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Abstract from

The Chameleon Court: The Changing Face of the ICC

Michael A Newton is Professor of the Practice of Law, Vanderbilt University Law School

An International Criminal Court (ICC) that routinely overrides the good faith reasoning of domestic officials would inevitably face a crisis of confidence and cooperation. The practice of complementarity may well be the fulcrum supporting the Court’s long-term legitimacy; and this principle is all the more important because it is designed to provide intellectual leverage to move non-States Parties towards treaty accession. The early practice of the ICC, however, indicates that the model of a healthy and cooperative synergy between the Court and domestic states is in danger of being replaced by a model of competition. The plain text of art 1 compels the conclusion that the International Criminal Court was intended to supplement the foundation of domestic punishment for violations of international norms rather than supplant domestic prosecutions. The Statute curtails sovereign authority by displacing domestic trials only in exceptional circumstances, and includes detailed procedural guidance designed to balance sovereign enforcement against unreasonable extensions of ICC prosecutorial power. Such a healthy synergy is by no means assured, and could be completely undermined by any of three key developments discussed herein – (1) the erosion of established norms in favour of extension of legal principles that states do not support, (2) an aggressive erosion of complementarity in practice, or (3) excessive politicisation of charging decisions. If the Court habitually overrides the discretion of domestic officials and displaces their authority based on its own preferences or the expediency of political considerations, the entire premise of the complementarity principle will have been eviscerated. States Parties would be wise to address these disquieting signals.

(2009) 27 No 1 Law in Context 5

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