The International Criminal Court’s Authority Crisis and Kant’s Political Ethics

2016 ◽  
Vol 16 (2) ◽  
pp. 201-215
Author(s):  
Antonio Franceschet
Keyword(s):  
Political Theory ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
The State ◽  
Moral Problem ◽  
Legal Authority ◽  
Political Ethics ◽  
Ethical Implications ◽  
Legal Actor

The International Criminal Court (icc) faces a profound authority crisis. This article explores the underlying conditions and ethical implications of this crisis in light of Immanuel Kant’s (1724–1804) political theory. The icc’s authority crisis is twofold: First, having been constructed as a purely legal actor, the Court’s inevitable role in politics has undermined perceptions of its legitimacy. Second, having been constructed as a supranational substitute for domestic legal authority, the icc has been subverted by other, political branches of the state, such as the executive. These problems have been particularly salient in Africa where states have vociferously challenged the Court’s investigations and prosecutions. Kantian political ethics show that the icc’s authority crisis is an intractable moral problem that must be addressed collectively and coercively by sovereign states acting upon a larger, cosmopolitan duty to enforce universal rights.

Part 10 Enforcement: Exécution, Art.111 Escape/Évasion

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
The State ◽  
General Sense ◽  
Original State ◽  
State Cooperation

This chapter comments on Article 111 of the Rome Statute of the International Criminal Court. Article 111 sets out measures in the event of escape of a convicted person. The Rome Statute combines ‘horizontal’ and ‘vertical’ approaches to State cooperation, allowing either the State of enforcement or the Court itself to intervene, depending on the circumstances. The Court may choose to return the escaped prisoner to the original State of enforcement, or to change the State of enforcement. Given the Court's authority to oversee and review enforcement in a general sense, even if this provision were not included in the Statute the consequences of escape would probably be the same.

Part 10 Enforcement: Exécution, Art.108 Limitation on the prosecution or punishment of other offences/Limites en matière de poursuites ou de condamnations pour d’autres infractions

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
The State

This chapter comments on Article 108 of the Rome Statute of the International Criminal Court. Article 108 prohibits the prosecution, punishment, or extradition of a sentenced person to a third State for conduct engaged in prior to the person's delivery to the State of enforcement. However, the Court is allowed to dispense with this requirement if it is so requested by the State of enforcement. When the State of enforcement wishes to prosecute or enforce a sentence against a sentenced person for any conduct engaged in prior to that person's transfer, it shall notify its intention to the Presidency and transmit the relevant documents. In the event of a request for extradition made by another State, the State of enforcement shall transmit the entire request to the Presidency with a protocol containing the views of the sentenced person obtained after informing the person sufficiently about the extradition request.

Part 10 Enforcement: Exécution, Art.107 Transfer of the person upon completion of sentence/Transfèrement du condamné qui a accompli sa peine

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
The State ◽  
Person Following ◽  
The Individual ◽  
To Receive

This chapter comments on Article 107 of the Rome Statute of the International Criminal Court. Article 107 governs the transfer of the person following completion of the sentence. When a released prisoner is not a national of the State of enforcement, and is not authorized to remain there, two possible scenarios arise: transfer to a State ‘which is obliged to receive him or her’ and transfer to a State ‘which agrees to receive him or her’. Transfer of a released person to a third State upon completion of sentence will invariably require agreement. Absent such agreement, the individual will remain in the State of enforcement. In deciding upon transfer, the wishes of the released prisoner are to be taken into account.

Part 10 Enforcement: Exécution, Art.103 Role of States in enforcement of sentences of imprisonment/Rôle des États dans l’exécution des peines d’emprisonnement

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
The State ◽  
Rules Of Procedure

This chapter comments on Article 103 of the Rome Statute of the International Criminal Court. Article 103 deals with State enforcement of sentences. The enforcement regime of the International Criminal Court is premised on three broad principles: sentences are served in the prison facilities of States and are subject to their laws; enforcement of the sentence is subject to the supervision of the Court; and the sentence imposed by the Court is binding upon the State of enforcement. The provisions of the Statute governing enforcement are quite succinct, and much of the detail on the issue appears in the Rules of Procedure and Evidence.

Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.101 Rule of speciality/Règle de la spécialité

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
The State ◽  
Customary Law ◽  
State Sovereignty ◽  
Coopération Internationale ◽  
The Individual ◽  
Judicial Assistance

This chapter comments on Article of the Rome Statute of the International Criminal Court. Article 101 sets out the principle of speciality, which is part of the customary law governing extradition between States. The rationale for the principle of speciality ‘is to protect State sovereignty’. For this reason, the rule is limited to the scenarios in which the person is arrested and is surrendered as a result of a request submitted by the Court to the State. It is inapplicable if the suspect has appeared voluntarily. The State that surrenders the individual to the Court may be asked to waive the rule of speciality if the Court seeks to proceed with respect to crimes that were not part of the original request for surrender.

Part 13 Final Clauses: Clauses Finales, Art.127 Withdrawal/Retrait

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
United Nations ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
The State ◽  
Secretary General ◽  
State Party ◽  
The United Nations ◽  
One Year

This chapter comments on Article 127 of the Rome Statute of the International Criminal Court. Article 127 addresses the withdrawal of a State Party from this Statute. A State may withdraw from the Rome Statute by providing a written notification to the depositary, the Secretary-General of the United Nations. The withdrawal takes effect one year after receipt of the notification by the Secretary-General, unless a later date is specified. There have been no notifications of withdrawal from the Rome Statute. The Statute does not indicate whether a notice of withdrawal can itself be withdrawn, thereby returning the State to ordinary status as a Party. Withdrawal does not affect the continuation of the Statute with respect to other States Parties, even if the number of them falls below the threshold of sixty.

Part 9 International Cooperation and Judicial Assistance: Coopération Internationale Et Assistance Judiciaire, Art.92 Provisional arrest/Arrestation provisoire

2016 ◽  
Author(s):  
Schabas William A
Keyword(s):  
International Cooperation ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Criminal Court ◽  
The State ◽  
Coopération Internationale ◽  
Other Information ◽  
Judicial Assistance

This chapter comments on Article 92 of the Rome Statute of the International Criminal Court. Article 92 grants the Court authority, ‘[i]n urgent cases’, to request the provisional arrest of the person sought, pending presentation of the request for surrender and the documents supporting the request as specified in article 91. When a request is made to a State in accordance with article 92, the Registrar ‘invites’ the State to inform him or her of the arrest, and ‘to provide, inter alia’, personal details and other information concerning the arrest, including a confirmation of ‘the information given to the arrested person in respect of his or her rights’.

National Security Evidence: Enhancing Fairness in View of the Non-Disclosure Regime of the Rome Statute

2014 ◽  
Vol 47 (3) ◽  
pp. 331-359
Author(s):  
Ariel Zemach
Keyword(s):  
National Security ◽  
Present Article ◽  
International Criminal Court ◽  
Rome Statute ◽  
International Criminal ◽  
Fair Trial ◽  
Criminal Court ◽  
The State ◽  
Prosecutorial Discretion ◽  
Selection Of

The Rome Statute of the International Criminal Court completely divests the Court of the power to compel a state to disclose evidence in its possession if the state opposes such disclosure on grounds of national security. If a state refuses to disclose information essential to the adjudication of a case on national security grounds, the ICC may settle fair trial concerns either by drawing factual inferences favourable to the defendant or by staying the proceedings. I argue, however, that in practice such judicial powers do not provide a sufficient guarantee of a fair trial. I propose to allay fair trial concerns arising from the refusal of states to allow the ICC access to evidence in their possession by introducing a reform in the exercise of the ICC's prosecutorial discretion. According to my proposal, the requirement of a fair trial, which entails the disclosure of material essential for the defence, would be incorporated into the criteria that guide the ICC Prosecutor in the selection of cases for prosecution. Although the present article focuses on the issue of national security evidence, the reach of the proposed reform extends to all cases of state refusal to allow the ICC access to evidence, regardless of the grounds for refusal.

scholarly journals The International Criminal Court and Israel’s Acts in the Occupied Territories: Progress and Prospects

2021 ◽  
Vol 23 (Summer 2021) ◽  
pp. 69-92
Author(s):  
Yücel Acer
Keyword(s):  
International Criminal Court ◽  
International Criminal ◽  
Preliminary Investigation ◽  
Trial Chamber ◽  
Criminal Court ◽  
The State ◽  
Palestinian Territories ◽  
The Status ◽  
Occupied Territories ◽  
Party State

Following the request of Palestine as a Party-State to the Status of the International Criminal Court, the Prosecutor decided to start a preliminary investigation into the situation of Palestine. The preliminary investigation resulted in a request from the Prosecutor to the Pre-Trial Chamber I for clarification of the Court’s jurisdiction in relation to the occupied territories of Palestine. Many significant issues concerning the status of Palestine as a State and its legal borders were raised during the preliminary investigation, both by the Prosecutor and during the examination of the Chamber. Although both the Prosecutor and the Chamber have approved that the Court has jurisdiction over the Palestinian territories, including those occupied by Israel, the prospect for the success of the trials by the Court depends on the cooperation of the international community as a whole and the State-parties to the ICC Status.

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