Michael Maya
American Bar Association Rule of Law Initiative

This paper will describe the impact of efforts to build the capacity of both “mobile” and traditional “bricks and mortar” courts in eastern Democratic Republic of Congo (DRC) to handle cases involving sexual and gender based violence (SGBV), including those that rise to the level of war crimes and crimes against humanity under international and Congolese law. More broadly, this paper will advocate for greater commitment to building the capacity of local courts, including in conflict-ridden countries, to deliver locally-owned justice that as a practical matter can’t be - and in most cases, should not be - outsourced. Based on the track record of Congolese military and civilian courts since 2008, there is reason to believe that the justice sector in some of the least developed countries in the world can, with relatively modest assistance, deliver justice to survivors of conflict-related violence and their communities while at the same time satisfying international standards for fair trials.

In DRC and elsewhere, the vast majority of transgressions committed during conflict are never addressed, serving ultimately to thwart reconciliation and the building of a durable peace. In fact, in remarks made in 2010, one of the architects of the International Criminal Court (ICC), Professor Cherif Bassiouni, lamented that, from 1945-2008, 866 people have been prosecuted for 92 million deaths in 313 conflicts. He also noted with considerable regret that, as of 2010, the ICC had pursued only four cases and seven defendants in its first seven years of operation. With a budget of roughly $150 million per year, the cost of prosecuting an ICC case is obviously high. The ad hoc International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) are not appreciably different, with $1.7 billion spent prosecuting the first 177 defendants. Admittedly, these are complex, time consuming and costly cases to prosecute under the best of circumstances.

This brief paper cites the above statistics not as a critique of these or other international tribunals, as they serve a distinct purpose and were never designed to supplant national courts; instead, they are cited to strengthen the case for greater investment in national trials, including in some of the world’s least developed countries. National trials will almost always be speedier and less costly; in many cases - arguably, most – they will deliver justice that is more satisfying for victims and their communities. By making this investment, the UN and other international actors could help re-imagine the concept of “complementarity,” which, at present, is treated as a jurisdictional restraint on the ICC and not as an opportunity or even obligation to help countries deliver the best possible justice within their own borders.

Read more on the different mechanisms of strengthening the Rule of Law by measuring local practice here.

This essay is part of the Innovations in the Rule of Law Report produced by the WJP and the Hiil. The report highlights innovations and insights through a series of concise papers by key experts and organisations in the area of rule of law. For more information, please visit the reports page here .

Michael Maya American Bar Association Rule of Law Initiative
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