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from PART VI - Complementarity in practice
Published online by Cambridge University Press: 05 November 2014
‘C’est avec témérité qu'on fait ce qu'on fait’
This paper will assess the potential for and limitations of positive complementarity as a tool to enhance the International Criminal Court's (ICC) capacity to end impunity and enforce justice in two of the contexts where the ICC has opened an investigation: the Central African Republic and the Democratic Republic of Congo. It will place the aspiration to achieve positive complementarity in these countries in its socio-political context. This context, it will argue, is one of near-total administrative incapacity to conduct criminal trials in general, and of political unwillingness to prosecute war criminals in particular. Efforts at domestic prosecution cannot be abandoned, but they are best construed as a problem in their own right, not a solution to the ICC's capacity constraints.
The following would appear to be necessary but not always sufficient ingredients for successful domestic prosecution: funding and pressure from the international community, active involvement of local and international civil society actors, and courage and initiative on the part of individual judges and prosecutors. The ICC can only play a modest part in fostering a more enabling culture for such prosecutions. Its main contribution to the restoration of the rule of law is to lead by example.
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