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Abstract

This Note examines the nexus between international and domestic

criminal justice systems. It discusses whether the International Criminal

Court (1CC) can advance positive complementarity through its so-called

preliminary examinations. Using Kenya as a case study, we analyze the

advocacy strategies of Kenyan NGOs during the preliminary

examination that took place between February 2008 and March 2010.

We found that Kenyan NGOs did not use the ICC preliminary

examination to "trigger" criminal justice reform or domestic

accountability for crimes perpetrated during the post-election violence.

Instead, these NGOs successfully focused on advocating for the ICC

preliminary examination to turn into a formal investigation. Kenya's

experience with the ICC preliminary examination leads us to conclude

that positive complementarity poses a paradox for NGOs: if they insist on

capacity-building of the domestic justice system, they fail at

demonstrating that the State is "unwilling or unable" to prosecute crimes

domestically. This Note explores that paradox.

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