4/2008 Content

83 (2008) 4: The Rome Statute (ICC) – 10 Years

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‘O Brave New World’: The Role of the Prosecutor of the International Criminal Court
William A. Schabas

By comparison with his predecessors at Nuremberg, or at the ad hoc Tribunals established by the United Nations for the former Yugoslavia and Rwanda, the Prosecutor of the International Criminal Court (ICC) has a broad discretion in his selection of cases. The twelve arrest warrants that he has obtained to date, the pending application for an arrest warrant against the President of Sudan, and the public explanations for decisions to proceed in Iraq and Venezuela, provide insight into the Prosecutor’s approach. He has emphasised the importance of ‘gravity’, with a focus both on leadership and on the number of victims. But with the exception of Sudan, he has targeted rebel groups rather than government agents, suggesting that old critiques that international prosecution amounts to ‘victor’s justice’ may still have validity. Despite the formal independence of the Prosecutor of the ICC, political factors and considerations do not seem to have been eliminated.

The relationship between the International Criminal Court and ad hoc criminal tribunals: competition or symbiosis?
Erika de Wet

The author discusses the extent to which there is a (potential) jurisdictional overlap between the International Criminal Court (ICC) and the various international and hybrid ad hoc criminal tribunals that have been set up since the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993. In as far as the ICTY is concerned, any potential jurisdictional overlap could be resolved through Article 16 of the Rome Statute or Article 103 UN Charter. Vis-à-vis the hybrid tribunals, any jurisdictional disputes with the ICC can be resolved through a teleological interpretation of Article 17 Rome Statute, whereby hybrid tribunals are regarded as “domestic courts”. Moreover, this would result in a division of labour comparable to that in effect between the ICTY and the War Crimes Chamber in Bosnia & Herzegovina. The Special Tribunal for Kenya, envisioned in the Waki Report may serve as a first test in determining how such a symbiotic relationship would take effect.

Complementarity: Ensuring compliance with international law though criminal prosecutions – whose responsibility?
Michael Bothe

Since the time during World War I when the idea to use criminal law as a sanction for the violation of fundamental norms came up, a controversy has been going on about who should prosecute the perpetrators. With the establishment of international tribunals in the early 1990s, the question of concurrent jurisdiction arose in the relation between such tribunals and the country of the perpetrator, and in that between the international court and the courts of any other country having jurisdiction. Therefore, the article examines the principle of complementarity. As a central piece of the compromise which facilitated the adoption of the Rome Statute, it provides a differentiated solution of the problem of concurrent jurisdiction: On the one hand, it strikes a balance between the interest of the international community to have violations of its fundamental values prosecuted, and the sovereignty interest of States not to become the object of intrusive interventions by that community. On the other, it makes it difficult for a State to get way with inaction.

International criminal law as global governance
Christoph Burchard

The jurisprudential analysis of international criminal law in general and of the International Criminal Court in particular still focuses on the international prosecution of international atrocities. This may well be too hasty a transcription of national paradigms to the international level, since the other objectives, rationales and effects of the multi level system international criminal law might too easily be forgotten. Refocusing on them, this article draws on global governance-theory to systematize and theorize them. As will be shown: International Criminal Law is global governance. Together with its institutions it evaluates, corrects and sanctions governance deficits and failures of national criminal justice systems.