The panel at the stocktaking session on complementarity.
The first, in the morning, was on complementarity. There were six panelists, including the High Commissioner for Human Rights, Navi Pillay, the Prosecutor of the International Criminal Tribunal for the former Yugoslavia, judges from the Democratic Republic of the Congo and Uganda, and senior officials from the European Union and the United Nations Development Programme. I had the honour of chairing the proceedings, which were organized by what are called the ‘focal points’, South Africa and Denmark. After about an hour of remarks from the panelists, the floor was opened, and there was a huge list of speakers. We finally had to cut it short, leaving about 15 angry delegations. Nothing could be done, I’m afraid, because of time constraints. They should have blamed the Spanish delegate, who was first to speak, and who consumed about 10 minutes, when I had made it clear nobody should speak for more than 3 minutes.
At the end, Judge Song and Prosecutor Moreno-Ocampo made some comments.
As the discussion showed, the understanding of ‘complementarity’ continues to evolve. In the preparations for the session, there were references to ‘positive complementarity’, an idea that first emerged in the Office of the Prosecutor. There seem to be different understandings of what the term is supposed to mean, although a lot of the discussion seems to be hairsplitting semantics. There is general agreement – and the session confirmed this – that we need to insist upon States themselves having the primary responsibility for prosecuting atrocity crimes. That was why the national judges were there. And in developing countries, various forms of assistance are important, which is why the representatives of the international agencies were there.
The explanations from the two national judges were interesting because they conveyed the dynamism of justice systems in both Uganda and the DRC that seems to have been encouraged by the International Criminal Court. Uganda has its own War Crimes Division in the High Court, something that results from the peace negotiations. Judge Akiiza said that they were prosecuting high-ranking officials in the Lord’s Resistance Army. When I asked him why they couldn’t prosecute the highest ranking officials, he said that they could. But, he said, we have a friendly relationship with the International Criminal Court and they have decided to go after the top three (the other two persons charged by the Court are now dead). There doesn’t seem to be a good explanation as to why the Ugandan courts can prosecute number 4 in the Lord’s Resistance Army but not number 3.
What positive complementarity seems to lead to is a rather benign division of labour between the International Criminal Court and the national justice systems. It is said that the International Criminal Court takes ‘those who bear the greatest responsibility’, leaving the others for national justice systems. That logic works for the international tribunal, but it doesn’t seem to operate in the same way at the national level. If the national courts are good enough to try a colonel, why aren’t they good enough to try a general?
Of course, that is a bit what happens at the ad hoc tribunals. High Commissioner Pillay and Prosecutor Bramertz spoke to that part of the issue. I was particularly taken by Navi Pillay’s remarks about the importance that respect be shown for the national justice systems. She alluded to the transfer decisions by the International Criminal Tribunal for Rwanda, which have refused to send cases to the national courts of Rwanda on the grounds that the justice system is inadequate. As I understood her remarks, she thinks the judges of the International Criminal Tribunal are being too harsh with respect to the Rwandan justice system. Those are compelling words coming not only from someone who is now High Commissioner for Human Rights but also the former President of the International Criminal Tribunal for Rwanda.
The afternoon session was on cooperation, and was presided by Philippe Kirsch, the former President of the International Criminal Court. A highlight of that session was a speech by Patricia O’Brien, the most senior lawyer in the United Nations, about the debacle concerning disclosure of evidence in the Lubanga case at the International Criminal Court. Hopefully we’ll get a copy of her written remarks, which make a great addition to what we know about those tense days in 2008 when it looked as if the Lubanga trial might never take place.
Ambassador Mary Whelen and Ambassador Kevin Kelly of Ireland, Judge Philippe Kirsch and myself at the launch.
James Kingston introducing the book.
Top left: signing the book. Top right: discussing the amendments to article 8 with the Bulgarian delegation.
Bottom left: my great friend Roger Clark. Bottom right: Ron Slye and Youk Chang.
Later, I had dinner with Andrew Clapham, Ben and Don Ferencz, Nick Strapatsas and Stefan Barriga. Stefan is at the heart of the aggression negotiations. By Friday, everything else at the review conference with be out of the way, and we will really only have one issue remaining: aggression. Everybody is anxious, and we are expecting much excitement in the days to come. Stefan left us to go to a meeting, and after a minute or two his chair was filled by Bianca Jagger. We all lamented the fact that the NGO guns on the aggression issue (sorry for the metaphor) seem silent, and we spent some time strategizing as to how to change this lamentable situation.