Edited by Geert De Baere and Jan Wouters
Chapter 4: Constructing the International Criminal Court’s rule of law identity
Although the International Criminal Court (ICC) is a relatively new addition to the landscape of international justice, it has quickly become a tent-pole of the discourse on contemporary transitional justice. This is not terribly surprising, as the institution fills a long-standing accountability gap that has long been recognized to exist in post-conflict situations; one that has not been (and arguably, in the majority of cases, cannot be) adequately serviced by domestic courts. Indeed, more often than not, local institutions in the wake of violent conflicts rarely have the capacity or political support necessary to conduct unbiased criminal trials. Although states retain primacy to prosecute all cases where they are ‘willing and able’ to prosecute individuals for international crimes, a jurisdictional ordering principle known as ‘complementarity’ within the Rome Statute, the Court nevertheless retains agency to intervene where, in principle, the territorial state is incapable of doing so. This exceptional right granted to the ICC as a third party to perform what is quintessentially the duty of the state to administer its judicial and law enforcement systems uniquely positions the Court at the intersection between domestic and International Criminal Law (ICL) regimes when it comes to the prosecution of atrocity crimes. The ICC, in other words, has an additional responsibility to manage its complex relationship with national courts that hold concurrent authority to prosecute genocides, crimes against humanity and war crimes that take place under their jurisdiction.
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