The Principle Of Positive Complementarity In International Criminal Law And Its Convergence With Domestic Transitional Systems : The Case Of Colombia

Abstract

International Criminal Law and Transitional Justice have been tied by the utmost responsibility of addressing major atrocities committed by humankind, despite their confronted aims for that particular task. Within the modern framework of the International Criminal Court, embodied in the Rome Statute, a new cross-cutting scenario poses the idea of reconciling these different paradigms of justice. The opened preliminary examination in Colombia suggests this emerging interplay between the Court and domestic transitional systems under the auspices of the principle of complementarity. Similarly, a positive approach of this foundational tenet of the Statute’s system, appears as a feasible mechanism for not only normative harmonization but also comprehensiveness and the progressive development of a more integral concept of justice. Consequently, by opening the door to different and diverse perspectives thereof, fighting and preventing impunity of international core crimes whilst allowing the pursuit and achievement of those other components of Transitional Justice, becomes a possible pathway. This study is aimed firstly to provide an analysis of the referred incipient scenario with the particular example of Colombia before the ICC’s jurisdiction With this exploration, the proposal of a novel approach for potential situations under examination by this international institution and involving tension between these two different models of justice is edified on the basis of positive complementarity. In this sense, by the use of a descriptive, analytic and comparative dogmatic legal method to study international and national law and caselaw, it is intended a clarification of the normative standards for a domestic system, rooted in transitional instruments, to be legally admissible according to the operation of the principle of complementarity. Thus, through asserting the lawful compliance of the current Colombian transitional court: the Special Jurisdiction for Peace, it is proposed the prospect of Transitional Justice and International Criminal Law validly coexisting under the Rome Statute. A situation that is further developed by seeking to demonstrate the virtues of complementarity’s positive approach for enabling the realization of both paradigms’ purposes at the same time. As such, by means of a following analysis and elaboration of this notion a wider and more comprehensive concept of integral justice through the lens of modern International Criminal Law is raised.