Welcome address by Her Excellency Tiina Intelmann, Ambassador-at-Large for ICC, at the panel discussion on complementarity and the Rule of Law
“Putting Complementarity into practice: reflecting on the experience in Argentina and the DR Congo, and looking forward to the High-Level Meeting on the Rule of Law”
I would like to thank the Open Society Justice Initiative for co-organising this event and for their valuable work on complementarity.
The Rome Statute now has 121 States Parties, which his just shy of a two-thirds majority of the UN membership. The issue of complementarity , however, is of interest to all States and that is why we have invited all delegations to this discussion today.
Complementarity, or the responsibility of States to domestically investigate and prosecute the most serious crimes under international law, is also the cornerstone of the Rome Statute systemIt is a topic that has gained momentum in the Assembly since the Review Conference in 2010, By that time the court had established itself and had a number of cases. The discussion started focusing on the responsibility of States, on how cases end up coming to the court, on whether and to what extent States are able to prosecute these crimes on their own and and on assistance that we could give to each other. The Assembly has appointed two co-focal points, South Africa and Denmark who have been working on this issue. The Secretariat of the Assembly was also given a role as a clearing house for complementarity-related information. As we have representatives of South Africa and Denmark with us today, I shan’t delve any further into their work.
It must not be forgotten that underlying the whole of the Rome Statute is an international consensus that there should be no impunity for genocide, crimes against humanity and war crimes. While we may disagree on how to implement this, we all agree on the principle as such.
Similarly, I think that few people would disagree that prosecuting these worst crimes is something that should be encouraged. Cases involving Rome Statute crimes are almost by definition complex.
In his report in advance of the High-Level Meeting on the Rule of Law, the Secretary-General called for the establishment of an age of accountability. Given that international courts will never be able to try all perpetrators of even the worst crimes under international law, strengthening domestic capacities is key in achieving this goal.
Complementarity is undoubtedly a part of the Rule of Law agenda. Nevertheless, complementarity deserves special and specific attention, especially in a development assistance context. Specific assistance is required to enable States with weak judicial systems to be able to tackle the worst crimes under international law, as listed in the Rome Statute. Complementarity-related assistance must be in harmony with, but go beyond, normal assistance to strengthen the judicial sector.
Speaking at the International Peace Institute a few weeks ago, Louise Arbour, the former UN High Commissioner of Human Rights and current President of the International Crisis Group, expressed her concern that one of the risks of the international community’s newfound enthusiasm for the Rule of Law is that one would simply choose to focus exclusively on its easy facets – such as general capacity building –. Yes, we need to ensure that prosecutors the world over have the training and the means to be able to prosecute atrocity crimes. It is equally important, however, to foster a political environment where allowing impunity for such crimes is not an option, even if prosecutions may cause political difficulties in the short term.
Complementarity is one of those difficult questions. Perhaps not at the level of principles, which we will be faced with when negotiating the Rule of Law final outcome document. As I noted, all States would argue that cases of genocide, war crimes and crimes against humanity should, in principle, be investigated and prosecuted.
In practice, however, complementarity is much more complicated. Due to the political intricacies that exist in some post-conflict situations, development actors, on the ground, can be somewhat reluctant to address Rule of Law assistance for international crimes, given the complexities of the situation. We cannot be successful in domestic capacity building unless this issue is embraced wholeheartedly by development actors.
What, therefore, can we hope to achieve as we negotiate the final outcome document on the Rule of Law? At the very least, we should renew our commitment to end impunity for genocide, war crimes and crimes against humanity and reaffirm our belief that the onus for the investigation and prosecution of such crimes lies primarily on the States having jurisdiction over these crimes.
It is important to note, however, that this is a responsibility, not a right. States that are unable to carry out this responsibility should be reminded of their obligation to seek the means to prevent the emergence of an impunity gap, by working with development partners and with international and regional organisations. The donor community, also, should be reminded of the need to ensure specific support for programmes relating to the investigation and prosecution of Rome Statute crimes in their Rule of Law assistance programmes.
While all of this is certainly very much in line with the spirit of the Rome Statute, it is an effort that goes beyond it.
***As we look ahead to what is surely to be a long summer of negotiations, this is a good moment to reacquaint ourselves with the topic of complementarity, and to consider its relationship with the Rule of Law. To that end, we will hear from the ICC Assembly of States Parties’ focal points on complementarity what efforts they have undertaken in this field. We will then hear two case studies, from Argentina and the Democratic Republic of the Congo, of complementarity at work.
In the end, I hope we have plenty of time left to discuss how complementarity fits into the broader concept of the Rule of Law, and how we might go about integrating complementarity in the Rule of Law final outcome document