The Future of 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