Is the International Criminal Court Focusing Too Much on Non-State Actors?

Abstract

One of the most significant contributions of Bill Schabas to the study of international criminal law is his critique of the tendency of contemporary international criminal justice to focus on individuals associated with non-state actors as opposed to states. The critique is both a jurisdictional and a substantive one. This chapter seeks to first evaluate it as an empirical claim to assess the degree to which the ICC has disproportionately focused on non-state actors, beyond the well known case of state self-referrals. It finds that, on the basis of various definitions of who stands as a non-state actor, the Court has indeed very significantly focused on non-state actors. The chapter then addresses the normative case against such a practice. It finds that at the substantive level it would be fighting a rearguard battle to claim that non-state actors cannot commit international crimes (with the exception of aggression), however unfortunate one may consider that development to have been. The real issue is jurisdictional and a matter of prosecutorial policy. The chapter is less concerned than Schabas about the evolution of international criminal justice away from an exclusive focus on sovereigns all other things being equal, but it does flag some evident distributive concerns. The conclusion envisages what it is that is common between states and certain armed groups that ought to give a particular character of gravity to their acts and recommend them for special attention from international criminal law.