The Law and Practice of the International Criminal Court

The Law and Practice of the International Criminal Court

The Law and Practice of the International Criminal Court

The Law and Practice of the International Criminal Court

Synopsis

The International Criminal Court is a controversial and important body within international law; one that is significantly growing in importance, particularly as other international criminal tribunals close down. After a decade of Court practice, this book takes stock of the activities of the International Criminal Court, identifying the key issues in need of re-thinking or potential reform. It provides a systematic and in-depth thematic account of the law and practice of the Court, including its changes context, the challenges it faces, and its overall contribution to international criminal law. The book is written by over forty leading practitioners and scholars from both inside and outside the Court. They provide an unparalleled insight into the Court as an institution, its jurisprudence, the impact of its activities, and its future development. The work addresses the ways in which the practice of the International Criminal Court has emerged, and identifies ways in which this practice could be refined or improved in future cases. The book is organised along six key themes: (i) the context of International Criminal Court investigations and prosecutions; (ii) the relationship of the Court to domestic jurisdictions; (iii) prosecutorial policy and practice; (iv) the applicable law; (v) fairness and expeditiousness of proceedings; and (vi) its impact and lessons learned. It shows the ways in which the Court has offered fresh perspectives on the theorization and conception of crimes, charges and individual criminal responsibility. It examines the procedural framework of the Court, including the functioning of different stages of proceedings. The Court's decisions have significant repercussions: on domestic law, criminal theory, and the law of other international courts and tribunals. In this context, the book assesses the extent to which specific approaches and assumptions, both positive and negative, regarding the potential impact of the Court are in need of re-thinking. This book will be essential reading for practitioners, scholars, and students of international criminal law.

Excerpt

He Judge Sang-Hyun Song President, International criminal court, 2009–2015

When the first judges of the International Criminal Court (ICC) met in March 2003 after their inauguration, a first fundamental task lay ahead with the drafting of the Regulations of the Court. We initially struggled to overcome the differences of our legal traditions while applying the provisions of the Rome Statute for the first time in practice. However, guided by the spirit of compromise and a common objective in mind, only one year later, during the fifth plenary session in 2004, we adopted the Regulations, and States Parties accepted them in accordance with Article 52 of the Rome Statute. Over the years, we have successfully overcome countless legal obstacles and found suitable solutions—through amendments of the law or through practice—always safeguarding the fairness and integrity of the proceedings. As a result, today the Court looks back at a large body of jurisprudence on a variety of fundamental legal issues, paving the way for a smoother second decade of the ICC’s proceedings. This book bears testimony of these achievements to date.

In the current geopolitical context, the Court has managed to stand its ground as a well-accepted international organization. Since its creation in 1998, the ICC has exceeded expectations in many ways. It came into being much faster than expected—less than four years after the adoption of the Rome Statute. It has not only survived but thrived with States Parties—despite early opposition by some powerful countries which sought to discredit it. The fact that, to date, four countries have referred situations on their own territory to the ICC shows the confidence States have in the Court. The first referral of a situation by the Security Council, namely the Darfur situation in 2005, also exceeded expectations, as many observers thought the United States would veto any Security Council effort to refer a situation to the ICC. The second, unanimous referral of the Libya situation in 2011 fostered international confidence in the ICC. Finally, every d hoc acceptance of the Court’s jurisdiction, including by Ukraine, demonstrates States’ growing confidence in the Court, often followed by an accession to the Rome Statute system. This, in turn, marks an important step towards a universal coverage of jurisdiction and thus a comprehensive protective system for victims of mass violence.

After the first seven years of the Court’s operations, the Review Conference in Kampala in 2010 marked another important step in the ICC’s development. By way of yet another small revolution after the adoption of the Rome Statute itself, the ICC’s Assembly of States Parties agreed on a definition for the crime of aggression and the conditions under which the Court could exercise jurisdiction with respect to this crime, setting an important contribution to the Court’s role in solidifying the corpus of international criminal law. It is my sincere hope that in 2017 we will see the final adoption and acceptance of these amendments in the Rome Statute, activating the fourth of the Rome Statute’s core crimes.

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