The chapter analyses whether, and if so to what extent, the policy of positive complementarity promoted by the Office of the Prosecutor of the ICC has the potential to enhance and refine the capacity of national systems to respond to massive violations of human rights. To this effect, the chapter firstly provides a comprehensive reading of complementarity. In this context, it assesses how alternative forms of justice are reconciled with the functioning and authority of the ICC. Subsequently, the chapter critically evaluates the performance of the permanent Court vis-à-vis the situation in the Democratic Republic of Congo, Uganda and Kenya insofar as these countries presented proposals, and/or undertook efforts arguably intended to maintain jurisdiction that were not exhaustively considered by the ICC Prosecutor. Concluding, the chapter highlights the potential of positive complementarity to uphold the transitional justice discourse were the Office of the Prosecutor to reconsider its approach, in the effort of consolidating the ICC system and avoiding frictions that may fragment the international criminal law order.

UNDERSTANDING POSITIVE COMPLEMENTARITY

‘Transitional justice’ is a chapeau concept that refers to a range of approaches, mechanisms and comprehensive strategies that are used in post-dictatorial and post-conflict societies, in order to address gross human rights violations. It includes judicial and non-judicial solutions. In keeping with this view, the question this chapter aims to respond to is whether positive complementarity enhances and promotes the capabilities of national systems to effectively respond to massive atrocities. But what does an ‘effective domestic system’ mean in this context? It is often argued that when massive crimes are at stake, an effective response is not necessarily one that involves criminal investigation, prosecution and punishment. While this might be true in general, the Statute of Rome is undoubtedly concerned with criminal justice. National reconciliation, peace and security, and the historical truth may be incidental - and certainly desirable - effects of criminal proceedings but they are not integral to the ICC's mandate nor do they weigh the most as far as the decision-making of the Court's organs is concerned.