Invited Experts on Anniversary Question

Akande Avatar Image Professor Dapo Akande Professor of Public International Law & Co-Director, Oxford Institute for Ethics, Law and Armed Conflict University of Oxford

de Souza Dias Avatar Image Talita de Souza Dias, DPhil Candidate (Oxon), MJur (Oxon), LLB (UFPE) Tutor in Public International Law and International Criminal Law Balliol College and Faculty of Law, University of Oxford

A new approach to the “Interests of Justice” in the ten years ahead of the Rome Statute: Why and when should the Prosecutor use her discretion under Article 53(1)(c) and 2(c) of the Statute to defer investigations or prosecutions in situations of active armed conflict in favor of peace negotiations?

Certain kinds of peace negotiations should be considered as part of the “interests of justice” justifying the deferral of criminal investigations or prosecutions in situations of active armed conflict.

Summary

We believe that a key reform that has the potential to make the international criminal justice project stronger, more efficient, and more effective is the consideration of peace negotiations as an additional factor in the Prosecutor’s decision of whether or not to pursue an investigation or prosecution “in the interests of justice,” in accordance with Article 53(1)(c) and 2(c) of the Rome Statute. At present, this would require a revision of the Policy Papers issued on this question, in particular, the 2013 Policy Paper on Preliminary Examinations and the 2007 Policy Paper on the Interests of Justice. Significantly, we believe that this reform has the potential to prevent or alleviate, at least in part, some of the most pressing problems mentioned by the International Criminal Court’s (ICC) Office of the Prosecutor (OTP) in its question for this issue of the ICC Forum, namely, the lack of state cooperation, limited budget, and lengthy or complex proceedings.

Argument

I. Four Considerations on Peace, Justice, and Political Solutions

Our argument—that certain kinds of peace negotiations should be considered as part of the “interests of justice” justifying the deferral of criminal investigations or prosecutions in situations of active armed conflict—departs from four main considerations:

  1. First, although it is difficult to measure the actual impact of both prosecutorial and political solutions in situations of ongoing armed conflict where atrocity crimes have been committed, each plays an important role in the achievement and sustenance of peace, as well as the protection of human rights.

  2. Second, while justice is an important component of the attainment of sustainable peace in situations of armed conflict that have been marred by violations of human rights and international humanitarian law, retributive justice in the form of criminal prosecutions is not the only way in which justice can achieved for victims of those violations. Attention should be paid to a variety of justice mechanisms that can also bring the healing that international criminal justice promises.

Dicker Avatar Image Richard Dicker Director, International Justice Program Human Rights Watch

The Court is More Important Now Than Ever

Taken together, the proliferation of the most serious crimes requires key stakeholders—states parties and civil society as well as Court staff—to step up their game. These changes are necessary for the Court to meet the challenges of its third decade. Those obstacles will only intensify and definite changes are required to address them.

As the twentieth anniversary of the completion of the Rome Statute of the International Criminal Court approaches, a telling reality stands out: an effective International Criminal Court (ICC) is more important in today’s difficult world than we ever had imagined at the Rome Diplomatic Conference. A cursory review of the Court’s workload and today’s headlines bears out the need for the Court to rise to the challenges it faces in the third decade since Rome.

The Court has a far larger docket than anyone would have ever thought during the years of negotiations. Of course, this was a time when, according to one prominent U.S political scientist, with the termination of the Cold War, we had reached “the end of history.” Among states within the ICC’s jurisdiction—including Mali, Georgia, the Democratic Republic of Congo, Central African Republic, the United Kingdom—that prediction has long been overtaken.

In addition to the countries where the ICC has authority, in armed conflicts raging across non-ICC member countries, militaries and insurgents are inflicting shocking atrocities on victims. Civilians in Syria, Iraq, Yemen, South Sudan, and Myanmar have endured unspeakable crimes committed with complete impunity. Despite the gravity and scale of these crimes, the Court’s reach is limited. In Rome, the states negotiating the Court’s jurisdictional reach required United Nations Security Council approval before the Court could adjudicate crimes committed in non-member states.

Taken together, the proliferation of the most serious crimes requires key stakeholders—states parties and civil society as well as Court staff—to step up their game. These changes are necessary for the Court to meet the challenges of its third decade. Those obstacles will only intensify and definite changes are required to address them.

The Office of the Prosecutor (OTP) experienced a difficult first decade characterized by a poor selection of cases and charges, both of which is reflected in the recent Appeals Chamber decision in Bemba which left victims of those crimes in the Central African Republic without any redress. The Office has worked to draw lessons from missteps and implement better investigative and proofing practices, but it’s a long road to go. The quality of investigations has improved as the OTP implemented more rigorous internal review practices and expanded the range of investigative methodologies it employs, including reliance on forensic evidence and tracking of financial assets.

Dieng Avatar Image Dr. Adama Dieng Under-Secretary-General; Special Adviser of the Secretary-General on the Prevention of Genocide United Nations Office on Genocide Prevention and the Responsibility to Protect

Response to Question: “In the Rome Statute’s Third Decade, What Key Reforms Could Make the International Criminal Justice Project Stronger, More Efficient, and More Effective?”

Perhaps demonstrating the unflinching commitment to global justice, African countries supported the Rome Statute despite the inclusion of Article 27 which categorically rejected special treatment for heads of states. In other words, African countries supported the Rome Statute despite its provisions which made no exemption based upon the status of an individual. However, it is claimed this belief turned out to be wishful thinking because the ICC has not apprehended and brought before the Court any individual from outside Africa.

The International Criminal Court (ICC) was established as a permanent independent institution to prosecute individuals accused of the most serious crimes of international concern including genocide, crimes against humanity, and war crimes. Many years of painstaking and protracted regional and international diplomacy preceded its adoption to secure consensus on the importance of creating a permanent international criminal court that could investigate and prosecute these serious crimes. The process that led to the coming into force of the Rome Statute in July 2002 was the shortest in the history of treaty ratification processes, signaling not only the commitment of the international community to challenging impunity, but also a solid reaffirmation that when humanity decides to come together with a common cause, even seemingly insurmountable challenges can be resolved. Indeed, the negotiation and adoption of the Statute remains one of the single most important achievements of the last century in the fight against impunity. Since its adoption, more than half of the world’s states have joined the Court. More than thirty States parties are African, which represents the biggest regional block so far.

While it is true that the majority of countries represented at the Rome conference were of the view that it would be a positive development in global governance to operationalize an international criminal justice regime to hold accountable individuals who commit gross atrocities and violations against human rights, the Rome Statute had its opponents too. At the 1998 Rome conference, 120 voted for the final draft of the Rome Statute, but 21 abstained and 7 voted against. The failure of powerful countries, including the United States, Russia, China, and India, to proactively support the Court and subject themselves to its criminal jurisdiction, immediately began to raise alarm bells about the reach and, ultimately, the efficacy of a Court whose remit would essentially be confined to the middle and weaker powers within the international system. Be it as it may, the creation of the ICC heralded in a new era where the international community accepted the long-recognized reality that international peace and security cannot be maintained or guaranteed if some of those who commit the worst atrocities are simply allowed to walk free.

From the outset, the ICC was envisaged as a court of last resort. The Court does not have primary jurisdiction over national authorities, but rather plays a subsidiary role and supplements the domestic investigations and prosecutions of the most serious crimes of international concerns. Ideally, national criminal jurisdiction should take precedence in efforts to address impunity. Under international law, states have a right to exercise criminal jurisdiction over acts within their jurisdiction. Under the Rome Statute, the principle of complementarity was therefore to ensure that states abide by that duty, either by investigating and prosecuting the alleged perpetrators themselves, or by supporting international prosecution in case of their failure to do so.

Ferstman Avatar Image Carla Ferstman, LL.B, LL.M, DPhil (Oxon.) Senior Lecturer University of Essex, School of Law

Efficiencies that Sacrifice Effectiveness will Lead to an Empty Court: Reforms are not Quick Fix Responses to External Criticisms

The short answer to “what could be done better” is “everything.” The long answer will invariably be comprised of a lengthy, and probably unrealistic, wish-list or rant about how horrible the Court is doing and how the “international criminal justice project” is buckling under the weight of selective prosecutions and referrals and significant impunity gaps. None of this is helpful.

Summary

The highest officials of the ICC cannot afford to be swayed by States’ wavering commitment or selective engagement to international criminal justice. They must remain resolute in specifying what they really need to do the job entrusted to them and calling out States Parties and others when they fail to afford the necessary support. If the ICC focused more on underscoring the core messages of its work this would help make international criminal justice more accessible and significant to the public. The Court should also strengthen its commitment to human rights in the enforcement of international criminal law. Improvements in both of these areas would contribute to a more robust Court capable of meeting the challenges for the next decade and beyond and would make a lasting contribution to international criminal justice.

Argument

There is a certain fatalism to the question:

What key reforms could make the international criminal justice project stronger, more efficient, and more effective?

Clearly the “international criminal justice project” would be all of those things if it had a bigger budget—which States are not prepared to give it. It would be more efficient and effective if fugitives were isolated and arrest warrants were implemented. Garnering greater power to enforce its mandate and secure compliance with its decisions is fundamental, though again, States are reluctant to provide greater powers to the Court in these areas or to support the Court’s efforts in all instances without exception, as opposed to giving support when doing so aligns with a State’s immediate national interests. The short answer to “what could be done better” is “everything.” The long answer will invariably be comprised of a lengthy, and probably unrealistic, wish-list or rant about how horrible the Court is doing and how the “international criminal justice project” is buckling under the weight of selective prosecutions and referrals and significant impunity gaps. None of this is helpful. The Court is still evolving, as are States’ complementary efforts to investigate and prosecute crimes of international concern. The Court has done some important work as have a great number of States. Yet, the ICC is impeded by its paltry budget and the weaknesses of its Statute and the framework for its implementation. This is a product of States’ wavering and selective commitment to the “international criminal justice project”—both to the Court itself and to all else they must do to counter impunity for the worst crimes at home and abroad.

The Court is somewhat limited in its capacity to implement reforms that tackle these core truisms. But this shouldn’t end the matter. The highest officials of the Court cannot afford to be swayed by States’ wavering commitment or selective engagement to international criminal justice. They must remain resolute in specifying what they really need to do the job entrusted to them and calling out States Parties and others when they fail to afford the necessary support. States’ brow-beating of Court officials to reduce budgetary asks is a case in point.1 When the Court submits to such pressures it reinforces States’ Parties misguided belief that brow-beating is appropriate or that budgets are inflated projections that are simply there to be cut. Similarly, (while this practise is evolving), when the Court fails to take States Parties to task for their failure to cooperate or refrains from castigating the Assembly of States Parties for giving only lukewarm political support to the Court in the face of non-cooperation, it reinforces the perception that cooperation is optional.

Jia Avatar Image Bing Bing Jia, DPhil (Oxon.) Professor of International Law Tsinghua University Law School

The International Criminal Court’s Relations with the United Nations

Agreement was reached for a close relationship with the UN. The problem with this approach is twofold: how to ensure the universal character of the court and how close the relationship with the UN should be?

Summary

After some fifty years of a hiatus following the military trials conducted after the Second World War, the discipline of international criminal law, but especially its institutional and procedural part, saw a resurgence in the 1990s. The momentum for the establishment of an international criminal court finally came to fruition with the adoption of the Rome Statute by a UN-convened diplomatic conference on June 17, 1998. The Statute entered into force on July 1, 2002. The pivotal role of the UN in this process has been unmistakably dominant. The operation of the ICC has recently come under much strain, and it has been exposed to refusals to implement its arrest warrants as well as threatened withdrawals by certain States parties to the Rome Statute.

On this occasion, it is only proposed to reflect on one early theme in the process of development—namely, the ICC’s relationship with the UN.

In 1994, the International Law Commission (ILC) recommended the establishment of the ICC as an independent court. The sense was, however, that even the successful experiment with a fair number of such ad hoc tribunals could not replace a permanent court. In view of this parallelism, a general question at present is whether changes are still needed in the system of the Rome Statute to attain a court of universal support or, more realistically, one both representative and protective of the international community in the shape of the UN.

The primary thought is that the existence of a permanent criminal court outside the UN system may just be a cause for the weakened authority of the ICC. During the ILC sessions in 1994, the majority of the members preferred the treaty route to establish the future court, but some members still:

[F]elt strongly that the court could only fulfil its proper role if it was made an organ of the United Nations by amendment of the Charter.

Agreement was reached for a close relationship with the UN. The problem with this approach is twofold: how to ensure the universal character of the court and how close the relationship with the UN should be?

The preceding problem has so far been unresolved. In the Relationship Agreement, infra, between the UN and the ICC, the operative rules on cooperation and judicial assistance are either subject to the rules of the UN Charter or “rules of the organ concerned” or confined to communicative steps. The parallel existence of the ICC and the UN means that the court will not be a part of the UN system, and the cooperation between them is no more than voluntary in substance.

A secondary thought is whether “circuit” chambers can be established in regional courts, vested with similar subject matter jurisdiction. This is so as to facilitate more inclusive access to the ICC system and more effective implementation of a localized version of international criminal law, while at the same time showing sufficient respect for cultural differences. The African Court of Justice and Human and People’s Rights could provide an example, which is however uncommon in important aspects.

As of July 17, 2018, the legal order of the Rome Statute would be completed. While testing times lie ahead, the current problems experienced by the ICC should prompt a rethink of its set-up to start early.

Pocar Avatar Image Judge Fausto Pocar Professor Emeritus of International Law University of Milan

Making the Legal Framework and the Jurisprudence of the ICC more Universal

A return to customary law would add value to the jurisprudence of the Court, making it more universal and a source of inspiration for domestic jurisdictions including those in countries which have not ratified the Statute.

Summary

After twenty years since the Rome Statute (the Statute), and fifteen since its operation, the International Criminal Court’s (ICC) contribution to the establishment of a universal legal framework for the adjudication of international crimes is still very limited. This is due, in part, to the Court strictly adhering to the Statute as the applicable law and neglecting customary international law, which governs the actual legal framework for international jurisdiction as from Nuremberg with the significant addition of the case law of the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR). More attention should be given, also through a revision of Article 21 of the Statute, to customary law. A return to customary law would add value to the jurisprudence of the Court, making it more universal and a source of inspiration for domestic jurisdictions including those in countries which have not ratified the Statute—still the majority from the point of view of the population protected by the Statute. On a different note, a step forward towards universality could be achieved by referring to universal jurisdiction—in particular, with respect to war crimes under the Geneva conventions—and making use of it in the framework of the principle of complementarity which governs the relationship between the ICC and States parties.

Argument

The variety of models adopted in the establishment and operation of the numerous international and hybrid criminal courts and tribunals established since 1993—from the ICTY to the ICTR to the most recent Court for Kosovo—manifestly shows the absence of any clear strategy of the international community in shaping a consistent and coherent legal and judicial framework wherein criminal jurisdiction should be exercised. Rather—save perhaps with respect to the ICTY and ICTR, and possibly to the Special Court for Sierra Leone (SCSL) mandated to follow the rules of procedure and the jurisprudence of the first two tribunals—the international community expresses an approach guided by the diversity of the situations leading to the creation of any specific court. The sole common denominator is of trying to fight impunity, but there's no clear perception of the far reaching scope of the jurisdiction of the judicial bodies that were established, thus making it perhaps imprudent to rely on previous experience to suggest appropriate remedies for improving the performance of the ICC.

Sadat Avatar Image Leila Nadya Sadat, J.D., L.L.M, D.E.A., PhD (hon.) James Carr Professor of International Criminal Law Washington University School of Law

Politics, Procedure, and Law: Three Continuing Challenges for the ICC in its Third Decade

At the international level, having an institution focused upon global justice whose mission must be factored into the resolution of difficult international issues has changed the equation in a way that is hard to quantify, but is deeply significant.

Summary

I. Introduction

The adoption of the Rome Statute of the International Criminal Court by 120 States on July 17, 1998 marked an uneasy revolution in international law and practice.1 A response to the devastation wrought by war and the commission of atrocity crimes,2 the Rome Statute was negotiated just after the collapse of the Soviet Union in 1989, but still in the shadow of possible nuclear war. The Statute’s adoption was a sign of faith and optimism in the capacity of international law and international institutions to prevent and contain violence and create a more peaceful and prosperous world.

At the time of the Court’s establishment, euphoria and skepticism about both its utility and its prospects were present in roughly equal measure. It was thought that it might take decades to reach the sixty ratifications necessary to bring the treaty into force and most observers were surprised when that goal was achieved after only four years. The NGO Coalition for the International Criminal Court (the CICC), which began campaigning for the Court in 1995, set as its goals for the treaty a fair, effective, and independent Court. Twenty years later, the Court has become operational and these objectives can be assessed and measured rather than speculated upon, although it is admittedly hard to gauge the long-term impact of the Court’s activity at this early stage.

With 900 staff hailing from more than 100 countries3 and 123 States Parties, the Court has grown considerably faster than experts predicted twenty years ago. It has 11 Situations under investigation, 26 cases pending or complete, and 10 Preliminary Examinations under way. As a “justice start up,”4 tasked with investigating and prosecuting the “most serious crimes of concern to the international community as a whole,”5 the ICC is, by definition, an institution asked to bring the rule of law into some of the most difficult and dangerous situations in the world, a mission that requires it to confront State power on an ongoing basis.

Turning the complex and heavily negotiated provisions of the Statute into a blueprint for a functioning international institution has clearly been both exhilarating and exhausting for those involved and has been more difficult than the construction of the ad hoc international criminal tribunals due to the wider scope of the ICC’s mandate. The Court has had some significant successes, securing convictions of individuals for serious crimes including enlistment, recruitment, and use of child soldiers (Lubanga);6 attacks upon cultural property and heritage (Al Mahdi);7 and sexual and gender-based violence (Bemba).8 It has also begun the process of issuing reparations and its focus on victims is much more significant than predecessor institutions. The shadow of the Court looms large in the mind of victim groups, civil society advocates, governmental officials, rebel leaders, the media, and even in the decisions of other national courts. The annual meeting of the Court’s Assembly of States Parties brings together States, NGOs, and other stakeholders to discuss not only matters of importance to the ICC itself, but global justice, peace, and security more generally. At the international level, having an institution focused upon global justice whose mission must be factored into the resolution of difficult international issues has changed the equation in a way that is hard to quantify,9 but is deeply significant. At national and regional levels, the ICC has encouraged the establishment of new courts and other mechanisms to address international crimes—an example of “positive complementarity” inspired by the Rome Statute system.

Schabas Avatar Image William A. Schabas OC MRIA Professor of International Law Middlesex University London

Two Ways to Live within the Budget: Restructure the Chambers; Tame Victim Participation and Reparations

The casual observer might not get the impression that this is an institution with a “heavy workload.” Many people visit the Court but few actually get to attend a hearing. That is because, despite the “heavy workload” of the Court, there does not appear to be much courtroom activity. Most of the time, the three elegant modern courtrooms in the new permanent premises appear to be idle.

Summary

The finances of the International Criminal Court have been a source of ongoing tension between the Assembly of States Parties, which votes the budget, and the Organs of the Court, which prepare the budget. Instead of protesting the insufficient funding, the Court could undertake reforms that would reduce its operating costs, increase its efficiency, and enhance its productivity in terms of the core of its mandate and the purpose for its existence. Three issues are addressed here.

The first involves reconfiguring the Chambers and the Divisions, within which the judges sit. Both the Pre-Trial Chambers and the Appeals Chamber do not have enough work to justify the number of judges who work full-time within them. The Court already recognizes this by assigning judges from the Pre-Trial Chambers to sit in the other Chambers. Presently, and for the foreseeable future, the Pre-Trial Division probably requires only one Chamber instead of two or more. It is more difficult to address the shortage of work in the Appeals Chamber. One option is an amendment to the Rome Statute while another is to assign its members to part-time status.

The second concerns the participation of victims in the proceedings and the function of the Court in awarding reparations. Victim participation is foreseen in the Rome Statute. It has taken on huge proportions, well beyond what is required by the Rome Statute. A proper audit is required to assess the real cost of victim participation. Then this must be reassessed in light of the rather modest contribution that the presence of victim representatives during the proceedings has provided. As for reparations, huge attention has been devoted to a system that provides individual victims with exceedingly modest awards. These are drawn from voluntary contributions to a Trust Fund whose operating costs exceed the amount that it actually delivers to the victims.

The third concerns prosecution of offenses against the administration of justice. This is provided for in Article 70 of the Statute. The Rules of Procedure and Evidence quite explicitly contemplate the prosecution of offenses against the administration of justice by national jurisdictions. This is consistent with the principle of complementarity which underpins the philosophy of the Court. Yet, in recent years, the Court has devoted huge resources in prosecuting such cases, far out of proportion to their importance and their gravity.

Scheffer Avatar Image Ambassador David Scheffer Mayer Brown/Robert A. Helman Professor of Law Northwestern University Pritzker School of Law

Create a Select Committee of ICC State Party Representatives

The failure to achieve more universal membership in the ICC and to achieve greater cooperation with non-party States can be addressed with creation of a Select Committee of ICC State Party Representatives to engage politically with both non-party States and non-cooperative or withdrawing States Parties.

The fact that a significant number of major powers are not party to the Rome Statute of the International Criminal Court (ICC) may reflect not only the realities of global politics and military might, but also a failure to communicate. Although I write as an outsider, there appears to be no systemic means by which the States Parties of the Rome Statute engage in important dialogue with non-party States. Rather, there are ad hoc encounters by ICC officials, particularly the Prosecutor when she needs the cooperation of a non-party State. ICC judges may visit such countries as the United States and China frequently, but the judges are understandably constrained in what they can discuss and describe about the Court. There is some interaction between the State Party and non-party officials and scholars at academic conferences about the ICC, but there is little discernible progress towards broadening the Court’s membership.

It is not all that surprising that achieving universality of the Rome Statute has stalled among the non-party powers while even expansion among less powerful nations seems to have hit a wall. The Prosecutor’s application to the Pre-Trial Chamber on Afghanistan1 and preliminary examination of the Palestine situation2 are potential firestorms in Washington that may ignite any day there are decisions pertaining to those matters, starting with a tweet from President Donald Trump. Russia drew further distant with its “de-signing” of the Rome Statute3 in November 2016 after its annexation of Crimea4 and the commencement of the Ukraine preliminary examination.5 China remains absent from the ICC world while exercising growing influence in East Asia and Africa, in particular. Such other nations as Pakistan, Indonesia, Ethiopia, Rwanda, India, Turkey, Thailand, Vietnam, and Saudi Arabia (as well as most of the Arab world) remain outside of the ICC and show no prospect of joining anytime soon. Indeed, the withdrawal of Burundi6 and announced withdrawal of the Philippines,7 as well as continued concerns about South Africa’s future status with the Court,8 are decreasing the membership count and point to a political dilemma in search of a realistic solution (or at least attempt at one).

Granted, officials of the ICC have been working tirelessly to seek cooperation from States Parties and non-party States and to achieve universal membership for the Court. But there needs to be additional capacity-building to communicate most effectively with non-party States and with those States Parties that knock on the withdrawal door or block critical cooperation with the Prosecutor, in particular.

I propose that there be created a “Select Committee of ICC State Party Representatives” that would fulfill the critical function of communicating directly with non-party States and imminent break-away States Parties, as well as non-cooperating States Parties, to achieve the Court’s membership, investigative, prosecutorial, and enforcement objectives. The Select Committee would be elected every two years (maximum four year terms) by the Assembly of States Parties and would be comprised of, say, twenty States Parties whose senior foreign ministry and justice ministry officials and members of parliament would be on standby to convene and travel to relevant capitals for the purpose of engaging in dialogue with their counterparts in countries that are of interest and concern to the Court. The membership of the Select Committee would be subject to the will of the Assembly of States Parties, but there would be guidelines on the selection of committed governments and senior and knowledgeable officials and lawmakers to populate the Select Committee.

Sluiter Avatar Image Göran Sluiter, Ph.D. Professor in International Criminal Law University of Amsterdam, The Netherlands

Key Reforms for the Next Decade of the ICC—Towards a Stronger Judicial Role in the Investigations and a More Robust System of Enforcing State Cooperation

The two biggest threats to the effective functioning of the ICC are (1) interference with witnesses and (2) states which refuse to cooperate with the Court. This comment argues for reforms that could assist in addressing these problems.

Summary

The two biggest threats to the effective functioning of the ICC are (1) interference with witnesses and (2) states which refuse to cooperate with the Court. This comment argues for reforms that could assist in addressing these problems.

It is argued that interference with witnesses finds its root causes in lengthy investigations and a non-objective, partisan approach to investigations. Giving the judge in the Pre-Trial Chamber a stronger role in the pre-trial investigations may assist in reducing the instances of witness interference. Article 57(3)(c) of the Statute offers the necessary basis for the Pre-Trial Chamber to take on this role and is flexible enough to ensure that a more active judicial involvement in investigations is only done when the circumstances of a particular case so require.

In regards to non-cooperation, the conclusion is that, until now, the approach in the case law of the Court and in the Assembly of States Parties (ASP) has been quite disappointing. In the interest of taking cooperation seriously, it is advised that all findings of non-compliance under Article 87(7) of the Statute are automatically referred to the ASP. In addition, the ASP should develop more robust reactions against non-cooperative states. Sanctions, such as taking away the right to vote for some time, or an increase in the annual contribution, should be available and should be proportionate to the harm done to the effective functioning of the Court. Otherwise, for some states-parties, non-cooperation may become “business as usual.”

Argument

All supporters of the ICC are keen on working on a more effective and stronger international criminal justice system. I am therefore happy to contribute to this particular topic of UCLA’s highly valued Human Rights and International Criminal Law Online Forum.

In the limited space available to me, I will concentrate on what I consider to be the two biggest threats at present to the effective functioning of the ICC. These are:

  1. The quality of fact-finding, especially the problem of interference with witnesses;

  2. The non-cooperation by states.