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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?”
As I understand it, the Rome Statute established the International Criminal Court (‘the Court’) (Article 1) and gives the court international legal personality under which the Court is able to exercise power, as provided in this Statute, on the territory of any State (Article 4) . Relevant to this, and indeed pertinent towards any key reforms aimed at making the project of international criminal justice stronger, more efficient, and more effective, are the rules governing recognition of statehood and jurisdiction which are an integral part of international law.
Now a contentious matter of interpretation, the Montevideo Convention, Article 2, explains the state as a person in international law whereby, under Article 3, it is argued that ‘even before recognition the state has the right to defend its integrity and independence … and to define the jurisdiction and competence of its courts’. In defending their independence, many, if not the majority, of states have accepted the legal personality of, for example, Palestine and accordingly recognized Palestine with the rights determined by international law (the strong objections from Israel, noted).
Furthermore, regarding the effectiveness of the Court, Article 21 states that the ‘applicable law’ includes ‘applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict’ and ‘failing that general principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime’. This would suggest that the Court does not have any jurisdiction, and nor does it challenge or partake in challenges regarding, any determinations of statehood made by any states under the Rome Statute. The issue then, in regards to reforming towards greater legitimacy and effectiveness of the Court would perhaps regard the political disputes over material facts - such as statehood and jurisdiction – in which the soft power of the Court is strengthened even if only as a preliminary occurrence prior to any legal proceedings. Referring back to Article 21, I hope this comment has made evident that I argue in this debate from an international law and thus, politics, perspective. To expand, the Rome Statute is now as it was when it was ratified and written. A shortcoming of this, from an international law perspective, is that when issues that are contentious such as statehood and jurisdiction are brought to the Court and regard recognition (soft law) rather than strict legality (hard law), the reforms necessary to make the court more effective – as asks this forum – regards, then, the competence of the Court as an ILP. Here I believe we would turn to NGOs as well as the tools available to the politics of international law such as diplomacy, coalitions and, as this forum evidences, the use of public forums, social media and educational platforms to look at and review the functions and powers of the Court (under the Rome Statue) measured broadly by incidences of international justice progress and areas where they need be.