 began to change some of the atmosphere. It was not perfect, but it was a start.
What might complementarity look like in practice?
There are actually many positive examples to build on. We’ve seen complementarity work well in Peru, with the trial of Alberto Fujimori, and in Yugoslavia, where domestic Bosnian prosecutors and judges were able to carry forward work that the international tribunal has not been able to do.
One of the most notable recent successes has been the mobile court project, which the Justice Initiative has been assisting in the Democratic Republic of Congo. The Congo has endured millions of deaths due to conflict in recent years. The International Criminal Court has been active in the country and is currently trying several high-profile figures—including Thomas Lubanga and Germain Katanga—in The Hague. But with the court’s limited capacity, investigations have focused on just a few defendants.
The mobile courts, then, have stepped into the void. They’ve been created to help domestic Congolese judges, prosecutors, and lawyers address other perpetrators of serious crimes. So, for example, in January of this year—on New Year’s Day, in fact—a mass rape occurred in the town of Fizi, in the eastern Congo. Within two months, a mobile court had conducted trials that were, by all accounts, fair and in accord with due process. It convicted a number of army officers of rape and other crimes of sexual violence and imposed appropriate sentences.
The ability of a court to conduct trials and identify perpetrators and impose sentences, within two months of the crime, was extraordinary—and at a cost, frankly, that was a fraction of what the International Criminal Court would have been able to do.
What stands between us and complementarity in practice? What are the obstacles?
The two primary obstacles are, on the one hand, technical and, on the other, political.
The technical obstacle is the fact that very often investigators at the national level do not have adequate training in how to investigate certain kinds of crimes. They may not be skilled in the use of forensic evidence, in the analysis of fingerprints or DNA evidence. Or there may be insufficient infrastructure to house archives or things like that.
The political obstacles are, of course, ever present, because it is often the case that those who commit serious crimes have a great deal of power. In many contexts, those who commit serious crimes are senior members of governments. And obviously, when that is the case, there is an enormous political challenge to ensuring accountability for what they’ve done.
This seems the more challenging of the two obstacles. How do you overcome a lack of political will?
There is no magic bullet. But we have learned that a combination of factors is central to generating and sustaining political will. Foremost is an empowered domestic civil society capable of demanding accountability from government. This may include human rights NGOs, independent journalists, and courageous members of the bar. Their efforts must be reinforced by consistent diplomatic pressure from the international community. Finally, concrete examples of complementarity in action—which show that it is indeed possible to bring leading perpetrators to account—are important as well.
In addition to the mobile courts, how is the Justice Initiative involved in work on complementarity?
The Open Society Justice Initiative is doing a number of things.
We are documenting the present state of the problem. There is, of course, already an enormous amount of money going to support the rule of law in countries where serious crimes are taking place. And yet not all of that assistance is taking on board the important concern of how best to address accountability for serious crime.
So, we have looked at examples in the Democratic Republic of Congo, in Uganda, in Kenya—all three countries that are under the microscope of the ICC at present—to look at what kinds of rule of law aid have been provided and how well they have they addressed the challenges of complementarity specificall