On 19 November 2012, the Assembly of States Parties (“the Assembly”) to the Rome Statute of the International Criminal Court (“the Court”), during its eleventh session, held a plenary discussion on complementarity. The Assembly heard a keynote address by Ms. Helen Clark, Administrator of the United Nations Development Programme (UNDP). The panel discussion was moderated by H.E. Mr. Andries Nel, Deputy Minister of Justice of South Africa, and H.E. Mr. Thomas Winkler, Under Secretary for Legal Affairs of the Ministry of Foreign Affairs of Denmark, as co-focal points of the Assembly on complementarity. The panellists were Ms. Claudia Paz y Paz Bailey, Attorney General of Guatemala, Ms. Shireen Fisher, President of the Special Court for Sierra Leone, and Mr. David Tolbert, President of the International Center for Transitional Justice. The President of the Court, Judge Sang-Hyun Song, and the Prosecutor, Ms. Fatou Bensouda, added their reflections at the end of the debate. The session was chaired by Ambassador Tiina Intelmann, President of the Assembly.
In her keynote address, Ms. Clark noted that UNDP was already engaged in rule of law and governance work aimed at helping to build the capacity of national partners to hold the perpetrators of the most serious crimes of international concern accountable. She advocated integrating complementarity into rule of law programmes, which would ensure a broader impact on development matters. She referred to complementarity as a transformative agenda and urged the Assembly to continue engaging proactively with this topic.
Speaking as member of the panel, Ms. Paz y Paz conveyed the experience of Guatemala, which was engaging in the prosecution of serious international crimes committed by State officials, including by a former Head of State. She stressed the victim-driven nature of this effort and the importance of international support. Ms. Fisher recalled her experiences as a judge in the war crimes chamber of the Court of Bosnia and Herzegovina, a national court which initially included international judges, prosecutors and registry officials. She noted the importance of a phasing out of international staff in such courts. Finally, Mr. Tolbert briefed the meeting on the Greentree process, a series of meetings with multiple stakeholders which focuses on making complementarity work on the ground. The most recent meeting, held in October 2012, had involved high-level officials from some situation countries and facilitated exchanges between relevant stakeholders.
States Parties welcomed the holding of this plenary session and used the opportunity to share their views on this topic, resulting in a rich and interesting discussion. States spoke about their own experiences and activities with regard to complementarity, including needs, best practices and ideas for future discussions. They also called for a State-led approach to complementarity, with some calling for a multilateral instrument on mutual legal assistance to deal with certain aspects of this.
The topic of complementarity has been on the agenda of the Assembly since the Review Conference in 2010, when it was one of four topics discussed as part of the exercise of taking stock of international criminal justice. It rests on article 1 of the Rome Statute which states that the Court “shall be complementary to national jurisdictions”. Article 17, paragraph 1 (a), of the Statute specifies that a case shall be inadmissible “unless the State is unwilling or unable genuinely to carry out the investigation or prosecution”. States Parties have also engaged in discussions on the topic of “positive complementarity”, which refers to "all activities whereby national jurisdictions are strengthened and enabled to conduct genuine national investigations and trials of crimes included in the Rome Statute.”
Report of the Bureau on complementarity report:
Bureau report on complementarity adopted prior to Review Conference: