What follows is an overview of the proposal to break down the ICC into ‘regional circuit chambers’ and of the procedures which will be required to materialize it.

This proposal, which is based on the circuits (districts) existing in the federal court system of the USA, takes stock of Article 39(2) of the Rome Statute. It stipulates that the ICC’s judicial functions shall be carried out by Chambers and that the simultaneous constitution of more Chambers is not precluded, if so required by the efficient management of the workload. Each ICC regional circuit chamber would correspond and be responsible for alleged crimes committed in the territory of the contracting parties belonging to a specific continent (for purposes of convenience, Oceana will be part of the Asian circuit). Each ICC regional circuit chamber would follow the current ICC institutional structure, i.e. it would comprise a Pre-Trial Chamber, a Trial Chamber, an Office of the Prosecutor, and a Registry. Its seat would be in the territory of one the contracting parties in the respective continent, while its judges, the Prosecutor, and the Registrar would also have to be nationals of the contracting parties of that continent. According to Article 36 of the Rome Statute, the ICC has a bench of 18 judges. As this number would probably prove to be inadequate (one of them would have to serve as President), the Article 36(2), the provision on simplified amendment of the Rome Statute, would be followed to allow for a sufficiently large bench. Thus, pursuant to Article 36(2)(b), the proposal to augment the number of judges will be considered adopted, if approved by a two thirds majority in the ASP. The relevant decision may enter into force immediately after securing this majority.

Each ICC regional circuit chamber’s Prosecutor would have the rank of deputy Prosecutor. Article 42(2) of the Rome Statute does not lay down the number of deputy Prosecutors (currently there is only one) and, consequently, there is no need to amend it. As deputy Prosecutors are entitled to carry out any of the acts required of the Prosecutor under the Rome Statute, there would appear to be no obstacles to perform all prosecutorial duties at the level of each ICC regional circuit chamber. Finally, as far as the ICC itself is concerned, it would play the role of a ‘supreme court’ hearing appeals, cases of importance referred to it by one of the regional circuit chambers and solving any instances of concurrent jurisdiction among them.

The required amendments to the Rome Statute to allow the setting up of the regional circuit chambers would be based on Article 122 thereof, which deals specifically with changes of an exclusively institutional nature. A single contracting party may propose them. They would then have to be accepted by consensus, failing which, the ASP or a Review Conference must adopt them by a two-thirds majority of all contracting parties. Under Article 122(2), amendments shall come into force six months after their adoption (i.e. there exists no separate ratification process at the domestic level of contracting parties) and will become binding on all of them, meaning that those which disagreed must follow the wishes of the majority.

As regards the principle of complementarity, which applies to the ICC’s operation, the regional circuit chambers would also be bound by it. It could be counter-argued that the setting up of ICC regional circuit chambers presupposes that all states of the world have already become contracting parties to the Rome Statute. Since the ICC has not yet achieved universality, this proposal is unattainable. True as this submission is, there is no doubt that presently the ICC constitutes a self-contained transnational regime with its own decision-making body (the ASP), where almost 65% of the UN membership participates. This allows the ICC to claim a considerable degree of legitimacy as the principal international criminal justice institution, able and willing to act when no domestic criminal court can address the commission of very serious international crimes.

This proposal aims at offering a (at least theoretical) proposition to ensure that the ICC is more user friendly (if this term could be used) and adapts to the developing needs of its contracting parties, and of the world community at large. For example, the regional circuit chamber for Africa would be tasked with investigating, prosecuting and holding trials for qualifying criminal behaviour allegedly committed within the territory of African contracting parties and of those which may accede to the Rome Statute in the future. Moreover, being regional in nature and in scope, it would be able to take into consideration African custom, legal traditions, societal values, and rituals, provided that they are not in conflict with peremptory rules of international law, including the negation of slavery, the total prohibition of human trafficking and similar practices, the full equality among all people (including men and women), etc.

The application of regional ethics, practices and conventions should remove the bias held apparently by many that the ICC operates to promote Western domination. But this cultural relativism, welcomed as it might be, should also have its limits. The new role of the ICC, as akin to a ‘supreme court’, would, inter alia, focus on safeguarding that similar situations are not treated dissimilarly by regional circuit chambers, while the invocation of regional traditions and norms would not a priori be treated as grounds for mitigation. Indeed, Article 21(1)© of the Rome Statute, titled ‘Applicable law’, permits the ICC to take into consideration and apply, inter alia, general principles of law deriving from the domestic legal system of contracting parties, “provided that those principles are not inconsistent with [the ICC] Statute and with international law and internationally recognized norms and standards”.

As mentioned in the beginning of this Comment, there exists a sizable number of ICC contracting parties which are refusing, either expressly or through deliberate inaction, to comply with their obligation to cooperate with the Court, to execute the arrest warrants issued, etc. This is a reality and apparently there are no easy solutions: the ASP does (almost) absolutely nothing to address it (as a political organ it is usually lost in politics) and in those cases where the UNSC might have done something (namely, Darfur and Libya) the Prosecutors’ pleas for prompt and decisive action fall on deaf ears. And we all know how indifferent the UNSC can be to pleas for deeds.

The question, therefore, arises how the ICC could by itself respond pro-actively to this challenge. The obvious reaction, namely to adopt yet another decision registering the non-compliance of contracting party X, Y or Z, to inform the ASP and (if applicable) the UNSC as well and ask them to take specific measures against the recalcitrant parties, have been tried and failed. My suggestion will be for ICC, especially in cases of repeated non-compliance leading to more crimes being committed, to impose monetary sanctions (fines) against such parties. All proceeds from those fines will be made available to the Trust Fund of Victims.

For this proposition I have particularly in mind the ability of the European Court of Justice to inflict fines when an EU Member State has not complied with a previous Court judgment.

Assuming that this proposition does not require an amendment of the Rome Statute, but it could be added to the Court Rules of Procedure and Evidence, I would further argue that Article 51(3) of the Rome Statute might apply. It reads as follows: “After the adoption of the Rules of Procedure and Evidence, in urgent cases where the Rules do not provide for a specific situation before the Court, the judges may, by a two-thirds majority, draw up provisional Rules to be applied until adopted, amended or rejected at the next ordinary or special session of the Assembly of States Parties”. Thus, considering that a broad interpretation would suggest that a contracting party’s non-compliance with an obligation or with a duty constitutes an “urgent case”, effectively this would be and could be treated as a specific situation not provided for in the Rules. Why it is an “urgent case” should not be difficult to be justified, for example it could be argued with persuasion that the ICC’s effectiveness is compromised. Should this construction stand, the bench should be able, acting on a two-thirds majority, to draw up provisional Rules to be applied until they are adopted, amended or rejected at the next ASP session.

Even if the ASP does nothing to deal with the pro-active stance taken by the Court, at least the Court would have recorded its willingness to do something about what it considers to be recalcitrant parties. I believe that now more than ever in the past the Court should show its teeth before it becomes an atrophic multilateral institution, which million upon millions of people have come to associate with the opposite of evil .