Keynote address by Mr Andries Carl Nel, MP,Deputy Minister of Justice and Constitutional Development, Republic of South Africa, at the Gala Dinner on the occasion of the Greentree II Meeting on Complementarity, Manhasset, New York
Programme Director
Permanent Representative of Denmark to the United Nations
Representative of the ICTD
Representative of the UNDP
Representative of the OHCHR
Representatives of Non-Governmental Organisations (NGOs)
Ladies and Gentlemen
I extend my greetings to all present at the Greentree II meeting on behalf of the Government of the Republic of South Africa and its people. We express our gratitude to co-organisers for arranging this meeting, which will undoubtedly be a success.
The Greentree meeting on complementarity takes place on the eve of the celebration of the centenary of the African National Congress (ANC) founded on the struggle for freedom and democracy, including the principles of equality and the rule of law enshrined in the African Claims and the Kliptown Freedom Charter.
These historic documents culminated in the dawn of democracy in South Africa and the adoption of the Constitution of the Republic of South Africa of 1996. Enshrined in this Constitution is the right to equality before the law and the right to access to justice protected and safeguarded by the independent judiciary. In line with these rights, we have signed up the Rome Statute of the International Criminal Court and the principle of complementarity which is an embodiment of this Statute. This was translated into our domestic law through the passing of the Implementation of the Rome Statute of the Criminal Court Act, 2002 (Act No 27 of 2002).
We should recall the Side Event on Positive Complementarity held during the Kampala Rome Statute Review Conference, which was co-hosted by the Governments of South Africa and Denmark. This was a scene-setting meeting. State Parties passed a resolution confirming that the struggle against impunity and the respect for the rule of law require first and foremost that States prosecute serious crimes committed in their territory or by their nationals, while recognising and supporting the basic principle of complementarity.
The Assembly of State Parties emphasised the need for practical steps to be taken to ensure that States willing but unable to investigate and prosecute such crimes are provided with the necessary tools to assume their responsibilities. The Government of Uganda and its people are thanked for providing us with the opportunity to set the scene on complementarity.
We also extend our thanks to the International Center for Transitional Justice (ICTJ), United Nations (UN) Rule of Law Unit and Secretariat of the ASP for co-hosting the retreat entitled “Complementarity” at the Greentree Estate in Manhasset, New York from 28 – 29 October 2010. The purpose of the Greentree retreat (Greentree I) was to build on the momentum created at Kampala and to bring together high-level actors in international justice, rule of law assistance, and how to implement the concept of complementarity.
The retreat provided an opportunity for informal articulation of personal views, which have advanced the discussions on the principle of complementarity, in particular yardsticks for the implementation of this principle. Although focus was to seek yardsticks to assist States which are unable to investigate and prosecute perpetrators of the core crimes in line with the Kampala outcome, it was acknowledged that we must not lose sight of the connection between ‘unwilling and unable’. Unwillingness of States is critical as this underpins the movement towards the universality of the Rome Statute and indeed the application of the principle of complementarity.
Unwillingness outplays itself during and after the conflict situations. This is true with some referrals to the International Criminal Court (ICC), which is the preference of high-level political actors than inability to investigate and prosecute. Therefore, we need a constant engagement on the question of unwilling to ensure universality of the Rome Statute and application of the principle of complementarity. If need be, eminent persons could be used to make this call in their national jurisdictions and regional and international forum.
We applaud the articulations on the connection between rule of law, development and international justice, and that actors in these sectors should play a key role in ushering the principle of complementarity. The issue of the factoring of the principle and yardsticks into development programmes of donor countries and organisations is indeed one of the steps to take us forward. However, we hope that the development sector should not be marred by the looming economic crisis which we are observing in the Euro zone and USA, and which is about to creep up in other parts of the world.
As we are sitting on the edge of yet another economic crisis since the 2008 economic crisis which resulted in massive Government bail-outs, the international community under the auspices of the United Nations is having the COP17 meeting on climate change in South Africa.
This meeting is grappling with the same issue of sustaining development in the face of the looming catastrophic climate change. Indeed development is key in ensuring rule of law assistance and international justice. As much as we place emphasis on the training of investigators, prosecutors, prison warders and witness protection officials, more emphasis should be placed on training of judicial officers as they hold the key to ensure the upholding of the rule of law and international justice.
As to implementation legislation, or domestication of the Rome Statute, emphasis should not only be on ratification and criminalisation of the core crimes, but also the issue of international cooperation, in particular surrender/extradition of suspects and mutual legal assistance in investigations and obtaining of evidence. Complementarity in terms of the required legal frameworks is based on three pillars, signing up of the Rome Statue, criminalisation and international cooperation.
The Greentree I outcome captures States’ responsibility to investigate and prosecute those who commit the core crimes in their territory, or their nationals who commit such crimes outside. Given the international nature of these crimes, and that the planning and execution may take place in a number of jurisdictions, the issue of international cooperation is key, and interwoven with the principle of dual criminality. It is noted that there is an initiative led by the Netherlands regarding the issue of cooperation, Greentree could tap into this initiative.
As we are assembled at this Greentree Estate, the international community witnessed and continue to witness with deep sadness the popular uprisings for freedom and democracy in the northern tip of Africa and the Middle East, which have become dubbed the Arab spring.
In the USA and some parts of Europe there is a raging struggle for economic upliftment of the poor and the call for austerity measures. Central to these campaigns are the Youth who are calling for liberty for all and an end to social and economic exclusion and injustice. If we do not take heed of these calls, the whole world will be engulfed by raging waves of discontent and violence at a large scale. This is true, injustice in one, or more countries, is injustice everywhere. This will not only have an impact on development, but justice as embodied in the principle of complementarity.
As we set the tone, or scene for the Green II meeting, which is to commence earnestly on 8 December, the discussions to unfold should take us towards the path of consolidation and action. Views have been articulated on an integrated approach to complementarity.
We have heard about lessons learnt from officials of International Criminal Tribunal, Hybrid Tribunals and national jurisdictions. As we will be having further deliberations on lessons and experiences, we should think of some quick fixes such as national and regional seminars and workshops on issues pertaining to the principle of complementarity. Views have been expressed on the need to have a complementarity tool kit, we should be thinking about this as we embark on the path of consolidation and action.
In conclusion, we extend our gratitude to the Prosecutor of the ICC, Mr Moreno Ocampo and Ambassador Christian Wenaweser, the President of the Assembly of State Parties, as their terms of service to mankind are about to expire, for their sterling work in their respective offices and contribution in advancing the course of justice for which the International Criminal Court has been established, including the principle of complementarity.
I thank you.
