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.
Christine Bjork & Juanita Goebertus,
Complementarity in Action: The Role of Civil Society and the ICC in Rule of Law Strengthening in Kenya,
Yale Hum. Rts. & Dev. L.J.
Available at: https://digitalcommons.law.yale.edu/yhrdlj/vol14/iss1/5