Overview by Filipe Gomes Dias Costa, Research Associate PILPG NL
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.