Norm Contestation, Sovereignty and (Ir)responsibility at the International Criminal Court by Emanuela Piccolo Koskimies

Author:Emanuela Piccolo Koskimies
Language: eng
Format: epub
ISBN: 9783030859343
Publisher: Springer International Publishing

3.4 Conclusions: The Untenability of Pure Legalism

The first part of the chapter has drawn attention to the Court’s dependence on the elective involvement of sovereign states to (establish and) accept its jurisdiction and to give it access to the resources and tools, which are needed to achieve successful investigations and prosecutions, chiefly financial resources and state cooperation. It has, hence, concluded that albeit the Rome Statute strives to bring about a paradigm shift in the normative fabric of international society, it does so while relying on a largely unchanged structure (Rodman 2014, 440), that is, by placing some of its major functions at the disposal of states’ processes and decisions (Broomhall 2004 151). The second part turned to the mechanism underlying the selection of situations and cases before the ICC. This has shown that, no matter how prosecutorial decision-making unmarred by pragmatic, strategic, and political considerations may sound appealing, such a perspective unduly simplifies what is at stake. In fact, statutory loopholes and uncertainties not only leave several pivotal questions unsettled in the first place but also leave unanswered complex ‘questions of institutional strategy and policy, if not politics as such’ (Goldston 2010, 402), which inevitably arise when selecting both situations (either proprio motu or through referral) and cases. Indeed, the OTP itself has publicly acknowledged that the effectiveness of the institution depends on ‘external critical resources factors’, such as cooperation and external relations, resources, and security (OTP 2015, para. 37). Furthermore, focusing on cooperation, the Office has conceded that the latter requires an ‘alignment of interests’ (OTP 2013a, para. 65) between partners, and even admitted that the Office will prioritize those cases in which it can conduct an effective and successful investigation, leading to a prosecution with good prospects of conviction (OTP 2016, paras. 23, 51, 53). The OTP’s own statements thus describe a Court that is itself more or less ‘willing’ and ‘able’ to investigate and prosecute depending on considerations of feasibility and political opportunity.

All these things considered, it may be concluded that the statutory provisions regulating the selection of situations and cases sit at the crossroads between the ‘idealistic vision of a global court designed to prosecute the cases that domestic jurisdictions cannot or will not prosecute’ (Clark 2008, 39), and the pragmatic—when not plainly political—constraints of an institution placed in the pressing need to enlist state power to its cause (Mégret 2013, 34). At the end of the Rome Conference, Kirsch and Holmes sought to warn us about the Rome Statute ending up sheltering the very perpetrators of the crimes it is meant to sanction (Kirsch and Holmes 1999, 12). The following chapter shows that this warning has, in some important respects, become reality.

Acknowledgements

I wish to thank, in particular, Kevin Jon Heller, William Schabas, and Jason Ralph for their generous feedback on earlier drafts of this chapter.

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