1st Edition

The Future of the International Criminal Court Reform, Consensus, and Relations with the USA

By Iseghohime Daniel Ehighalua Copyright 2023
    264 Pages 3 B/W Illustrations
    by Routledge

    This book presents the argument that solution-driven policy and treaty changes, if faithfully implemented, will rekindle the relevance of the International Criminal Court (ICC) in combatting and prosecuting atrocity crimes. This work examines how the International Criminal Court could be re-envisioned to perform optimally, and why such reform is urgent. It also discusses the position of the USA towards the court and explores why it has been unable to transition from marginal engagement to full spectrum support by signing and ratifying the Rome Treaty 1998. The conceptual frameworks deployed range from how the US construes its ‘national interest’ to geo-political balancing and the present rudderless state of the rules order, in addition to the personal predilections of US Presidents and the Court’s dysfunctional state. The objective is to show that if the ICC does not engender reforms internally, it will not survive the fissiparous tendencies innate in the presently fractured rules order. The work argues that only foundational reforms around treaty amendments along with institutional realignment of roles and responsibilities of the Court’s principal officers will yet rescue it. The book will be of interest to researchers, academics and policy-makers working in the areas of International Criminal Law and International Relations.

    1 The Establishment of the International Criminal Court: Prospects, Challenges, and Tensions

    Introductory Background

    Framing the Research: Identifying the Gaps and Problem Statement

    Norms: Formation, Duration, Consolidation, and Internalization

    Is the Rules-Based Order Constraining the Court?

    Theoretical and Conceptual Framework

    Scoping the Book

    Critical Questions: Legal Propositions and Factual Arguments

    Framing and Negotiating U.S. Decision Regarding the Court: National v. Vital Interest

    Interrogating the Fate of the Court and its Impact

    Competing Visions of Global Order

    Reviewing the Literature

    Is the Vision still Realizable?

    The Literature on the Court’s Survival

    The Problematics of the U.S. Relationship with the Court

    Sovereignty, Non-intervention, and the Modern Nation-State

    Political and Constitutional Sovereignty

    "America Firstism"

    United States’ Broad Aversion to International Law

    Concluding Thoughts on the Relationship

    A Synopsis of the Issues: Positionality Statement


    2 How History and Geopolitics Shape the Formation of International Courts

    Introductory Overview

    Why History Matters

    The Primacy of Building Political Consensus among Major Powers

    Legal Framework: The Rome Statute 1998

    Current Institutional Design and Organizational Structure

    Assembly of States Parties – ASP (The Assembly)

    The Chambers and the Prosecutor: Overlapping Authority?

    The Chambers and Presidency

    The Office of the Prosecutor – OTP

    The Trust Fund for Victims

    The Rome Conference: Was an Alternative Treaty Regime Feasible?

    Between the Prosecutor, UNSC, and the Chambers: Working at Cross Purposes?

    Admissibility Test: Complementarity and the Gravity Threshold

    Waiver of Immunity and Irrelevance of Official Capacity



    3 Between the Court’s Performance and U.S. Hostility: Will the Court Survive?

    General Overview

    Constructing National or Vital Interests: A Framework for Understanding the U.S. Position

    Appraising Bill Clinton’s Engagement Strategy

    George Bush II: Confrontation and Roll-back

    Barack Obama’s Re-engagement Strategy

    Trump’s Belligerence and "Principled Realism"

    Does it Matter if the United States Continues to Remain at the Margins?

    Bringing it all Together

    Domestication: U.S. Executive and Congressional Procedures

    A Vision Unmatched by Performance

    Legal Metrics

    A Range of Non-legal Metrics

    How Funding Shape Perceptions

    Staffing: Dearth and Quality

    Perception as Realities

    Pining for Regional Courts

    Geopolitics and National Interest: A Balancing Act

    Reconciling National Interests Writ Large

    Africa’s Geopolitical Question: Perceptions of Justice

    Closing Summary


    4 Competing Visions of Global Order, the Court, and International Crimes


    The Way the World Works or Should Work

    The United Nations System and International Crimes

    Variations in Global Order

    Polarizing the World

    Unipolarity, Bipolarity, and Multipolarity

    A Multiplex World

    Global Concert Model

    Regional Worlds Model

    Conclusion: What Comes Next?

    Will a New Court Cut it?


    5 Mechanics for Rescuing the Court: Toward a "Pragmatist Realist" Vision


    Norms: Defiance and Hierarchy

    Defining Norms

    Typology of Norms

    Peremptory Norms or Jus Cogens

    Defying the Statute, Resisting the Court

    A Grotian Moment?

    A New Institutional Design

    Reforms and Recommendations

    The Office of the Prosecutor and Seven Deputy Prosecutors

    A Rule of Law Prosecutor

    Why Regionalizing the Prosecutor’s Office Matters

    Legal Pluralism: Incorporating Local Justice Initiatives

    Redrawing Boundaries: The Prosecutor and Chambers

    Reviewing the Politico-Strategic Decisions

    Enlarging the Political Role of the ASP/President: Why it Matters

    Amending the Statute: Reworking Policies and Strategies

    Part 2 of the Statute

    Part 3 of the Statute

    Part 4 of the Statute

    Part 5 of the Statute

    Part 9 of the Statute



    6 Reforming the International Criminal Court, Building Consensus, and Resolving the Survival Question

    A Synopsis of the Hypothesis

    On Re-envisioning the Court

    U.S. Continued Engagement at the Margins: What it Forebodes and Why it Matters

    Tangential Hypothesis



    Dr Iseghohime Daniel Ehighalua is a Human Rights lawyer. His research interests include international human rights law, international criminal law, justice sector reform and good governance. He is a former Secretary of the Nigerian Coalition for the International Criminal Court.

    "US hostility and overfocus on Africa have undermined the International Criminal Court. Dr. Ehighalua’s The Future of the International Criminal Court sees a deeper problem, the breakdown of the US-led global order, and shows how the Court could regain its footing."

    Dr. David C. Unger, former Editorial Writer, The New York Times

    "Dr Ehighalua has written a deeply thought out, very well-researched, well-developed and in-depth work on the international criminal court, and the prospects for its survival in our emergent global order. One does not have to agree with its substantive arguments and conclusions to come to this realization. The book is simply a must read for any scholar or practitioner interested in international criminal law, and indeed general international law."

    Professor Obiora C. Okafor, UN Independent Expert on Human Rights and International Solidarity; Johns Hopkins University, SAIS, Washington DC