Civil Society, ‘Positive Complementarity’ and the ‘Torture Docket’ Case

Authors Max du Plessis, Christopher Gevers

ISSN: 1996-2088
Affiliations: Associate Professor, School of Law, University of KwaZulu-Natal; Lecturer, School of Law, University of KwaZulu-Natal
Source: Acta Juridica, 2016, p. 158 – 176


Complementarity is posited as a driving feature of the International Criminal Court (ICC) regime. Recent developments in Africa suggest a broader understanding of complementarity that is unfolding in practice and which is worthy of further exploration. The notion of ‘positive complementarity’ — ie that the Rome Statute (and the ICC) should encourage genuine national proceedings where possible, including in situation countries — is being expanded to encourage prosecutions, under the principle of universal jurisdiction, in situations where the ICC would not ordinarily have jurisdiction. In such circumstances, States can not just supplement, but augment the work of the ICC — acting where the ICC is unable to do so for lack of jurisdiction. In this article the authors consider this expanded ‘positive complementarity’ through the lens of a particular case regarding allegations of torture committed in Zimbabwe, by Zimbabweans, against Zimbabwean victims, but which case has been initiated and litigated in South Africa: the ‘Torture Docket’case. The article ends with five recommendations for civil society, arising from the ‘Torture Docket’ case and the notion of ‘positive complementarity’, which concern: (1) the role for civil society in the initiation of investigations, (2) the advantages of a dedicated domestic legal framework, (3) the challenge of managing expectations, (4) the challenge of complexity, and (5) the need for civil society intervention in ‘positive complementarity’cases.