30 - Complementarity of procedures: how to avoid reinventing the wheel

Summary

The principle of complementarity, which places the primary obligation to pursue cases of international crime on States Parties, must be supported in practice by the development of domestic capacities in countries affected by widespread violations of international humanitarian law. Establishment of in-theatre internationalized or hybrid criminal tribunals remains the most viable and effective way to achieve this goal. In addition to delivering a measure of accountability for atrocities, these tribunals play an important role in the advancement of transitional justice and the rule of law by interacting with communities affected by the crimes and performing a range of capacity-building functions. The problems of high cost and unpredictable timelines associated with such tribunals can be addressed through effective planning, use of pragmatic solutions and adaptation of tried and tested judicial support mechanisms. These solutions and mechanisms must encompass the issue of victim participation where the extent of formal participation must be carefully defined by reference to the underlying purposes of such participation and balanced against key considerations such as the need to ensure fair and expeditious investigations and trials.

Introduction

In recent years a mood of scepticism seems to have overcome international lawyers when it comes to the viability of future enforcement of international humanitarian law (‘IHL’) through internationalized judicial institutions. This scepticism is fuelled by an apparent waning appetite on the part of the international community to fund hybrid or internationalized criminal tribunals (‘ICTs’). The resulting assumption is that, in the years to come, the International Criminal Court (‘ICC’) will become a solitary judicial island dealing with IHL cases at the international level.