UCLA Journal of International Law and Foreign Affairs

The International Criminal Court is at an inflection point. The ICC remains the centerpiece of a fragile system of international justice and is needed more today than it was at the conclusion of the Rome Conference in 1998. Yet, the Court faces significant challenges and needs to step up its performance to deliver justice more effectively to communities affected by crimes under the Statute, particularly in today’s world where geopolitics are characterized more by polarization than cooperation. A 2020 Independent Expert Review (IER) made a series of recommendations to improve the Court’s functioning, however, this article suggests that the IER is looking for solutions in the wrong places because of a fundamental, yet common, misunderstanding of the way the Court is structured.

This Article argues that, rather than being a fully independent Court, the Rome Statute created a series of interdependencies between actors in the ICC system. These interdependencies manifest internally, between different branches of the Court, and externally, between the Court and states and the Court and the United Nations Security Council. Through relationships of interdependence, the Rome Statute constructs balances between different actors in the system, making one actor reliant on another fulfilling its obligations to ensure the Court can function effectively. When understood as an institution underpinned by a network of interdependencies, we need to look at and evaluate the Court in a new light. After twenty years of practice, we can now see that many of the interdependencies have failed and the carefully designed balance between actors envisaged in the Statute have been thrown out of alignment.

Many of the criticisms against the Court stem from its failure to bring cases in situations where mass atrocities are being committed, from the way in which cases are constructed and have fallen apart at trial or on appeal for lack of evidence, and from selective prosecutions. Yet, rather than these being failings of the Court as an institution, many of these criticisms actually flow from failings of the systems of interdependence and particularly the failure of states and the Security Council to satisfy their Rome Statute commitments.

This Article analyzes how these systems of interdependence were created at the Rome negotiations, further solidified by subsequent supporting architecture to the Rome Statute, and ultimately have failed in a myriad of ways. The Article concludes with a range of proposals for restoring the balance between the Court and external actors to better ensure that the Court can fight off criticism and satisfy its mandate of ending impunity for atrocity crimes.