Engaging States in Complementarity: Podcast with Thomas Winkler



The International Criminal Court (ICC) celebrates its 10th year in existence this coming July, and has yet to deliver a verdict in any of its 21 active proceedings. The first ruling, in the case against former rebel commander Thomas Lubanga for the use of child soldiers in the Democratic Republic of Congo, is expected in the coming months.

But this should not be interpreted as a failure of the court, or as a failure to pursue accountability for mass crimes more broadly. In a statement made upon his election to the role of prosecutor of the ICC, Luis Moreno Ocampo explained that true success in combating impunity must be achieved in national courts:

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“The efficiency of the International Criminal Court should not be measured by the number of cases that reach the court or by the content of its decisions. Quite on the contrary, because of the exceptional character of this institution, the absence of trials led by this court as a consequence of the regular functioning of national institutions would be its major success.”

This statement underscores the principle of complementarity—that the primary responsibility for investigating and prosecuting war crimes, crimes against humanity, and genocide rests with states. This is the principle on which the ICC was founded. How to successfully turn this principle into practice, however, remains the subject of ongoing debate.

Following ICTJ’s second high-level meeting to further this discussion between leading justice and development actors, we launched a special podcast series on complementarity. In this installation we speak with Ambassador Thomas Winkler, undersecretary for legal affairs at the Danish Ministry of Foreign Affairs. Our discussion focuses on the role of the Assembly of States Parties (ASP), the legislative body of the ICC, in supporting the capacity of national court systems to address international crimes. Denmark and South Africa, as focal points within the ASP on complementarity, have been instrumental on moving the discussions forward on this issue.

Complementarity cannot be thought of as separate from the work of the ICC, Winkler explains. What is needed is an increased focus by the court, and by the ASP, on building the capacity of national judiciaries. For this to be successful we must see increased support and commitment from states within the ASP, resources dedicated to complementarity work, and a clearly defined role for the court and states parties on how to turn this principle into practice.