20th Anniversary of the War Crimes Research Office: Keynote on the Principle of Complementarity

David Tolbert, president for the International Center for Transitional Justice delivers keynote speech

 

On March 30, the War Crimes Research Office (WCRO) celebrated its 20th anniversary with a conference titled, “Prosecuting Serious International Crimes: Exploring the Intersections between International and Domestic Justice Efforts.” Founded in 1995, the War Crimes Research Office originally worked with the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) to provide legal research and assistance in areas of international criminal and humanitarian law. Its work has since won wide acclaim and demand from newer tribunals and international courts.

The conference brought together international and domestic justice practitioners and experts to discuss critical questions facing the field today. As WCRO Director Susana SáCouto explained during her opening remarks, although much has been accomplished in the last 20 years, challenging questions remain, including: “How can the ICC –and the international community more broadly – effectively support accountability efforts beyond The Hague? What domestic or hybrid models have worked best? What lessons can we learn from external engagement in these models? What are some of the cautionary tales? How can the ICC’s engagement with states be leveraged to improve domestic prosecutions for crimes of conflict-based sexual and gender-based violence, which - until relatively recently - had been ignored or treated as secondary to other crimes? And how do we ensure ongoing and constructive engagement between the various actors involved in the prosecution of serious crimes at the domestic level, including not just justice system actors, but donors and civil society groups?”

David Tolbert, president for the International Center for Transitional Justice delivered the keynote speech at the conference. Tolbert has extensive experience with tribunals prosecuting serious international crimes. During his keynote speech about the principle of complementarity – which makes clear that the International Criminal Court is a court of last resort, intended to step in only when domestic jurisdictions fail to investigate or prosecute serious crimes – Tolbert highlighted the difficulty of balancing international versus domestic interests and the importance of professionalism in field.

“We can’t be a complete substitute for national bodies to investigate; we have to think twice about the roles international actors play to make sure that we, first of all, do not make the situation worse,” says Tolbert. Adding, empty gestures can give false hope to victims.

He noted that some compromises make delivering justice very difficult and in some cases undermine the whole process. While peace and justice are indispensable, professionals have to have creative solutions. “A failed tribunal or process makes it less possible for successful investigations of prosecutions in the future,” says Tolbert.   

“Too much lip service is paid to complementarity, but in terms of the reality, much hard work is needed, both on the political and on the technical level, neither of which is being adequately supported. Thus, if positive complementary is to mean something to victims and justice is to be delivered, then both domestic and international actors will need to address these issues much more seriously than they have,” commented Tolbert.

Professor Juan Mendez, U.N. Special Rapporteur on Torture, commented on Tolbert’s speech. From his own experience, the procedure to investigate torture is well established on paper, but very difficult in practice. 

The focus on international enforcement can further the goal of domestic accountability. “The purpose of setting up a tribunal is not to take away from the domestic jurisdiction,...but a way of promoting and fostering that obligation [to prosecute violations]; providing and sharing the tools to do it the right way,” says Mendez.

 “The complementarity principle is very important, especially in situations in which ICC prosecutes because of unwillingness, or inability, of a state to prosecute,” Mendez says. Mendez proposed that the structural conditions for a state to redress human rights violations might have to be built.

Finally, Mendez suggested we honor memory as it becomes history and provides a basis for facts that is indisputable. “Justice doesn’t have debates over history, and it shouldn’t, but it does provide a basis over which you can have a rational debate about how best to avoid human rights violations in the future,” says Mendez.

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The conference was co-sponsored by the American Bar Association Rule of Law Initiative, the American Society of International Law, the American Red Cross, and PluriCourts of the University of Oslo

 

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