This study seeks to establish how the legal and institutional framework for positive complementarity may be effectively implemented. It is argued that the existing legal and institutional framework in respect of the effective combatting of impunity is largely unsatisfactory.
The evolution of the principle of complementarity, in the context of the Rome Statute, is explored with emphasis on the theoretical constraints on the principle which, in turn, raise practical challenges. The analysis provides a theoretical background to the conceptualisation of positive complementarity.
The study traces the evolution and development of the concept of positive complementarity, examining its characteristic features and attributes, and the possibilities and opportunities the concept presents for the effective combatting of impunity. It examines the various scholarly arguments and propositions advanced to explain the concept of positive complementarity, and analyses the attendant challenges and limitations. It is noted that there is no fixed and universally acceptable definition of positive complementarity. It is therefore argued that there is a need for the establishment of a coherent legal and institutional framework for positive complementarity.
In this light, appropriate policy alternatives and considerations both domestically and internationally, are considered. On the international level limitations characterising the current institutional framework of the Secretariat of the Assembly of States Parties (ASP Secretariat) are identified. It is argued that a fundamental restructuring of the ASP Secretariat is essential and measures to restructure the ASP Secretariat in order to reinforce its effectiveness in fulfilling its mandate on positive complementarity are identified. At the domestic level, the various aspects of implementing legislation are discussed.
In conclusion, the establishment of an independent office to address positive complementarity and revitalise the institutional framework within the legal structures of the ASP Secretariat, is examined. The study envisages that the proposed institutional framework for the ASP Secretariat, if implemented, would effectively support the national jurisdictions of state parties in their implementation of the concept of positive complementarity. This study represents an unequivocally original contribution to knowledge and research.
Table of Contents
PART I – INTRODUCTION AND OVERVIEW
1 Introduction
PART II – THE CONCEPT OF POSITIVE COMPLEMENTARITY
1 Background
2 The definition of positive complementarity: A normative challenge
3 Legal foundations of positive complementarity
4 2010 Kampala Review Conference on Stocktaking of the Rome Statute
5 The Greentree process
PART III – INSTITUTIONAL FRAMEWORK
1 The Secretariat of the ASP and positive complementarity
2 Why a new legal and institutional regime?
PART IV – CONCLUSION AND RECOMMENDATIONS
1 Conclusions
2 Recommendations
Research Objectives and Core Themes
This work aims to evaluate the legal and institutional framework currently governing positive complementarity within the International Criminal Court (ICC) system. The central research objective is to address the ambiguity surrounding the concept and to propose a viable, restructured institutional mechanism within the Assembly of States Parties (ASP) Secretariat to improve the practical implementation of positive complementarity in the fight against impunity.
- The historical evolution and normative definitions of positive complementarity.
- Limitations of the current institutional and legal framework of the ASP Secretariat.
- The impact of resource constraints and structural inadequacies on the mandate of the Secretariat.
- Proposed policy alternatives, including the establishment of an independent Office of the Coordinator for Positive Complementarity.
Excerpt from the Book
1.3.1 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. 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.
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.
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 specialised function of coordinating positive complementarity activities, would be a recommended alternative.
Summary of Chapters
PART I – INTRODUCTION AND OVERVIEW: Introduces the concept of positive complementarity as a missing definition in the Rome Statute and outlines the research purpose regarding the ASP Secretariat's framework.
PART II – THE CONCEPT OF POSITIVE COMPLEMENTARITY: Traces the origins of the positive approach, discusses the normative challenges in its definition, and reviews the impact of the Kampala Review Conference and the Greentree process.
PART III – INSTITUTIONAL FRAMEWORK: Critically analyzes the current limitations of the ASP Secretariat, including resource constraints, structural weaknesses, and its mixed mandate.
PART IV – CONCLUSION AND RECOMMENDATIONS: Proposes a radical restructuring of the ASP Secretariat, specifically advocating for an independent Office of the Coordinator for Positive Complementarity to bridge the impunity gap.
Keywords
positive complementarity, international criminal court, assembly of states parties, impunity, international law, institutional framework, rome statute, capacity building, technical assistance, legal reform, prosecutorial strategy, jurisdictional disputes, secretariat, coordination, accountability
Frequently Asked Questions
What is the core subject of this research paper?
The paper examines the institutional framework of the Assembly of States Parties (ASP) in relation to the concept of "positive complementarity" and its role in combating impunity.
What are the central themes addressed in the work?
Key themes include the evolution of positive complementarity, the lack of a formal legal definition, institutional hurdles within the ASP Secretariat, and potential structural reforms to improve efficacy.
What is the primary objective or research question?
The primary goal is to determine how the legal and institutional framework for positive complementarity can be effectively implemented to overcome existing limitations and support national jurisdictions.
Which scientific method is utilized in this paper?
The paper employs a legal and policy analysis, interrogating international law literature, Rome Statute provisions, historical policy papers of the Office of the Prosecutor, and outcomes from ASP review conferences.
What is covered in the main section of the paper?
The main sections evaluate the Secretariat's current mandate, identify structural inadequacies like resource dependency on the ICC, and discuss policy alternatives such as creating an independent coordinator office.
Which keywords best characterize this work?
The most relevant keywords are positive complementarity, ICC, ASP, institutional framework, impunity, and legal reform.
Why does the author argue that the current Secretariat is insufficient?
The author highlights that the Secretariat suffers from severe financial constraints, is not directly established under the Rome Statute, and has a "mixed mandate" that detracts from its focus on complementarity.
What is the specific proposal regarding the Office of the Coordinator?
The paper proposes establishing an independent Office of the Coordinator for Positive Complementarity (OCPC) within the Secretariat, which would be capable of raising its own funds and operating independently of the ICC's direct influence.
- Arbeit zitieren
- Dr. Milton Owuor (Autor:in), 2017, The International Criminal Court and Positive Complementarity. ASP Institutional Framework, München, GRIN Verlag, https://www.grin.com/document/429163
