The international criminal court state cooperation regime : current controversies in historical and theoretical context

Abstract

The International Criminal Court (ICC) is the first permanent, international institution established to prosecute individuals who commit genocide, crimes against humanity, and war crimes. The treaty establishing the ICC - the Rome Statute - entered into force in 2002 and currently has more than 110 States Parties representing every geopolitical region of the world. One of the key challenges facing the ICC is securing State Cooperation with the Court's investigations and prosecutions, despite the clear obligation on States to provide such cooperation. Since all ICC trials must be held in the presence of the accused, with sufficient evidence before the Court to ascertain guilt beyond a reasonable doubt, and because the ICC does not have its own enforcement authorities, it is wholly dependent on State authorities to bring together most of the necessary elements for conducting fair and effective criminal trials. That challenge is the focus of this dissertation. Most analysis of the ICC State Cooperation regime suggests it is inevitable that the Court will face the same challenges as its predecessors, the International Criminal Tribunals for the Former Yugoslavia and Rwanda, both of which have struggled to secure State Cooperation with arrest warrants and other measures of enforcement.This dissertation highlights the complex legal, political, and historical dynamics of international criminal law enforcement more broadly, in order to identify the factors most likely to influence the success or failure of the ICC State Cooperation regime in years to come. The dissertation is current to 1 January 2010, and also takes into account some developments to 1 January 2012. The analysis draws upon insights from international law and international relations theories relevant to State compliance with international law and applies a theoretical framework based upon Harold Hongju Koh's 'transnational legal process' theory of international law compliance. According to Koh's theory, States are most likely to obey obligations that have been internalised domestically at the legal, political, and social level. This type of internalisation is achieved through a process of 'interactions' between States and other actors and institutions, leading to 'interpretations' of important norms through the adoption of new treaties, and 'interpretations' of existing norms by law-declaring fora such as UN bodies and courts. Non-State actors and media attention can also provide opportunities for 'interactions' where States may have to justify a particular legal interpretation or course of action. Ideally, in the process of engaging with all of these 'interactions' and 'interpretations', the interests and identity of a State are influenced such that the norms gradually permeate municipal institutions. This theoretical framework is applied to the history of international criminal law enforcement, in order to highlight the evolution and internalisation of the most significant norms that have helped to progress - or to stymie - the development of the 'international interests' that now provide the basis for the authority of the ICC. The dissertation concludes with an assessment as to whether the ICC is likely to be able to secure ongoing State Cooperation, given the complex picture of norm internalisation demonstrated through the analysis. - provided by Candidate.