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ComplementarityComplementarity is one of the foundational principles of the Rome Statute system. What was envisioned by the drafters of the Rome Statute was not simply a self-standing Court, but rather a comprehensive system of international justice, where the duty on States Parties to investigate and prosecute international crimes is clearly reinforced. Consequently, the International Criminal Court (ICC) is a court of “last resort” and will step in where national jurisdictions have failed to address international crimes.
This stocktaking exercise at the Review Conference reflected on the responsibilities of States, as well as the Court and the ASP with regards to ensuring adequate implementing legislation; building preparedness to investigate and prosecute at the national level; recognizing situations where the ICC may have played a role in bringing about domestic accountability processes; exploring the role of various alternative justice mechanisms; and seeking relationships with appropriate institutions and bodies involved with international criminal justice.
The stocktaking exercise on Complementarity was prepared by the Focal Points, Denmark and South Africa and in consultations with the The Hague and New York Working Groups. The Coalition and Members of its Review Conference Team in particular, have participated in those consultations and to the extent possible have provided comments to the Focal Points. Those comments were complemented by and reflected in a paper produced by the Review Conference Team which was widely circulated amongst States.
Following the aforementioned consultations, the Bureau of the ASP issued a report on stocktaking of complementarity together with a draft resolution for further consideration at the Review Conference. The Bureau's report and draft resolution, which were prepared by the Focal Points, sets the foundation for plenary discussions at the Review Conference that took place on 3 June 2010. In this regard discussions aimed to take stock of challenges thus far, and with a view to enhancing the readiness of national jurisdictions through positive complementarity as well as the role of different stakeholders involved in the process. The draft resolution itself seeked to reaffirm the primary responsibility of States to investigate and prosecute serious international crimes and the obligations of States Parties under the Rome Statute and, through the ASP Secretariat, strengthen national jurisdictions by facilitating the exchange of information.
The discussions were framed in a panel discussion with eminent panelists from national jurisdictions, international and regional organisations and the International Criminal Tribunal for the Former Yugoslavia.
The Bureau's report made several recommendations, including:
i) that States Parties reaffirm that national jurisdictions have the primary responsibility;
ii) that States, the Court and other actors strengthen the principle of complementarity by encouraging national proceedings where relevant as a means to bridge the impunity gap;
iii) that States Parties should consider the need for further measures at the national level in combating impunity and as appropriate and in cooperation with the Court examine ways in which domestic jurisdictions can be further enabled to deal with the most serious crimes;
iv) that the Assembly should establish a designated function within the Secretariat of the Assembly of States Parties, tasked with facilitating the exchange of information aimed at strengthening domestic jurisdictions.
For its part the CICC Review Conference Team made the following comments and suggestions in the context of this stocktaking exercise:
1) It would be important to collect and examine the State Parties’ prior experiences in exercising national jurisdiction to deal with the crimes under the Rome Statute, noting the national legislation and processes used, in order to create a frame of reference for strengthening participation.
2) In addition to addressing the ability of states, there is a need to also address the willingness, or lack thereof of State Parties to use domestic courts for international criminal prosecution, without which any amount of capacity building and outside support will be ineffectual.
3) The Team welcomed the identification of specific scenarios that give rise to the need for positive complementarity efforts, including countries in which preliminary examinations and investigations or prosecutions have already begun, which offer a unique opportunity to promote national proceedings.
4) The Team encouraged the creation of new programs or promotion of existing programs that provide legislative and technical assistance, building capacity, and physical infrastructure with the goal of enabling national jurisdictions to carry out their obligations and with a particular emphasis on the Rome Statute system.
On 2 June 2010, the CICC held a side event on stocktaking of complementarity at the Review Conference, which seeked to address some of the issues described above and provided a platform for civil society organisations to present their views on the topic.