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This chapter examines the complex interplay between international judicial processes and peace. Johansen engages the debate on international judicial activism, evaluating specific cases, especially the International Criminal Court’s indictment of leaders of the Lord’s Resistance Army in Uganda. Judicial proceedings have complex consequences for a wide range of conflict issues, including negotiating ceasefires, deterring future crimes, and prospects for post-conflict reconciliation. The author proposes guidelines for employing judicial processes to promote an end to conflict, based on a utilitarian ethic that gives priority to saving as many lives as possible. The guidelines consider how to advance peace and justice not only through judicial proceedings, but also when judicial proceedings are suspended.

Rationalist or mainstream theories focus on the causal effects and functional properties of international law. One of the central problems of explaining the effectiveness of the ICC is that not all states can be expected to cooperate with the Office of the Prosecutor. While such uncertainty involves primarily the interests of non-State Parties, it is not entirely clear as to how territorial States Parties will seek to maximize their interests in their dealings with the Court. This chapter addresses this issue by focusing on the relationship between the institutional effectiveness of the ICC and the interests of State Parties. A key issue examined is the maximization of interests of these states vis-à-vis ICC prosecutorial discretion, and the problem that this raises for full cooperation. Employing a legalization framework, the chapter analyzes this issue in the context of the self-referral by the Democratic Republic of Congo (DRC). It argues that legalization theory, while limited in certain respects, offers an important analytical framework for examining the parameters or matrix of politicized justice.

This chapter introduces the twin-research question that stands central in the book: What is the aptitude of complementarity to supply the deficiencies of, and the likely impact of complementarity on, domestic suppression of ICC crimes? A brief outline of the book is also provided.

This chapter places complementarity into the broader context of allocating the respective competences of international and domestic courts and tribunals. It traces the emergence of complementarity in the negotiations leading up to the adoption of the Rome Statute. This drafting history reveals that the relationship between the ICC and national criminal jurisdictions was a recurring phenomenon of fundamental importance. Agreement was reached at an early stage on the generic idea that national suppression should be the first line of defence in the fight against impunity, while the Court should fill the gaps left by ineffective national criminal jurisdictions. Yet the details of regulating complementarity proved contentious. States regarded complementarity as the core avenue to reconcile their concerns about their sovereignty with the establishment of an international criminal court. The detailed rules on complementarity thus assumed a vital role in making the Statute as widely acceptable to States as possible.

This chapter addresses the question whether and to what extent the Statute obliges States to exercise their jurisdiction over ICC crimes. It concludes that the Statute imposes on States Parties, which have established jurisdiction that conforms to international law — an affirmative obligation to exercise their jurisdiction. That obligation is a uniform obligation applicable to all ICC crimes. Some doubt is expressed as to whether this essentially categorical obligation is entirely satisfactory. While it is a well-founded general rule, account should have been taken (or should be taken in the future) of the fact that there might be exceptions to that rule. However, the Statute fails to accommodate genuine alternatives to criminal prosecutions and does not set forth parameters, which could guide States in considering whether and under what conditions they may opt for mechanisms such as truth commissions, traditional forms of justice, and the exercise of prosecutorial discretion.

This chapter offers some conclusions. As to the question of the aptitude of complementarity to supply the deficiencies of domestic suppression of ICC crimes, the criteria for admissibility in the Statute will often enable the ICC to fill the void left by ineffective national criminal jurisdictions. In contrast, the procedural setting will not always be well-suited. More significantly still is to acknowledge the constraints, which make it impossible that all situations and cases, in which States prove ineffective, will in actual practice be addressed by the Court. Turning to the question of the impact of complementarity on national suppression, complementarity imposes a uniform obligation to investigate and prosecute, and increases the normativity of that obligation. Whether that increased normativity ultimately leads to actual national investigations and prosecutions will depend upon the underlying attitude of the State concerned. Equally significant will be whether the broader ICC community develops effective strategies to support domestic efforts to end impunity.

The United Nations lies at the centre of the international law enforcement system and its unique legitimacy, based on universal membership, also places it at the core of the global normative order. A gulf between law and legitimacy—a distinction popularized in the context of the North Atlantic Treaty Organization’s intervention in Kosovo in 1999—is a serious crisis-in-the-making for the United Nations, more so than commonly realized. The reason for the under‑estimation of the extent and gravity of the gap is that different segments of the international community have problems with different elements of the gap and fail to capture the several dimensions in their combined, cumulative effect. This is illustrated with respect to international law and international humanitarian law, sanctions, nuclear weapons, atrocity crimes and international interventions, international criminal justice, the Security Council, the UN–U.S. relationship, and UN integrity systems.

This chapter discusses the rights of the accused to appeal and revision as a means for obtaining redress — judicial and non-judicial remedies. It then talks about the right of the accused to appeal: from Nuremberg and Tokyo to the ad hoc Tribunals and the ICC. It clarifies that the right of convicted persons to revision is, generally, an extraordinary means of doing justice, particularly to known civil law systems, which constitutes an exception to the principle of res judicata. It adds that the right of revision has been explicitly provided for in the ICC Statute, which thus represents a development of international criminal procedure. It suggests that the ICC Statute not only contains procedural rules for the Court but, at the same time, represents a codification of rules on international criminal procedure.

Reliability is a basic requirement of scales, but it is frequently misunderstood. This chapter discusses what is meant by reliability; how it is defined conceptually and mathematically; why other terms, such as ‘accuracy’ and ‘precision’ are inadequate; and how it is assessed. Different types of reliability coefficients are presented, including Pearson's correlation, various forms of the intraclass correlation, and Cohen's kappa. The chapter also discusses the methods of reliability generalization.

The chapter challenges the idea that the ad hoc Tribunals and the ICC represent the ‘“progressive cosmopolitanisation” of international law’. Two interrelated arguments are made: first, the extended reach of legality, as it concerns limitations on the use of force in the international system, remains restricted by factors explained by classic conceptions of state sovereignty and state interests; and second, while instituting legal mechanisms to punish individual violations of international humanitarian law (IHL) challenges historically established norms regarding the way that states use force, constraints on the use of violence are best understood through ‘pluralist’ interpretations of the sovereign right to use force and the sovereign right of non-interference. Thus, while it is clear that new mechanisms of justice have increased the efficacy of IHL, the state remains the primary arbiter with regards to punishing violations of the laws of war

This chapter shows that the US has to date made significant efforts against a Court that could have even an extremely narrow jurisdiction over its nationals, seriously reducing the prospects for Security Council backing. It appears that ICC supporters have come to the conclusion that the institution will be viable without the support of the US, and that while US engagement would be an asset, no reasonable price for winning its support has been put forward. The judgement to date has been that while the ICC might be weaker without the US' involvement, it enjoys sufficient support not to fall victim to the same fate as the League of Nations, and that the legitimacy the ICC gains through maintaining the integrity of the State compensates for the loss of US backing.

This introductory chapter begins with a brief discussion of the developments that the international criminal law has undergone since the early 1990s and the movement to establish a permanent international criminal court (ICC). It then presents the central theme of this book, which is the tension, conflicting demands, and contradiction in the relationship between international criminal law and the international system. An overview of the subsequent chapters is presented.

This chapter examines how the principles of clarity and non-retroactivity have been brought to bear upon international criminal law, in particular in the negotiation of the Rome Statute of the ICC. It then treats the rationale that legitimates the intrusion of international criminal law into the otherwise sacrosanct domain of sovereignty. This rationale rests on two basic principles underlying the core of international criminal law: ‘international peace and security’ and ‘the collective conscience of humankind’.

This chapter finds in the basic features of the Rome Statute a balance between the needs of a credible system of justice and the desire to induce wide State support for the ICC. The real strengths in the definitions, general principles, and some of the mechanisms of the Rome Statute are tempered by the fact that the ultimate effectiveness of the Court remains in the hands of States, individually and collectively.

This chapter shows how the Rome Statute mechanisms for State (and Security Council) cooperation, essential to the functioning of the ICC, leave the likelihood of effective enforcement open to question. The ultimate success of the Court will, it seems, depend on the willingness of the Security Council to support the enforcement of ICC decisions.

ICTY case law has been instrumental in developing the concept of command responsibility. In creating a basic model of liability, firmly entrenched in the three basic elements identified in the Čelebići case, the Tribunal has done international criminal law a service. This is not to say that ICTY case law has no flaws and that other (international and national) courts should follow its law uncritically. Command responsibility is one of the most complex liability theories in international criminal law. Article 7(3) of the ICTY Statute, and the case law that ensues from does not fully do justice to the complexities of this liability theory. As a result, its nature remains ambiguous to date.

The conclusion of agreements between the parties to a conflict (special agreements) has assumed an important quantitative dimension since the end of the Cold War. The content of these agreements makes it likely that international criminal tribunals employ these documents either in order to establish their jurisdiction or for evidentiary purposes. This chapter examines the way in which the ICTY has employed the special agreements in its case law and highlights the legal issues that this case law gives rise to, mainly with respect to the determination of the legal nature of the agreements. It then discusses the way in which the ICC may employ the special agreements in light of the lessons drawn from the ICTY experience.

This chapter outlines some of the issues raised by the topic of ‘residual mechanisms’ in the context of the closing down of the ICTY. Starting from a general introduction of the unique features of most contemporary international tribunals which render some type of residual mechanisms necessary, it discusses the functions currently exercised by the ICTY which are commonly perceived as requiring ‘residual mechanisms’ after the end of trial and appellate activities. Following a brief analysis of the most important residual functions, it focuses on two sets of activities: those entailing judicial functions and those relating to the voluminous archives presently held by the ICTY. The discussion highlights the need to strike a balance between two sets of potentially conflicting requirements: the need to respect ‘due process’ and ‘fairness’, and demands for ‘efficiency’ and ‘cost-effectiveness’. These concepts, as well as the inevitable tensions caused by their practical implementation, have long been in the minds of those developing the completion strategy for, and assessing the legacy of, the ICTY. On the basis of a slowly emerging consensus on how to reconcile the various rights and interests involved, the chapter finally ventures to suggest a line of action to be undertaken by the UN and other relevant stakeholders in devising and implementing mechanisms concerning the ICTY's residual functions once this Tribunal's mandate is complete.