Body
International Criminal Court
ICC-ASP/21/19
Assembly of States Parties
Distr.: General
21 November 2022
Original: English
Twenty-first session
The Hague, 5-10 December 2022
Report of the Bureau on complementarity
19-E-211122
I.
Background and mandates .......................................................................................... 2
II.
Organisation of work .................................................................................................. 3
III.
Summary of meetings and informal consultations ...................................................... 4
IV.
General findings .......................................................................................................... 9
V.
Conclusion and recommendations .............................................................................. 9
Annex I:
Contributions from complementarity stakeholders ........................................ 11
Annex II:
Draft language for inclusion in the omnibus resolution ................................. 17
Annex III:
Draft language for inclusion in the annex on mandates
of the omnibus resolution .............................................................................. 20
ICC-ASP/21/19
I.
Background and mandates
1.
On 21 February 2022, the Bureau appointed Australia and Uganda as ad country
focal points for the topic of complementarity (also considered an “Assembly Mandate”). As
such, Australia and Uganda were focal points in both The Hague Working Group and the
New York Working Group in the lead-up to the twenty-first session of the Assembly.
General mandates
2.
At the twentieth session of the Assembly (“ASP20”), States Parties resolved to
continue and strengthen, within the appropriate fora, effective domestic implementation of
the Rome Statute to enhance the capacity of national jurisdictions to prosecute the
perpetrators of the most serious crimes of international concern in accordance with
recognized fair trial standards, pursuant to the principle of complementarity. 1
3.
The subsidiary bodies of the Assembly and the organs of the Court were essentially
given the following general mandates in relation to the issue of complementarity.
4.
The Bureau was requested to “remain seized of this issue and to continue the dialogue
with the Court and other stakeholders on complementarity, including on complementarityrelated capacity-building activities by the international community to assist national
jurisdictions, on possible situation-specific completion strategies of the Court and the role of
partnerships with national authorities and other actors in this regard, and also including to assist
on issues such as witness and victims protection and sexual and gender-based crimes”.2
5.
The Secretariat of the Assembly of States Parties (“the Secretariat”) was mandated
to, within existing resources, continue to develop its efforts in facilitating the exchange of
information between the Court, States Parties and other stakeholders, including international
organizations and civil society, aimed at strengthening domestic jurisdictions, and to invite
States to submit information on their capacity needs for the consideration of States and other
actors in a position to provide assistance, and to report on the practical steps taken in this
regard to the twenty-first session of the Assembly.3
6.
The Court, while recalling its limited role in strengthening national jurisdictions,
was encouraged to continue its efforts in the field of complementarity, including through
exchange of information between the Court and other relevant actors. 4
7.
States, international and regional organizations, and civil society were encouraged
to submit to the Secretariat information on their complementarity-related activities.5
8.
Annex I to this report records contributions on complementarity-related activities of
the President of the Assembly of States Parties, the Secretariat, the Court, and the
international community more broadly. The subsequent parts of this report reflect the work
of the focal points on the topic of complementarity.
Review of the International Criminal Court and the Rome Statute system
9.
In the context of the wider State Party-driven review process commenced in 2019,
the Review Resolution passed by the Assembly in 2021 at its twentieth session took note “of
the fact that some issues identified by the Group of Independent Experts are already under
active consideration by the Court or in the Bureau working groups, facilitations and other
forums, (…) with the participation of and input from other stakeholders, emphasizing that
such work should continue and should be coordinated with the larger review process with a
view to avoid duplication and benefit from synergies.” 6 Relatedly, the Assembly also
indicated work should continue on the priority topic of “Complementarity, and the
relationship between national jurisdictions and the Court” and that progress should be
reported to the Assembly in advance of its twenty-first session.7
1
ICC-ASP/20/Res.5, para 133.
ICC-ASP/20/Res.5, para. 138 and annex I, para. 14(a).
3
ICC-ASP/20/Res.5, para. 139 and annex I, para. 14(c).
4
ICC-ASP/20/Res.5, para. 141.
5
ICC-ASP/20/Res.5, para. 140.
6
ICC-ASP/20/Res.3.
7
ICC-ASP/20/Res.3, para. 11(b) (referencing ICC-ASP/18/Res.7, paras. 18 and 19).
2
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10.
Further background on this priority review topic, including its intersection with the
mandate and work of the Independent Expert Review (IER), is set out in the “Report of the
Bureau on complementarity”, welcomed by the Assembly at its twentieth session. 8 The
Assembly also noted the recommendations made in that report on future consultations on the
topic of complementarity (see paragraph 15 below).9
11.
Paragraph 9 of Review Resolution ICC-ASP/20/Res.3 required Assembly Mandates
designated as responsible for “assessing and taking possible further action on relevant [IER]
recommendations” to submit to the Bureau the outcome of its consideration and proposals
for next steps by 15 November 2022.
12.
In the Review Mechanism’s “Comprehensive Action Plan” (CAP), 10 the
complementarity focal points were assigned as the “platform for assessment” of IER
recommendations 226 – 267, with the Office of the Prosecutor (OTP) formally “allocated”
all recommendations except for 247(ii) and 262 – 265 (which listed both the OTP and
complementarity focal points).
Sexual and gender-based crimes
13.
At its twentieth session, the Assembly recognised “the importance of achieving
accountability for all Rome Statute crimes while recalling that there is no hierarchy between
them” and encouraged the Bureau “to engage with interested States Parties and other relevant
actors to identify ways to support Court efforts in this regard with respect to sexual and
gender-based crimes that amount to Rome Statute crimes, with a view to reporting thereon
to the twenty-first session of the Assembly”.11
14.
On 21 February 2022, the Bureau assigned this mandate to Australia and Uganda as
ad country focal points for the topic of complementarity on the basis that their general
mandate also extended to assisting “on issues such as … sexual and gender-based crimes”,
as it had in 2021.
II. Organisation of work
15.
As noted in their “Report of the Bureau on complementarity”12 submitted ahead of
the Assembly’s twentieth session, the focal points (Australia and Uganda) suggested that
there appeared to be broadly four streams of work:
“(1)
Continuing dialogue with the Prosecutor and OTP on the forthcoming
(policy) papers on complementarity and completion, and any revisions to its existing
policy papers, including on preliminary examinations, as appropriate. This dialogue
would need to respect judicial and prosecutorial independence and discretion.
(2)
Subject to any general decisions on the implementation of the IER
recommendations, initiating a broader “stocktaking” exercise in respect of the
principle of complementarity, to build on the work of the IER.
(3)
Reflecting further on the division of labour between the Court and ASP,
with a particular focus on developing the structural role of the ASP as a forum for
dialogue and cooperation on complementarity issues between the Court and States
Parties, non-States Parties, civil society and other organisations, with due regard for
any operational confidentialities and the distinct mandates and separation of powers
under the Rome Statute.
(4)
Additional streams of work as necessary to take forward discussions on
complementarity and the recommendations of the IER Report both in the
complementarity facilitation and in other forums as decided by the ASP.”
8
ICC-ASP/20/Res.5, para. 138, citing the Report of the Bureau on complementarity, ICC-ASP/20/22.
ICC-ASP/20/Res.5, para. 138, citing the Report of the Bureau on complementarity, ICC-ASP/20/22.
See at: https://asp.icc-cpi.int/iccdocs/asp_docs/ASP20/RM-Comprehensive Action Plan-ENG.pdf.
11
ICC-ASP/20/Res.5, para. 61 and annex I, para 14(b).
12
ICC-ASP/20/22, para 16.
9
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16.
The focal points organized their work focusing on meetings aimed at assessing the
IER recommendations allocated to this facilitation. These included a first joint meeting on
complementarity and cooperation together with the co-facilitators for cooperation, focusing
on the division of labour between the ASP and the Court (linked to consideration of
recommendation 247(ii)), which had been deferred from 2021 due to scheduling issues, and
a second meeting where the focal points facilitated discussions with the OTP and other
stakeholders specifically on the assessment of recommendations 226 – 267.
17.
The focal points also focused some of their meetings on streams of work that were
not directly related to the IER recommendations. This included an informal meeting on
assessing and enhancing complementarity-related efforts in relation to Sexual and
Gender-based crimes (SGBC) – together with Women’s Initiatives for Gender Justice
(WIGJ).
III. Summary of meetings and informal consultations
18.
As set out above, in 2022, the focal points held three meetings and informal
consultations on the issue of complementarity with relevant stakeholders, including States,
all organs of the Court, and representatives of civil society and international organizations.
All informal consultations within The Hague Working Group were also open to Observer
States, non-States Parties and civil society organizations. A summary of these meetings is set
out below.
First meeting: The division of labour between the Court and ASP on complementarity and
cooperation (joint meeting on complementarity and cooperation)
19.
The focal points together with the cooperation facilitators facilitated a first meeting
on 29 March 2022 to discuss the division of labour between the ASP and the Court.
20.
Ambassador Neuhaus (Australia) indicated that the aim of the discussion was to get
a sense of whether recommendation 247(ii) was to be assessed positively or not and whether
changes would be needed in the existing mandates in order to strengthen the facilitations’
role as envisaged by the IER report.
21.
Ambassador Blaak (Uganda) noted that the IER Report made a number of
observations and a recommendation on the issue of the ‘division of labour between the Court
and ASP on complementarity and cooperation’. One of those recommendations – 247(ii) –
indicated that: “The ASP should consider establishing a working group to assist and support
the Court in addressing impunity gaps and facilitating partnerships to develop domestic
justice processes and maintenance of the rule of law”.
22.
Ambassador Neuhaus recalled that the facilitation on complementarity in mid-2020
organised informal consultations with the Court and relevant stakeholders to discuss the
priority review topic “Complementarity and the relationship between national jurisdictions
and the Court”, where the suggestion was made for a more structured forum inside the
Assembly, such as an “ASP Task Force on Complementarity” to consult or co-ordinate
collectively on the systemic dimensions of complementarity, galvanize support for capacity
building strategies or facilitate communications between the Court and non-States Parties in
a sustainable manner. Ambassador Blaak added that recommendation 247(ii) was quite
similar to the idea proposed at the 2020 meeting.
23.
The focal points indicated that the reason for coordinating with the co-facilitators
on cooperation was that recommendation 247(ii) goes beyond the scope of complementarity
and intersects with a number of cooperation issues, namely: information and evidence sharing
between national jurisdictions and the Court; facilitating judicial requests from States Parties
to the Court; and, facilitating partnerships for cooperation more generally between states and
the Court.
24.
Ambassador Gueye (Senegal) and Ambassador Vassy (France), co-facilitators for
cooperation, noted with regard to recommendation 247(ii) that the creation of new structures
such as a new working group must be viewed with caution and that when devising new
approaches it should be done while bearing in mind the importance of making better use of
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the already existing tools. The co-facilitators invited States Parties to use existing tools
accessible to all States Parties such as the secure digital platform on cooperation, financial
investigations and the freezing of assets. These tools serve to strengthen the capacity of States
to cooperate with the Court and, at the same time, to strengthen their own national capacities
to investigate and prosecute within the framework of their national justice system.
25.
Ms. Gaile Ramoutar (Legal Officer at the Secretariat) briefed the States Parties on
the complementarity platform noting that at the Review Conference in 2010 by resolution
RC-Res.1 the Assembly mandated the Secretariat “within existing resources, to facilitate the
exchange of information between the Court, States Parties and other stakeholders, including
international organizations and civil society, aimed at strengthening domestic jurisdictions”.
She recalled that the Secretariat, in consultation with the focal points, circulates on an annual
basis a note verbale inviting States Parties to indicate areas in which they require technical
assistance. The Secretariat focal point acts as a liaison between requesting States and donor
States or organizations. Ms. Ramoutar noted that to date, there had been a limited number of
responses submitted to the Secretariat and encouraged States Parties to approach the
Secretariat regarding their available assistance or needs.
26.
Mr. Mamadou-Racine Ly (Adviser, OTP) indicated that the process of transition
was ongoing and that the Prosecutor was re-examining the Office’s policies and practices
with careful consideration of the IER recommendations, including in particular
recommendation 247. He also emphasized the Office’s regional approach as a new safety net
by enhancing of readiness of national jurisdictions through positive complementarity, with
particular attention to the Sahel region as well as to the coordination efforts of domestic
prosecution services within the EU genocide network. He also noted the Office’s efforts by
building mutual legal assistance relations.
27.
The facilitators determined that no active support was expressed towards the
creation of a new mechanism and that the conclusion was therefore that the use of existing
platforms should be promoted and encouraged.
28.
A more comprehensive record of this meeting is available at the complementarity
resources page of the ASP website.13
Second meeting: “update from the Office of the Prosecutor (OTP) on their assessment of
the complementarity-related recommendations (226 – 267)”
29.
The focal points facilitated a second meeting on 30 June 2022 to receive an update
from the OTP on their assessment of the complementarity-related recommendations (226 –
267). The OTP was formally allocated all recommendations except for 247(ii) and 262 – 265,
which allocated both the OTP and the complementarity facilitation for assessment.
30.
Ambassador Blaak provided an update on the “Dakar Seminar on complementarity
and cooperation” held on 23-25 May 2022. Discussions emphasised the importance of
collective efforts in promoting and strengthening cooperation as well as ensuring the effective
implementation of the principle of complementarity, with a particular focus on States from
the Economic Community of West African States (ECOWAS). At the conference,
Ambassador Blaak promoted the work of the facilitation and the complementarity platform.
The Conference concluded with the signing of the Dakar Declaration. 14
31.
Mr. Mamadou-Racine Ly, (Adviser, OTP), provided an oral update from the OTP
on their assessment of the complementarity-related recommendations. These
recommendations relate to three priority areas: selection and prioritization of cases and
perpetrators; situation prioritisation, hibernation and closure; and preliminary examinations.
32.
With regard to the initial situation and case selection – preliminary examinations
(R226-229), Mr. Ly indicated that the Prosecutor was committed and already engaged in
identifying how to better implement the strategies suggested by the experts for improving
13
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OTP’s position in terms of the criteria for opening preliminary examinations, applying a
higher threshold for gravity at the initial filter stage and not taking feasibility into account.
33.
With regard to selection and prioritisation of cases and perpetrators (R230-242),
Mr. Ly noted that the Prosecutor will always only decide to prosecute a case if there is a
reasonable prospect of conviction at the end of the trial.
34.
In relation to situation prioritisation, hibernation and closure (R243-250), Mr. Ly
indicated that the Prosecutor agreed on the IER report finding that the prioritisation of
situations is necessary. The new policy on situation completion adopted on 15 June 2021,
introduced the concept of completion of the investigation phase and completion of the
prosecution phase.
35.
Concerning the preliminary examinations section (R251-253), Mr. Ly noted that the
united team within the Pillars, as part of the new structure of the OTP, takes into consideration
most of the concerns raised by the experts as it achieved the main objective to ensure an
embedded staff organisation.
36.
Regarding the length of preliminary examinations activities (R 254-261), Mr. Ly
indicated that the Prosecutor fully recognised the risks identified by the experts’ findings
noting that the OTP would be considering options and suggestions on how a reasonable
duration of preliminary examinations could be part of the general plan at the opening of each
preliminary examination.
37.
With regards to complementarity and positive complementarity (R262-265), Mr. Ly
noted that following the discussions during the Complementarity facilitation meeting
of 1 October 2021 the Prosecutor would launch a new policy paper on complementarity. This
paper was initially planned to be launched at an upcoming regional event that was postponed
to later in the year. Mr. Ly indicated that the OTP was finalising the paper for later
distribution for comments and consultation. Mr. Ly noted that the paper outlined four key
pillars on which these efforts will be based: creating a community for cooperation and
complementarity; technology as an accelerant for complementarity; bringing justice closer to
communities; and, harnessing cooperation mechanisms at the regional and international
level. Mr. Ly suggested providing a short paper describing the policy paper for States to be
able to start discussions already after the summer break.
38.
Concerning the issue of transparency of preliminary examinations (R266-267),
Mr. Ly indicated that the OTP would continue to look for ways to best strike a balance
between the need for communication and updates, with the duties of confidentiality and due
discretion that guide its work.
39.
Ambassador Neuhaus commended the OTP and the Court more broadly for the very
positive spirit in which they engage. He concluded the meeting by inviting States to provide
any comments in the coming months regarding these recommendations to be able to discuss
them ahead of the ASP.
Third meeting: “Assessing and enhancing complementarity-related efforts in relation to
Sexual and Gender-based crimes (SGBC).”
40.
On 7 October 2022, the focal points in collaboration with Women’s Initiatives for
Gender Justice (WIGJ) facilitated a panel discussion aimed at assessing and enhancing
complementarity-related efforts in relation to SGBC.
41.
At the meeting Professor Kim Thuy Seelinger (Research Associate Professor, JD,
New York University School of Law) reflected on the meaning of complementarity beyond
the existing definition in the Rome Statute, which encompasses a rich diversity of national
systems with different levels of experience in the field. She noted that while developing the
technical aspects of complementarity was important, a relationship of trust remained
fundamental.
42.
Professor Thuy Seelinger noted that while the ICC needs and deserves support, it
has limitations. She highlighted the important role of national courts in accountability for
SGBC. Professor Thuy Seelinger noted that many challenges endemic to SGBC remain in
both the national and international jurisdictions. Some challenges have unique aspects in
national systems, such as insufficiencies in the legal framework, for example procedural
misalignments, different definitions of offences and retroactivity issues, among others, even
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in countries where the Rome Statute has been domesticated. She highlighted a particular
challenge where temporal gaps exist between the national statutory framework and the Rome
Statute jurisdiction. She noted that these issues represent a significant challenge particularly
for SGBC and that complementarity plays an important role in this regard.
43.
Professor Thuy Seelinger noted that for this purpose, an online practice database is
being developed that would allow national actors to match the facts of their case, determine
the time-line, and bring up all the relevant jurisprudence up until that point in time. This
would enable practitioners to be more secure when bringing charges, as well as in
deliberation. She indicated that the database would be ready by next year. She also noted the
work carried out by a UN team of experts that had released model legislation related to
SGBC. She concluded noting that national systems with their proximity to local populations
might play an important role – with the support of civil society – in liaising with communities.
44.
Ms. Dianne Luping (Head of the Gender and Children Unit – GCU – OTP) noted
that her unit, the GCU, was established in 2003 and was charged with assisting OTP in legal,
investigative and strategic issues related to SGBC and crimes against and affecting children.
She noted that the work of the GCU is seen as a key priority for the OTP, in particular because
these types of crimes are often insufficiently investigated or prosecuted and the severe impact
upon vulnerable persons who need to be engaged in an appropriate manner.
45.
Ms. Luping noted that the Rome Statute itself was an achievement as it was the first
clear international articulation of a wide range of explicit SGBC. Additionally, the rules of
procedure and evidence regarding cases related to SGBC are relatively progressive. There is
great emphasis on protecting the dignity and privacy of individuals and their testimony,
ensuring respectful methods of questioning with a trauma informed approach. There are often
agreements in advance between the OTP and the Defence teams to avoid re-traumatisation
of survivors. She referred to landmark decisions such as Prosecutor v Ntaganda, where
Mr. Ntaganda was convicted for the rape and sexual slavery of members of the same armed
group (those below age 15).
46.
Ms. Luping stated that Complementarity is important for the OTP, noting that the
Court cannot address SGBV crimes alone. She highlighted the existing good cooperation with
Uganda, which had benefited from the experience of the Court. She noted that the OTP can also
profit from the support from States Parties to the Court, for example, her office has benefited
from seconded staff. She indicated that the OTP is also benefiting from the recently established
Trust Fund, from not only the witness management perspective but also specifically in support
of the work on SGBC, with training and building capacity within the Office. She referred to
examples of support in training from France (head of the anti-terrorism unit of magistrates) and
Germany (head of the international crimes section of the Federal Prosecutors).
47.
In response to a question concerning the effectiveness of complementarity given the
different SGBC definitions under international and national law, Ms. Luping indicated that
while different practices exist they could complement each other. She highlighted the
example of Uganda where they relied on the Rome Statute. She also noted the examples of
France and Germany with their domestic experience regarding Syria and other cases, which
has been useful for the Court. Professor Thuy Seelinger added that when there are different
definitions of rape across national jurisdictions, law reform may be important, as the
definitions sometimes do not fully match with the Rome Statute. Going forward, she added,
it is important to look at the characterisation of the acts, where the exact provision may not
exist in the national legislation.
48.
Ambassador Blaak briefed the facilitation on a second monitoring visit to Uganda
organised by the Trust Fund for Victims (TFV), the Irish embassies in The Hague and
Kampala from 13 to 17 September 2022 with 48 members of delegations and a total of 14
countries represented. She noted that a previous monitoring visit took place in 2018.
Ambassador Blaak indicated that the objective of the monitoring visit was to provide
delegates with the opportunity to witness first-hand the work of the TFV in northern Uganda,
focusing on the lasting impact of the conflict and the individuals and communities affected
by the many atrocities committed. Participating delegates also gained insight into the ongoing
TFV’s reparation implementation programmes in the Democratic Republic of the Congo, as
they listened to the experience of three beneficiaries who received reparation awards in the
Lubanga and the Katanga cases
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49.
Ms. Franziska Eckelmans (Acting Executive Director of the TFV) stated that the
TFV could only be active if there is State cooperation, to work together with governments.
She highlighted the TFV’s numbers from last year with respect to two of their projects in
Uganda that supported 1,033 victims of SGBV with physical and physiological rehabilitation
as well as providing socio-economic measures. She noted that in the Central African Republic
the TFV had reached 4,845 SGBV victims within two years, in particular victims of rape
following the acquittal in the Bemba case. She also indicated that the TFV trained 94 social
workers to provide psychological services, and put in place 20 collective psychotherapists.
She noted that the TFV also provided support to 378 women with serious medical issues, and
treated 378 victims of rape and HIV.
50.
A more comprehensive record of this meeting is available at the complementarity
resources page of the ASP website.15
Other activities
51.
Finally, at ASP20 in 2021, Australia as focal point on complementarity at the time
co-sponsored four relevant side-events, held virtually. These four events served to highlight
the importance of the principle of complementarity in practice.
52.
The first side event was hosted by Africa Legal Aid (AFLA) and titled ‘Gender
Sensitive Judging in International Criminal Courts’. The event highlighted the importance of
a gender-sensitive lens in adjudication, which provides a safe space for women and promotes
awareness of gender biases. The discussions highlighted that such gender-sensitive
adjudication can ensure a more inclusive and impartial international criminal justice system.
53.
The second side event was a pre-book launch for the book titled ‘Critical Analysis
of Gender in International Criminal Law’. The event was organised by the co-editors of the
book Indira Rosenthal, Susana SáCouto and Valerie Oosterveld and by the International
Gender Champions The Hague together with Women’s Initiatives for Gender Justice (WIGJ).
The event discussed misconceptions concerning gender in the prosecution of sexual violence
and other gender-based crimes in international criminal law. Ambassador Neuhaus provided
closing remarks.
54.
The third side event organised by the International Center for Transitional Justice
(ICTJ), in partnership with Australia, France, Germany, and The Netherlands, focussed on
accountability in Syria. The event, titled ‘Specialized Units for Investigating and Prosecuting
International Crimes and Crimes of the Past: Efforts for Addressing Impunity for Crimes in
Syria’, discussed the preliminary findings of the report ‘Gearing up the Fight against
Impunity: Dedicated Investigative and Prosecutorial Capacities’ authored by ICTJ and the
Foundation for Human Rights. Ambassador Neuhaus provided opening remarks.
55.
The fourth side-event titled ‘Trust Fund for Victims: Implementation of Reparation
Awards in the DRC and Mali’, organised by the Trust Fund for Victims (TFV), provided an
explanation of the implementation of reparations in the Katanga, Lubanga, and Ntaganda
cases from the Democratic Republic of the Congo (DRC), and the Al Mahdi case from Mali.
56.
Separately, on 23-25 May 2022, the ‘Dakar Seminar on complementarity and
cooperation’ was held, organized with the support of the Senegalese Government and the
support of the French embassy and EU delegation in Dakar. Discussions emphasized the
importance of collective efforts in promoting and strengthening cooperation as well as
ensuring the effective implementation of the principle of complementarity, with a particular
focus on States from the Economic Community of West African States (ECOWAS). The
conference was attended by, among others, Ministers of Justice and representatives of the
Judiciary of 15 ECOWAS Member States, the Republic of Chad and the Central African
Republic, who shared best practices and experiences in cooperation and complementarity
related matters. At the conference, the focal points for complementarity (Ambassador Blaak)
and the facilitators for cooperation promoted the work of their facilitations and their
respective platforms. The Conference concluded with the signing of the Dakar Declaration. 16
15
16
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IV. General findings
57.
The Rome Statute creates a system of criminal justice designed to ensure that there
is no impunity for the most serious crimes of concern to the international community as a
whole due to the unwillingness or inability of States themselves to investigate and prosecute
the perpetrators of these crimes. This system is based on the principle of complementarity as
enshrined in the Statute, which means that the Court will intervene only when States are
unwilling or unable to genuinely carry out the investigation or prosecution of these crimes.
58.
It is generally understood by States Parties, the Court and other stakeholders that
international cooperation, in particular through rule of law development programmes aimed
at enabling domestic jurisdictions to address war crimes, crimes against humanity and
genocide, may contribute to the fight against impunity for such crimes. Such cooperation has
been described as “positive complementarity” or complementarity activities. National
ownership is essential and a requirement to engage in, and ensure the success of, such
activities.
59.
Financial contributions to development programmes and to civil society can play an
important role in promoting complementarity. A number of countries have allocated
development cooperation resources to promote the strengthening of national judicial capacity
to address Rome Statute crimes.
60.
In light of consultations held this year, the co-focal points are of the view that it is
important to continue discussions on the principle of complementarity, including on the
relationship between national jurisdictions and the Court; the interpretation and application
of the principle of complementarity, and positive complementarity; and the IER
recommendations related to the principle of complementarity.
61.
In the context of the review process, the focal points are grateful that States Parties
and the Court engaged in a structured dialogue on complementarity and related IER
recommendations (R226 – 267). It is recalled that the Office of the Prosecutor (OTP) was
formally “allocated” all complementarity-related recommendations except for 247(ii) and
262 – 265 (which listed both the OTP and complementarity focal points). The focal points
note that all recommendations allocated to the complementarity facilitation as the “platform
for discussion” have been assessed positively – as reflected in the Matrix to be adopted at the
twenty-first session of the Assembly of States Parties. The focal points look forward to
discussions on the implementation of the positively assessed recommendations, while noting
the need to continue to respect judicial and prosecutorial independence and discretion.
62.
The focal points welcome the announcement of the OTP that it will launch a policy
paper on complementarity, as this would assist in more effectively engaging States Parties
on the topic, particularly with a view to building a shared understanding of key concepts,
terms, and practices.
63.
It was determined during informal consultations on R247(ii) that no active support
existed towards the creation of a new mechanism relating to the division of labour between
the Court and ASP on complementarity and cooperation and that therefore the use of existing
platforms should be promoted and encouraged.
64.
Finally, on the issue of SGBC that amount to Rome Statute crimes, the focal points
are of the view that the consultations held this year have revealed that there would be value
in ongoing consultations in 2023 to engage interested States Parties and other relevant actors
to identify ways to support Court efforts in this regard.
V.
Conclusion and recommendations
65.
The above, as well as contributions on complementarity from other stakeholders set
out in Annex I, highlights the importance of continued efforts, within the appropriate fora, in
strengthening national capacity for investigating and prosecuting Rome Statute crimes,
bearing in mind the limited contributions that can be made by the Assembly and its
Secretariat, as well as the Court itself in that regard. Ensuring that national judicial systems
are able to deal with the most serious crimes of concern to the international community is
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vital for making the Rome Statute system work, ending impunity for these crimes and
preventing their reoccurrence.
66.
In the review process, it appears that the streams of work – outlined in paragraph 15
above – remain broadly relevant for guiding discussions on complementarity in 2023 (noting
that States Parties did not indicate a need to “stocktake” or cover complementarity-related
issues not already identified in the review process at this time). It is noted that all
complementarity-related recommendations (R262 – 267) have been discussed within the
context of the complementarity facilitation. In this context, it will be important to move to
the implementation of the positively assessed recommendations in 2023. As noted above, it
would be greatly valued if the policy paper from the OTP on their approach to
complementarity, positive complementarity, and relevant IER recommendations is published
as soon as feasible. This will assist in informing States Parties about the implementation of
the complementarity-related IER recommendations.
67.
There is also support for the Bureau to continue to engage interested States Parties
and other relevant actors to identify ways to support Court efforts with respect to SGBC that
amount to Rome Statute crimes.
68.
In that context it is recommended that the Assembly adopt the draft provisions on
complementarity contained in annex II to this report.
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Annex I
Contributions from complementarity stakeholders
I.
The President of the Assembly of States Parties
The following information and views in this Part I were provided by the Secretariat of the
Assembly of States Parties on behalf of the President of the Assembly, Ms. Silvia Fernández
de Gurmendi
1.
The Assembly of States Parties is the custodian of the Rome Statute system. While
the Assembly itself has a very limited role in strengthening the capacity of domestic
jurisdictions to investigate and prosecute serious international crimes, it is a key forum for
matters of international criminal justice. Combating impunity at both the national and the
international levels for the most serious crimes of concern to the international community as
a whole is the core objective of the Statute.
2.
The President of the Assembly, Ms. Silvia Fernández de Gurmendi, has consistently
highlighted the importance of the principle of complementarity in various international fora,
including in her participation in the Conference on the International Criminal Court and
national justice in the fight against impunity for Rome Statute crimes and other serious or
related crimes held in Dakar, Senegal, on 23 May 2022, and the 12th Consultative Assembly
of Parliamentarians on the International Criminal Court and the Rule of Law (CAP-ICC) held
in Buenos Aires, Argentina on 4-5 November. On 16 June 2022, the Vice-President of the
Assembly, Ambassador Bob Rae participated on behalf of the President at the technical
working meeting aiming at strengthen cooperation with the International Criminal Court,
organised by the Organisation of America States (OAS).
3.
In the context of the twentieth Anniversary of the entry into force of the Rome
Statute and the establishment of the International Criminal Court, the President continuously
underscored the importance of the principle of complementarity when speaking of the global
reach of the Court during her interventions at the “International Criminal Court
at 20: Reflections on the Past, Present and Future” conference hosted by the Court in The
Hague on 1 July 2022 and the “International Criminal Court at 20: Reflections on the Past
and vision for the future” event hosted by the Permanent Missions of Argentina, Canada,
Liechtenstein, the Republic of Korea, Romania and Sierra Leone to the United Nations in
New York on 11 July 2022.
4.
In the bilateral context, the President met and exchanged views with the
Secretary-General of the United Nations and other officials of the United Nations, Ministers
of Foreign Affairs, Heads of Missions, representatives of civil society organizations, bar
associations, academic institutions and media, similarly highlighting that the Court is
complementary to national jurisdictions in strict adherence to the principles and values
enshrined in the Rome Statute.
5.
The President has continued to promote and raise awareness of the principle of
complementarity. A full appreciation of the complementary nature of the jurisdiction of the
Court could lead to greater acceptance of the Court and an increase in the number of States
Parties, leading to universality.
II. The Secretariat of the Assembly of States Parties
The following information and views in this Part II were provided by the Secretariat of the
Assembly of States Parties.
6.
The Secretariat has continued to carry out its outreach, information-sharing and
facilitating function. Consistent with past practice and when appropriate, the Secretariat has
coordinated with the co-focal points in carrying out these activities via the “Complementarity
Platform for technical assistance”, which aims at facilitating links between States Parties
requesting technical assistance and actors in a position to assist national jurisdictions in their
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efforts to strengthen capacity to investigate or prosecute Rome Statute crimes. This Platform
is designed for States Parties to indicate their technical legal assistance needs. Once the
Secretariat receives a request, it coordinates with possible capacity building providers.
7.
Following consultations with States Parties and representatives from the Court and
civil society, on 19 April 2022, the Secretariat conveyed a note verbale to States Parties 1
aimed at facilitating links between States Parties requesting technical assistance with actors
that may be able to assist national jurisdictions in their efforts to investigate or prosecute
Rome Statute crimes. The Secretariat invited States Parties to indicate their technical legal
assistance needs by completing the Complementarity Platform. Once the Secretariat received
a request, it would coordinate with the requesting State, such as sharing information with
actors that may be able to assist. Informal consultations on technical assistance took place
between one State Party and the Secretariat in July 2022. The Secretariat also received two
official requests for technical assistance from two States Parties on 30 September 2022 and
on 31 October respectively. The Secretariat started consultations with the Court and other
potential stakeholders to facilitate technical assistance to these countries.
8.
The Secretariat encourages States Parties to view the Platform as an important step
in the State-driven process of complementarity, and where relevant, to assess their
capacity-building needs at the national level, and to respond to the questionnaire contained
in the Platform. The objectives of the facilitation and the Platform can only be achieved
through the active participation by a greater number of States. The Secretariat encourages
interested States to complete the Platform and submit via email to:
ASPcomplementarity@icc-cpi.int.2
9.
Given that this function has been established within existing resources, there are
limits to what can be achieved. The Secretariat will continue to facilitate the exchange of
information between relevant States and stakeholders through liaising directly with them and
via its complementarity platform.
III. The Court
The following information and views in this Part III were provided by the Court.
10.
The Court does not involve itself directly in building domestic capacity for the
investigation and prosecution of the most serious international crimes. From a judicial point
of view, complementarity has a specific meaning relating to the admissibility of cases before
the Court pursuant to article 17 of the Statute. This remains exclusively a judicial issue.
Initiatives by State Parties to strengthen national jurisdictions to enable them to genuinely
investigate and prosecute the most serious crimes of concern to the international community
as a whole should respect the judicial and prosecutorial independence of the Court in relation
to the admissibility of specific cases before it.
11.
Nevertheless, the Court and its different organs seek to contribute, where
appropriate, to processes and activities which may serve to enhance the effectiveness of
national jurisdictions to genuinely investigate and prosecute serious crimes, in line with the
goals of complementarity set out in the preamble of the Statute. The Office of the Prosecutor,
in particular, attaches significant value to enhancing partnerships with situation countries,
third states, and other stakeholders as appropriate, to advance cooperation and
complementarity efforts to support national processes where possible. Some of these efforts
arise out of its work in identifying whether the potential cases or case hypotheses it is
considering for investigation would be admissible, since such inquiries can sometimes trigger
activity at the national level by domestic prosecuting bodies. These efforts can contribute to
decreasing the overall financial and capacity burden placed on the Court in the long term, as
the strengthening of national capacities can have an impact on the case load of the Court, and
contribute to overall completion strategies for particular situations.
12.
The Court has extensive investigative and prosecutorial experience and expertise
from various aspects of judicial proceedings gathered throughout its activities in the
1
2
12
ICC-ASP/21/SP/06.
For further information on the Complementarity Platform see: https://asp.icc-cpi.int/complementarity/Platform
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situations under investigation and preliminary examination. It has continued to exchange best
practices and lessons learned, as well as to provide its inputs where requested on the
requirements of the Rome Statute, with its interlocutors, as well as amongst relevant networks
of practitioners. On occasions, on a cost-neutral basis, and on invitation, the Court has also
allowed staff with specific expertise to participate in training activities, which focus on
addressing the Rome Statute crimes at a national or international level. Furthermore, within
the framework of the Rome Statute, in particular article 93, paragraph 10, the Court, in
particular the Office of the Prosecutor, has, upon request, shared information with and
assisted national jurisdictions in their related investigations. Such exchange of information
has been further facilitated, and delivered tangible fruits, by novel initiatives of the Office to
become a member or participate in Joint (Investigative) Teams, specifically that for the
situation in Ukraine as well as that regarding crimes against migrants in the Libya
situation. Vice versa as reiterated by the States Parties in the omnibus resolution, the Court
has been called on to benefit from the experiences and lessons learned by States and other
international criminal law institutions that have themselves investigated and prosecuted
Rome Statute crimes. The Court’s annual judicial seminar has provided valuable
opportunities for an exchange of views and experiences between the judges of the Court and
judges from national jurisdictions.
IV. Broader efforts of the international community
The following information and views in this Part IV were provided by individual civil society
organisations and other stakeholders as identified.
13.
This year, Africa Legal Aid’s (AFLA) Gender Mentoring Training Programme for
ICC Judges has focused on gender diversity. Meetings have been held on Non-Binary and
Intersex People under the Rome Statute. The third meeting, Gender Diversity and the Rome
Statute System will be held to coincide with ASP 21. AFLA has adapted its blueprint aimed at
empowering victims to additional countries and has recently launched its programme on a
victim-centred and gender-sensitive approach to justice in Southern Africa. AFLA continues
to engage stakeholders to seek accountability for victims of human rights crimes committed
in The Gambia during the Jammeh era.
14.
Within the American Bar Association, the Atrocity Crimes Initiative’s projects
worked to strengthen both international and domestic legal frameworks on accountability,
including U.S. legal capacity to hold perpetrators of atrocity crimes accountable when subject
to U.S. jurisdiction. In a Sept. 2022 written statement, the ABA urged Congress to consider
legislation to close gaps in the domestic legal framework on war crimes, enact a crimes
against humanity statute, and ensure statutes of limitations do not bar domestic prosecutions
for atrocity crimes. The International Criminal Law Practice Project also advanced
forthcoming publications addressing challenges faced by practitioners working at varied
levels and perspectives.
15.
The Australian Centre for International Justice (ACIJ) and partners submitted a
formal request to the Australian Federal Police to investigate a retired Sri Lankan General
regarding allegations of torture, war crimes and crimes against humanity committed under
his command in the final phase of the Sri Lankan civil war in 2009. ACIJ engaged in related
public advocacy to highlight institutional reforms necessary to allow Australia to effectively
investigate international crimes. ACIJ continued to monitor Australia’s response to
allegations of war crimes by Australian forces in Afghanistan between 2005 and 2016 and to
advocate for improved outreach to affected communities.
16.
The Coalition for the International Criminal Court (CICC) supported activities
promoting understanding and the realization of the principle of complementarity. In 2022,
the Coalition supported efforts by Coalition members in Ukraine calling on the President to
sign the law harmonizing domestic law with international criminal and humanitarian law and
calling for the prompt ratification of the Rome Statute. The Guinea national Coalition for the
ICC welcoming the opening of the trial related to the Conakry stadium events of 28
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September 20093. Coalition members have been involved in promoting complementarity in
several countries, including the Central African Republic, Colombia, Mexico and Venezuela.
17.
The Comisión Mexicana de Defensa y Promoción de los Derechos Humanos
together with the International Federation for Human Rights, launched in January a
communication4 to the OTP, as they consider that crimes within the ICC’s jurisdiction were
committed in Mexico between 2006 and 2018. The communication documents patterns of
torture and sexual torture committed by the Mexican Federal Forces, as well as Mexico’s
lack of will and capacity to prosecute them. It is based on the study of 197 cases that refer
to 642 victims of torture and sexual torture and identifies 58 military commanders who are
allegedly responsible.
18.
Defiende Venezuela, Un Mundo Sin Mordaza and the Crimes Against
Humanity Observatory, have denounced 81 events constituting crimes against humanity of
torture, persecution based on political grounds and other inhumane acts, before the ICC on
the investigation about the Situation of Venezuela I. In this regard, the principle of
complementarity was reported, detailing the internal procedure that the cases should have
followed and evidenced the absolute inactivity of the State in terms of genuine investigations
and prosecutions. Additionally, former officials of Venezuelan State were interviewed, and
a communication was sent on the organizational structure of the forces involved in crimes.
19.
The EU Genocide Network organized three ad hoc meetings between civil society
organisations and national authorities on the war in Ukraine, and two plenary meetings. The
Spring meeting addressed the notion and use of structural investigations in core international
crimes cases and lessons learned from the trial in Germany (Koblenz) on Syrian regime
crimes. The autumn meeting was devoted to the implementation of a core international crimes
evidence database at Eurojust on the basis of the Agency’s extended mandate, and presented
the first verdict obtained in the EU (Sweden) for crimes committed in Iran in the 1980s. In
July and September, respectively, the Network Secretariat, Eurojust and ICC-OTP shared
guidance on the identification of victims and witnesses of core international crimes with
national authorities, and published guidelines for civil society organisations on documenting
international crimes and human rights violations for accountability purposes. Between
October and December, the Network and the European Judicial Training Network organised
executive workshops on practical aspects of investigations and prosecutions for national
authorities involved in the joint investigation team in Ukraine.
20.
Human Rights Watch (HRW) welcomed the start of a trial in Guinea on the 2009
stadium massacre and called for credible proceedings. The ICC prosecutor’s office played a
key role in spurring this trial forward and should continue its monitoring. HRW called
on Ukraine to align its national legislation with the Rome Statute and international law
and urged other governments to bolster Ukraine’s judicial capacity to address serious crimes.
HRW continued to monitor proceedings at the Special Criminal Court in the Central African
Republic and Colombia’s Special Jurisdiction for Peace, and national consultations on
transitional justice, which include accountability, in the Democratic Republic of Congo and
Gambia.
21.
The International Center for Transitional Justice (ICTJ) promotes
complementarity by offering timely analysis, creating spaces to advance global discussions,
and supporting domestic jurisdictions. This year, we continued our work in support of
Colombia’s Special Jurisdiction for Peace, preparing victims and perpetrators for
acknowledgement of responsibility hearings and increasing judicial capacity on the use of
restorative justice tools. In CAR, ICTJ provided technical support to the national
accountability institutions, including on the drafting of a cooperation agreement between the
truth commission and Special Criminal Court; and, together with the Bar Association in The
Gambia, supported the Ministry of Justice to design a prosecutorial strategy. ICTJ trained
judges in Ukraine on transitional justice and prosecutorial strategies; and civil society and
journalists in Venezuela on what to expect from the OTP’s investigation. In Uganda, ICTJ
finalized the Judicial Benchbook on International Criminal Law before the ICD; and in Syria
promoted efforts to advance war crimes investigations and universal jurisdiction. At the
3
https://www.coalitionfortheicc.org/news/20220928/guinea-towards-organization-trial-massacres-28-september2009
4
https://www.cmdpdh.org/publicaciones-pdf/Comunicacio%CC%81nCPI_Tortura.pdf
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international level, ICTJ convened experts for a high-level conference on victim participation
in criminal proceedings.
22.
The International Federation for Human Rights (FIDH), together with its
member organisations, continued its activities to enhance complementarity between the ICC
and national jurisdictions and to call for meaningful and victim-centered justice. For example,
FIDH: closely followed the long-awaited opening of the domestic trial on Guinea’s 2009
massacre; reacted to the ICC preliminary examination on Colombia’s closing; conducted an
international advocacy mission on the state of justice in Côte d’Ivoire regarding serious
human rights violations; and analysed the complementarity between national, hybrid and
international accountability actors for international crimes committed in the Central African
Republic.
23.
Justice Rapid Response (JRR) continued to work closely with accountability
actors at the national level providing them with highly specialized expertise from the JRR
Roster to strengthen their capacity to investigate and prosecute international crimes.
Case-based mentoring, with a strong emphasis on maintaining local ownership, enabled
States to benefit from tailored capacity-building support in a variety of areas, including
international crimes’ investigations and prosecutions, SGBV, digital forensics, financial
investigations, witness protection, child rights expertise, victim participation and crime
analysis. Among situations countries of the ICC, JRR has supported the Specialised
Department for International Crimes Office of the Prosecutor General of Ukraine and has
received requests for collaboration from other law enforcement agencies in the country. JRR
also supports civil society organisations documenting international crimes and/or litigating
cases before national courts, including in ICC preliminary examination and situation
countries, such as Ukraine and Venezuela.
24.
During 2022, the Open Society Justice Initiative (OSJI) has been supporting
documentation efforts and national litigation in relation to the conflicts in Syria, Ukraine, and
Yemen, among other countries. For example, the Justice Initiative has collaborated with
national war crime units and pursued cases for prosecution of crimes committed in Syria
under extra-territorial jurisdiction principles in several European states. The Justice Initiative
and other programs of the Open Society Foundations have provided significant support to
accountability efforts for grave crimes committed in Ukraine, including collaboration with
national prosecutor’s offices, the drafting of a model indictment for the crime of aggression,
and submissions seeking sanctions.
25.
Partners in Justice International (PJI) is a women-founded, women-directed
organisation led by career practitioners who partner with national justice actors to bring
justice to survivors of CRSV and other core international crimes, wherever they live. At their
request, we walk shoulder to shoulder with national prosecutors, victim lawyers, and
investigators who are working to investigate and prosecute CRSV and other international
crimes in their own national courts, transferring skills to them. PJI is currently providing
technical support to CSOs in South Korea who are preparing case dossiers in relation to
crimes against humanity committed in North Korea; in Kosovo, PJI has provided years of
support to the local war crimes prosecutors, war crimes police, and victim lawyers, enabling
them to go from 0 cases involving CRSV to 64 such cases; PJI is providing technical expert
guidance to the International Accountability Platform for Belarus and to Belarusian civil
society documenters; and in Kenya, PJI has been accompanying Kenyan national prosecutors
and investigators in preparation of the first crimes against humanity case to be prosecuted in
the Kenyan national courts – filed in October 2022.
26.
The Platform for Peace and Humanity furthered its objective to combat impunity
for war crimes and crimes against humanity through working on the report on admissibility
of cases before the ICC, concerning alleged international crimes committed in the context of
military occupation of the Autonomous Republic of Crimea and armed hostilities taking
place in Ukrainian Oblasts of Donetsk and Luhansk. The said report provides mapping and
analysis of hundreds of reported instances of international crimes and assesses their factual
background against the admissibility criteria set forth in Article 17 of the Rome Statute,
including the principle of complementarity enshrined therein.
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27.
At the request of, and together with the Ukrainian Legal Advisory Group (ULAG),
between May and August 2022, Women’s Initiatives for Gender Justice (WIGJ)
conducted an interactive online training series on integrating international norms and
practices related to accountability for conflict-related sexual violence for Ukrainian
practitioners working to address it. Topics covered in the training included: understanding
pre-existing patterns of discrimination and violence; methodologies to safely interact with
survivors; understanding different criminal justice mechanism jurisdictions; what makes acts
of sexual violence international crimes; and the need for context-based investigations. The
training sessions were attended by representatives of civil society, legal practitioners from
the Office of the Prosecutor and other national authorities, academia and other individual
experts.
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Annex II
Draft language for inclusion in the omnibus resolution
[Note: elements from the ASP20 omnibus resolution relating to sexual and gender-based
crimes have been included here given the Bureau’s decision to continue to assign this
mandate to the complementarity co-focal points]
Preamble
Reaffirming its commitment to the Rome Statute of the International Criminal Court
and its determination that the most serious crimes of concern to the international community
as a whole must not go unpunished, and underlining the importance of the willingness and
ability of States to genuinely investigate and prosecute such crimes,
Welcoming the efforts and achievements of the Court in bringing those most
responsible for the crimes under the Rome Statute to justice and thus to contribute to the
prevention of such crimes and noting the jurisprudence of the Court on the issue of
complementarity,
Welcoming also in this regard relevant contributions from the Court relating to sexual
and gender-based crimes, such as the Office of the Prosecutor’s Policy Paper on Sexual and
Gender-Based Crimes,5 as well as contributions from States Parties and other relevant actors,
including initiatives for advancing the knowledge and understanding of such crimes, and
convinced that these initiatives should be an integral part of strategic dialogues and actions
to strengthen the Court and national courts in the fight against impunity, while fully
respecting their judicial independence,
Recalling that the application of articles 17, 18 and 19 of the Rome Statute concerning
the admissibility of cases before the Court is a judicial matter to be determined by the judges
of the Court,
Recalling further that greater consideration should be given to how the Court will
complete its activities in a situation country and that possible completion strategies could
provide guidance on how a situation country can be assisted in carrying on national
proceedings when the Court completes its activities in a given situation,
Activities of the Court
1.
Encourages the Court to take note of the best practices of relevant international and
national organizations, tribunals, and mechanisms related to sexual and gender-based crimes,
including practices related to investigation, prosecution and training, in solving challenges
related to crimes under the Rome Statute, including sexual and gender-based crimes, while
reiterating its respect for the independence of the Court;
2.
Recognizes the importance of achieving accountability for all Rome Statute crimes
while recalling that there is no hierarchy between them, encourages the Bureau to engage
with interested States Parties and other relevant actors to identify ways to support Court
efforts in this regard with respect to sexual and gender-based crimes that amount to Rome
Statute crimes, with a view to reporting thereon to the twenty-first second session of the
Assembly;
Complementarity
1.
Recalls the primary responsibility of States to investigate and prosecute the most
serious crimes of international concern and that, to this end, appropriate measures need to be
adopted at the national level, and international cooperation and judicial assistance need to be
5
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https://www.icc-cpi.int/iccdocs/otp/OTP-Policy-Paper-on-Sexual-and-Gender-Based-Crimes--June-2014.pdf.
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strengthened, in order to ensure that national legal systems are willing and able genuinely to
carry out investigations and prosecutions of such crimes;
2.
Resolves to continue and strengthen, within the appropriate fora, effective domestic
implementation of the Rome Statute, to enhance the capacity of national jurisdictions to
prosecute the perpetrators of the most serious crimes of international concern in accordance
with internationally recognized fair trial standards, pursuant to the principle of
complementarity;
3.
Welcomes the international community’s engagement in strengthening the capacity
of domestic jurisdictions and inter-State cooperation to enable States to genuinely prosecute
Rome Statute crimes;
4.
Also welcomes efforts by the United Nations, international and regional
organizations, States and civil society in mainstreaming capacity-building activities aimed at
strengthening national jurisdictions with regard to investigating and prosecuting Rome
Statute crimes into existing and new technical assistance programmes and instruments, and
strongly encourages additional efforts in this regard by other international and regional
organizations, States and civil society;
5.
Welcomes, in this regard, the adoption of the 2030 Agenda for Sustainable
Development6 and acknowledges the important work being undertaken with regard to
promoting the rule of law at the national and international levels and ensuring equal access
to justice for all;
6.
Stresses that the proper functioning of the principle of complementarity entails that
States incorporate the crimes set out in articles 6, 7 and 8 of the Rome Statute as punishable
offences under their national laws, to establish jurisdiction for these crimes and to ensure
effective enforcement of those laws, and urges States to do so;
7.
Welcomes the report of the Bureau on complementarity and the recommendations
made on future consultations set out therein, 7 and requests the Bureau to remain seized of
this issue and to continue the dialogue with the Court and other stakeholders on
complementarity, including on complementarity-related capacity-building activities by the
international community to assist national jurisdictions, on possible situation-specific
completion strategies of the Court and the role of partnerships with national authorities and
other actors in this regard; and also including to assist on issues such as witness and victims
protection and sexual and gender-based crimes;
8.
Also welcomes the information by the Secretariat of the Assembly of States Parties
on the progress in giving effect to its mandate to facilitate the exchange of information
between the Court, States Parties and other stakeholders, including international
organizations and civil society, aimed at strengthening domestic jurisdictions; welcomes
further the work that has already been undertaken by the Secretariat and the President of the
Assembly, and requests the Secretariat to, within existing resources, continue to develop its
efforts in facilitating the exchange of information between the Court, States Parties and other
stakeholders, including international organizations and civil society, aimed at strengthening
domestic jurisdictions, and to invite States to submit information on their capacity needs for
the consideration of States and other actors in a position to provide assistance, and to report
on the practical steps taken in this regard to the twenty-first second session of the Assembly;
9.
Encourages States, international and regional organizations and civil society to
submit to the Secretariat information on their complementarity-related activities and further
welcomes the efforts made by the international community and national authorities, including
national capacity-building activities to investigate and prosecute sexual and gender-based
crimes that may amount to Rome Statute crimes, in particular the continued efforts on the
strategic actions to ensure access to justice and to enhance empowerment of victims at
national level, recalling the recommendations presented by the International Development
Law Organization8 during the fourteenth session of the Assembly;
6
United Nations General Assembly resolution 70/1.
ICC-ASP/21/19.
8
International Development Law Organization paper entitled “Complementarity for sexual and gender-based
atrocity crimes”, November 2015.
7
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10.
Encourages the Court to continue its efforts in the field of complementarity,
including through exchange of information between the Court and other relevant actors,
while recalling the Court’s limited role in strengthening national jurisdictions and also
encourages continued inter-State cooperation, including on engaging international, regional
and national actors in the justice sector, as well as civil society, in exchange of information
and practices on strategic and sustainable efforts to strengthen national capacity to investigate
and prosecute Rome Statute crimes and the strengthening of access to justice for victims of
such crimes, including through international development assistance;
11.
Notes the ongoing review by the Prosecutor of various policies of the Office relevant
to the principle of complementarity, particularly in light of recommendations set out in the
Report of the Independent Expert Review, and as a matter of priority encourages the
Prosecutor to continue engaging with the Assembly and other stakeholders as these policies
are reviewed and, if necessary, revised bearing in mind the timelines set out in the
Comprehensive Action Plan, while reiterating its full respect for judicial and prosecutorial
independence as provided for in the Rome Statute.
12.
Notes the ‘Dakar Seminar on complementarity and cooperation’, held on 23-25
May 2022, which emphasised the importance of collective efforts to ensure the effective
implementation of the principle of complementarity, with a particular focus on States
from the Economic Community of West African States (ECOWAS) and also welcomes
the signing of the Dakar Declaration.9
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Annex III
Draft language for inclusion in the annex on mandates of the
omnibus resolution
With regard to complementarity,
(a)
requests the Bureau to remain seized of this issue and to continue the
dialogue with the Court and other stakeholders on complementarity, including on
complementarity-related capacity-building activities by the international community to assist
national jurisdictions, on possible situation-specific completion strategies of the Court and
the role of partnerships with national authorities and other actors in this regard; and also
including to assist on issues such as witness and victims protection and sexual and
gender-based crimes;
(b)
encourages the Bureau to engage with interested States Parties and other
relevant actors to identify ways to support Court efforts in this regard with respect to sexual
and gender-based crimes that amount to Rome Statute crimes, with a view to reporting
thereon to the twenty-first twenty-second session of the Assembly;
(c)
requests the Secretariat to, within existing resources, continue to develop
its efforts in facilitating the exchange of information between the Court, States Parties and
other stakeholders, including international organizations and civil society, aimed at
strengthening domestic jurisdictions, and to invite States to submit information on their
capacity needs for the consideration of States and other actors in a position to provide
assistance, and to report on the practical steps taken in this regard to the twenty-first twentysecond session of the Assembly;
____________
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