The Domestication of International Criminal Law: A Proposal for Expanding the International Criminal Court’s Sphere of Influence

Abstract

This Article addresses the question of how to evaluate the effectiveness of the International Criminal Court (ICC). Beyond focusing on the number of arrest warrants, indictments, and prosecutions credited to the Court since 2002, this Article proposes a broader criterion of asking whether the ICC helps to combat impunity and deter future human rights atrocities across the globe. While the ICC aims to end impunity for the most serious crimes, it is unrealistic that it would ever achieve this ambitious goal on its own, given limited resources and capacity to handle more than a handful of investigations and trials. Additionally, as a treaty-based international organization, the ICC enjoys limited jurisdiction over cases that occurred after the Rome Treaty entered into force in 2002 (and even then from the date that a state party ratifies the treaty). Thus, many of the world’s most serious offenders whose crimes occurred before this time will never be hailed to the ICC chambers, leaving prosecution entirely up to domestic courts. This Article examines this dynamic building on the theory of “proactive complementarity.” Normally scholars who propose this type of collaboration take as their starting point the temporal and geographic treaty restrictions imposed by the Rome Statute. This orientation leads to two notable consequences that undermine the overall effectiveness of the ICC in attaining its broader mission: First, the ICC will remain completely removed from many local efforts to harmonize national systems with international norms. At the same time, the ICC will also be removed from many important domestic criminal proceedings, although these trials involve serious offenders whose trials constitute important contributions to international jurisprudence that directly impacts the ICC’s own work to assure uniformity in prosecutions of international crimes. Secondly, this strict interpretation of the ICC’s mandate also means that it will miss the opportunity to offer the subtle type of international support that can often create a “moral suasion” that helps assure the momentum of transitional justice schemes. In response, I propose a widening of the concept of proactive complementarity to include engagement with States Parties, even if it regards matters that technically fall outside the jurisdiction ratione temporis found in the Rome Statute’s Article 11 and admissibility requirements of Article 17. I use the case study of Peru to show how the ICC could have exerted more influence on the criminal trial of former President Alberto Fujimori (1990-2000) by lending political support as the government sought to harmonize the domestic criminal justice system to the standards of the Rome Statute and to assume a more active presence with regard to the historic human rights trials of Fujimori.