initiative for Eastern Africa, beyond substantive input, also provided invaluable logistical support in Kinshasa and Nairobi. The project was aided by preliminary research conducted by Jamie Crook. The Open Society Justice Initiative bears sole responsibility for any errors or misrepresentations. 4 Executive Summary and Recommendations In creating the International Criminal Court (ICC), the drafters of the Rome Statute assigned primary responsibility for dealing with its specified crimes to national authorities. The ICC may exercise jurisdiction only where a state is not willing and able to carry out “genuine” investigations and prosecutions of war crimes, crimes against humanity, and genocide. 1 This principle of complementarity not only sets forth a key test for admissibility of cases in The Hague; it also places a heavy burden on individual states to help achieve the Rome Statute’s overarching goal: ending impunity for grave atrocities. While the ICC plays a critical role as a court of last resort, it will never have the capacity to deal with more than a handful of cases at one time. By supporting the development of political will and legal and functional capacity at the state level, complementarity gives more victims a chance at justice for horrendous crimes, makes proceedings more accessible to affected communities, contributes to deterrence through the promotion of accountability at the national level, and enables national authorities to invest in the creation of functional criminal justice systems capable, ultimately, of ending cycles of mass atrocities. The realization of complementarity in post-conflict states is an important component of conflict resolution and prevention. Yet realizing complementarity in specific post-conflict situations has proven difficult. Despite the wishes and best efforts of a host of governments, multilateral agencies, and international actors, complementarity remains elusive in many places. This is due to an array of factors, including shortage of resources, lack of technical capacity, and absence of political will. Thus, over eight years after the Rome Statute came into effect, many questions remain about complementarity and how it can be furthered in countries scarred by mass crimes. These questions include: • How has the international community supported post-conflict states in developing the capacity and will to carry out fair trials on the basis of genuine investigations and prosecutions? • Are these efforts integrated into more general rule-of-law programming? • How well are these efforts coordinated among donors and between donors and recipient governments? and • What lessons can be learned for ongoing and future efforts to support complementarity? In February and March 2010 and then again in September and October 2010, the Open Society Foundations conducted assessments in the Democratic Republic of Congo (DRC), Uganda, and Kenya in an attempt to develop more detailed answers to these and related questions. This report seeks to address such questions, and in doing so, to promote complementarity and ultimately help end impunity. The report focuses on DRC, Uganda, and Kenya because all three countries have suffered recently from atrocity crimes that have 1 “[…T]he Court shall determine that a case is inadmissible where: (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution”, Rome Statute, Article 17. 5 resulted in ICC investigations. Further, all three have barriers to national level prosecutions. However, the three countries also have the potential to conduct prosecutions and trials, if the right mix of resources, technical assistance, and political will were brought to bear. This report, then, seeks to examine the barriers to complementarity in DRC, Uganda, and Kenya, and the changes needed to overcome those barriers. DRC In the DRC, there are immense challenges to the realization of complementarity. The country is vast; its conflict, which continues in some parts of the eastern region, has been long, particularly brutal, and complicated; government control over extensive swathes of the country is tenuous; and the UN peacekeeping mission, MONUSCO, is overstretched. Against this backdrop, there have been isolated attempts to prosecute Rome Statute crimes through the military justice system, but parliament has not yet passed legislation establishing a procedure to enable domestic prosecutions within the civilian justice system. Beyond the lack of a legislative framework, major deficiencies present obstacles to genuine and fair proceedings. There are not enough lawyers and judges; many of these have little or no knowledge of international criminal law; investigators are poorly trained; there is no system for protecting witnesses and victims; court management and archiving systems are almost nonexistent; the penal system has deteriorated to an extent that many prisoners escape and those who don’t face appalling conditions; the state has no capacity to conduct outreach to affected communities; many journalists don’t understand and thus cannot convey the basics of international criminal law; and civil society organizations require further strengthening in order to assist with outreach functions, monitor proceedings, and effectively advocate on complementarity-related issues. The needs are so great that realizing complementarity in the DRC means first focusing on basic development of the criminal justice system. The international community has undertaken numerous efforts to help meet both general and more specific challenges to the credible prosecution of international crimes in DRC. MONUSCO has provided security, logistical support, and expertise in support of proceedings in the military justice system. Donors have backed various trainings in investigation, prosecution, and judging of international crimes, as well as the building, rehabilitation, and equipping of judicial infrastructure. Yet a lack of government respect for the independence of the judiciary, the chronic underfunding of the justice sector, an unwillingness to pursue sensitive cases, and a mixed record of cooperation with the ICC all raise questions about the DRC government’s commitment to genuine justice for Rome Statute crimes. The country’s limited capacity to plan and coordinate policy in the justice sector, including complementarity policy, is compounded by poor coordination among donors active in justice-sector support and a largely dysfunctional mechanism for coordination between