Side Event – “Complementarity and Cooperation Revisited: What role for the ICC in supporting national and hybrid investigations and prosecutions?”

(co-hosted by Luxembourg, the Republic of Korea and Open Society Justice Initiative (OSJI))

Overview by Jill Baehring, Affiliated Expert PILPG NL

Highlights:

• Pascal Turlan, OTP, said he was convinced that the ICC should not be the only actor enforcing international justice, and that the ICC always appreciated being in contact with states requesting  assistance and support for their local prosecutors.

• Christian Ritscher, Special Prosecutor in the War Crimes Unit of the Prosecutor General in Germany, shared how in the case of prosecuting members of the Democratic Forces for the Liberation of Rwanda (FDLR), the German Prosecutors decided together with the OTP to split up the case to avoid double jeopardy.

After opening remarks from the Ambassador of Luxembourg, Mariana Pena from the Open Society Justice Initiative opened the panel by asking the participants to share their “lessons learned” and best practices in interacting with entities of overlapping jurisdiction. 

Responding to this, Christian Ritscher from the War Crimes Unit of the Prosecutor General in Germany shared the circumstances under which it was possible to simultaneously prosecute several individuals involved in the same crimes in front of different institutions of justice. The FDLR’s president and vice president were living in Germany, though they were not personally involved in the genocide committed because of their presence in Germany. At the same time, the Secretary-General of the FDLR lived in France. In an effort of international cooperation, the Prosecutors of Germany and France asked the OTP to split up the case between their entities. Additionally, they sought mutual legal assistance with Rwanda and the Democratic Republic of Congo, which saved each individual party many capacities that benefitted the prosecution as a whole. As a result, Ritscher said, not one witness was interviewed twice and files as well as other information were shared with the ICC’s OTP. Although this meant a delay of the prosecution due to bureaucratic thresholds, Germany saw this cooperation as a great success to be repeated in similar cases such as Syria and investigations in other African countries. 

Sharon Nakandha, Director of the Victim’s Support Initiative in Uganda, congratulated Christian Ritscher for this success. She pointed out that the Domenico Case opened up the possibility of a mutually beneficial relationship with the ICC, where such sharing of resources and capacity may be feasible. However, complementarity was not the only means of capacity building. She insisted that a joint prosecution strategy, sharing of evidence, and other deliberate means were equally important. Each time the ICC cooperated with local prosecution, it had the duty to disseminate their legacy with the lessons learned in the respective country.

This view was shared by Pascal Turlan, OTP. He stated that the ICC should only be one of many actors in the realm of international justice, a standpoint even engraved in the Rome Statute. He emphasized that the ICC encouraged states to seek assistance, as successfully done in Colombia and Guinea. The same was true for states outside the ICC’s territorial jurisdiction over a crime. To strengthen universal jurisdiction, the ICC was actively reaching out to authorities about potential perpetrators on their territory, helping states with all means available to the ICC. He also reiterated the very positive experience of the ICC in working with Germany and France in the case of the FDLR. However, he pointed out that such cooperation was only possible with assurances for witness protection and confidentiality, as well as an assurance that no death penalty would be applied. 

When asked about ad-hoc completion strategies, Fidelma Donlon, Registrar to the Kosovo Specialist Chambers, pointed out that the ICTY and ICTR have developed sophisticated completion strategies in the past that rooted in prosecution of the high-rank leaders in front of the tribunals, and prosecution of mid to low-ranking leaders in front of national courts. The most important component was that there was the possibility of transferring such leaders between the jurisdictions according to Rule 11bis of the ICTY Statute - again provided there were certain assurances in place. She shared that in her experience, creating a ground for such cooperation could take decades, since not every piece of evidence collected in an international trial was admissible due to national jurisdiction and human rights thresholds, and vice versa.  

Pascal Turlan added to this that the ICC was actively trying to establish a mutually beneficial relationship with states, and that discussions were always held with national authorities before formally submitting a cooperation request. To this, Sharon Nakandha added that it was her aspiration to establish a system of co-existence with international courts allowing exchange of information and resource sharing. The Malabo protocol envisioning cooperation with international courts in general, not specifically the ICC, was a good first step. 

Side Event – "Defining sexual violence, what makes sexual violence ‘sexual’?” (co-hosted by Australia, the United Kingdom and Women’s Initiatives for Gender Justice))

Overview by Annelou Aartsen, Research Associate PILPG NL

Highlights:

• Call it what it is campaign’ an initiative set up by civil society to create a working definition for sexual violence. 

• Jihyun Park, a survivor activist from North Korea who shared her personal experiences and thoughts on sexual violence committed in North Korea.  

This side event was co-hosted by Australia, the United Kingdom and Women’s Initiatives for Gender Justice. The Panel participating in this side event consisted of Jihyun Park (North Korean women’s Rights Activist), Patricia Sellers (Special Advisor on Gender to the ICC Prosecutor) and Dr. Rosemary Grey (teacher at the University of Sydney).  

The Australian Ambassador to the Netherlands, Mr. Matthew Neuhaus, began the event by recalling a personal experience during one of his visits to the North-East of the DRC. In a refugee camp in the far North of the DRC, he asked one of the local women leaders what her main problem was, and she replied that the families living in this area were not able to go down to the river to get water because they would get raped. With this story the Australian Ambassador to the Netherlands wanted to demonstrate that the main issue is that the people who are supposed to be the protectors of crimes of sexual violence, were involved in the commitment of these crimes and nothing has been done about this. According to the Australian Ambassador this is the main challenge we face when dealing with impunity, specifically when dealing with crimes of sexual violence in conflict situations. 

Secondly, the floor was given to the British Ambassador to the Netherlands, Mr. Peter Wilson, who articulated that the victims of sexual violence lie at the heart of the UK’s approach. It is about understanding the experience of the individual. This side event should help to broaden our understanding of what this concept of sexual violence is and should center around the ICC, because there is a lot the ICC can do about this. Moreover, Mr. Wilson highlighted that sexual violence is also about the violence that is done to men. He highlighted that everyone should understand the context in which they are operating, something which is incredibly important in order to ensure that the right procedures are put in place to hold people accountable. 

Siobhan Hobbs, the moderator of the panel and program director at the Women’s Initiatives for Gender Justice, moved on by formerly launching the 2018 gender report card on the ICC.  She said that the Gender report card is a tribute to those who have worked to enable the Rome Statute and the legal framework of the ICC to be what it is today in terms of gender provisions and gender equality. While she acknowledges that the Rome Statute is not perfect, and there is a whole there can be done to support its implementations, Hobbs said the Rome Statute is the most progressive framework that we have today. Next, she moved on by highlighting the goal of this side event’s discussion, namely, to discuss ‘what makes violence sexual’. While sexual violence is often understood as rape, or as the crimes that are listed in the Rome Statute, people’s understanding of what sexual violence is should be expanded. 

In order to get the discussion on a defining sexual violence going, Patricia Sellers, the Special Advisor on Gender to the ICC Prosecutor, started off by discussing how the international criminal law system came to conceptualize sexual violence. The Special Advisor on Gender discussed diverse instances in history where sexual violence appeared as an illegality within international humanitarian law. Most of these early instances of illegal sexual violence, occurring already in 1500s and 1700s, were referred to in terms of molestation of persons who are not combatants. For example, the treaties the United States entered into with Prussia, the Netherlands and France in the 1700s, all included phrases such as ‘we will be civilized, we will have respect and shall not molest women’. Through the diverse examples given by Patricia Sellers she illustrated how sexual violence against the non-combatant enemy was illegal. Next, she moves on by highlighting diverse examples of conventions and jurisprudence which prohibited the perpetration of sexual violence against the combatant enemy. Amongst others she referred to the Tokyo judgement which talks about the different forms of rape that were committed against army nurses. Through diverse examples given she demonstrates that there already existed a broad base for the prohibition of sexual violence. Additionally, the Special Advisor on Gender refers to the Additional Protocols 1 and 2, which both reiterate the prohibition of sexual violence independent of your status in war. Through these examples Patricia Sellers illustrated that sexual violence is clearly outlawed under international humanitarian law. However, while there exists a wide prohibition of sexual violence, she found a gap in the law as no such prohibition is titled ‘sexual violence’. 

Next speaker at this side event was Dr. Rosemary Grey of the University of Sydney. She commented that the ICC is the first criminal court that expressly recognizes the crime of sexual violence which provides the ICC with great potential. Amongst others, it allows the court to respond to different forms of sexual violence that are experienced by people of any gender anywhere in the world where the ICC has jurisdiction. She moves on by explaining that the crime of sexual violence is entwined in the ICC as a crime against humanity and a war crime. The current definition and the elements of the crimes that need to be demonstrated provide us with understanding of what force means. However, it does not clarify what makes an act sexual in nature. Similarly, within ICC case law there is no clear and consistent answer to the question ‘what makes violence sexual?’. As jurisprudence of the ICC demonstrates, crimes committed, which were considered as crimes of sexual violence by the victims, were not labeled as crimes of sexual violence by the ICC. The ICC would refer to such type of acts as inhuman acts, which are not of a sexual nature. 

In response to those earlier cases of the ICC, which failed to label certain acts as acts of sexual violence, the Women’s Initiatives for Gender Justice civil society organization has started a campaign ‘Call it what it is’ which includes a survey, to create a definition of sexual violence. This definition of sexual violence does not seek to bind or restrict the ICC in any way it rather seeks to support the ICC in understanding how the concept of sexual violence is understood across different cultures and different timeframes. The aim is to create a vocabulary and illustrative examples so that the ICC and affected communities can speak in a common language. Thereby, supporting the work of the prosecutor who tries to move forward the crime of sexual violence. It is a way of offering the ICC a definition that is inclusive, culturally sensitive and forward looking. 

The third panelist to speak was Jihyun Park, a North Korean activist, who with her story illustrated that there is a lot of sexual violence committed which has not come to the Court’s attention yet. Jihyun Park started of by highlighting that the sexual violence that takes place in North Korea is not unique to North Korea, it takes place in every society. As mentioned by the human rights activist, a survivor of sexual violence herself, sexual violence is often committed by those in powerful positions who misuse their positions. In addition, she mentions that sexual violence takes place in diverse institutions such as prisons and schools. One of the explanations pointed out by Jihyun Park is the status of women which is not considered equal to men. Amongst others, Jihyun Park refers to exploitation, human trafficking and forced abortions as acts of sexual violence taking place in North Korea. Trafficking North Korean girls into pornography is for instance a growing business in China. Additionally, she points out that victims of trafficking are at high risk to sexual and domestic violence and often do not have any access to health or education, which makes them increasingly vulnerable. Another issue referred to by the human activist is the forced abortions that are conducted to prevent ethnical mixing. Moreover, forced abortions are seen as an additional punishment of Korean women who have left North Korea. Furthermore, she highlights the climate of impunity that exists in the political prison camps in North Korea in which guards abuse their positions and are the main perpetrators of sexual violence. In her concluding remarks, Jihyun Park states that “peace cannot be brought to a country that is ruled by the men who hate women”. Additionally, she poses the question whether the leader of North Korea, Kim Jong-Un, is not a candidate for the ICC? She argues that those who are silent but aware about human rights violations happing inside North Korea should be held responsible. Additionally, she poses that North Koreans are entitled to be protected under the universality principle. 

After Jihyun Park’s story the floor was given to H.E. Sabine Nölke, the Canadian Ambassador to the Netherlands. She articulated that sexual violence can constitute a war crime in those states bound by the Rome Statute. While welcoming all important developments within the ICC and its fight against sexual violence, she noted that we have not seem enough progress. The international community has sometimes failed to address the acts of sexual violence. Therefore, the ‘call it what it is campaign’ has been developed to create a working definition for sexual violence. 

One of the questions posed within the audience was related to the situation of Colombia which is in the process of transnational justice. The question raised was ‘how activist can make the crime of sexual violence more visible to the public?’ The special advisor on gender to the ICC Prosecutor replied to this answer by stating that Colombia has a lot of prosecutors who are dedicated to fight sexual violence. However, the Colombian system is a system where the prosecutor is politically appointed and turned over quite often. While recognizing that it is a question of training and having access to terrain free investigations, it is also a political question. It is about the political will to make sexual violence a priority to execute. 

Another question that was posed by the audience was related to the definition of sexual violence and ‘how far and wide’ one could go with the definition of sexual violence?  Professor Grey responded to this question by highlighting that there is a difference about interpreting law that already exist and creating new law. Another thing she mentions in relation to this question is to think about what it means to have an act of sexual violence to be prosecutable in the ICC. That act would still have to make the Rome Statute elements of crime. 

A third question formulated by the audience was also related to defining sexual violence, and the gravity test, in particular how this would have to consider different cultural context. Since different cultures can have different interpretations of the one definition. Professor Grey answered this by stating that she thinks that it is better to have a definition which can vary from culture to culture, than to have a definition which is narrower and descriptive but is in fact only the perspective of one culture. This would allow the ICC to be more responsive to the various context in which it operates. In relation to the gravity threshold, Professor Grey mentions that removing the gravity threshold would require states parties to do so. Whereas, interpreting an act as an act of sexual nature could be done through a campaign of the civil society, which can subsequently be offered to the Court.

Side Event – “Closing the impunity gap: a pragmatic approach to universal jurisdiction” (co-hosted by the Center for Justice and Accountability and Civitas Maxima))

Overview by Emma Bakkum, Senior Research Associate PILPG NL

Highlights: 

• Achieving international justice for the gravest international crimes cannot be left solely to the big institutions such as the ICC. 

• Civil litigation cases concerning grave crimes can allow the victim to face its perpetrator, to restore a sense of balance, and can pave the way for criminal proceedings.

• Civitas Maxima believes that victims of the gravest crimes have the right to accessible and unbiased information about the trails of alleged criminals in or outside of their country.

• The preservation of evidence is important but can be problematic. 

Co-hosted by the Center for Justice and Accountability (CJA) and Civitas Maxima, this side event offered a refreshing discussion on pragmatic approaches to universal jurisdiction. Karim Ahmad Khan QC, Head of UN investigative team for ISIL (Da’esh) in Iraq, started the event with a speech underlining the importance of the work of Civitas Maxima and other NGOs working towards closing the impunity gap for international crimes. Khan stated that it cannot be left solely to the big institutions in international criminal justice, but that cases need to be given life by prosecutors, defense lawyers, and victim lawyers. Noting that it should not matter “who gets the glory”, he continued that burdens must be shared by the international community altogether. Wat matters is whether victims receive justice.  

This sentiment was echoed by Alain Werner, Director of Civitas Maxima. Mr. Werner dedicated his speech to explaining Civitas Maxima’s pragmatic strategy to universal jurisdiction, which has been developed over the past ten years. This strategy entails the use of extraterritorial jurisdiction with a focus on bringing justice to the place where the crimes were committed.  

Mr. Werner stated that the impact of internationalized or hybrid courts it often limited on domestic jurisdictions, referring specifically to the case of the Special Court for Sierra Leone. These courts are remote from local courts. Cases are thus often build outside of the country where the crimes occurred. Civitas Maxima aims to address this problem with a global strategy for extraterritorial cases that focuses on bringing justice to the country where the crimes were committed. Civitas Maxima has mainly focused on the “forgotten” crimes committed in Liberia. This pragmatic strategy has three components. First, Civitas Maxima worked hand in hand with local organizations in Liberia and supported local capacity building. Second, cooperation around the world with different war crimes units was very important: every tool at its disposal was useful. Thirdly, once a case is ongoing, Civitas Maxima aimed at monitoring and talking about the trial, especially in the affected country. Civitas Maxima believes that victims of the gravest crimes committed in their country have the right to accessible and unbiased information about trails of alleged criminals. They therefore incorporated creative and innovative tools involving grassroots participation of artists, film makers, and reporters. In the case of Liberia, Civitas Maxima and its sister organization in Liberia have created the Liberian Quest for Justice, a platform that provides a space for informed debate about the trials of alleged Liberian war criminals and the search for justice for victims. 

Finally, Carmen Cheung, Legal Director of the Center for Justice & Accountability (CJA) discussed her work in civil litigation before U.S. national courts as a pragmatic approach to universal jurisdiction to hold perpetrators of grave crimes accountable. She explained the U.S. Alien Tort Statute and the possibility of bringing cases concerning crimes committed in other countries under U.S. jurisdiction. These cases are litigated in the interest of the victim, and can allow the victim to face its perpetrator, to restore a sense of balance, and can pave the way for criminal proceedings. While damages will remain to be symbolic, certain jurisdictional restraints apply, and the U.S. government is limiting the scope of civil litigation in these kind of cases, civil litigation forms a pragmatic approach to accountability gaps for international crimes. 

A further topic discussed concerned the sources of evidence for universal jurisdiction cases and enquired into the role of the IIIM, investigative mechanism for Myanmar, states and civil society with regard to the preservation of evidence. Karim Khan underlined that the preservation of evidence is one the key aspects. Carmen Cheung added that CJA builds cases for civil litigation but often hands these over to prosecution teams. She mentioned furthermore that guidance may be needed for those people working on the ground in a country collecting evidence. Alain Werner finally added, referring to experience at the Extraordinary Chambers in the Courts of Cambodia that documentation in conflict areas must be saved at all cost since that is the evidence that allows for cases to be established. Carmen Cheung added on local engagement that CJA tries to bring in local professionals and schools, for example in Liberia. 

The event ended with a discussion on the relationship between the work of the ICC and the work of Civitas Maxima. Karim Khan underlined that the bedrock of the ICC is complementarity. Mentioning the billions spent on tribunals for the Former Yugoslavia and Rwanda, and referring to his earlier statement, the impunity gap cannot be addressed by the big institutions alone. What we need more is a view on justice that it is not politicized, but that it “is everybody’s business”. Carmen Cheung in response to the question highlighted that CJA is just as old as the ICC and was not created with the idea that the ICC would fail, but simply to respond to gaps that are expected with the creation of any international institution. Justice is multi-faceted, she concluded. Alain Werner finally concluded the event by stating that Civitas Maxima works together with the ICC and is in contact with victims. “We don’t believe in competition but in emulation.”

Side Event– Nigeria and the ICC: Addressing (Non) - Accountability (hosted by Amnesty International)

Overview by Cleo Meinicke, Research Associate PILPG NL

Highlights:

• Amnesty International urged the ICC to open a formal investigation in Nigeria, “every day you continue to ignore what happens you are losing leverage to deter crimes.”

• The OTP continues to assess the admissibility of the case, considering initiated proceedings by the Nigerian government. 

• The Nigerian government should engage more with civil society, according to Chinonye Edmund Obiagwu and Abiodun Baiyewu-Teru. 

The side-event hosted by Amnesty International (AI) was based on its recently published report “Willingly Unable: ICC Preliminary Examination and Nigeria’s Failure to Address Impunity for International Crimes.” The report highlights the organization’s critical view on the ICC OTP’s preliminary examination in Nigeria and the ability and willingness of the Nigerian government to respond to crimes committed by Boko Haram and Nigerian security forces. The ICC’s preliminary examination was opened eight years ago and is still on-going. The Court identified the commission of core crimes, but AI is of the opinion that “it is time for the OTP to open a formal investigation in Nigeria.”

Netsanet Belay, program director Africa of AI, introduced the report. The report highlights the need for the ICC to take a next step based on information the organization collected on the ability and willingness of the Nigerian government to investigate and prosecute grave crimes committed in Nigeria. AI analyzed official documents in relation to domestic data. Beyond the documents, AI engaged with people, the special board of inquiry and the presidential panel, which shared their sources and documents. They also examined 179 Court documents, as well as reports related to the “mass Boko Haram trials” that started in October 2017. Moreover, AI interviewed detainees and upheld communication and information exchange with the Nigerian authorities. 

AI’s report covers two inquiries set up by the Nigerian authorities. The Special Board of Inquiry (SBI) and the Presidential Investigation Panel to Review Compliance of the Armed Forces with Human Rights Obligations and Rules of Engagement (PIP). Despite these efforts by the Nigerian government, AI’s research revealed that the design of these inquiries was never planned or intended to result in criminal investigations or prosecutions. The government was unable to achieve any investigations or prosecutions. Concerning the Boko Haram mass trial, the report displays the arbitrariness of arrests and shows that the majority of those arrested were acquitted. Further, the charges brought against the suspects were for minor offenses rather than the commission of international crimes. Because of these reasons AI argues that there is no real attempt of taking steps by the Nigerian government. “Victims are still awaiting justice, truth is yet to be discovered.” 

In response to AI’s findings, Claus Molitor provided insight from the perspective of the ICC. He is a situation analyst in the Jurisdiction, Complementarity and Cooperation Division of the OTP. Mr. Molitor first explained why it takes the OTP so long to conduct the preliminary examination. Nigeria is a very complex situation, as it is an ongoing conflict, where the OTP has several situations or cases to consider. Because there have been efforts by the government, these have to be assessed and evaluated, which takes time. Especially considering limited resources at the OTP. Mr. Molitor mentioned that they have found that crimes are being committed and that the evidentiary threshold is met. Because it is an ongoing conflict, they however have to assess newly committed crimes as well. The OTP is now at the stage to assess admissibility. Since the Nigerian government initiated proceedings, the ICC assesses these at the moment. The Nigerian authorities are helpful and cooperative in the investigation, Mr. Molitor noted. In response to AI’s question for a timeline, Mr. Molitor responded that the ICC does not have set timelines but progressive steps are taken. 

The next two speakers provided insights from a local perspective. Abiodun Baiyewu-Teru, who works at Global Rights Nigeria, stressed the question whether Nigeria even has the capacity for forensic investigations into the international crimes. She claimed that Nigeria “perfected the art of motion without movement.” The government set up panels and parties and conducted trials, which are however in her opinion clearly sham trials. People are arrested but there is no fair process and many are tortured into pleading guilty to get out of prison earlier. Furthermore, she criticized that while civil society attempts to work with the government, the government does not extend the level of sincerity back. Members of civil society are often harassed or arrested due to ongoing intimidation in Nigeria. According to Baiyequ-Teru people providing support in the investigation of crimes and to the victims are at risk of being considered an enemy by the government. 

Chinonye Edmund Obiagwu, who worked as president of Nigerian National Coalition for the ICC and founded the Legal Defense and Assistance Project (LEDAP) in Nigeria, reiterated Baiyequ-Teru’s point that the government should spend more time on engaging with civil society. Concerning the accusation of sham trials, he provided insights into the trials. His organization provided legal assistance to victims and they published a report to make suggestions for the improvement of these trials. They raised issues and cases, where there were obvious violations of basic rights of victims and a fair trial was precluded. Most victims meet their lawyers only in the courtroom and legal interpretation is not provided. According to Obiagwu the judges do their best but they are not trained or used to those cases. He also agrees with AI that Nigeria shows to be unwilling and unable to prosecute the crimes. There may be willingness on the side of the government, but he argues that there is clearly no ability of the government to prosecute high commanders especially. 

Lastly, a video of Hamsatu Allamin was screened. Ms. Allamin is the regional manager of Nigeria Stability and Reconciliation Program and the national executive member and coordinator of Federation of Muslim Women’s Associations in Nigeria. Her video provided an insight into life in Nigeria under the threats of Boko Haram but also by the military. She started her speech with background on the Boko Haram and its uprising and talked about the situation of women in Nigeria, facing slaughtering and arrests, despite the government claiming that Boko Haram is defeated. 

When the discussion opened up to the audience Bettina Ambach, Director of the Wayamo Foundation, raised the idea of using milestones to be reached in the future. Mr. Molitor however reacted to this comment that milestones are a good idea but easier said than done. Further questions were raised concerning capacity building to which Mr. Belay and Mr. Obiagwu assured that there are many capacity building initiatives, passionate lawyers and cooperation with organizations such as UNODC. Nevertheless, more capacity building was very much welcomed by the panel. 

At the end of the side event a member of the Nigerian government commented that the issue is important to the Nigerian government and that it agrees that capacities have to be built up. In his view there was evidence of political will to hold perpetrators accountable and the government is eager to continue to partner with organizations, such as the Wayamo Foundation. 

The side event was concluded with a shared hope that Nigeria will see justice and that participants at next year’s ASP will be able to look back at achievements. 

Side Event – “The role of ICCBA in supporting and enhancing complementarity” (co-hosted by France, Senegal and the International Criminal Court Bar Association (ICCBA))

Overview by Filipe Gomes Dias Costa, Research Associate PILPG NL

Highlights: 

• Judge Chung reflected on the possibility of having ad hoc judges from the internal legal systems of states during the pre-trail phase of an ICC case.

• National jurist are often not experienced in the field of international complementarity, which can have an effect on the handling of evidence. 

• The Central African Republic and Colombia were mentioned as case examples for positive complementarity.

In this side event co-hosted by France and Senegal, the International Criminal Court Bar Association (ICCBA) introduced a panel with members from the ICCBA, the OTP, and the ICC Registry to address the issue of complementarity as a core value of the ICC system as well as the role the ICCBA may play in order to support and enhance positive complementarity. The ICCBA was founded in 2016 to represent List Counsel and their staff working for victims and defense at the ICC. 

The panel was kickstarted reiterating the role of Article 94 of the Rome Statute as a mechanism to ensure fair trial and complementarity. The panel noted that whenever justice is closer to the victims, it is more meaningful, which further aligns with the cornerstone of complementarity in the ICC.

Dr. Matthew Gillet, Trial Lawyer of the OTP and Director of the Peace and Justice Initiative, took the floor to address the situation in the Central African Republic (CAR) as a crucial case study on the role of complementarity. In this regard, since the CAR is facing impactful structural problems, the viability of ensuring a fair trial is increasingly unlikely. However, CAR has been conducting several trials, although some witnesses have refused to attend them due to security concerns. Furthermore, he noted the good relationship between the OTP and the Special Criminal Court for the CAR and the common efforts in order to provide appropriate training for the staff engaged in such initiative. The institutions are on the verge of establishing a Memorandum of Understanding to further develop new joint activities.

Marc Dubuisson, Director of the ICC’s Division Judicial Services, gave a practical speech focusing on how to implement complementarity. Accordingly, he outlined Article 59 of the Rome Statute as the main element to gauge whether the establishment of complementarity is working in a particular case. A major challenge faced by this system is that a national jurist is often not experienced in the field of international complementarity. This is highlighted in the situations in which the OTP may provide evidence to national authorities insofar it is hard to determine if this evidence are going to be handled properly in the case in matter.

As the final member of the panel, Dr. Rod Rastan, legal adviser of the OTP, underscored that it is the common wish of the OTP for the national systems to properly work in order to attain the desired goal of complementarity enshrined in the Rome Statute. In this regard, Colombia constitutes a crucial example in how to address these matters appropriately at the national level. 

Albeit outside the panel, Judge Chung remarked the importance of positive complementarity for the future of the ICC. Accordingly, the three elements of fairness, transparency, and efficiency are key to any proper judicial system. In his view, efficiency may be lacking in the ICC. Furthermore, he proposed that the ICC should develop a model law to better guide states in implementing the complementarity elements of the ICC system into their own legal systems. In this sense, he acknowledged the need to reflect upon practices of hybrid tribunals and pondered having ad hocjudges from the state in which the investigation is taking part in order to strengthen the link between the enforcement of justice in the distant city of The Hague to the dynamics and particularities of each state.

The representatives of Uganda and Venezuela manifested their support for the discussion brought by the panel. Most notably, Venezuela questioned the absence of a bigger role for the defense within the procedures of the ASP. Additionally, it was remarked that for some Latin American states, it can be quite innovative and confusing to assess representatives for the victims and the defense in the same institution, which may lead to misleading situations on the states decision-making on matters such as the budget of the Court.