I. Introduction

The Rome Statute of the International Criminal Court (Rome Statute)1 provides that Court shall be complementary to the national criminal jurisdictions.2 Positive complementarity, as such, is not provided for in the text of the Rome Statute. Other than the references to the term “complementary” in the Preamble and in article 1 of the Rome Statute, there is no definition, or even a mention, of the term in any other of the Statute’s provisions.

The purpose of this comment is two-fold. Firstly, it interrogates the definition, scope, and nature of positive complementarity. Secondly, it analyses the legal and institutional framework of the Assembly of State Parties’ for the implementation of positive complementarity.3 In essence, this comment assesses the opportunities presented, the benefits generated, and the challenges raised by the concept of positive complementarity.

The literature of the international law has been slow to develop and interpret the various themes that have evolved regarding positive complementarity. Consequently, there is a glaring dearth of literature on legal and institutional framework for the concept of positive complementarity. Besides, the jurisprudence of the ICC has to date offered little in the way of exposition of the concept.4

The principal tenets—most notably the definition, the constitutive elements, and the scope—of the concept of positive complementarity, remain largely unclear. Differently phrased: the parameters of application and the formal justification for positive complementarity, have remained unclear, thereby rendering the concept susceptible to varied interpretations. The lacuna created by the absence of a concrete definition of the term in the Rome Statute generates an agenda for debate in this comment. This comment is thus conceived as my modest contribution to address this lacuna.

II. The Concept of Positive Complementarity

A. Background

From a functional point of view, teething constraints in the investigations, situations, and cases characterized the operations of the ICC.5 The Court is limited as regards the number of prosecutions it can practically and feasibly handle.6 This has led the OTP to re-evaluate its strategies and focus largely on the so-called high-ranking offenders while leaving the many lower-ranking offenders to be dealt with by national courts.7 Consequently, the OTP adopted what it termed “a positive approach to complementarity.”8

The OTP’s 2003 Paper on Some Policy Issues articulated an approach to complementarity that led to the emergence of an idea of positive complementarity.9 The Policy Paper recognizes that national investigations and prosecutions, where they can properly be undertaken, will normally be the most effective and efficient means of bringing offenders to justice.10 The ICC Prosecutor recognised this by stating that:

[T]he effectiveness of the International Criminal Court should not be measured only by the number of cases that reach the Court. On the contrary, the absence of trials by the International Criminal Court, as a consequence of the regular functioning of national systems, would be a major success.11

This was reinforced by the 2006–2009 Prosecutorial Strategy Paper which announced “A positive approach to complementarity”12 whereby the OTP:

[E]ncourages genuine national proceedings where possible; relies on national and international networks; and participates in a system of international cooperation.13

Subsequently, the OTP’s Prosecutorial Strategy Policy Paper 2009–2012 identified positive complementarity by stating that:

[T]his principle of complementarity has two dimensions: (i) the admissibility test, i.e. how to assess the exercise of national proceedings and their genuineness, which is a judicial issue; and (ii) the positive complementarity concept, i.e. a proactive policy of cooperation aimed at promoting national proceedings.14

In conclusion, from the reports, a positive approach to complementarity means that the OTP will encourage genuine national proceedings where possible, relying on its various networks of cooperation, but without involving the Office directly in capacity building or financial or technical assistance.15

B. The Definition of Positive Complementarity: A Normative Challenge

The normative character of positive complementarity remains elusive.16 The concept of positive complementarity is the idea that the ICC and, notably, the prosecutor and the OTP, should work to engage national criminal courts in prosecutions, using various methods to encourage states to prosecute international criminal cases domestically whenever possible.17

Stahn states that complementarity has been claimed to have many faces and has raised a paradox.18 It has traditionally been theorized on the basis of a distinction between classical and positive complementarity.19 The normative question posed is: To what extent does the classification of complementarity as classical or positive define the normative characterization of positive complementarity? It is submitted this classification will ultimately derive its validity from the interpretation of the relevant provisions of the Rome Statute.20 The term classical, for instance, does not say much beyond describing that it was the original concept before the emergence of another model of complementarity, namely, positive complementarity.21

Burke-White,22 for his part, argues that “pro-active” complementarity is not expressly regulated but is embedded in the structure of complementarity in the Rome Statute.23 It is submitted that Burke-White’s attempt to develop a normative justification for pro-active complementarity24 is a semantic reflection of the OTP’s vision of positive complementarity.25

Nouwen takes a different approach to the plausibility of positive complementarity.26 She argues that complementarity has been living a double life: on the one hand, from a legal point of view it is a technical admissibility rule provided for in the Rome Statute and governing how the ICC may proceed with the investigation or prosecution of a case within its jurisdiction;27 on the other hand, complementarity presents as a big idea resulting from the work of writers, diplomats, activists, and legal practitioners.28 She contends that the advocates for complementarity as a big idea seek to promote a normative agenda beyond the confines of the Rome Statute.29 The normative difficulty introduced by the foregoing frame of argument is that, in the absence of specific references outside the Statute, Nouwen’s argument collapses.

In conclusion, there is no settled definition from the exiting literature analysed.

C. Legal Foundations of Positive Complementarity

Positive complementarity has not yet received juridical endorsement from the ICC judges by way of jurisprudence. This continues to make the exact normative value and application of the concept uncertain.

Interestingly, in the case of The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi30 the Libyan government’s legal team argued that:

Libya invites the Court to embrace the concept of positive complementarity in a manner which gives full effect to the object and purpose of the Statute and the spirit of complementarity by allowing the Libyan Government time to complete its domestic proceedings relating to Abdullah Al-Senussi subject to monitoring and the acceptance of assistance or fulfilment of other express initiatives and obligations.31

The submission continued:

[…] [T]his case provides a unique opportunity to embrace the concept of positive complementarity in a manner which gives full effect to the object and purpose of the Statute and the spirit of complementarity by allowing the Libyan Government time to complete its domestic proceedings relating to Abdullah Al-Senussi subject to monitoring and the acceptance of assistance or the fulfilment of other express initiatives and obligations.32

Further submission by the Libyan-government team underscored that:

There is no explicit reference to this concept [of positive complementarity] in the Statute, nor was it canvassed during the negotiations on complementarity, which instead focussed on developing acceptable ways to regulate jurisdictional disputes between the International Criminal Court and active national jurisdictions.33

The submission continued:

However, the Statute foreshadows the formal implementation of positive complementarity initiatives by reason of its powers to regulate the admissibility proceedings as it deems appropriate pursuant to rule 58(2), providing that this does not occasion ‘undue delay.’34

In rendering its judgment, the Pre-Trial Chamber I did not cite positive complementarity as a ground for its decision. In consequence, there is virtually no ICC jurisprudence on positive complementarity.

It is argued that certain core legal features can be ascribed to the concept of positive complementarity and are rooted partly in the provisions of the Rome Statute.35 It has also been argued that the concept of positive complementarity is largely the result of a liberal interpretation of the Statute by the ICC prosecutor.36

Nothing in the Rome Statute expressly regulates positive complementarity, but articles 17, 53, 54(1)(b) and 93(10) of the Statute are instructive for interpretation purposes. Paragraphs 4, 6 and 10 of the Preamble to the Rome Statute are equally important in determining whether a legal basis exists for positive complementarity in the Rome Statute. Nouwen argues that the Statute explicitly provides the ICC prosecutor with powers only in some identified aspects of positive complementarity.37

In conclusion it is still debatable whether the Statute provides for positive complementarity.

D. 2010 Kampala Review Conference on Stocktaking of the Rome Statute

The Kampala Review Conference, in its stocktaking exercise adopted a resolution on complementarity which gave renewed significance to positive complementarity.38 The Report states that:

[P]ositive complementarity refers to all the 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 International Criminal Court in capacity building,39 financial support and technical assistance, but instead leaving these actions and activities for States, to assist each other on a voluntary basis.40

The Bureau further recommended that a report on positive complementarity be compiled by the state parties and that this be presented to the ASP for further attention. Further, apart from setting up a designated function within the Secretariat of the ASP, the Bureau and ASP should continue to engage with stakeholders at domestic level through positive complementarity. Moreover, the Secretariat of the ASP was requested by the Bureau to facilitate the exchange of vital information between the state parties, the ICC, civil society, international and regional organisations, and other stakeholders, with the overall aim of reinforcing the effectiveness of parties’ domestic jurisdiction.41

Notwithstanding the apparent consensus on the use of the term positive complementarity throughout the review session, Germany and Spain interrogated the tenability and legal foundation of the concept. The Spanish delegation, for instance, suggested that the set of initiatives or activities included under positive complementarity might as well be simply referred to as “technical assistance.”42 Similarly, the German representatives indicated, skeptically, that the term positive complementarity lacked legal basis within the context of the provisions of the Rome Statute, and that it only:

[S]erved to confuse judicial capacity building with the principle of complementarity as laid down in Article 17 of the Rome Statute.43

The two preceding arguments by Germany and Spain are indeed persuasive challenges to the normative justification of the concept of positive complementarity.

The definition of positive complementarity was finally adopted by the Review conference, by consensus, without any new legal obligation being introduced or imposed. As a consequence, no legal or institutional framework was formulated in the resolution to back the definition up.

In conclusion, the definition of positive complementarity was characterized by loose ends that defy normative exactitude.

E. The Greentree Process

The Greentree process also addressed the concept of positive complementarity. The first retreat in the Greentree process deliberated on “Complementarity after Kampala: The way forward.”44 It sought to build on the momentum generated at the Kampala conference in promoting and implementing complementarity at domestic level.45

Significantly, the Greentree I meeting recommended that stakeholders adopt a whole of government approach to complementarity.

In conclusion, the Greentree I retreat marked a serious attempt by stakeholders to implement the principle of complementarity in the context of domestic and international criminal jurisdiction.

Greentree II convened between December 7 and 9th, 2011, under the theme “Supporting complementarity at the national level: An integrated approach to the rule of law.”46 The retreat focused on deepening the deliberations and discussions on technical and operational aspects strengthening complementarity at the domestic level.47

The Greentree II aimed to explore ways and means of implementing the concept of complementarity and strengthening domestic systems to empower them to investigate and prosecute Rome Statute crimes.48 Significantly, Greentree II examined the role that the ICC and the ASP to the Rome Statute can play in the strengthening of national capacity to investigate and prosecute serious international crimes.49

Most importantly, Greentree II proposed to put the principle of complementarity more clearly on the agenda of the ASP.50

The Greentree III retreat was convened between October 25 and 26th, 2012, with the theme: “Supporting complementarity at the national level: From theory to practice.”51 Greentree III focused on the needs and challenges confronting selected states currently engaged in the investigations and prosecutions under the Rome Statute—Colombia, the Democratic Republic of the Congo, Guatemala, and the Ivory Coast (Cote d’Ivoire).52 It was highlighted that the four states faced challenges in the promotion of accountability in their respective domestic criminal courts.53 The challenges noted included a lack of adequate training among existing staff, lack of infrastructure and financial resources, and limited human resources.54

In conclusion, the Greentree process, as seen through its three retreats, provided a valuable forum for the articulation of the nexus between international criminal justice and the developmental agenda to advance positive complementarity.

III. Institutional Framework

A. The Secretariat of the ASP and Positive Complementarity

1. Background

The Permanent Secretariat of the ASP was established under article 112 of the Rome Statute,55 as a result of a resolution adopted at the second session of the ASP on September 12, 2003.56

The resolution establishing the ASP Secretariat recalls rule 37 of the Rules of Procedure of the ASP57 in which specific functions are assigned to, or contemplated for, the Secretariat. Rule 37 of the Rules of Procedure provides that:

[T]he Secretariat shall receive, translate, reproduce and distribute documents, reports and decisions of the Assembly, Bureau and any subsidiary bodies that may be established by the Assembly; interpret speeches made at the meetings; […] and generally, perform all other work which the Assembly or the Bureau may require.58

It follows from the last provision in rule 37 that the Secretariat may be called upon by the ASP to perform all other functions as and when the Assembly or the Bureau of the ASP may require. This, arguably, could include overseeing positive complementarity assignments or projects. This comment argues that Rule 37 is a justification for invoking this particular provision to propose the extension of the functions of the ASP Permanent Secretariat to include the proposed functions on positive complementarity.

The Annex to the Resolution of the ASP establishing the Secretariat contains detailed provisions setting out the functions of the Secretariat.59 The main function entails providing the ASP and its Bureau with independent substantive services as well as administrative and technical assistance in the discharge of their responsibilities under the Rome Statute, where possible by means of pooling resources with the ICC.60 Generally, this function is impeded by inadequate financial and human resources.

A further problematic provision which reinforces the severity of resource constraints is rule 9 of the Annex to the Resolution, which provides that:

[T]he Secretariat shall be funded from the budget of the International Criminal Court. It shall have no income of its own and may not receive voluntary contributions directly from Governments or international organizations unless the Assembly decides otherwise.61

The ICC, which is the only source of funding for the Secretariat, is currently itself faced with very severe financial constraints to the extent it cannot manage all possible investigations and prosecutions simultaneously.62 Those same financial limitations apply to the Secretariat which is entrusted with important responsibilities in overseeing the implementation of positive complementarity.63

The limitations above are compounded by the provisions of rule 9 of the Annex to the Resolution, which state that the Secretariat is, in general, not authorised to receive external funding.64 Taken together, all the preceding factors tend to limit the effective implementation efforts to spearhead positive complementarity.

2. Role of the ASP Secretariat in Implementing Positive Complementarity

The state parties to the Rome Statute meeting at Kampala requested the ASP Secretariat to:

[W]ith existing resources facilitate the exchange of information between the Court, States Parties and other stakeholders, including international organizations and civil society, aimed at strengthening domestic jurisdictions.65

Arguably, the state parties recognised the possibility of constraints on the resources available to the Secretariat in pursuing its undertaking when they requested it to proceed “with existing resources.”66 Nonetheless, this request was subject to time restraints as the state parties also requested “the Secretariat of the Assembly to report to the tenth session of the Assembly on progress in this regard.”67 In other words, the ASP set in motion a process of systematic operationalization of the policy of positive complementarity which entailed regular monitoring and reporting on its progress.68

It will be recalled that the resolution on complementarity at the Kampala Review Conference (KRC) recognised the need for additional measures to be taken at the domestic level to combat impunity and the desirability of states assisting each other in this regard.69 There is no doubt that the cooperation between the states, the ICC and the ASP is necessary in developing the role of the Secretariat in a beneficial way.70

Pursuant to resolutions of the ASP, the KRC working group continued to liaise with the ASP Secretariat to support initiatives to implement positive complementarity. Under the facilitation of South Africa and Denmark—Dwarika for South Africa and Nissen for Denmark71—the Group held informal consultations on complementarity in 2011.72 The discussions centered on the role of state parties in the implementation of positive complementarity. In a similar vein, the state parties concentrated on ways in which the ASP Secretariat could undertake its mandate to implement positive complementarity.73 Following these developments, the ASP Secretariat and the ASP Bureau prepared reports on complementarity for the 10th Session of the ASP.

The facilitators identified ways in which the support of the international community would strengthen national criminal courts’ jurisdiction, in other words, how best to achieve the benefits of positive complementarity.74 The five areas the Hague Work Group undertook to address are as follows:

1. to provide guidance to the ASP Secretariat in setting up its information-sharing function;

2. to stimulate and reinforce dialogue on complementarity and strengthen domestic law;

3. to provide political support;

4. to provide suggestions on activities to be undertaken in relation to positive complementarity; and

5. to provide a forum for the exchange of views and information on complementarity, for example, best practices and lessons learnt.75

The ASP Secretariat was mandated to work on two levels: a “general level”; and a “case-specific level.”76

On the general level, the Secretariat would undertake several activities, the first step in which entailed setting up a website for “Complementarity Extranet” (the Extranet). The Extranet is designed to: provide an information base on events relating to complementarity; identify main complementarity actors and their roles; facilitate contacts between donor states, organisations, civil society, and recipient states; give designated actors the ability to post relevant information on the Extranet in order to share information; and to provide a “message board” for users with passwords.77

On a case specific level, the ASP Secretariat, would, on a gradual basis, adopt a more proactive role of sharing and exchanging information between relevant complementarity stakeholders within international criminal law and the donor community.78 This particular role would effectively place the Secretariat at the centre of the coordination of the activities of various stakeholders geared at the implementation of the concept of positive complementarity.

3. Limitations of the ASP Secretariat in its Positive Complementarity Mandate

There are a number of factors that, individually or cumulatively, have had a negative impact on the effectiveness of the ASP Secretariat to coordinate and facilitate the activities associated with the implementation of positive complementarity.79 Each of the factors is discussed below.

i. Resources Constraint

The Secretariat lacks the financial independence required to fulfil its mandate. It must rely on the budget allocation of the ICC as approved by the ASP.80 Approval entails a bureaucratic process which could delay the implementation of certain programmes run by the Secretariat.The Resolution on the Establishment of the Secretariat provides that the Secretariat shall be funded from the budget of the ICC.81

The bureaucracy that characterises the operations of the Secretariat in terms of securing its own resources and also having to secure approval from the ASP for most of its activities, naturally slows down the pace at which the positive complementarity programmes are implemented,. Similarly, some of the delays that would be occasioned by the bureaucracy, would have the negative effect of slowing down the response to the need for implementation of positive complementarity.82

Financial constraints have rendered it impracticable to maintain a large and stable staff for the Secretariat. An independent body with a large number of staff devoted to the specialized function of coordinating positive complementarity activities, would be a recommended alternative.

Related to the preceding is the fact that the Secretariat is, in fact, prohibited from receiving direct external donor funding. This provision states that the Secretariat:

[S]hall have no income of its own and may not receive voluntary contributions directly from Governments or international organizations unless the Assembly decides otherwise.83

There does not appear to be a clear reason for this prohibition given that financial resources are urgently needed for the Secretariat to realize its mandate.

However, arguably, on careful reading of paragraph 9 it will be noted that exceptions exist to the general prohibition on the Secretariat receiving an income of its own and not receiving voluntary contributions. The paragraph provides that “unless the Assembly decides otherwise,”84 which essentially means that there are instances when the ASP may authorize the Secretariat to have income of its own, and also instances when the Assembly would allow the Secretariat to receive voluntary contributions directly from governments or international organisations.

It is debatable whether this prohibition applies to voluntarily contributions from sources which are neither governmental nor international organisations, for instance, from sponsors in the private sector.85 What is clear, however, is that such income or contributions from governments or the international organisations, can only accrue to the Secretariat once the Assembly has considered them and authorised the transactions. At the time of this comment, there is no recorded session of the ASP that has authorised the receipt of such payments.

ii. Structural Inadequacies

The structuring of the Secretariat is wanting in many respects. Its positioning suggests that it is part of the ICC structure, while ideally it should be an independent body. The perception that the Secretariat operates under the court may lead the opponents of the court to withhold their support for the Secretariat thereby limiting support for the programmes.

The Secretariat is entrusted with multifarious functions to be performed by a limited number of staff within the Registry of the ICC whose functions are not directly related to those of the Secretariat.86 For instance, one of its functions is the planning, coordination, and servicing of meetings of the ASP, which in general, are not what the Registry of the ICC does, yet the Secretariat is deemed to be an integral part of the Registry staff.

Furthermore, paragraph 7 of the Annex to the Resolution on the Establishment of the Secretariat of the ASP provides that:

[O]ther personnel resources shall include staff necessary to provide the substantive, administrative and technical assistance specified in paragraph 4 and 5.87

Paragraphs 4 and 5 outline the administrative and technical functions, but are silent on what structure will be adopted by the offices exercising these functions. Looking at the provisions of paragraphs 4 and 5, the functions of the Secretariat are multifarious which demand a large staff component to operate effectively.

iii. Mixed Mandate of the Secretariat

The Secretariat does not only work on positive complementarity, but also engages with other totally unrelated aspects of the ASP’s mandate.88 This has the effect of shifting the focus away from positive complementarity. It is a disadvantage in that the Secretariat is inundated with work unrelated to the core focus of concern to positive complementarity.

This is not to advance the argument that the only responsibility of the Secretariat is to run programmes on positive complementarity. Rather, in light of all the other functions that the Secretariat is required to perform, there will be competing calls on time and resources available to be devoted to the coordination of activities related to positive complementarity.

The ASP Secretariat has a number of functions. First, it outlines what it describes as the conference-servicing functions.89 It also provides for core legal, substantive, and financial functions. Added to this are administrative functions, and finally, the category which the Resolution describes as: “Any other functions that the services bodies entrust to the Secretariat.”90 This latter function may be viewed as open-ended in terms of what the services’ bodies may assign to the Secretariat. This observation must, however, be examined in the light of the provisions of paragraph 8 of the Resolution on the Establishment of the Secretariat91 which states that:

[T]he functions of the Secretariat shall be exercised in a manner consistent with the Statute and with the principles of effective financial administration and economy.92

In effect, therefore, the functions as set out in paragraph 7 may not be as open-ended as could easily be assumed.

iv. Not Established Under the Rome Statute

Finally, and importantly, the Secretariat is not directly a creature of the Rome Statute but rather was established by a resolution of the ASP.93 The advantage of having the Statute provide for the independent existence of such a body is that it would clearly spell out its functions and features in an unequivocal manner that it would leave less room for debate as to its role and relationship with other organs established under the same Statute, such as the ICC or the OTP.

B. Why a new Legal and Institutional Regime?

As a result of the identified weaknesses and challenges in the current institutional framework, this comment proposes policy alternatives. The first option would be to retain but restructure the current system in which activities are coordinated by the Secretariat.94

The other option would be to set up a completely new body with a degree of independence which deals specifically with positive complementarity. This presents a real challenge in light of the extant legal framework within the Rome Statute.

1. Financial Independence

Financial independence is crucial to the free operation of a body granted the important mandate to coordinate the implementation of activities involving positive complementarity. There is need for a body with sufficient independence to fund its own programmes and maintain flexibility in the implementation process—unlike the current Secretariat which relies entirely on the ICC’s annual budgetary allocation.95 The mere fact that its budget is lumped together with that of the ICC introduces the spectre of a lack of financial freedom.96

Apart from the consolidated budgetary allocation, combining funds for the ICC and the ASP Secretariat automatically introduces the fear of bias on the part of those opposed to the court and could influences those states to withhold or even withdraw their support for the work of the Secretariat.97

The proposal of a possible new and independent body focused solely on positive complementarity, could attract opposition, first of all, on the basis of an elaborate legal process that would entail the ASP debating and negotiating an amendment to the Rome Statute. As shown by the history of the negotiation and the drafting of the Rome Statute, securing a compromise stance on many articles of the final draft Statute was a real hurdle. To revive such a process would be unacceptable to many states who settled for compromise on various provisions in the Rome Statute.

It is submitted that the debate and the entire process of amending the Rome Statute to introduce provisions for the establishment of a new body to deal with positive complementarity, would take years.

Secondly, assuming the ASP authorised the establishment of a new body devoted to positive complementarity, the cost would be prohibitive. The advantages in using the existing structures and infrastructure would be lost in securing the independence of the new body.98

The proponents of a new independent body, would argue that the new body would exist independently of the ICC, its Registry, and the OTP thereby allaying the fear of bias. Indeed, the fact that the Secretariat’s budget would be directly allocated by the ASP which is a combined group of states, should engender confidence and elicit support for its activities.99 However, the source of the budget would remain the ASP so that, in the final analysis, nothing much would have changed and the same financial constraints would still apply.100

2. Increased Specialization

It could be argued that any proposed independent new body specialising in positive complementarity would have the advantage of concentrating solely on projects relating to positive complementarity—contrary to the position of the current Secretariat.101

Greater specialization would also introduce efficiency in and effective control of programming, including the timing and deployment of expert personnel in most of the aspects of the implementation of positive complementarity.

The counter-argument would be that indeed the Secretariat itself could be restructured to cater for positive complementarity in a way that does not necessarily call for a separate independent body. Further, the argument would be advanced, for instance, that the Secretariat was created by way of a resolution,102 which is indeed a much faster and easier process, and a resolution could again be used to restructure the current Secretariat.

3. Wider Acceptance

As any proposed independent body on positive complementarity would have its own budget which, coupled with greater acceptance amongst the members of the ASP, would afford such a new body the necessary support to reach a wider audience and area of operation in many states.103

It can be seen that the preceding line of argument is more political than legal. It cannot be denied, however, that the Rome Statute was a product of political influence on the legal rules. The fact that positive complementarity draws largely from the goodwill of the member states in cooperating with the ICC, underscores the importance of political will in the entire interaction.104

However, the opponents of this proposition could argue that what is important is not necessarily the degree of acceptance, but the ability to deliver and coordinate the activities involved in the process of realising the goals of positive complementarity. The new Secretariat could be restructured in such a way that positive complementarity is afforded prominence and that adequate resources are allocated to achieve its objectives.

4. Entrenched in the Rome Statute

Finally, it could be argued that the new body on positive complementarity would be entrenched in the Statute thereby granting it a greater degree of autonomy in its operations to realize its mandate. It would enjoy a degree of autonomy and confidence that would allow it to undertake the programmes it identifies as necessary for the realisation of positive complementarity.105

The counter-argument is that it would be a long, drawn out process, stretching over several years, to agree on a compromise as regards the amendment of the Rome Statute to bring in a new body on positive complementarity.106

In conclusion, weighing the merits of each side of the arguments, it is submitted that a better option would be to restructure the current Secretariat effectively to provide for a more focused role in the coordination of activities promoting positive complementarity.

IV. Conclusion and Recommendations

A. Conclusions

It is envisaged that this comment is the ultimate justification for a heightened perception of the concept of positive complementarity within international criminal law. It provides a template for designing a legal framework to inspire further discourse and thus stimulate the intellectual desire and impetus for further scholarly legal research in this area.

The practice of the ICC soon revealed many challenges with the implementation of the principle of complementarity as enshrined in the Rome Statute. It was seen in this comment that the OTP then began to shift towards advocating a positive approach to complementarity. This led to the evolution of the concept of positive complementarity. This concept, as emerges from this comment, has eluded precise definition and legal description. This lack of exactitude, in essence, constituted a critical component of the research problem in this comment.

The KRC emerged with a working, but not comprehensive, definition of positive complementarity. Alongside the review conference were the Greentree process retreats, which dealt with the practical aspects of the implementation of the principle of complementarity, but neither attempted a definition of the concept of positive complementarity, or addressed the conceptual aspects of the concept. The Greentree process, however, recognised and emphasized the central role that the Secretariat of the ASP of the Rome Statute can play in the transformation of complementarity from a conceptual basis to practical implementation ensuring effective investigation and prosecution of serious crimes under the Rome Statute. It was seen in this comment that the effectiveness of the Secretariat of ASP was impeded by limitations in financial and human resources. No profound impact has been made by the activities of the permanent ASP Secretariat on complementarity, and even the relevant sections of the ICC dealing with complementarity have not been effective in ensuring its effective implementation.

This comment therefore proposes a radical and comprehensive restructuring of the ASP Secretariat107 effectively to oversee the implementation of positive complementarity. This constitutes the originality of this thesis and offers a concrete contribution to knowledge and research.

The findings of this comment with respect to the restructuring of the current Secretariat constitute concrete recommendations to the respective governments of state parties to the Rome Statute, the ASP, the OTP, the ICC, as well as the UNSC,108 and are thus intended to inspire and prompt their urgent international initiatives.

It is interesting to observe that the very delicate balance that engendered the acceptance of the principle of complementarity, has influenced the genesis of the policy of positive complementarity. The trend in international criminal justice seems to concede more and more in favor of state sovereignty interests in the concerted effort against most serious crimes of concern to the international community.

It is also important to note that the OTP’s policy of pursuing those most responsible for crimes has tended to generate the “impunity gap.” The need to address the question of the impunity gap, coupled with the gravity threshold requirements, has, in turn, influenced the evolution of the policy of positive complementarity. The policy concept of positive complementarity, therefore, is partly associated with national activities seeking to bridge that gap and deal with the lesser-ranking offenders in the realm of international criminal justice.109

The policy concept of positive complementarity is a sui generis concept, with much uncertainty still characterizing its nature, definition, and scope. Its evolution can be traced to the consultative work of a Group of Experts who issued a report contained in the document entitled the “Informal Expert Paper”110 as already discussed in this comment. This comment finds that this Expert Paper played a critical role in shaping the content and direction of the OTP’s Prosecution Strategy Policy papers that ensued.

The current institutional structures do not effectively support the implementation of positive complementarity. The legal framework, too, is wanting in many respects when it comes to support for the actualisation of the policy concept of positive complementarity. The framework does not effectively support the involvement of the court into fully-fledged positive complementarity activities.

In light of the preceding conclusions, this comment makes recommendations, which are examined next.

B. Recommendations

In light of the preceding findings and conclusions, this comment recommends that the current Permanent Secretariat of the ASP should be restructured to incorporate certain key features that would enable a specialized focus on promoting and coordinating activities relating to positive complementarity.

The proposed restructuring of the Secretariat should be implemented by way of a resolution to be adopted by the ASP since the Secretariat itself came into existence by way of such a resolution.111 The resolution of the ASP to effect the restructuring is a much easier and less costly process than the proposal for an amendments of the Rome Statute.

A proposal to amend the Rome Statute would otherwise have to be informed and supported by the provisions of articles 121 and 122 of the Statute.112The recommendations herein would have to be channelled through the Secretary-General of the United Nations, and then to be considered by the ASP. Such proposals for amendments would have to be proposed by a state party.113

In effect, article 123 of the Rome Statute would also come into play, in that it empowers the Secretary-General of the UN to initiate the process of change in the structure of the ASP Secretariat. If this route were followed, the proposed amendments to the Statute would be double-pronged. Double-pronged because the first set of amendments would amend certain of the existing articles in the Statute. The second set would introduce entirely new provisions and set up an altogether new structure for the Secretariat.

This comment does not recommend the amendment of the Rome Statute per se for the reasons stated above. Moreover, the process of amendment of the Rome Statute would of necessity entail prohibitive costs. Instead, this comment proposes the restructuring of the Secretariat through a resolution by the ASP.

Firstly, it is suggested that a Draft Resolution be introduced that seeks to restructure the Secretariat of the ASP clearly and expressly to define the term “positive complementarity”114 and to translate it from a mere policy concept to a practical normative principle. Such a resolution should first expressly set out the following theoretical basis in its Preamble:

1. definition of the term “positive complementarity”;
2. identifying the elements of positive complementarity;
3. distinguishing positive complementarity from complementarity as already set out under article 17;
4. establishing the scope and application of positive complementarity;
5. outlining the actors involved in the implementation of positive complementarity and their respective roles;
6. determining the international community to act in concert to fight impunity.

The rationale for setting out the definition of the term “positive complementarity” is to ensure that there is general and common understanding of the concept in the context of the role of the ASP Secretariat. The codification of the concept of positive complementarity would help in the process of clearly delineating the roles involved in the implementation of the concept.

The next proposal is to set out the elements of the concept of positive complementarity clearly effectively to bring out what the tenets of the concept are. This way it would be easy to assign roles and functions to various actors under the proposed new legal structure of the ASP Secretariat.

The rest of the theoretic basis as set out in the proposed Preamble would help to reinforce the understanding of the scope of the concept of positive complementarity, so that its implementation would be rendered less controversial as regards certainty of roles.

Secondly, it is proposed that a special office of Coordinator for Positive Complementarity be established within the Secretariat to coordinate the activities of positive complementarity between the ICC Chambers, the OTP, state parties, and other stakeholders including civil society.

It is further proposed that the resolution will seek to ensure that the Office of the Coordinator for Positive Complementarity is not housed within the precincts of the ICC. This will ensure the degree of independence necessary for it to operate freely and autonomously while coordinating the activities of positive complementarity and assuring all parties that the ICC does not exercise undue influence on any party in the fight against impunity.

An outline of the proposals for the draft Resolution of the ASP to the Rome Statute on positive complementarity would be as follows:

1. Establishment of Office of Coordinator for Positive Complementarity:

   1. There shall be established an Office of the Coordinator for Positive Complementarity, within the Secretariat of the Assembly of States Parties, and the office shall:

      1. be an independent office within the Secretariat that shall be solely responsible for coordinating the activities of positive complementarity between all stakeholders;

      2. be capable of raising its own funds for its operation and also for purposes of funding positive complementarity activities;

      3. not act as one of the organs of the Court, and shall in no way answer to the Office of the Prosecutor or the Court in carrying out its own responsibilities and mandate;

      4. in carrying out its mandate shall cooperate with, but shall remain independent of other Rome Statute entities, namely, the Office of the Prosecutor and other organs of the Court, save for the Office of the Director of the Secretariat and the Assembly of States Parties.

   2. The Office of the Coordinator for Positive Complementarity shall be assisted by four Deputy Coordinators respectively in charge of:

      1. capacity building: including legislative assistance, technical assistance, and infrastructural development;

      2. coordination with the stakeholders: namely civil society, international and regional bodies, including the International Criminal Court organs, other organs of the Assembly of States Parties, and the United Nations;

      3. finance;

      4. investigations and prosecutions: this function is not intended to replace the Office of the Prosecutor’s role, but rather to support the Office of the Prosecutor and national prosecutors in all their activities to ensure an effective exercise of international criminal jurisdiction by both the Office of the Prosecutor and domestic courts.

   3. The Office of the Coordinator for Positive Complementarity shall have a staff of qualified and experienced Positive Complementarity Officers who shall be available for deployment to any state party’s national courts that are ready and able to implement positive complementarity principles. Their qualifications will range from international criminal law, civil society, development, criminology, and social sciences relevant to the interests of victims of atrocities.

   4. The Coordinator for Positive Complementarity shall be appointed by the Bureau of the Assembly of States Parties upon the advice of the Director of the Secretariat of the Assembly of States Parties, and shall be a person:

      1. who has relevant qualifications, expertise, and experience in international criminal law in the context of the Rome Statute;

      2. of a high degree of integrity and independence in the execution of his or her official mandate;

      3. who is capable of exhibiting a high level of impartiality.

2. The functions of the Office of the Coordinator for Positive Complementarity shall be:

   1. to provide expertise in international criminal law to assist in facilitating and implementing the principle of positive complementarity under the Rome Statute;

   2. to cooperate with the other offices within the Secretariat of the Assembly of States Parties, the International Criminal Court and its organs, notably the Office of the Prosecutor, in implementing positive complementarity;

   3. to cooperate with state parties to assist and empower them by way of capacity building;

   4. to liaise with donor agencies and civil society to raise funding for projects associated with positive complementarity in any state party;

   5. to provide State party national courts with experts in the judiciary, or prosecution and investigation, to reinforce domestic efforts to ensure the effective implementation of positive complementarity.

   6. to engage in any activity that would reinforce the administration of international criminal justice with respect to positive complementarity and which may from time to time be determined under the Rome Statute.

It is proposed that in the exercise of his or her duties and performance of the functions of his or her office, the Coordinator for Positive Complementarity, shall maintain extreme impartiality by not unduly favoring either the state party or the ICC, but shall ensure the attainment of the overall objective of effective action to combat impunity.

In summary, therefore, it is submitted that if the preceding legal and institutional framework is incorporated within the revised structure of the Secretariat of the ASP of the Rome Statute, the relevant legal and institutional framework for positive complementarity would be effectively established. In this way, the fight against impunity will be bolstered.

The success of the new structure would depend on a number of factors, most notably the relationship and cooperation the Secretariat will continue to have with other institutions and stakeholders, such as the other organs of the ICC. The importance of the OTP in this proposed new structure is crucial. The governments of the state and non-state parties to the Rome Statute, the international, regional and national development service providers, and civil society, all will play a crucial role in the success of the new structure, and therefore there must be cooperation and synergies between all these stakeholders.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], available online. ↩

2. 2.

   Rome Statute, article 1. ↩

3. 3.

   See discussion, Dire Tladi, Complementarity and Cooperation in International Criminal Justice: Assessing Initiatives to Fill the Impunity Gap, Inst. Sec. Studies Paper 277 (Nov. 2014), available online. ↩

4. 4.

   See generally, The Prosecutor v. Francis Karimi Muthaura, Uhuru Muigai Kenyatta and Muhammed Hussein Ali, ICC-01/09-02/11-96, Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute (PTC II, May 30, 2011), available online. ↩

5. 5.

   Luis Moreno-Ocampo, ICC Prosecutor, Statement Made at the Ceremony for the Solemn Undertaking of the Chief Prosecutor of the International Criminal Court (Jun. 16, 2003), available online. ↩

6. 6.

   See generally, Morten Bergsmo, The Jurisdictional Regime of the International Criminal Court, 6 Eur. J. Crim., Crim. L. & Crim. Just. 29 (1998), paywall, doi. ↩

7. 7.

   Office of the Prosecutor, ICC, Paper on Some Policy Issues Before the Office of the Prosecutor (Sep. 2003) [hereinafter OTP Policy Issues], available online. ↩

8. 8.

   Luis Moreno-Ocampo, A Positive Approach to Complementarity: The Impact of the Office of the Prosecutor, in The International Criminal Court and Complementarity: From Theory to Practice 21 (Carsten Stahn & Mohamed M. El Zeidy eds., 2011), paywall, doi. ↩

9. 9.

   See generally, OTP Policy Issues, supra note 7. ↩

10. 10.

    Id. ↩

11. 11.

    See International Criminal Court, Report of the Prosecutor of the ICC to the Second Assembly of States Parties (Sep. 8, 2003), available online. ↩

12. 12.

    International Criminal Court, Report on Prosecutorial Strategy 3 (Sep. 14, 2006), available online. See also Moreno-Ocampo, supra note 8, at 23. ↩

13. 13.

    Federica Gioia, “Reverse Cooperation” and the Architecture of the Rome Statute: A Vital Part of the Relationship between States and the ICC? in ICC and International Cooperation in Light of the Rome Statute 75 (Maria Chiara Malaguti ed, 2007). ↩

14. 14.

    Report on Prosecutorial Strategy, supra note 12, ¶¶ 8, 16. ↩

15. 15.

    See generally, Roger S. Clark, Amendments to the Rome Statute of the International Criminal Court Considered at the First Review Conference on the Court, Kampala 31 May-11 June 2010, 2 GoJIL 689 (2010), available online, doi. ↩

16. 16.

    See Matthew E. Cross & Sarah Williams, Recent Developments at the ICC: Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui—A Boost for “Co-operative Complementarity”? 10 Hum. Rts. L. Rev. 336 (Jun. 1, 2010), paywall, doi. ↩

17. 17.

    See Gioia, supra note 13. See also Silvana Arbia & Giovanni Bassy, Proactive Complementarity: A Registrar’s Perspective and Plans, in The International Criminal Court and Complementarity: From Theory to Practice 52 (Carsten Stahn & Mohamed M. El Zeidy eds., 2011), paywall, doi. ↩

18. 18.

    See generally, Carsten Stahn, Taking Complementarity Seriously, in The International Criminal Court and Complementarity: From Theory to Practice 233 (Carsten Stahn & Mohamed M. El Zeidy eds., 2011), paywall, doi. ↩

19. 19.

    Id. ↩

20. 20.

    See Rome Statute, arts. 17, 53. ↩

21. 21.

    See generally, Stahn, supra note 18. ↩

22. 22.

    See William W. Burke-White, Complementarity in Practice: The International Criminal Court as Part of a System of Multi-level Global Governance in the Democratic Republic of Congo, 18 Leiden J. Int’l L. 557 (Nov. 2, 2005), paywall, doi; William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 Harv. Int’l L.J. 53 (2008) [hereinafter Proactive Complementarity], available online; William W. Burke-White, Implementing a Policy of Positive Complementarity in the Rome System of Justice, 19 Crim. L. Forum 59 (2008), paywall, doi; William W. Burke-White, Maximizing the ICC’s Crime Prevention Impact Through Positive Complementarity and Hard-Nosed Diplomacy, ICC Forum (Oct. 5, 2011), available online; William W. Burke-White & Scott Kaplan, Shaping the Contours of Domestic Justice: The International Criminal Court and an Admissibility Challenge in the Uganda Situation, 7 J. Int’l Crim. Just. 257 (Jun. 15, 2009), paywall, doi. ↩

23. 23.

    See Burke-White, Proactive Complementarity, supra note 22. ↩

24. 24.

    Compare Sarah M. H. Nouwen, Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan (2013), paywall, doi. ↩

25. 25.

    See Darryl Robinson, The Mysterious Mysteriousness of Complementarity, 22 Crim. L. Forum 67 (Mar. 2, 2010, revised Apr. 27, 2012), available online; Benjamin Perrin, Making Sense of Complementarity: The Relationship between the International Criminal Court and National Jurisdictions, 18 Sri Lanka J. Int’l L. 301 (2006), paywall. ↩

26. 26.

    Nouwen, supra note 24, at 11. ↩

27. 27.

    Id. ↩

28. 28.

    Id. ↩

29. 29.

    Gioia, supra note 13.

    (In light of Nouwen’s argument, it is instructive to look at Giola’s discussion). ↩

30. 30.

    The Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11-01/11, Application on behalf of the Government of Libya relating to Abdullah Al-Senussi pursuant to Article 19 of the ICC Statute (PTC I, Apr. 2, 2013), available online. ↩

31. 31.

    Id. ¶ 199. ↩

32. 32.

    Id. ¶ 200. ↩

33. 33.

    Id. ¶ 201. ↩

34. 34.

    Id. ↩

35. 35.

    See Stahn, supra note 18. ↩

36. 36.

    See generally, Dawn Yamane Hewett, Sudan’s Courts and Complementarity in the Face of Darfur, 31 Yale J. Int’l L. 276 (2006), available online. ↩

37. 37.

    See Nouwen, supra note 24, at 98. See also Allison Marston Danner, Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court, 97 Am. J. Int’l L. 510 (2003), available online, doi. ↩

38. 38.

    See Clark, supra note 15. See also Mirjam Blaak, Ensuring Justice for Victims: What Began in Rome is Completed in Kampala, 2 Eq. Arms Rev. 10 (2010), available online. ↩

39. 39.

    See generally, Review Conference of the Rome Statute, Focal Points’ Compilation of Examples of Projects Aimed at Strengthening Domestic Jurisdictions to Deal with Rome Statute Crimes, RC/ST/CM/INF.2 (May 30, 2010), available online. ↩

40. 40.

    Assembly of States Parties, Report of the Bureau on Stocktaking: Complementarity, ICC-ASP/8/51, at ¶ 16 (Mar. 18, 2010) [hereinafter Bureau on Stocktaking], available online. ↩

41. 41.

    Id. ¶ 36. ↩

42. 42.

    See generally, Morten Bergsmo, Olympia Bekou & Annika Jones, Complementarity After Kampala: Capacity Building and the ICC’s Legal Tools, 2 GoJIL 791 (2010), available online, doi. ↩

43. 43.

    Id. ↩

44. 44.

    See generally, International Center for Transitional Justice, Meeting Summary of the Retreat on: “Complementarity After Kampala: The Way Forward” (Nov. 19, 2010) [hereinafter Greentree I], available online.

    (The meeting was held between October 28–29, 2010 at Greentree Retreat, United States). ↩

45. 45.

    Compare the three Reports of the ICTJ for 2010, 2011 and 2012: Greentree I, supra note 44; International Center for Transitional Justice, Synthesis Report on “Supporting Complementarity at the National Level: An Integrated Approach to Rule of Law” (Dec. 2011) [hereinafter Greentree II], available online; International Center for Transitional Justice, Synthesis Report on “Supporting Complementarity at the National Level: From Theory to Practice (Oct. 2012) [hereinafter Greentree III], available online. ↩

46. 46.

    See generally, Greentree II, supra note 45. ↩

47. 47.

    Id. ↩

48. 48.

    See Greentree I, supra note 44. ↩

49. 49.

    Id. at ¶ 10. ↩

50. 50.

    Id. at ¶ 13. ↩

51. 51.

    See generally, Greentree III, supra note 45. ↩

52. 52.

    Id. at ¶ 5. ↩

53. 53.

    See generally, id. ↩

54. 54.

    Id. ↩

55. 55.

    Rome Statute, article 112(4).

    (“The Assembly may establish such subsidiary bodies as may be necessary, including an independent oversight mechanism for inspection, evaluation and investigation of the Court, in order to enhance its efficiency and economy.”). ↩

56. 56.

    Assembly of States Parties, Resolution on Establishment of the Permanent Secretariat of the Assembly of States Parties, ICC-ASP/2/Res.3. (Sep. 12, 2003) [hereinafter Permanent Secretariat], available online. ↩

57. 57.

    International Criminal Court, Rules of Procedure and Evidence, ICC-ASP/1/3 (Sep. 2003), available online. ↩

58. 58.

    Rules of Procedure of the Assembly of States Parties, ICC-ASP/1/3, Rule 37 (Sep. 2002) [hereinafter ASP Rules of Procedure], available online. ↩

59. 59.

    Permanent Secretariat, supra note 56, Annex ¶ 1.

    (Provides that the Secretariat shall be established at the Hague). ↩

60. 60.

    Id. Annex ¶ 4. ↩

61. 61.

    Id. ↩

62. 62.

    See S. Rama Rao, Financing of the Court, Assembly of States Parties and Preparatory Commission, in The International Criminal Court: The Making of the Rome Statute 399 (Roy S. K. Lee ed., 1999). ↩

63. 63.

    See generally, Catherine Gegout, The International Criminal Court: Limits, Potential and Conditions for the Promotion of Justice and Peace, 34 TWQ 800 (2013), available online, doi. ↩

64. 64.

    See Permanent Secretariat, supra note 56. ↩

65. 65.

    Assembly of States Parties, Report of the Bureau on Complementarity, ICC-ASP/9/26, at ¶ 5 (Nov. 17, 2010), available online. ↩

66. 66.

    Id. See also Phil Clark, The Limits and Pitfalls of the International Criminal Court in Africa, E-Int’l Rel. (Apr. 28, 2011), available online (last visited Jun. 16, 2018). ↩

67. 67.

    Report of the Bureau on Complementarity, supra note 65, ¶ 10. ↩

68. 68.

    See generally, Jonathan O’Donohue, The ICC and the ASP, in The Law and Practice of the International Criminal Court 105 (Carsten Stahn ed., 2015), available online. ↩

69. 69.

    Report of the Bureau on Complementarity, supra note 65, ¶ 11. ↩

70. 70.

    Id. ↩

71. 71.

    See generally, Tenth Session of the Assembly of States Parties, ICC (Dec. 2011, last updated Mar. 28, 2012), available online (last visited Jun. 16, 2018). ↩

72. 72.

    Id. ↩

73. 73.

    Id. ↩

74. 74.

    Id. ↩

75. 75.

    Id. ↩

76. 76.

    Id. ↩

77. 77.

    See Akbar Khan, Cooperation Between State Parties and the ICC: Challenges and Opportunities for Improvement, 2 Eq. Arms Rev. 14 (2010), available online. ↩

78. 78.

    Id. ↩

79. 79.

    See generally, David Donat-Cattin, Decision-making in the International Criminal Court: Functions of the Assembly of States Parties and the Independence of the Judicial Organs, in Essays on the Rome Statute of the International Criminal Court 69 (Flavia Lattanzi & William A. Schabas eds., 1999), available online. ↩

80. 80.

    (This allocation of funding is normally approved only when the ASP convenes and authorises the expenditure). ↩

81. 81.

    Permanent Secretariat, supra note 56, ¶ 9. ↩

82. 82.

    See ASP Rules of Procedure, supra note 58. ↩

83. 83.

    Id. ↩

84. 84.

    Id. ↩

85. 85.

    See Permanent Secretariat, supra note 56, Annex ¶ 9. ↩

86. 86.

    See id. ¶ 4.

    (“[T]he Secretariat shall be an integral part of the International Criminal Court and that, for administrative purposes, the Secretariat and its staff shall be attached to the Registry of the Court.”). ↩

87. 87.

    Id. Annex ¶ 7. ↩

88. 88.

    Id. ↩

89. 89.

    Id. Annex ¶ 5.1. ↩

90. 90.

    Id. ↩

91. 91.

    Id. Annex ¶ 8. ↩

92. 92.

    Id. ↩

93. 93.

    Id. ↩

94. 94.

    Id. ¶¶ 3–5.

    (See the structure of the Secretariat outlined in the Resolution). ↩

95. 95.

    Id. ¶ 5.3. ↩

96. 96.

    Id. ¶ 5.3(b). ↩

97. 97.

    Id. ↩

98. 98.

    See generally, Press Release, ICC, Assembly of States Parties Concludes its Fifteenth Session, ICC-ASP-20161125-PR1260 (Nov. 25, 2016), available online. ↩

99. 99.

    Id. ↩

100. 100.

     International Federation for Human Rights, FIDH Recommendations to the 15th Session of the Assembly of States Parties to the ICC Statute (Nov. 2016), available online. ↩

101. 101.

     Permanent Secretariat, supra note 56, ¶¶ 3–5. ↩

102. 102.

     Id. ↩

103. 103.

     (The current Secretariat has its budget tied to that of the ICC). ↩

104. 104.

     (Positive complementarity being that the court takes such measures within acceptable limits to support the national courts in effectively exercising jurisdiction over international crimes). ↩

105. 105.

     See generally, Ottilia Anna Maunganidze, ICC States Parties Must Walk the Talk More, Inst. Sec. Studies (Nov. 28, 2016), available online. ↩

106. 106.

     Id. ↩

107. 107.

     See Permanent Secretariat, supra note 56 ↩

108. 108.

     Rome Statute, article 13.

     (The UNSC has power to act under Chapter VII of the UN Charter to invoke its “trigger” mechanism by referring a situation to the prosecutor so the court may exercise jurisdiction). ↩

109. 109.

     Bureau on Stocktaking, supra note 40. ↩

110. 110.

     Xabier Agirre et al., Informal Expert Paper: The Principle of Complementarity in Practice (2003), available online. ↩

111. 111.

     Permanent Secretariat, supra note 56. ↩

112. 112.

     Rome Statute, arts. 121, 122. ↩

113. 113.

     Rome Statute, article 123. ↩

114. 114.

     See generally, Burke-White, Proactive Complementarity, supra note 22. ↩