January 20, 2018

The ICC’s Exit Problem

Rebecca J. Hamilton, The ICC’s Exit Problem, 47 N.Y.U. J. Int’l L. & Pol. 1 (2014)

The International Criminal Court (ICC) was never meant to supplant the domestic prosecution of international crimes. And yet the Court is now entering its second decade of operations in four African nations, with no plan for exit in sight. This Article identifies the looming need for the ICC to consider when and how to exit situations in which it is currently active. In addition to the normative concern that a failure to start planning for exit undercuts the Court’s placement within a system of complementarity, the need to consider exit is also driven by a financial imperative. The Court’s caseload is expanding at a radically faster rate than its budget, and there has already been a detrimental impact on the quality of the Court’s work. However consideration of exit reveals an immediate problem: While the Court’s constitutive document, the Rome Statute, provides much guidance on when the Court may enter a new situation, it offers no explicit guidance on exit whatsoever. This Article fills that lacuna, proposing a novel framework to guide exit decision-making that draws on both statutory and policy prescriptions, as well as insights from analogous international institutions. This Article’s focus on exit represents a new direction within the literature on the ICC which, for the first decade of the Court’s existence has focused almost exclusively on issues related to the entry of the Court into new situations. Yet two of the dimensions involved in exit decision-making, prosecutorial discretion and complementarity, are issues that the ICC has been grappling with since its inception. Consideration of exit provides a new opportunity to assess and extend our understanding of issues.

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