The Future of the International Criminal Court

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.

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" Vision

Introduction

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