(co-hosted by Luxembourg, the Republic of Korea and Open Society Justice Initiative (OSJI))
Overview by Jill Baehring, Affiliated Expert PILPG NL
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.