Bring justice closer to the victims and create a community of practice? Some thoughts on ways to implement the ICC OTP Policy on Complementarity and Cooperation – EJIL: Talk!

The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) launched a public consultation on its Draft Policy on Complementarity and Cooperation (‘Draft Policy’) on 6 October 2023. The Draft Policy includes four pillars intended to provide the basis for deepening the OTP’s engagement with national authorities – creating a community of practice, technology as an accelerator, bringing justice closer to communities and leveraging collaborative mechanisms. This article briefly examines the last two, given their relevance for the meaningful participation of victims of serious international crimes at different stages of the proceedings in The Hague, in national or regional jurisdictions. It argues that despite the limited information that can be captured in such a policy document, it does not go far enough to reflect the importance of the principle of complementarity in achieving victim-centred justice. Some recommendations are made on how the Draft Policy can be improved in this area.

The principles of complementarity and cooperation are critical to achieving the ICC’s mandate to complement the fight against impunity for serious international crimes while cooperating with States that retain primary responsibility for addressing such crimes . The OTP plays a key role in the application of the various provisions in the Court’s core legal texts related to the principle of complementarity, including admissibility provisions (Articles 17-20 of the Statute) and provisions relating to prior inquiries and investigations (Articles 15 , 53-54). The interpretation of the complementarity principle will help determine whether justice would be served within the context of the Rome Statute and by whom – states or the ICC? Where? —in The Hague, in national or regional jurisdictions? Can victims participate and how (if at all) can they contribute to shaping justice? Complementarity and collaboration have been the subject of several types of academic literature, including blog posts for example here, here, here, here and here. Nevertheless, very little has been written about the impact of complementarity on how justice for victims can be pursued and achieved. See, for example, Moffett’s work on this.

The Draft Policy demonstrates the OTP’s intention to remain committed to working with stakeholders and partners on complementarity and cooperation, especially States, regional organizations, civil society organizations (CSOs) and victims, to achieve the objectives of the Statute of to realize Rome. The OTP aims to bring justice closer to victims through a presence on the ground, building closer relationships with affected communities and developing a deeper understanding of local contexts and cultures (Draft Policy, 62-86). However, the draft policy can be improved to ensure that it strongly reflects how crucial complementarity is to achieving victim-centred justice. This is discussed further under two headings. First, the need for inclusiveness in carrying out consultations with states on burden sharing, providing support through the OTP and concluding Memorandum of Understanding (MoUs). Second, the OTP’s plan to embed its work in mechanisms for tackling international crimes.

Consultation with states, support for national or regional mechanisms to tackle international crimes and the conclusion of MoUs: the need for inclusiveness

The Draft Policy explains the guiding principles that address ways in which the OTP can operationalize its twin-track approach of partnership and vigilance to ensure that, while consulting and cooperating with cooperating states, it does not compromise its ability to intervene if the situation arises. deposit. In paragraph 16, the Draft Policy considers cases of a change of circumstances in a situation or matter following an admissibility decision. It notes that when such warrants:

‘revision of that assessment, the Bureau will endeavor to do so on its own initiative. Where there is an opportunity to assist national authorities in conducting relevant and genuine proceedings, the Office will proactively support them.’

What do these mean for the victims? Under what circumstances will the OTP reassess the assessment? What are examples of indicators that may warrant a review of the assessment? Could the absence of any form of participation of victims in the process in question give rise to, or be part of, such a review? What if the OTP does not believe a review is necessary, what steps could it take to hold itself accountable and ensure its determination is in the best interests of victims? These are legitimate questions, as the preamble to the Statute emphasizes the suffering of victims of international crimes and the need to address impunity for such crimes. Paragraphs 12-13 of the Draft Policy rightly recognize the importance of the preamble as an essential part of the Statute, which contains considerations that are crucial to the vision of the OTP as set out in the Draft Policy. The Court’s key legal texts and various ICC policies and strategies recognize victims as actors with rights within the international criminal justice system, and are thus integral to the fight against impunity. Article 86 of the Rules of Procedure and Evidence of the ICC among other the OTP, in carrying out its duties under the Statute or the Rules, to take into account the needs of all victims in accordance with Article 68. Therefore, the OTP should ensure the inclusion of victims and the manner in which their needs are met, regard as important. and interests are raised, as part of the factors to be considered in determining whether a review of the assessment of a situation or matter at any stage of the procedure is justified.

Paragraphs 14 and 15 of the Draft Policy anticipate situations where there is simultaneous action by the ICC and States Parties on potentially interconnected matters, necessitating consultation and coordination. Paragraphs 122-123 outline the OTP’s willingness to examine burden sharing in situations, which is a good approach because it potentially increases accountability efforts and increases opportunities to provide justice to more victims. However, the manner in which such measures are implemented should take into account the needs and interests of victims, through constant consultation with them, while adapting to changing circumstances. The recent cases under Article 18, in particular the postponement requests from Afghanistan, the Philippines and Venezuela and the subsequent decisions of the Pre-Trial and Appeal Chambers, highlight the need to ensure that consultations and MoUs aim to maximize complementarity and cooperation should follow such an approach. Especially since the Draft Policy states that the OTP ‘focuses above all on the rights and experiences of victims/survivors’? (Draft policy, paragraph 123). The draft policy provides examples of the various MoUs between the OTP and states such as Venezuela, Colombia and Guinea. For example, paragraph 107 states that the OTP could assist Venezuela with legislative developments in the field of justice and sharing knowledge and best practices with national authorities. Will this support include the development of effective services for victims and a means of monitoring their implementation? This can contribute to a more victim-friendly legal framework and system.

Anchoring the ICC’s work within the full range of mechanisms for addressing international crimes and establishing a forum for cooperation and complementarity

Paragraphs 23-35 of the Draft Policy outline the importance of anchoring the work of the ICC to increase its impact. Paragraph 102 explains that the OTP shall not be precluded from seeking means to integrate and coordinate its efforts along pathways that strengthen a comprehensive transitional justice approach to provide remedies to victims. The draft policy states that a Complementarity and Cooperation Forum will be established, which is expected to become operational in early 2024. It is expected to provide a platform for sharing expertise and discussing and developing common standards for the investigation and prosecution of serious international crimes. Legal practitioners, criminal investigators, criminal justice analysts, forensic specialists, financial investigators, country specialists, linguists, knowledge base managers, operational and protection strategy experts, as well as judicial cooperation specialists are expected to have a place in this forum (Draft policy, paragraphs 33 -35). As of April 15, 2024, there is no public information about the existence of such a forum.

The draft policy does not explicitly mention victims’ representatives as those who should participate in the forum. It is hoped that such a forum will provide space for them for the inclusivity reasons discussed above. Currently, the OTP’s Jurisdiction Complementarity and Cooperation Division (JCCD) does not have a dedicated officer with the responsibility to focus on victims’ needs and interests regarding complementarity issues at all stages of the proceedings. Such a person could better work with the OPCV and the VPRS to facilitate consultations with victims and affected communities regarding making important complementarity and cooperation decisions, and to ensure that victims receive important updates regarding their submissions to the Court. While the OTP notes the introduction of thematic roundtables to improve engagement with civil society organizations, it should consider creating the role of a civil society liaison (not just a collaboration expert) within its JCCD.

The OTP draft policy is a welcome development, but more needs to be done to reflect the importance of complementarity in achieving justice for victims. The proposals made here can contribute to greater transparency, which is crucial to the OTP’s goals of bringing justice closer to victims and creating a community of practice.