Contemporary Issues Facing the International Criminal Court is a collection of essays by prominent international criminal law commentators, responsive to questions of interest to the Office of the Prosecutor of the International Criminal Court.
• Jurisdiction: The 2008-2009 Gaza Issue
• The Obligation to Arrest in the Darfur Context
• Appropriate Limitations on Oversight
• The ICC and Prevention of Crimes
• Proving Mass Rape
• Focus on Africa: Is the ICC Biased?
• Increasing Rates of Apprehension and Arrest
Richard H. Steinberg is Professor of Law and Political Science at the University of California (Los Angeles), and Editor-in-Chief of www.ICCforum.com, a collaboration with the Office of the Prosecutor of the International Criminal Court.
Fatou B. Bensouda, who wrote the foreword, is Prosecutor of the International Criminal Court.
Richard H. Steinberg is Professor of Law and Political Science at the University of California (Los Angeles), and founding Editor-in-Chief of www.ICCforum.com, a collaboration with the Office of the Prosecutor of the International Criminal Court.
Fatou B. Bensouda is Prosecutor of the International Criminal Court.
Table of Contents
Foreword Fatou B. Bensouda;
Preface Richard H. Steinberg;
Part I. Jurisdiction: The 2008-2009 Gaza Issue
Introduction to the 2008-2009 Gaza Jurisdiction Issue Richard H. Steinberg; No Jurisdictional Basis for an Investigation Pursuant to the Palestinian Declaration George P. Fletcher; Press Releases, Not Arrest Warrants: Interpreting the ICC Prosecutor’s Moves in Relation to the Gaza Situation Marlies Glasius; Palestine and the International Criminal Court: Asking the Right Question Michael Kearney; Palestine is a State so the Consent Declaration is a Valid Basis for Investigation by the ICC John Quigley; Statehood and Recognition: Not a Matter for the ICC Prosecutor Yaël Ronen;
Part II. Obligation to Arrest: The Darfur Issue
Introduction: The Obligation to Arrest in the Darfur Context Richard H. Steinberg; The Genocide Convention Provides an Alternative Basis for the Obligation to Arrest Al Bashir Dapo Akande; Head of State Immunity as a Bar to Arrest Paola Gaeta; Closing the “Impunity Gap” and the Role of State Support of the ICC Makau W. Mutua; State Obligations in Implementing Arrest Warrants William A. Schabas; State “Cooperation Issues” in Arresting Al Bashir Göran Sluiter;
Part III. The Oversight Issue
Introduction to the Oversight Issue Richard H. Steinberg; The Proposed Independent Oversight Mechanism for the International Criminal Court José E. Alvarez; The Independent Oversight Mechanism Does Not Have Authority to Investigate and Decide Alleged Misconduct by Staff in the Office of the Prosecutor Nicholas Richard Cowdery; The Role of the Assembly of States Parties for the ICC Max du Plessis and Christopher Gevers ; Establishing a Transparent and Effective Oversight Machinery and the Need for Constructive Dialogue Between the Assembly, Court Officials, and Civil Society Akbar Khan; A Reasonable Request: Requiring Prosecutor Authorization Prior to Any Investigation by the Independent Oversight Mechanism Harmen Van der Wilt;
Part IV. Deterrence: The Prevention Issue
Introduction to the Prevention Issue: Enhancing Deterrence Richard H. Steinberg; The ICC Would Increase Its Prevention Ability If the Prosecutor’s Discretion Were More Visibly Limited Kenneth Anderson; The Court Should Avoid All Considerations of Deterrence and Instead Focus on Creating a Credible and Legitimate Normative Environment in which Serious Crimes Are Not Tolerated Tomer Broude; Maximizing the ICC's Crime Prevention Impact Through Positive Complementarity and Hard-nosed Diplomacy William W. Burke-White; The Crime Prevention Potential of the ICC Depends Upon its Credibility and the Support it Receives from Governments and States Parties to the Rome Treaty Richard J.Goldstone; Maximizing Opportunities to Deter Further Atrocity Crimes Ambassador David Scheffer;
Part V. The Reparations Issue
Introduction to the Reparations Issue Richard H. Steinberg; Victims’ Rights and Participation in ICC Proceedings and in Emerging Customary International Law M. Cherif Bassiouni; The ICC Should Avoid Paternalistic or Bureaucratic Approaches to Determining Victims' Needs and Wants and Should Award Reparations to Promote Victims' Dignity and Agency Carla Ferstman; Reparations in the Wake of Atrocities: A Plan for Encouraging Participation by Governments Saul Levmore; Reparations Before the ICC: the Need for Pragmatism and Creativity Frédéric Mégret; A Minimalist Reparations Regime for the International Criminal Court Eric A. Posner;
Part VI. Proof: The Mass Rape Issue
Introduction: Proving Mass Rape Richard H. Steinberg; Can the ICC Sustain a Conviction for the Underlying Crime of Mass Rape without Testimony from Victims? Kelly Dawn Askin; Cases of Mass Sexual Violence Can Be Proven Without Direct Victim Testimony Anne-Marie de Brouwer; The Use of Sample Survey Interviews as Evidence of Mass Rape John Hagan; ICC Prosecution of Mass Rape Crimes Will Require Some Evidence from Victims, but the Hardship of Testifying can be Mitigated Ruth Wedgwood ;
Part VII. Bias? The Africa Issue
Introduction to the Africa Issue: Is the ICC Biased? Richard H. Steinberg; The Inevitable Practice of the Office of the Prosecutor M. Cherif Bassiouni and Douglass Hansen; Is the ICC Targeting Africa Inappropriately or is it Justified? Kamari Maxine Clarke; Is the ICC Targeting Africa Inappropriately?: A Moral, Legal and Sociological Assessment Margaret M. deGuzman; International Politics and Policy Considerations for the Inappropriate Targeting of Africa by the ICC OTP Chief Charles Achaleke Taku;
The Institutional Framework of the Office of the Prosecutor, Legitimacy, and Overcoming Bias Allegations Jessica Peake; Is the ICC’s Exclusively African Case Docket a Legitimate and Appropriate Intervention or an Unfair Targeting of Africans? Abdul Tejan-Cole ;
Part VIII. The Arrest Issue
Introduction to the Arrest Issue Richard H. Steinberg; ICC Fugitives: The Need for Bespoke Solutions Beth Van Schaak; Ramping Up Strategies for the ICC Arrests: A Few Lessons Learned Richard Dicker; Some Reflections on Securing the Arrest of ICC Fugitives Cedric Ryngaert; Pollyannas Need Not Apply: International Justice is, to a Certain Extent, Political Justice Tom Parker; The Prosecutor May Increase Rates in the Apprehension of Suspects and Therefore Secure Higher Levels of Judicial Enforcement by Appreciating and Capitalizing on her Political Role and the Realities Surrounding It Nadia Banteka;
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