In accordance with Article 17 (1) of the Rome Statute, the International Criminal Court (ICC) may only prosecute crimes against international law if the state in which they were committed is unwilling or unable genuinely to carry out the investigation or prosecution itself. The “principle of complementarity” embodied in this rule is an expression of the idea of subsidiarity that pervades international criminal law. However, in post-conflict situations the police and judicial authorities are frequently so debilitated that investigating such grievous crimes would be beyond their capabilities (e.g. due to a lack of qualified, experienced staff). And it is precisely following such crimes against international law that it is imperative to secure evidence as quickly as possible (e.g. by doing forensic tests and questioning witnesses before they leave the region).
The International Criminal Court and the current and future special courts at national level (e.g. the Special Court for Sierra Leone, the Special Chambers in Sarajevo and Phnom Penh) could also benefit from a pool of additional experts, since they want to keep staffing levels as low as possible in order to avoid having excessive overheads.
Against this background, a number of states decided to look into ways of cooperating at international level to organize the rapid deployment of experts. Experts would only be deployed at the request of the affected governments or international organizations, including the courts. The cooperating states would first review the political and security environment on the ground in order to be sure that the experts really could contribute to the genuine investigation and prosecution of all suspects and so contribute to post-conflict peacebuilding. In order to be able to send experts as quickly as possible after these preliminary checks, it would be necessary to compile a list of experts in all potential sending states and provide standardized basic training, to be supplemented by further preparatory measures for any individual deployment.
A feasibility study on the “Justice Rapid Response” initiative has been completed. Building on this study, the first steps towards implementation are to be adopted in the summer of 2006 in close coordination with the international organizations responsible for post-conflict peacebuilding and after consultation with the relevant non-governmental organizations.
The unit responsible at the Federal Foreign Office for this project is the Task Force for the International Criminal Court.