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.
