The International Criminal Court and Positive Complementarity. Legal and Institutional Framework

Declaration

I declare that this doctoral thesis entitled “The International Criminal Court and Positive Complementarity: Legal and Institutional framework”, which I hereby submit for the degree of Doctor of Laws (LLD) at the University of Pretoria, is my own original work and has not previously been submitted by me for examination or the award of a degree at this or any other university. All the sources used or quoted have been duly acknowledged and referenced.

Milton Odhiambo Owuor

Signature: Abbildung in dieser Leseprobe nicht enthalten

Dated at Sandton this 10th day of December 2017

ABSTRACT

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, represents an unequivocally original contribution by this study to knowledge and research.

KEY TERMS

complementarity – international criminal law – institutional – international – law – legal – positive complementarity – impunity – international criminal court

DEDICATION

This thesis is dedicated to the mighty Major Prophets of God Almighty who have walked this earth: my spiritual father, Major1 Prophet Dr Shepherd Bushiri; my spiritual mum, Prophetess Mary Bushiri; my spiritual grandfather, Emeritus Professor, Senior Major Prophet Uebert Angel; and grandmum, Prophetess Bebe Angel. I thank them for their fountain of spiritual nourishment, anointing, and grace ceaselessly and liberally poured over me. I love you daddy, grandpa, mommy, and grandmom, with all my heart, soul, and spirit!

ACKNOWLEDGEMENTS

A million thanks to the omnipotent God of Major1, and omniscient Lord Jesus Christ; the invisible ever-supervening supernatural power of the omnipresent Holy Ghost – the source of my knowledge and wisdom; and Major 1 for amazing and inexplicable abundant grace! I consider myself fortunate to have had the rare opportunity of drinking, as it were, from the fountain of intellectual prowess of my doctoral promoter, Professor Dire Tladi. I am also grateful for the encouragement received in finalising this thesis from my Head of Department, Professor Annelize Nienaber – it has meant so much to me. Professor Neville Botha’s erudite editorial role cannot be gainsaid.

My son, Dennis Junior, deserves special commendation for the way in which he stuck with me emotionally and endured my frequent absence while I was burning the midnight oil during my doctoral research – I love you so much son! My daughter, Tshepo Laone, who also endured my long absence with fortitude and patience – I love you Princess. Thanks to my sweet wife, Catherine, for her life-long and enduring support.

Thanks, also, to all who supported me during my doctoral study leave abroad in London, Hollywood, New York, Albany, Washington DC, Phoenix, Las Vegas, Paris, Amsterdam, Prague, Dubai, and Mauritius. Many people, though not mentioned, contributed, directly or indirectly, to the finalisation of this work – to all of you, my heartfelt gratitude.

Finally, all errors and shortcomings in this work are mine alone, and I accept full and sole responsibility for them.

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