We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 13 May 2013
This article discusses the transition of international criminal justice from a predominantly ex post facto punitive concept of post World War II efforts—and the ad hoc tribunals set up in the 1990s—towards a more comprehensive concept of justice centred around the International Criminal Court established by the Rome Statute, with significant potential for the prevention of future atrocities. Four sources of preventive effect are examined: deterrence, timely intervention, stabilization, and norm setting. Significant challenges remain for the Rome Statute system, notably strengthening the principle of complementarity, enhancing the co-operation of states with the ICC, securing sufficient resources for international justice, and furthering universal acceptance of the Rome Statute, especially in the Asia-Pacific. The author argues that the ultimate value of the Rome Statute system lies in entrenching legal and social norms that will help human compassion prevail over cruelty.
President (since 2009) and Judge (since 2003) of the International Criminal Court. This article is a modified version of “From Punishment to Prevention: Reflections on the Future of International Criminal Justice”, Wallace Wurth Memorial Lecture, delivered by the author, on 14 February 2012 at the University of New South Wales, Sydney, Australia, who also participated in the Conference Justice for All? Ten Years of the International Criminal Court, 14−16 February 2012, organized by the Australian Human Rights Centre and the Faculties of Law and Arts and Social Sciences at the University of New South Wales. The views expressed herein are solely of the author in his personal capacity and do not in any way represent the positions of those offices.
1. United Nations Charter, 24 October 1945, 1 U.N.T.S. XVI, art. 24.
2. See e.g. “Statement by Trinidad and Tobago at the UN General Assembly” (15 September 2002), online: United Nations <http://www.un.org/webcast/ga/57/statements/020915trinidadE.htm>.
3. UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, art. 6 [Rome Statute].
4. Ibid., art. 7.
5. Ibid., art. 8.
6. Ibid., arts. 8bis, 15bis, 15ter.
7. UN Security Council Resolution 1970 (The Situation in Libya), S/RES/1970 (2011).
8. UN Security Council Resolution 827 (Tribunal, Former Yugoslavia), S/RES/827 (1993).
9. Ibid., at preambular para. 6.
10. BASS, Gary, Stay the Hand of Vengeance: the Politics of War Crimes Tribunals (Princeton, NJ: Princeton University Press, 2000) at 206−275Google Scholar
11. “Address by the Prosecutor of the ICTY, Carla DEL PONTE, to the UN Security Council” (November 2001), online: ICTY Press <http://www.icty.org/sid/7926>.
12. SIKKINK, Kathryn, The Justice Cascade (New York: W.W. Norton & Company, 2011) at 258Google Scholar
13. OLÁSOLO, Hector, Essays on International Criminal Justice (Oxford: Hart Publishing, 2012) at 1−19Google Scholar
14. Note, however, that the ICC's jurisdiction is limited to crimes occurring on the territory or committed by a citizen of a State Party to the Rome Statute or a state that has accepted the ICC's jurisdiction by a declaration, unless a situation is referred to the ICC Prosecutor by the United Nations Security Council.
15. The preliminary examination is the stage preceding a formal investigation.
16. “World Development Report 2011: Conflict, Security and Development” (2011) at 17−18, online: World Bank <http://wdr2011.worldbank.org/sites/default/files/WDR2011_Overview.pdf>.
17. Sikkink, supra note 12Google Scholar
18. Rome Statute, supra note 3, art. 68.
19. As of March 2013, ten of the eighteen ICC judges were women.
20. Rome Statute, supra note 3, art. 79(2).
21. “The Trust Fund for Victims, Programme Progress Report” (Winter 2012) at 4, online: Trust Fund for Victims <http://trustfundforvictims.org/sites/default/files/media_library/documents/pdf/TFV%20Programme%20Progress%20Report%20Winter%202012Finalcompressed.pdf>.
22. Ibid., at 11.
23. Sikkink, supra note 12 at 258Google Scholar
24. Complementarity, ICC-ASP/11/Res.6 (2012) at preambular para. 3.
25. Cooperation, ICC-ASP/11/Res.5 (2012).
26. BASSIOUNI, Cherif, International Criminal Law: Sources, Volume I: Subjects and Contents, 3rd ed. (Leiden: Martinus Nijhoff Publishers, 2008) at 19−20Google Scholar
27. As of March 2013, three of the latest six states to join the ICC are from the Asia-Pacific (Vanuatu acceded on 2 December 2011, Maldives acceded on 21 September 2011, and the Philippines ratified the Rome Statute on 30 August 2011).
28. BRENNAN, Justice William J., “Remarks: What's Ahead for the New Lawyer?” (1986) 47 University of Pittsburgh Law Review 705 at 708Google Scholar
