Positive complementarity



Keywords: positive complementarity
Description: Lionel Nichols Affiliated with Honorable Society of the Inner Temple Faculty of Law, University of Tasmania The dilemma for the OTP is how it can make a significant contribution towards

  • Lionel Nichols Affiliated with Honorable Society of the Inner Temple Faculty of Law, University of Tasmania

The dilemma for the OTP is how it can make a significant contribution towards ending impunity with finite resources that permit just a handful of trials per year. Its proposed solution, as stated in its first police paper, is to encourage states to conduct their own domestic proceedings. According to the Prosecutor, the absence of trials before the ICC as a consequence of the regular functioning of national institutions would be a major success for the OTP.

How does the OTP seek to encourage target states to conduct its own domestic investigations and prosecutions? This chapter provides an overview of the OTP’s strategy of positive complementarity by reference to five OTP policy papers and the Prosecutor’s statements and writings. It examines the various techniques, including the placing of the target state on notice, the complementarity contract, the division of labour, the threatening of international prosecutions and the use of proprio motu powers.

It also argues that the Kenyan situation presents perhaps the first opportunity to examine the effectiveness of the OTP’s strategy of positive complementarity. I argue that the OTP’s approach to crimes committed in Uganda and the DRC is consistent with the Prosecutor seeking to solicit self-referrals so that the ICC could begin working on cases and can therefore be best described as a strategy of negative complementarity. This chapter also introduces the concept to the shadow side of complementarity, first identified by Heller in 2006 in respect of the Special Court on the Events in Darfur.

International Criminal Court (ICC) Office of the Prosecutor (OTP) Luis Moreno-Ocampo Positive Complementarity Proactive Complementarity Shadow Side of Complementarity Empirical studies of positive complementarity Kenya Colombia Uganda Democratic Republic of Congo (DRC)

Although the Rome Statute’s fifth preambular paragraph declares the ICC to have been established to ‘end impunity’, it does not define this phrase and provides little guidance on how this objective is to be realised. Instead, this is left for the various organs of the Court to develop their own interpretations and strategies. The OTP has sought to provide some guidance in this regard by publishing a series of policy papers. As these papers identify, the dilemma that the OTP faces is how it can make a significant contribution towards ending impunity with finite resources that permit just a handful of trials per year. The OTP’s proposed solution, as stated in its first policy paper, is to encourage states to conduct their own domestic proceedings:

The Court is an institution with limited resources. The Office will function with a two-tiered approach to combat impunity (sic). On the one hand, it will initiate prosecutions of the leaders who bear the most responsibility for the crimes. On the other hand, it will encourage national proceedings, where possible, for the lower-ranking perpetrators, or work with the international community to ensure that the offenders are brought to justice by some other means. 1

Under this strategy of positive complementarity, the OTP actively encourages domestic investigations and prosecutions with the objective of rendering international trials unnecessary. Indeed, according to the Prosecutor, a success for the OTP would be the absence of trials before the ICC as a consequence of functioning domestic criminal justice systems. 2 The OTP has now identified the strategy of positive complementarity to be one of the four ‘fundamental principles’ that guide prosecutorial policy, alongside ‘focussed investigations and prosecutions’, ‘addressing the interests of the victims’ and ‘maximising the impact of the Office’s work’. 3

This chapter provides an overview of the strategy of positive complementarity and discusses its potential to make a significant contribution to ending impunity. Relying upon official policy papers, OTP practice, public statements from the Prosecutor and interviews, this chapter provides a background on the origins of the strategy, a description of its components and an explanation of how it has been applied in the past. This chapter also discusses the concept of the ‘shadow side of complementarity’, a term used to describe any unintended and detrimental effects that the strategy may have had on the target state.

Perhaps the most remarkable aspect of the OTP’s strategy of positive complementarity is that it was never contemplated by those responsible for establishing the ICC, despite the fact that one of the principal considerations for the drafters of the Rome Statute was the relationship between the Court and domestic criminal justice systems. 4. 5 According to one of the principal negotiators, John Holmes, throughout the negotiation process a majority of states made clear that the most effective and viable system was one based on national procedures complemented by an international court. 6 Negotiators therefore displayed an eagerness to move away from the primacy models adopted by both the ICTY and ICTR under which the domestic courts served as a residual mechanism for suspects not tried by the international courts.

The Preamble to the Rome Statute provides that ‘the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions’. This is reinforced by Article 1, which states that the ICC ‘shall be complementary to national jurisdictions’. The heart of the complementarity regime, however, is Article 17, which provides in relevant part as follows.






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