Can the ICC function Without State Compliance?
Forthcoming, Margaret M. deGuzman & Valerie Oosterveld (eds.), The Elgar Companion to the International Criminal Court (2019)
48 Pages Posted: 28 Feb 2019
Date Written: January 17, 2019
What should the ICC do when it cannot rely on cooperation from the states that would ordinarily be best placed to assist it, such as the state(s) where the crimes occurred or whose nationals are the victims and/or perpetrators? Non-cooperation may arise from such state being unwilling to assist, for example because its agents are implicated in the crimes. Or the authorities may be unable to provide assistance due to insufficient control of territory, weak governance, or lack of means. In some areas, de facto cooperation and access to territory may be dependent on an opposing armed group, a separatist authority or a foreign occupying power – rendering the de jure authorities effectively ‘absent’. In other circumstances, the Court’s work may be interfered with by attempts to corruptly influence the judicial process. The ICC’s dilemma is made more complicated given its raison d'être to intervene where the national authorities have failed in their primary responsibility to investigate and prosecute. But how can it do this if any those same authorities cannot or will not assist it? Should the ICC decline to operate where it cannot rely on effective cooperation, but risk a persistence of impunity? Or should it endeavour even where cooperation prospects are not favourable, but risk institutional failure? In other words, can the ICC function without state compliance?
Keywords: international criminal law, international criminal court, international cooperation and judicial assistance, compliance
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