The International Criminal Court of the Future
35 Pages Posted: 3 Feb 2023
Date Written: January 25, 2023
Abstract
This essays imagines the future of the International Criminal Court by exploring how the ICC has developed and evolved since its inception in 1998. The continued, albeit slow, growth in the number of States Parties evinces support for the Court’s mission; and while the Court faces a series of serious challenges, it appears to be addressing them methodically. The State referral mechanism has been a surprising success, while the Security Council has proven unreliable in referring situations to the Court, and the proprio motu mechanism has often been met with considerable backlash. The Court’s increasing caseload has strained its budget and a host of internal and external challenges led to the creation of an Independent Expert Review to evaluate its operations and recommend improvements. The Trust Fund for Victims is an important innovation of the Statute but needs additional resources to be truly effective; and the victims’ rights regime and reparations jurisprudence of the Rome Statute remain a work in progress. On the positive side, the Court’s status as a permanent institution working in peacetime has rendered crimes against humanity charges pivotal in virtually all the situations before the court, and enabled it to intervene earlier than post-hoc, ad hoc tribunals in atrocity cascades. The essay sets out some goals for the ICC of the future, including achieving progress towards universal ratification, addressing concerns regarding selectivity and double standards in referrals, and preserving the Rome consensus of 1998, including the importance of the equality of defendants before the law, the inapplicability of immunity for the commission of ICC crimes, and core understandings about the scope and nature of the ICC’s jurisdictional regime.
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