Prosecuting International Crimes in Africa - PULP - University of ...

256 Chapter 12
2.3 Understanding positive complementarity
Positive complementarity is defined by the OTP as a proactive policy of
cooperation aimed at promoting national proceedings. 46 It is regarded as
a managerial concept that governs the relationship between the court and
domestic jurisdictions on the basis of three cardinal principles: the idea of
a shared burden of responsibility; the management of effective
investigations and prosecutions; and the two-pronged nature of the
cooperation regime. 47 It is a process which actively encourages
investigation and prosecution of international crimes within the court’s
jurisdiction by national jurisdictions. States can do so ‘where there is
reason to believe that such states may be able or willing to undertake
genuine investigations and prosecutions ...’. 48 On the other hand, the
Assembly of States Parties (ASP) Report of the Bureau on
complementarity refers to positive complementarity as: 49
[A]ll activities/actions whereby national jurisdictions are strengthened and
enabled to conduct genuine national investigations and trials of crimes
included in the Rome Statute, without involving the Court in capacity
building, financial support and technical assistance, but instead leaving these
actions and activities for States, to assist each other on a voluntary basis.
The definition has been criticised as limiting the role of the ICC as an
institution. The intention is for states to reduce the amount of money spent
on the ICC. 50 This is because the ASP had initially envisaged a role for the
ICC in the application of positive complementarity in its activities. 51 In its
Prosecutorial Strategy (2009 to 2012), the OTP stated that it would operate
on four fundamental principles: positive complementarity; focused
investigations and prosecutions; addressing the interests of victims; and
maximizing the impact of the OTP’s work. 52 The OTP argues that it has
‘adopted a positive approach to complementarity, meaning that it
encourages genuine national proceedings where possible; relies on
national and international networks; and participates in a system of
46 ICC ‘Prosecutorial Strategy 2009 ? 2012’ 1 February 2010, http://www.icc-cpi.int/
NR/rdonlyres/66A8DCDC-3650-4514-AA62-D229D1128F65/281506/
OTPProsecutorialStrategy20092013.pdf (accessed 15 September 2010) (OTP Strategy
2009 -2012).
47
C Stahn ‘Complementarity: A tale of two notions’ (2008) 19 Criminal Law Forum 87,
113.
48 W Burke-White ‘Implementing a policy of positive complementarity in the Rome
system of justice’ (2008) 19 Criminal Law Forum 59, 62.
49 Para 16 Report of the Bureau on stocktaking: Complementarity, http://www.icccpi.int/iccdocs/asp_docs/ASP8R/ICC-ASP-8-51-ENG.pdf
(accessed 15 September
2010).
50 M Wierda ‘Stocktaking: Complementarity’ International Centre for Transitional
Justice Briefing Paper, May 2010.
51
Paras 24 – 25 Report of the Bureau on the Strategic Planning Process of the
International Criminal Court, ICC-ASP/5/30, 20 November 2006, www.icc-cpi.int/
iccdocs/asp_docs/library/asp/ICC-ASP-5-30_English.pdf (accessed 15 September
2010).
52 Para 15 OTP Strategy 2009 – 2012 (n 46 above).