No Way Out? The Question of Unilateral Withdrawals of Referrals to the ICC and Other Human Rights Courts

33 Pages Posted: 26 Aug 2008 Last revised: 24 Sep 2008

See all articles by Michael P. Scharf

Michael P. Scharf

Case Western Reserve University School of Law

Patrick Dowd

Case Western Reserve University School of Law

Date Written: August 1, 2008

Abstract

Growing out of the authors' work for the International Criminal Court, which was sponsored by a grant from the Open Society Institute, No Way Out examines one of the most vexing legal questions facing the International Criminal Court - whether a State that has referred a case to the Court can subsequently withdraw its referral as part of a domestic peace agreement? The issue has arisen with respect to Uganda's interest in withdrawing its self-referral as part of a peace deal with the leaders of the Lord's Resistance Army. This article examines the Rome Statute, the drafting history, and the expert commentaries, together with the statutory and case law of the other major human rights courts and bodies, and the Vienna Convention on the Law of Treaties, in an effort to provide a comprehensive analysis of whether a State Party can lawfully withdraw a referral from the ICC. The authors concludes that the only situation in which a unilateral withdrawal of a referral should be deemed legitimate is when it occurs during the narrow temporal window between when a referral is made to the Court and when the Court actually exercises its jurisdiction over that case by launching an investigation and providing notice to all interested parties. The research and analysis contained in the article is also relevant to the more general question of whether States can withdraw their referrals to human rights bodies such as the European Court of Human Rights and the Inter-American Court of Human Rights.

Keywords: International Criminal Court, Rome Statute, Uganda, European Court of Human Rights, Inter-American Court of Human Rights, Procedure, Peace Negotiations

JEL Classification: K14, K33, K41, K49

Suggested Citation

Scharf, Michael P. and Dowd, Patrick, No Way Out? The Question of Unilateral Withdrawals of Referrals to the ICC and Other Human Rights Courts (August 1, 2008). Case Legal Studies Research Paper No. 08-21. Available at SSRN: https://ssrn.com/abstract=1240802 or http://dx.doi.org/10.2139/ssrn.1240802

Michael P. Scharf (Contact Author)

Case Western Reserve University School of Law ( email )

Case Western Reserve University, School of Law
11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-3299 (Phone)
216-368-2086 (Fax)

Patrick Dowd

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States

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