The ICC Office of the Prosecutor’s new Policy on Complementarity and Cooperation must still meet high expectations

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As the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) launches the first ever Policy on Complementarity and Cooperation (Policy), the International Federation for Human Rights (FIDH) calls on the OTP to ensure transparency, scrutinise the efficacy of domestic proceedings, and actively include civil society as a key partner in the implementation of the Policy.

The Hague, Paris, 26 April 2024. A first of its kind Policy on Complementarity and Cooperation was launched yesterday by the ICC Prosecutor Karim Khan in Colombia, Deputy Prosecutor Mame Mandiaye Niang in the Central African Republic (CAR), and Deputy Prosecutor Nazhat Shameem Khan in Tunisia to address Libya, reflecting the OTP’s renewed focus on enhancing national authorities’ ability to investigate and prosecute Rome Statute crimes. Since taking office in 2021, the ICC Prosecutor has expressed his commitment to strengthening cooperation with states towards a more effective application of the principle of complementarity. His new approach has involved closing preliminary examinations and investigations, de-prioritising certain cases, and the adoption of several cooperation agreements with national authorities. The Policy includes creating forums for exchange, leveraging technology, and monitoring progress and actions taken at the domestic level with respect to international crimes while directly supporting national proceedings.

In October 2023, the Office of the Prosecutor (OTP) launched a public consultation on the draft of the Policy, emphasising the need for the ICC to act as a “hub” within a network of accountability efforts, rather than positioning itself at the “apex” of the Rome Statute system. FIDH submitted comments on the draft Policy and provided recommendations. FIDH is pleased to note that some of its recommendations were integrated into the final Policy, including a stronger emphasis on the mutual benefits that can arise from deeper engagement with civil society. That said, while the OTP is implementing a series of measures aimed at enhancing a “structural dialogue” with civil society, the parameters of this deeper engagement remain unclear. Civil society organisations often bridge the gap between the ICC and victims of Rome Statute crimes, amplifying their voices and facilitating access to justice. It is therefore essential to ensure civil society can play a valuable role in the successful implementation of this Policy.

FIDH supports the OTP’s efforts to assist national authorities and has consistently advocated for bringing justice closer to victims, calling on states to comply with their international obligations to investigate and prosecute international crimes committed on their territory. However, despite frequent promises to investigate, there is often little action from national authorities. This pattern of paying lip service without follow-through demands substantial efforts to bring about meaningful complementarity and the justice that victims truly deserve. In that context, the lack of transparency and inconsistencies in applying the complementarity principle, as well as the unclear criteria for selecting countries to support raises concerns about double standards and fairness. FIDH therefore calls on the OTP to explain upcoming decisions regarding the implementation of its new Policy and the prioritisation and support of certain situation countries and not others.

It is significant that the Policy was launched from Colombia, CAR, and Tunisia to address the situation in Libya – three country situations where Prosecutor Khan has either already closed, or announced the pending closure, of preliminary examinations and investigations, despite serious concerns raised by civil society. In these situations, the Prosecutor decided to support and entrust national authorities with domestic proceedings, following his new approach to complementarity and cooperation, but many questions remain regarding the real prospect for accountability for atrocities.

Efforts to enhance justice at the domestic level should not exclude that the ICC Prosecutor continue to diligently investigate alleged atrocities within the Court’s jurisdiction,” says Reinaldo Villalba Vargas, FIDH Vice-president and President of Colectivo de Abogados José Alvear Restrepo (CAJAR). According to him, “Excessive deference to national systems might actually leave victims without effective and timely justice avenues. The situation in Colombia is a stark example of this, where the limited jurisdiction of the Special Jurisdiction for Peace (JEP) and the OTP’s approach have left many victims disillusioned, with less and less hope that there will be justice for international crimes.

FIDH calls on the OTP to provide clear criteria and transparency on decisions regarding prioritising support to certain situation countries and not others, to avoid perceptions of double standards and to enhance understanding of the decision-making process, while ensuring that civil society organisations working closely with victims remain a key partner of the OTP through a two-way engagement and mutual benefit approach.

On the occasion of the launch of the Policy on Complementarity and Cooperation, FIDH also publishes a Q&A with 10 questions and answers on the OTP’s new approach to the principles of complementarity and cooperation at the ICC and what it has meant in practice in recent years. The Q&A includes FIDH’s critical observations and suggestions on the OTP’s overall approach and the four pillars of the Policy.

Read our Q&A here.

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