The International Criminal Court and Positive Complementarity. Legal and Institutional Framework

Table of Contents

1 Background and introduction to the study

1.1 General overview of the study

1.1.1 The ‘impunity gap’ argument: Shortcoming of the complementarity principle

1.1.2 The unsettled scope of positive complementarity

1.2 Research question

1.3 Objectives of the study

1.4 Justification for the study

1.5 Methodology used in the study

1 Introduction

2 From primacy to complementarity

2.1 General

2.2 The international military tribunals

2.2.1 The International Military Tribunal (Nuremberg)

2.2.2 The International Military Tribunal of the Far East (Tokyo Tribunal)

2.2.3 Conclusion

2.3 The ad hoc international criminal tribunals

2.3.1 The International Criminal Tribunal for the Former Yugoslavia (ICTY)

2.3.2 The International Criminal Tribunal for Rwandan (ICTR)

2.3.3 Hybrid international criminal jurisdictions

2.3.3.1 The Special Court for Sierra Leone (SCSL)

2.3.4 Conclusion

2.4 The negotiating and drafting history of the Rome Statute

2.4.1 The International Law Commission (ILC)

2.4.2 The ad hoc Committee on the Establishment of an International Criminal Court

2.4.3 The Preparatory Committee sessions

2.5 The United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court (The Rome Conference)

1. Introduction

2. The meaning of complementarity

3. The rationale of complementarity

4. The admissibility rule and jurisdiction

4.1 Prelude

4.2 Analysis of article 17 of the Rome Statute

4.2.1 Jurisdiction of the State

4.2.1.1 Unwillingness

4.2.1.2 Inability

(a) No ground to prosecute after investigations

(b) Ne bis in idem rule

(c) The case is of sufficient gravity

5. Conclusion

1. Introduction

2. Evolution of the concept of positive complementarity

2.1 The Informal Expert Report

2.1.1 The Informal Expert Report: Complementarity in practice

2.1.2 Partnership and dialogue with states

(i) Encouraging national action and anti-impunity measures

(ii) Providing direct assistance and advice

(iii)Relationship between roles

2.1.3 Vigilance

2.2 A ‘positive approach to complementarity’ by the Office of the Prosecutor

2.2.1 Introduction

2.2.2 The 2003 paper on some policy issues before the Office of the Prosecutor

2.2.3 The Office of the Prosecutor: Prosecutorial Strategy 2006-2009

2.2.4 The Office of the Prosecutor Prosecutorial Strategy 2009-2012

2.3 Self-referrals

2.4 Conclusion

3. The definition of positive complementarity: A normative challenge

3.1 The concept of ‘positive’ complementarity

3.2 Legal foundations of positive complementarity

4. Features of positive complementarity

5. Positive complementarity in the Rome Statute

6. 2010 Kampala Review Conference on stock-taking of the Rome Statute

6.1 Introduction

6.2 The lead-up to the Kampala Review Conference

6.3 Report of the Bureau on Stocktaking: Complementarity

6.4 Resolution adopted at the Review Conference

6.5 Conclusion

7. The Greentree process

7.1 Introduction

7.2 The first Greentree process retreat, 2010

7.2.1 The purpose of the meeting

7.2.2 Deliberations at the retreat

7.2.3 Recommendations of the Greentree I

7.3 Greentree II, 2011

7.3.1 Introduction

7.3.2 Discussions at Greentree II

7.3.3 Outcome and Recommendations of Greentree II

7.4 Greentree III

7.4.1 Introduction

7.4.2 The discussion at Greentree III

7.4.3 Way forward

7.5 Conclusion

1. Introduction

2. Legal and institutional measures to implement positive complementarity

2.1 Introduction

2.2 Implementation legislation

2.2.1 Introduction

2.2.2 Rationale of implementing legislation

2.2.3 Challenges of implementing legislation

2.3 Technical assistance and capacity building

2.4 Physical infrastructural intervention

2.5 Developmental agencies and conditional donor aid

3. International Law Association initiative

3.1 Introduction

3.2 Working session 2014

3.3 Working session 2016

4. The International Law Commission ILC) initiative

5. The Belgium, Slovenia and Netherlands initiative

6. Civil society and positive complementarity

6.1 Introduction

6.2 Civil society in action

6.3 Challenges and limitations in the role of the civil society

6.4 Conclusion

7. Current institutional framework on positive complementarity

7.1 Secretariat of the Assembly of Assembly of State Parties and positive complementarity

7.1.1 Establishment of Permanent Secretariat of the Assembly of States Parties

7.1.2 Role of the ASP Secretariat in implementing positive complementarity

7.1.3 Limitations of the ASP Secretariat in positive complementarity mandate

(a) Resource constraint

(b) Structural inadequacies

(c) Mixed mandate of the Secretariat

(d) Lack of financial independence

(e) Not established under the Rome Statute

7.2 Why a new legal and institutional regime?

(a) Financial independence

(b) Increased specialisation

(c) Wider acceptance

(d) Entrenched in the Rome Statute

1. Conclusions

2. Recommendations

Objectives & Research Topics

This thesis examines the concept of "positive complementarity" within the framework of the International Criminal Court (ICC). The study addresses the lack of a clear definition and formal legal content for this concept, aiming to develop an appropriate legal and institutional framework for its effective implementation. It investigates the evolution of the principle of complementarity from the Rome Statute and evaluates the limitations of the current institutional framework, specifically focusing on the Secretariat of the Assembly of States Parties (ASP Secretariat), while proposing structural reforms to enhance the combatting of impunity.

• The evolution and theoretical background of the complementarity principle in international criminal law.
• The conceptualization and definition of "positive complementarity" as a tool for judicial assistance and capacity building.
• Analysis of institutional limitations within the ICC and the ASP Secretariat regarding the implementation of positive complementarity.
• Policy alternatives and proposals for a restructured legal and institutional framework to better support national jurisdictions.
• The role of civil society and donor agencies in fostering accountability and domestic prosecution efforts.

Excerpt from the book

Summary of Chapters

BACKGROUND AND INTRODUCTION: This chapter provides the foundation for the study, introducing the Rome Statute, the principle of complementarity, and the emergence of the "impunity gap" as a central research problem.

THE EMERGENCE OF THE COMPLEMENTARITY PRINCIPLE: This chapter traces the historical development of jurisdictional competence from the Nuremberg and Tokyo tribunals through the ad hoc ICTY/ICTR tribunals, illustrating the transition from primacy to complementarity.

THE PRINCIPLE OF COMPLEMENTARITY IN THE ROME STATUTE: This chapter analyzes the legal provisions governing admissibility and jurisdiction under Article 17 of the Rome Statute, establishing the primary role of national courts.

THE CONCEPT OF POSITIVE COMPLEMENTARITY: This chapter explores the emergence, evolution, and normative challenges of positive complementarity, examining OTP policy papers and the expert contributions to the concept.

LEGAL AND INSTITUTIONAL FRAMEWORK: This chapter evaluates current institutional mechanisms, including the ASP Secretariat, and proposes policy alternatives, such as the establishment of an independent coordinator for positive complementarity.

CONCLUSIONS AND RECOMMENDATIONS: This chapter summarizes the findings of the study and provides concrete recommendations for institutional restructuring to enhance the implementation of positive complementarity.

Keywords

complementarity, international criminal law, institutional, international, law, legal, positive complementarity, impunity, international criminal court, state sovereignty, capacity building, admissibility, jurisdiction, Rome Statute, ASP Secretariat

Frequently Asked Questions

What is the fundamental goal of this doctoral thesis?

The primary goal is to establish a coherent legal and institutional framework for the effective implementation of "positive complementarity," helping the ICC to better combat impunity by strengthening national judicial systems.

What defines the "impunity gap" in the context of the ICC?

The impunity gap refers to the situation where the ICC, due to its capacity limitations, focuses solely on high-ranking offenders, while lesser-ranking perpetrators are not prosecuted at all, often because domestic jurisdictions lack the capacity or the political will to act.

What is the core distinction between "classic" and "positive" complementarity?

Classic complementarity acts as a jurisdictional filter (an admissibility rule) under Article 17 of the Rome Statute. Positive complementarity, however, is a proactive policy approach that involves providing support, technical assistance, and capacity building to national jurisdictions to enable them to conduct their own prosecutions.

Why does the author argue that the current institutional framework is unsatisfactory?

The author identifies that the current Secretariat of the Assembly of States Parties (ASP) lacks the financial, structural, and legal independence necessary to effectively coordinate the diverse tasks associated with positive complementarity, leading to systemic ineffectiveness.

What specific institutional reform does the author propose?

The author proposes the creation of an independent "Office of the Coordinator for Positive Complementarity" within the Secretariat, which would have its own funding, a specialized staff, and would be located outside the physical precincts of the ICC to ensure autonomy and minimize the perception of bias.

What research methodology is employed in this study?

The study utilizes a qualitative research methodology, relying on an analytical approach that examines primary legal materials (Rome Statute, ICC judgments, policy papers) and secondary literature (scholarly works, expert reports) to critically analyze the legal and institutional aspects of the concept.

How does the author view the role of civil society in positive complementarity?

Civil society is considered a critical actor in advocacy, capacity building, and monitoring. However, the author notes that these organizations face significant limitations, including cash-strapped resources, lack of specialized legal expertise in international criminal law, and sometimes hostile political environments.

Why is the "Greentree process" relevant to this thesis?

The Greentree process represents a series of high-level retreats that bridged the gap between policy discussions and operational needs, serving as a platform for experts to promote national capacity building in the aftermath of the 2010 Kampala Review Conference.