A. Background and Meaning of Positive Complementarity.

The concept of complementarity, both in its classical sense and in its evolving positive form, is a sui generis concept that continues to engender considerable intellectual interest and ongoing endless scholarly discourse. The question of the legal character of the concept of positive complementarity has generated highly debatable issues with particular regard to its definition and scope.

It is interesting to note that, other than the references to ‘complementary’ in the preamble and article 1 of the Rome Statute, there is no definition or even mention of the term ‘complementarity’ advanced in any of the provisions of the said statute. According to Burke-White, positive (pro-active) complementarity is not expressly regulated, but it is embedded in the structure of complementarity in the Rome Statute.

In retrospect, we noted that, in its 2006 policy study on prosecutorial strategy, the OTP stated that it would take a positive approach to complementarity. The policy study gives us an indication of the OTP’s interpretation of the concept of positive complementarity. The study defines the concept as meaning that the OTP “encourages genuine national proceedings where possible; relies on national and international networks; and participates in a system of international cooperation.”

The Bureau on stocktaking of the Rome Statute in its report states that “positive 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 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.”

At the Kampala review conference on stock-taking of the Rome Statute, the delegates extensively deliberated on the meaning of the term ‘positive complementarity’. It is instructive to note that some states questioned the tenability of the definition advanced by the Bureau on stock taking.

To highlight the dismal level of compromise on the definition of the concept of positive complementarity we need to seek the position adopted by the dissenting states. The Spanish delegation, for instance, interestingly, suggested that the set of initiatives or activities included under positive complementarity might as well be simply referred to as “technical assistance.” In a similar respect, the representatives of Germany indicated that the term positive complementarity lacked legal basis in the Rome Statute, and that it only “served to confuse judicial capacity building with the principle of complementarity as laid down in Article 17 of the Rome Statute.” The issue of the plausibility or otherwise of the Spanish and German arguments is a matter of our study discussion at a later stage.

It has been argued that the ultimate goal of a policy of positive complementarity is to strengthen the capacity of national criminal jurisdictions. This arguably will, in turn, have a significant positive impact on the promotion and restoration of the rule of law and thus the prevention of future atrocities. In retrospect, we already noted that this policy is geared towards enhancing concerted international efforts at arresting impunity.

The concept of positive complementarity is, on the other hand, by and large, the idea that the Court and, notably, the Prosecutor and the OTP should work to engage national criminal jurisdictions in prosecutions, using various methods to encourage states to prosecute international criminal cases domestically whenever possible. In this context, it is contradistinctive to the ‘classical’ concept of complementarity.

B. General Overview of the Purpose of the Study

The upshot of the preceding is that this study is thus conceived in a desire to demonstrate that, and how, the concept of positive complementarity can be a practical instrument to address the impunity gap.

The present thesis will discuss the extent to which the Court is faced with impediments in aforementioned regard, and will propose how these may be surmounted. It follows, therefore, that the significance of analysing the concept of positive complementarity, as an instrument to accentuate the pace of restoration of the rule of law in traumatized communities, cannot be gainsaid.

This study argues that the principal tenets, notably the definition, the constitutive elements, and the scope of the concept of positive complementarity have largely remained unclear. In a sense, its formal justification and parameters of application too remain equivocal in many respects.

Consequently, this study shall advance further argument that there has not been any definitive resolution or consensus on the institutional and legal framework for the concept of positive complementarity.

In our humble assessment, positive complementarity is a mere policy that has not been translated, by way of promulgation, into enforceable law with normative value. It has been observed that the Prosecutor’s terse elaboration on the legal basis and foundation of positive complementarity has been compensated by the attention devoted by a group of eminent international criminal law academics and scholars.

Moreover, we reiterate that no clear legislative framework or elaborate authoritative jurisprudence exists in respect of the definition, constitutive elements, and scope of the concept of positive complementarity.

Consequently, the central undertaking of this study, is thus to provide the conceptual framework for the initiation of the necessary policy and legislative measures and the requisite institutional and legal framework for the codification of the concept of positive complementarity.

This study thus revolves basically around a critical analysis of the concept of positive complementarity and how it can effectively invoke national participation and capacity building in the investigations and prosecutions of article 5 crimes.

It will be necessary to also examine, as a background, the existing legal and institutional framework of the Court with respect to substantive (or classical) complementarity.

The study seeks to further explore the opportunities presented, the benefits generated, and the challenges posed by the emerging concept of positive complementarity in light of the constraints imposed by certain characteristics of the concept of ‘classical’ complementarity.

We seek to examine the extent to which this new understanding of complementarity contributes to achieving protection of victims of heinous international crimes, and more importantly to the respect for the rule of law universally. In this respect the study will explore the viability of the existing structures of the international community, national jurisdictions, and the civil society in adopting more pragmatic approach to enhancing the enforcement procedures of under the Rome Statute.

From the perspective of the fact that the Court is merely complementary, arguments have been advanced to the effect that the Court is a toothless bulldog. However, as will be elaborately demonstrated in this study, the tenability of such an argument is highly questionable. Such an argument can no longer be a valid intellectual argument in light of the positive complementarity model, owing to the fact that, as in the classical sense, it is the primary responsibility of the national jurisdiction to investigate and prosecute article 5 crimes. And as a general rule, the Court is complementary to national criminal jurisdiction.

In light of this conclusion, it becomes necessary to establish an enhanced rational enforcement mechanism of the Court by promulgating a coherent legal framework for a viable regime of positive complementarity.

It is envisaged that this study will be the ultimate justification for heightened perception of international criminal law with respect to the emerging doctrine of positive complementarity. It will provide a template for designing a legal framework to inspire further discourse and thus stimulate the intellectual desire, and provide impetus, for further scholarly legal research in this realm. This will constitute originality of our present study based on our concrete contribution to knowledge and research.

The findings of this study would, in the ultimate analysis, of necessity constitute concrete recommendations to the respective governments of states parties to the Rome Statute, the Assembly of States Parties (the ASP), the OTP, the Court, as well as the United Nations Security Council (UNSC), and thus inspire and prompt their urgent necessary international initiatives.

Last but not least, it is submitted that the prospective study findings are, no doubt, bound to be extremely profound in impact. The propositions to be generated and advanced herein are bound to transcend the realm of legal academia, as they would inform critical polito-economic and socio-legal aspects of multilateral legal relations.

Consequently, the originality in this study thus derives from the critical analysis of this inchoate concept of positive complementarity. Our original contribution to knowledge in the realm of international criminal law owes to our prospective proposals for a model draft amendment to the Rome Statute to incorporate the appropriate institutional and legal framework expressly and unequivocally providing for the tenets of positive complementarity.

II. Problem Statement

Questions about the legal nature and practical meaning of the principle of positive complementarity have been attracting the attention of scholars and practitioners alike for several years now.

Right from the drafting stage through to the inception and the early years of the Court’s operation, the principle of complementarity has been subjected to much academic scrutiny, both in terms of its constituting elements and the potential ramifications of its use. But even more vexing is the issue of the true legal character and scope of its contemporary variant namely positive complementary.

The cardinal issue of disquiet, however, is that most works on positive complementarity have neither been comprehensive nor authoritative in addressing the structure of the requisite institutional and legal framework for positive complementarity. This study thus steps in to seal the lacuna left between the vague conceptual and theoretical framework, on the one hand, and the absent institutional and legal framework at the international level, on the other.

Whereas states parties are expected to promulgate enabling legislation implementing the principle of complementarity it is unclear the precise form this legislation should adopt. Owing therefore to the significance of this issue, the question arises as to whose responsibility it is to clarify what conditions are necessary for being fully complementary.

Indeed, it is one of the cardinal arguments of this study that the virtual absence of a legal and institutional framework for positive complementarity renders the concept more or less academic. This is accentuated by the fact that complementarity is not expressly defined by any of the formal sources of international criminal law. It is not mentioned or defined in the Rome Statute, and the jurisprudence of the Court has not rendered any functional definition or authoritatively disclosed the elements of the concept. So, in our humble view, it remains merely a policy, with no normative value.

Thus our extended argument is that there is absence of a clear legislative definition of the term complementarity in a classical sense, and the legal and institutional framework for positive complementarity is largely unavailable. These two factors have tended to operate in juxtaposition, the former reinforcing the austerity already imposed by the latter in terms of seeking clarity.

The study will examine the possibility of designing an institutional and legislative framework, geared towards reinforcing the incorporation of the concept of positive complementarity into the Rome Statute. It will also explore the viability of establishing an oversight body, besides the OTP, for planning, co-ordination and management of the implementation of the new regime of positive complementarity.

III. Objectives of the Study

In light of the stated problem, this study seeks to critically analyse and assess the juridical nature of the concept of positive complementarity with a view to proposing a model design for an appropriate institutional and legal framework.

Within the framework of the broad objective, stated at the preceding paragraph hereof, the study specifically seeks:

1. to explore the historical development of the concept of positive complementarity.
2. to contextualize the concept of positive complementarity within the Rome system of justice.
3. to examine the significance, legal implications and impact of the Prosecutorial strategy with regard to positive approach to complementarity, and to assess the opportunities, the benefits and the challenges generated and posed by the OTP policy.
4. to critically examine the implications of the participation of the civil society, and other non-state actors in the capacity building of the national criminal jurisdictions.
5. to undertake a critical appraisal of the existing legal framework of the Rome Statute with respect to the protection and interests of the victims of heinous international crimes.
6. to explore the philosophical and theoretical foundations of the concept of positive complementarity and to determine the viability of the policy associated therewith in relation to implementation of the Rome Statute provisions.
7. to make appropriate recommendations and to design model legislation for the implementation of a viable institutional and legal framework for the concept of positive complementarity for consideration by the relevant national authorities, the Court, the ASP, the UNSC, as well as other stakeholders.

IV. Scope of the Research

The study encompasses themes and principles that revolve basically around the institutional and legal framework of the concept of positive complementarity, and entails:

1. The discussion of the philosophical and theoretical foundations of the concept of positive complementarity.
2. The discussion on the nexus between ‘classical’ and ‘positive’ complementarity.
3. Discerning the constitutive elements of positive complementarity.
4. The critical analysis of the relevant provisions of the Rome Statute with regard to positive complementarity and bridging of the impunity gap.
5. The interventions to ensure capacity building, such as training the judiciary and the investigators. The role of the national and international actors, such as the civil society. Analysis of selected national legislation domesticating the Rome Statute.
6. Institutional and legal framework for implementation of positive complementarity.

This study will not delve into the detailed historical background of the development of the classical concept of complementarity, as there is already a sizeable wealth of literature on that. Suffice it to mention, however, that we shall concentrate on the historical development of the contemporary version namely positive complementarity.

V. Justification of the Study

The undertaking to pursue this study was prompted largely by the following critical considerations:

1. There is a glaring dearth of work as pertains specifically to the legal framework for a viable implementation of the concept of positive complementarity. This study is thus conceived as our modest contribution to address this lacuna.
2. The need to analyse policy and design a viable institutional and legal framework for the implementation of the concept of positive complementarity cannot be gainsaid. This study provides a conceptual and theoretical framework that may form a basis for the national and international policy makers to consider accentuating the pace of the establishment of an effective institutional and legal framework for the concept of positive complementarity to assure an effective enforcement regime of the Court.
3. This work will provide a template upon which to develop, inspire and engender impetus for further scholarly legal research in the realm of the international criminal law as it relates to the emerging doctrine of positive complementarity.

VI. Hypothesis

In light of the stated objectives and the justification of the study, the hypotheses advanced to test the relevance of the study problem are:

1. that to ensure sound and effective enforcement of the Rome Statute provisions, capacity building of national criminal jurisdictions is critical, and there is need for states parties to the Rome Statute to urgently address the effectiveness of the Court in terms of the establishment of a viable legal and institutional framework for implementing of the concept of positive complementarity; and
2. that the formulation and adoption of appropriate measures, entailing both municipal legislation and appropriate international legal and institutional framework, is critical in the implementation of the Court’s overall positive complementarity regime, and thus assure the attainment of the ultimate goal of arresting the tide of impunity, and restoring the rule of law in traumatised communities.

VIII. Literature Review (Preliminary)

In retrospect, we indicated that overwhelmingly, the literature of the international criminal law has been slow to present and interpret the many themes and developments that have evolved with respect to the concept of positive complementarity.

From the outset it need be observed that most of the legal and policy works reviewed do not reveal any direct in-depth dealing with, or focus on, the critical elements of the new concept of positive complementarity. In this section, we shall review the most pertinent literature having bearing on the notion of positive complementarity.

A. Background

The concept of positive complementarity does not answer, like most settled legal principles do, to definitive elements, legal parameters, or definitive scope that would enable us to define it, with exactitude. Moreover, most studies on positive complementarity have presented the concept in the most discordant fashion, in scattered works, and not in any consolidated authoritative manner.

1. The OTP and Positive Complementarity

The OTP and its first prosecutor, Mr. Luis Moreno Ocampo, set in motion the debate on the concept of positive complementarity. Mr. Ocampo observed that “[A]s a consequence of complementarity, the number of cases that reach the Court should not be a measure of its efficiency. On the contrary, an absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.”

The OTP later reinforced the preceding position by explaining that classical complementarity means “…taking action only where there is a clear case of failure to take national action” and encouraging States to carry out their primary responsibility of investigating and prosecuting crimes”. These statements give us an indication of the interest the OTP had developed in advancing a new concept of positive complementarity.

For the first time, positive complementarity was emerging as a policy concept. This was given credence by a group of experts in their ‘Informal expert paper’ on complementarity of 2003. From the said paper it became clear that there was beginning to be a shift in the Court’s relationship with the states, from a vertical to a horizontal model. The latter model advocated for co-operation between the Court and the state in a bid to stem impunity.

The OTP then became bolder in pronouncing what it called ‘a positive approach to complementarity’. This statement was contained in the OTP’s policy paper on prosecutorial strategy of 2006. This time the OTP assumed a more elaborate dimension by indicating that its approach “encourages genuine national proceedings where possible; relies on national and international networks, and participates in a system of international cooperation.” This therefore set the pace for the implementation of the new concept of positive complementarity.

In international discourse, complementarity has traditionally been used to defend specific interests. The Court’s jurisdiction and domestic jurisdiction were largely viewed as competing or diametrically opposed concepts.

States have supported and invoked complementarity in a defensive capacity, i.e. to limit the Court’s involvement through reliance on the strict primacy of domestic jurisdiction or to reconcile ratification more easily with concerns of state sovereignty. Complementarity was traditionally associated by states with the protection of domestic jurisdiction [e.g. article 15(3)] and the right to challenge Court action.

2. ‘Classical’ and ‘Positive’ Complementarity

Complementarity has many faces. Today, it is traditionally theorised on the basis of a distinction between ‘classical’ and ‘positive’ complementarity. The treatment of complementarity is marked by a paradox.

The concept of complementarity has evolved over time. It has been re-moulded and has emerged in different guises . Each emerging model at any particular stage was based on different legal philosophical theories, often the former and the latter overlapping.

In this context, complementarity serves as a tool to foster compliance through a sophisticated system of ‘carrots and stick.’

The concept of positive complementarity is generally understood to mean that the Office of the Prosecutor (OTP) should employ various approaches to encourage national jurisdictions to prosecute cases domestically as far as possible, with a view to ultimately reinforcing domestic capacity, which arguably will have a significant positive impact on prevention of future atrocities.

‘Classical’ and ‘positive’ complementarity differ in their content and features. They are based on different premises in various respects: their vision of responsibility, their conception of the determination of the forum of justice and their approach towards interaction between the Court and domestic jurisdictions.

It is opined that classical complementarity is the more traditional concept. It is based on a vertical vision of the relationship between the Court and national criminal jurisdictions. This classical principle was grounded on the Rome Statute. This principle defines rules and standards for human behaviour and provides checks and balances to remedy shortcomings or failures of domestic criminal jurisdictions.

In summation therefore we note that positive complementarity has some horizontal features. It may be defined as a managerial concept that organizes the relationship between the Court and domestic jurisdictions on the basis of three cardinal principles: the idea of shared burden of responsibility, the management of effective investigations and prosecutions, and the two-pronged nature of the cooperation regime.

Stahn argues that both conceptions are inherent in the framework of the Statute, but underdeveloped in their articulation and meaning due to the framing of article 17 of the Rome Statute. And that both concepts are often misunderstood or used, in order to justify specific policy choices.

This thesis concurs with the argument advanced that positive complementarity is not expressly regulated, but contests the second limb of the argument that it is embedded in the structure of complementarity, namely, the mandate of the Court and the normative space for choice offered by articles 17 and article 53 of the Rome Statute.

The present thesis will argue that had the latter been the case, nothing would have been easier than for the drafters to expressly provide for positive complementarity within the Rome Statute. This oversight underscores the need for clarity by introducing new clear provisions in the legal framework to be incorporated into the Rome Statute. This has engendered the impetus to pursue this study.

3. Pro-active Complementarity and Positive Complementarity

Burke-White vehemently advanced the use of the term ‘pro-active complementarity’ to refer to what essentially, in our view, is positive complementarity, thereby almost introducing confusion in the discourse on the meaning ascribed to the concept.

According to Burke-White, the term “positive complementarity” is used by some commentators to describe a similar policy approach as his pro-active complementarity. He then proceeds to assert that proactive complementarity, however, better reflects the nature of the policy and better highlights its distinction from the Court’s present approach that might be termed “passive complementarity.” This argument is however debatable. As we observed earlier, it is more of a question of semantics rather than precise tenets that distinguish the two terms. In our view, what Burke-White advanced is simply the same concept of positive complementarity as presented by the OTP in its Prosecution strategy policy papers.

Burke-White argues that his work offers a novel solution to the misalignment between the Court’s limited resources and legal mandate on the one hand and the lofty expectations for it on the other. He further argues that the Court must engage more actively with national governments and must encourage states to undertake their own prosecutions of international crimes.

He advocates a shift in the Court’s role through a policy of “proactive complementarity,” whereby the Court would encourage and at times assist states in undertaking domestic prosecutions of international crimes. Burke-White in one of his articles examines the legal mandate for such a policy, considers the political constraints on the Court, offers a practical framework for the implementation of proactive complementarity in the range of circumstances the Court is likely to face, and documents examples of proactive complementarity in the Court’s initial operations.

Burke-White then makes a bold conclusion that, overall, the article argues that encouraging national prosecutions within the “Rome system of justice” and shifting burdens back to national governments offer the best and perhaps the only ways for the Court to meet its mandate and help end impunity.

He notes that neither the legal mandate of the Court nor the resources available to it are sufficient to allow the Court to fulfil the world’s high expectations. The global community expects the Court to provide worldwide accountability, yet the Court’s own internal predictions and the current level of funding from the ASP anticipate a maximum of two to three trials per year. In addition, the Court optimistically assumes that states will cooperate in the arrest and surrender of indictees. He argues further that this combination of unrealistic hopes and limited capacity raises the real prospect that the Court will be seen as a failure only a few years after its creation.

Burke-White stated, at the time of his writing, that it was anticipated that the Chambers will be able to undertake at most two trials per year, with a target of between four and six trials over the next three-year. This in our view is indeed a dismal statistic.

On the legal basis of proactive complementarity, Burke-White argues that “…despite the fact that the active encouragement of national prosecutions may not have been envisioned by the drafters of the Rome Statute, a careful analysis of article 17 makes clear that nothing in the article prohibits the OTP from pursuing a policy of proactive complementarity”. He adds that “…critically, however, none of the formal requirements of article 17 nor other parts of the Statute restrict the Prosecutor from seeking to encourage national prosecutions.”

As we shall argue in the thesis, this position is not entirely tenable in light of the desire for independent specific express provisions for positive complementarity in the Rome Statute and not merely implicit inferences from article 17.

As a strategy for encouraging national governments to undertake their own prosecutions of international crimes, proactive complementarity would allow the Court to catalyze national judiciaries to fulfil their own obligations to prosecute international crimes.

According to Burke-White impunity gap arises where an international forum prosecutes only those most responsible for international crimes, leaving lesser offenders a degree of impunity. Burke-White argues that proactive complementarity can help close this gap by encouraging domestic prosecutions of international crimes, including those that may not meet the gravity threshold for prosecution by the Court.

In light of the preceding, Burke-White provides a more pertinent analysis of the evolution of the concept of positive complementarity. His various works on this theme fail set out clearly legal framework of the emerging concept of positive complementarity.

We argue, however, that Burke-White has failed to forcefully advance a case for an institutional and legal framework in light of the need for new rules and the codification of the positive complementarity rules under the Rome Statute.

It is instructive to note that since Burke-White published his work in question over the years considerable developments have taken place, notably the Kampala Review conference of the Rome Statute. Overall, Burke-White has made significant commendable contribution to analysis in the realm of positive complementarity. However, his work is constrained in relevance in so far as the interpretative legal framework character of positive complementarity is concerned.

An attempt by Burke-White to provide a contradistinction between proactive and positive complementarity, in our view, has not been sufficiently and demonstrably plausible, as it is a matter of linguistic agility and semantics. In the ultimate analysis, we argue, as shall be demonstrated in this thesis, that both proactive complementarity and positive complementarity refer essentially to the same notion. Any perceived distinction therefore warrants merger into one solid concept namely positive complementarity.

B. Positive Complementarity after Kampala Review Conference of Rome Statute

We now turn our focus on the stocktaking exercise undertaken on complementarity at the Review conference of the Rome Statute held in Kampala, Uganda from 31 May to 11 June 2010. As already observed herein above, at the said review conference the meaning of the new concept of positive complementarity was extensively debated. Notwithstanding apparent consensus on the use of the term positive complementarity throughout the review session, Germany and Spain interrogated its legal foundation.

The German delegates were categorical that the term positive complementarity had no legal foundation in the Rome Statute, and that it “served to confuse judicial capacity building with the principle of complementarity as laid down in Article 17 of the Rome Statute.”

The Spanish delegation reinforced this scepticism by suggesting that the set of initiatives encompassed under the heading of positive complementarity might have been better referred to as to “technical assistance.”

Another significant development about the review conference is that the preparations reflected not only a new emphasis on positive complementarity, but they also glaringly represented a shift in the use of the term ‘positive complementarity’. The report of the Bureau on stocktaking emphasised more active involvement of states and civil society in capacity building. This represented departure in previous emphasis by the OTP on the involvement of the Court in the construction of national capacity.

The Report of the Bureau on stocktaking narrowed down the definition of the concept of positive complementarity to include “…all 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.”

The ASP adopted, by consensus, the resolution on positive complementarity. It is, however, critical for purposes of our thesis, to note that notwithstanding the adoption of the resolution no new legal obligations were introduced thereby. This is the very essence of our present thesis. No institutional or legal framework was formulated or proposed at the Kampala review conference. This present thesis thus identifies this gap and intends to advance further legal framework that may introduce new legal obligations and rights under the Rome Statute.

The review conference did, however, recognise and emphasize the importance of the principle of complementarity and engagement in initiatives to boost national capacity so as to ensure that states are able to take their primary responsibility to investigate and prosecute article 5 crimes at the national level. We vehemently argue that this recognition of the importance of the principle should be followed with processes to initiate appropriate institutional and legal framework to give effect to it.

The principal challenges facing the application of complementarity in practice were identified during the Kampala stocktaking exercise to include the lack of operational capacity. In particular, the Review conference noted the challenges faced by domestic institutions operating in the context of a weak economy, lack of infrastructure, lack of confidence in the judicial structure and disputed authority.

A further impediment was the lack, or the inadequacy, of national implementing legislation domesticating the Rome Statute. In our view, a sound national implementing legislation is the critical starting point for the implementation of the principle of positive complementarity.

Within this context, it is important to issue caution that the Court should maintain its mandate as a judicial institution, and avert falling into temptation of acting as a development agency pursuing capacity building agenda.

C. Continued Relevance of Classical Complementarity

There is a preponderance of literature that is pertinent to other themes that relate directly to the notion of positive complementarity, and we shall now turn to examine them. We shall tersely also examine the jurisprudence of the Court in this regard.

1. Jurisprudence of the Court

In retrospect, we argued that the Court has demonstrably been slow in generating the pertinent jurisprudence to nurture the development of the concept of positive complementarity. We still maintain this position.

However, the Court has been able to provide a fairly comprehensive authoritative jurisprudence on the classical complementarity model. It has also seized the opportunity to expound on the ‘same person/ same conduct’ test. These are contained in the appellate judgments of the Appeal Chamber when adjudicating in the two Kenyan cases of the Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali and the Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang.

The essence of the appeal on those two Kenyan cases was the admissibility challenge by the Government of Kenya pursuant to article 29(2)(b) of the Rome Statute. The Kenyan Government was contesting the decision of the pre-trial chamber II.

The present thesis shall provide an incisive analysis of these cases and discuss the import, implications and ramifications of the emanating jurisprudence to the various facets of the novel positive complementarity model.

It has also been argued that the Court has failed adequately to defend the principle of complementarity. And that through this failure, it has become complicit in the refusal of some states to confront the most serious violators of international human rights and humanitarian law on the domestic level.

Specifically, the Court has too readily embraced the idea that states with jurisdiction over international crimes may waive that jurisdiction and allow the case to proceed before it.

2. Further Discourse on Complementarity Principle in General.

Bassiouni in one of his works provides an authoritative legal work on the many themes on the jurisdiction of the international criminal court. He gives very detailed consideration of questions such as doctrine of complementarity under international criminal law. He also analyses the various international crimes, notably the article 5 crimes.

Bassiouni’s work provides us with a useful conceptual foundation for analyses in our study. A glaring constraint of his study is that it does not provide a specific consideration of the question of the positive complementarity but rather deals broadly from a generalised perspective with issues that affect the jurisdiction of the Court. It is nonetheless a very useful source for purposes of this thesis.

Cassese A. et al., provide a more pertinent analysis of the evolution of the Rome Statute. This provides background information on the agenda of the Court as formulated from its inception. This work is extremely useful when analysing the objects of the Rome Statute with regard to the positive complementarity concept.

We note, however, that this work is limited in so far as the exploration of the novel concept of positive complementarity is concerned. Accordingly other similar and more contemporary works are instructive to inform our analysis of the concept of positive complementarity.

A more contemporary work undertaken by Politi Mauro and Guiseppe Nessi (eds), The Rome Statute of the international criminal court: A challenge to impunity, is quite instructive in respect of the exposition of the legal principles of international criminal law. This study, inter alia, explores and evaluates the basic principles contained in the Rome Statute.

The preceding work is particularly significant in providing the theoretical basis useful in analysing the conceptual framework for assessing the effectiveness of the relevant provisions of the Rome Statute with specific reference to the classical principle of complementarity. It is nonetheless constrained in the consideration of the development of a legal framework for positive complementarity.

An equally instructive scholarly work is that of current Judge of the Court, Judge Professor Nsereko DDN, “The international criminal court: Jurisdictional and related issues.” This work, in general, is of particular importance in developing the legal arguments of this research in respect of the question of jurisdictional competence of the Court.

As in most other literature on classical model of complementarity, Judge Nsereko’s work does not discuss the contemporary concept of positive complementarity. However, as a sitting judge of the Court, no doubt, he is seized on a regular basis with legal issues that revolve basically around the new principle of positive complementarity, and his lordship has already contributed immensely to the jurisprudence of the Court with regard to classical complementarity.

Bergsmo M, Bekou O and Jones A have generated a good number of authoritative legal work on the many themes concerning positive complementarity. They give very detailed consideration of questions such as the nature of the concept of positive complementarity, and the question of capacity building, notably the ICC Legal tools. A major constraint in their study is that it does not provide a specific consideration of the question of the institutional and legal framework but rather deals broadly from a generalised perspective with issues that affect the entire effectiveness of positive complementarity.

More contemporary works undertaken by Stahn are quite instructive. His studies, inter alia, explore and evaluate the background and historical development of the concept of positive complementarity. He also discusses its future but lays no particular emphasis on the development of an institutional and legal framework. Thus, Stahn’s works, like those reviewed here, merely give a general presentation of the concept of positive complementarity, but fail to give any detailed analysis of the concept of complementarity. It is this lacuna that our study seeks to seal.

Schabas W. A. explores the concept of complementarity in practice. His discussion of the issue of self-referral as an approach for the Prosecutor to secure state participation is a move away from the antagonistic nature of what is characterised as a classical complementary relationship. He attempts an evaluation of the principle of complementarity five year down the line thereby creating the reasoning that more needs to be done. His works have proved relevant in providing the theoretical basis useful in reinforcing the conceptual framework for assessing the options for establishing a new institutional and legal framework for positive complementarity.

A leading scholar in international criminal law, Mohammed El Zeidy, argues that the question that only cases of a certain degree of gravity should be dealt with before the Court has received little notice in literature. He then proceeds to discuss the idea of introducing an element of gravity to serve as part of the system of admissibility of complaints before the Court. This argument is important to the extent that it relates to the classical complementarity.

Max du Plessis is outstanding in his literature as he has devoted considerable work on the African context. He writes that “…to date there are only three African states parties to the Rome Statute that have taken steps to domesticate the Rome Statute’s obligations: South Africa, Senegal and Kenya…South Africa was the first State in Africa to incorporate the ICC Statute into its domestic law, and the ICC Act is a very progressive example of implementing legislation—allowing for the potential prosecution of international crimes, wherever and by whomsoever they may be committed (see section 4(3)(c) of the ICC Act).” With these terse observations we indicate that Du Plessis has rendered critical relevant work on the African perspective. We shall find his work very useful when discussing the South African model.

Owing largely to the international concern, the international community through the ASP reacted by adopting the Kampala review of Rome Statute resolution, which in our view, powerfully evidences a determination, on the part of the larger international community, to effectively address the approach of positive complementarity in an effort to arrest impunity.

D. Conclusion

In summation it need be observed that most of the legal works reviewed do not reveal any direct in-depth dealing or advocacy for formulation of institutional and legal framework for implementing the notion of positive complementarity. They invariably tend to provide more generalised analysis of the concept of positive complementarity, rather than give any detailed consideration of the case for its regulation regime.

However, it will be necessary to consider some of these general works that deal with issues relevant to the study, notably argument for institutional and legal framework for a regulatory regime of positive complementarity.

This study argues that, in the ultimate analysis, the adoption of a new and more pro-active strategy and dispensation entailing a new legal framework aforesaid is the ultimate justification of the very existence of the Rome Statute. These ramifications have, in our turn, prompted and inspired the undertaking, in this paper, to pursue a legal study of this emerging concept of positive complementarity.

From the preceding terse literature review, it is clear that there is demand for a more comprehensive study focused intensely on the institutional and legal framework of positive complementarity, in order to seal the existing intellectual lacuna aforesaid. It is to the said demand that this study responds.

[End Notes omitted from this comment].