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

Positive complementarity and the fights against impunity in Africa 257
international co-operation’. 53 Regarding positive complementarity, the
OTP intends to ‘encourage genuine national proceedings where possible,
including in situation countries, relying on its various networks of cooperation,
but without involving the Office directly in capacity building or
financial or technical assistance’. 54
In analysing the need for positive complementarity, it is important to
highlight some provisions of the Rome Statute that support this view.
Under part 9 of the Rome Statute, which provides for ‘International
Cooperation and Judicial Assistance’, the ICC ‘may, upon request,
cooperate with and provide assistance to a State Party conducting an
investigation into or trial in respect of conduct which constitutes a crime
within the jurisdiction of the Court or which constitutes a serious crime
under the national law of the requesting State’. 55 The OTP is also given the
opportunity to ‘seek for additional information from States’ regarding
crimes that fall under the jurisdiction of the ICC. 56
The Prosecutor can defer an investigation at the request of the state to
allow the state to conduct its own investigations and trials. 57 Furthermore,
the OTP can encourage states parties to investigate and prosecute crimes
and may at any time reconsider a decision to initiate an investigation or
prosecution based on new facts or information which may be related to the
ability of the state concerned to hold its nationals accountable. 58 These
provisions in the Rome Statute recognise the role of the ICC in promoting
positive complementarity. 59
Positive complementarity is an important tool in the fight against
impunity and should not be ignored for several reasons. The ICC can only
try a few of those who bear responsibility for crimes of international
concern. If there are no effective national judicial mechanisms, there will
be serious issues of impunity which could undermine any success recorded
by the ICC. National judicial institutions also offer the best places to try
these crimes, as they would serve as a deterrent to others and give victims
an opportunity to participate and closely follow the proceedings at the
national level. Furthermore, positive complementarity will ensure the
development of national judicial systems in the prosecution of
international crimes.
53 Para 58 OTP’s Report on the activities performed during the first three years (June 2003
– June 2006) 14 September 2006, http://www.icc-cpi.int/NR/rdonlyres/D673DD8C-
D427-4547-BC69-2D363E07274B/143708/ProsecutorialStrategy20060914_English.
pdf (accessed 15 September 2010).
54 Para 17 OTP Strategy 2009 – 2012 (n 46 above).
55 Art 93(10) Rome Statute.
56 Art 15 Rome Statute.
57 Art 18 Rome Statute.
58 Art 53 Rome Statute.
59 Burke-White (n 48 above) 67.