Contemporary Issues Facing the International Criminal Court

Copyright

Contents

Acknowledgements

Foreword

Preface

Contributors

Abbreviations

Part 1: Jurisdiction: The 2008–2009 Gaza Issue

Introduction to Part 1

1 No Jurisdictional Basis for an Investigation Pursuant to the Palestinian Declaration

2 Press Releases, Not Arrest Warrants: Interpreting the icc Prosecutor’s Moves in Relation to the Gaza Situation

3 Palestine and the International Criminal Court: Asking the Right Question

4 Palestine is a State so the Consent Declaration is a Valid Basis for Investigation by the ICC

5 The ICC Should Not Accept the Palestinian Declaration as that of a State

Part 2: Obligation to Arrest: The Darfur Issue

6 The Impact of the Genocide Convention on the Obligation to Implement ICC Arrest Warrants

7 Head of State Immunity as a Bar to Arrest

8 Closing the “Impunity Gap” and the Role of State Support of the ICC

9 State Obligations in Implementing Arrest Warrants

10 State “Cooperation Issues” in Arresting Al Bashir

Part 3: The Oversight Issue

Introduction to Part 3

11 The Proposed Independent Oversight Mechanism for the International Criminal Court

12 The Independent Oversight Mechanism Does Not Have Authority to Investigate and Decide Alleged Misconduct by Staff in the Office of the Prosecutor

13 The Role of the Assembly of States Parties for the ICC

14 Establishing a Transparent and Effective Oversight Machinery and the Need for Constructive Dialogue between the Assembly, Court Officials, and Civil Society

15 A Reasonable Request: Requiring Prosecutor Authorization Prior to Any Investigation by the Independent Oversight Mechanism

Part 4: Deterrence: The Prevention Issue

Introduction to Part 4

16 The ICC Would Increase Its Prevention Ability If the Prosecutor’s Discretion were More Visibly Limited

17 The Court Should Avoid all Considerations of Deterrence and Instead Focus on Creating a Credible and Legitimate Normative Environment in Which Serious Crimes are Not Tolerated

18 Maximizing the icc’s Crime Prevention Impact Through Positive Complementarity and Hard-Nosed Diplomac

19 The Crime Prevention Potential of the International Criminal Court Depends Upon its Credibility and the Support it Receives from Governments and Especially those of States Parties to the Rome Treaty

20 Maximizing Opportunities to Deter Further Atrocity Crimes

Part 5: The Reparations Issue

Introduction to to Part 5

21 Victims’ Rights and Participation in ICC Proceedings and in Emerging Customary International Law

22 The icc Should Avoid Paternalistic or Bureaucratic Approaches to Determining Victims’ Needs and Wants and Should Award Reparations to Promote Victims’ Dignity and Agency

23 Reparations in the Wake of Atrocities: A Plan for Encouraging Participation by Governments

24 Reparations before the ICC: The Need for Pragmatism and Creativity

25 A Minimalist Reparations Regime for the International Criminal Court

Part 6: Proof: The Mass Rape Issue

Introduction to Part 6

26 Can the ICC Sustain a Conviction for the Underlying Crime of Mass Rape without Testimony from Victims?

27 Cases of Mass Sexual Violence Can Be Proven without Direct Victim Testimony

28 The Use of Sample Survey Interviews as Evidence of Mass Rape

29 ICC Prosecution of Mass Rape Crimes Will Require some Evidence from Victims, but the Hardship of Testifying Can be Mitigated

Part 7: Bias? The Africa Issue

Introduction to Part 7

30 The Inevitable Practice of the Office of the Prosecutor

31 Why Africa?

32 Is the ICC Targeting Africa Inappropriately? A Moral, Legal, and Sociological Assessment

33 International Politics and Policy Considerations for the Inappropriate Targeting of Africa by the ICC OTP

34 The Institutional Framework of the Office of the Prosecutor, Legitimacy, and Overcoming Bias Allegations

35 Is the ICC’s Exclusively African Case Docket a Legitimate and Appropriate Intervention or an Unfair Targeting of Africans?

Part 8: The Arrest Issue

Introduction to Part 8

36 ICC Fugitives: The Need for Bespoke Solutions

37 Ramping Up Strategies for icc Arrests: A Few Lessons Learned

38 Some Reflections on Securing the Arrest of ICC Fugitives

39 Pollyannas Need Not Apply: International Justice is, to a Certain Extent, Political Justice

40 An Integrative Model for the ICC’s Enforcement of Arrest and Surrender Requests: Toward a More Political Court?

Index