1st Edition
The Future of the International Criminal Court Reform, Consensus, and Relations with the USA
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
Bibliography
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
Conclusion
Bibliography
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
Bibliography
4 Competing Visions of Global Order, the Court, and International Crimes
Introduction
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?
Bibliography
5 Mechanics for Rescuing the Court: Toward a "Pragmatist Realist" VisionIntroduction
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
Conclusion
Bibliography
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
Bibliography
Biography
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
