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- suzgo: While I agree with the proposal by Prof Sluiter that the ASP must utilise its powers to sanction non cooperating states through the mechanisms provided for under article 112 of the statute, I still believe that for that to work the whole ICC framework on cooperation has to change. Prof Sluiter's proposal takes into account the challenges of cooperation by contracting States, leaving out non-contracting states. The Al Bashir cases have shown that non-contracting states to the Statute are also on... (more)
- Erin French: Delivering Justice in the Next Ten Years: The ICC and its Compatibility with Alternative Justice Mechanisms Introduction The International Criminal Court (ICC) is premised on the idea that there are universal wrongs that transcend sovereign borders, yet it has faced criticism for its narrow approach to delivering justice with a criminal trial. Critics argue international... (more)
- Cyprien Fluzin: Twenty Years After its Birth, it is Necessary for the International Criminal Court to Effectively Address Transnational Corporations’ Involvement in International Crimes Introduction The International Criminal Court will soon be celebrating the twentieth anniversary of the adoption of the Rome Statute on July 17, 1998. The creation of the Court was the result of a longstanding project, born in the aftermath of... (more)
- Morgan Thompson: Positive Complementarity will Advance the Objectives of International Justice more Effectively than ICC Prosecutions in The Hague. Introduction Positive complementarity will advance the objectives of international justice more effectively than International Criminal Court (ICC) prosecutions in The Hague. To maximize its effectiveness in the prevention of crimes, the ICC should encourage and assist States Parties to... (more)
- Nick Baltaxe: The ICC and Deterrence: How the ICC can Improve its Deterrence Efforts Through Creating More Realistic Threats of Enforcement Summary The Rome Statute’s Preamble sets forth goals that the ICC and its signatories have for the future. Although one of the primary goals is to ensure that the crimes under the ICC’s... (more)
- lgiles: The Future of Self-Referrals to the ICC: A Path to Greater Legitimacy with State Parties and the International Community As a consequence of complementarity the number of cases that reach the court should not be a measure of its efficiency. On the contrary, the absence of trials before this court, as a consequence of the regular functioning of national institutions, would be a major success.1—Luis Moreno Ocampo... (more)
- miltonlaw: The International Criminal Court and Positive Complementarity—ASP Institutional Framework Summary The literature of the law has been slow to develop and present the evolving themes of positive complementarity. This comment seeks to establish how the legal and institutional framework for positive complementarity may be effectively implemented. It is argued that the existing legal and institutional framework in respect of the... (more)
- Leeran: Preventive and Creative Outreach Programs in the International Criminal Court’s Future I. Introduction On July 17, 2018, the International Criminal Court (ICC) will celebrate its twentieth anniversary. Since its inception, the ICC has made substantial efforts to further its goal of providing justice to victims of horrible atrocities. The ICC operates based on the principle... (more)
- knturner1991: Lessons for the Future: Taking Proactive Complementarity Seriously As a consequence of complementarity, the number of cases that reach the Court should not be a measure of its efficiency. On the contrary, the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.1 The International Criminal Court (ICC) was created as a permanent institution with the explicit... (more)
- Daniel Aspinwall: Ten Years Hence I. Introduction Over the next ten years, the central battle for the International Criminal Court will be the battle for legitimacy. An institution is considered legitimate: [W]hen it is perceived as having the right or the authority to make decisions and when its decisions are viewed as worthy of respect or obedience.1 Unless a court possesses its own army,... (more)
Comment on the Anniversary Question: “In the Rome Statute’s third decade, what key reforms could make the international criminal justice project stronger, more efficient, and more effective?”
While I agree with the proposal by Prof Sluiter that the ASP must utilise its powers to sanction non cooperating states through the mechanisms provided for under article 112 of the statute, I still believe that for that to work the whole ICC framework on cooperation has to change.
Prof Sluiter's proposal takes into account the challenges of cooperation by contracting States, leaving out non-contracting states. The Al Bashir cases have shown that non-contracting states to the Statute are also on the forefront of non cooperation with decisions of the ICC.
My proposal would be that when looking at ways of dealing with non-cooperating states, any proposal for reform must be comprehensive enough to cover both contracting and non-contracting states to the statute. A framework that targets both contracting and non-contracting states can be possible if the decision to cooperate has the blessing of the UNSC, because it is those cases that involves non-contracting states that seem to be problematic.
Cooperation by States, in the case of Al Bashir, as Prof. Sluiter once argued, cannot easily work, as the model of cooperation that was established under that refferal did not impose an obligation on all states viz UN Member States. The request for cooperation was not clear and comprehensive enough to impose an obligation on all states. Lessons can be learnt from the weakness that have so far been experienced in referral of the situation in Sudan so that future cases are clear enough on the model of cooperation that will govern the prosecution of such a case.
If the fight against international crimes is to be successful, then there is need for the UNSC to establish a tight cooperation regime when referring situations to the court (like the model established under the ICTY and ICTR) so that, if states fail to comply, sanctions must follow. If it is a contracting state that fails to cooperate then the framework of the ASP may be used. If it is non-contracting states, then the UNSC would come in and impose sanctions. of course, another burning issue is whether sanctions, in themselves, are deterrent enough to compel states to cooperate?
My other proposal is that the Court must establish a framework on supervision of compliance, where it actively supervises how states implement its decisions. Lessons can be drawn from the process of supervision of compliance established under the Inter-American Court of Human Rights and the European Court of Human Rights. I will elaborate later.