Published online by Cambridge University Press: 01 June 2008
This comment questions some of the key assumptions in the article by Roper and Barria with respect to the ICC's power to bargain with territorial states to attain the apprehension and surrender of indictees. The comment notes that, while factors such as the nature of the referral to the Court, the crimes charged, and whether the conflict is still ongoing are likely relevant to the ICC's bargaining power, the effect of these factors is indeterminate. The comment highlights the regional political dimension of the ICC's bargaining leverage in the Great Lakes region of Africa and suggests that the Court's bargaining power is engaged in a path-dependent three-level bargaining game.
1. While the ICC has successfully apprehended two indictees in the self-referred DRC situation, those indictees were outside the government power structure, and DRC co-operation may well have come from the low political costs of apprehending those particular suspects rather than any duty to co-operate because of the self-referral. One could certainly expect the DRC to be far less co-operative if, for example, a member of the sitting government were indicted. For an analysis of the domestic politics of the ICC investigation in the DRC, see W. Burke-White, ‘Complementarity in Practice: The International Criminal Court as Part of a System of Multilevel Global Governance in the Democratic Republic of Congo’, (2005) 17 LJIL 121.
2. Prosecutor v. Furundzija, Judgment, Case No. IT-95-17/1, A.Ch., 21 July 2001, at para. 227.
3. See J. Meernik and K. King, ‘The Sentencing Determinants of the International Criminal Tribunal for the Former Yugoslavia: An Empirical and Doctrinal Analysis’, (2003) 16 LJIL 717, at 735. Roper and Barria fail to cite available data in reaching their conclusions about sentencing practices.
4. By handing such an individual over to the ICC, the state could avoid the attribution of the conduct to the state through, e.g., Art. 11 of the International Law Commission's Draft Articles on the Responsibility of States for Internationally Wrongful Acts.
5. Roper and Barria, citing A. M. Danner, ‘Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court’, (2003) 97 AJIL 510, at 545.
6. See Akhavan, P., ‘Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?’, (2001) 95 AJIL 7, at 8–9CrossRefGoogle Scholar; J. Prendergast and A. O'Brien, ‘A Diplomatic Surge for Northern Uganda’, Enough Strategy Briefing #9 (December 2007), available at www.enoughproject.org.
7. For a discussion of the interconnections in African Great Lakes politics, see J. Clark, The African Stakes of the Congo War (2002).
8. The fourth situation currently being investigated but in which no indictments have been publicly issued – the Central African Republic – is also part of this interrelated Great Lakes politics, as that case has involved an investigation of Jean Pierre Bemba, the former DRC vice-president, among others.
9. Preambular paragraph 5 of the Rome Statute.
10. See Putnam, R., ‘Diplomacy and Domestic Politics: The Logic of Two-Level Games’, (1988) 43 International Organization 427CrossRefGoogle Scholar.
11. For a similar consideration of this ability of the Court to influence national governments see W. Burke-White, ‘Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of Justice’, Harvard Journal of International Law (forthcoming 2008); W. Burke-White, Multilevel Global Governance in the Enforcement of International Criminal Law (2006).