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47 N.Y.U. J. Int'l L. & Pol. 1 (2014-2015)
The ICC's Exit Problem

handle is hein.journals/nyuilp47 and id is 5 raw text is: THE ICC'S EXIT PROBLEM REBECCA J. HAMILTON* 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. While the literature on the ICC to date has devoted much space to considerations involved in the Court's entry into situations, this Article identifies the looming need for the ICC to consider when and how to exit situations. However, the consideration of exit reveals an immediate problem: While the Court's constitutive document, the Rome Statute, pro- vides ample guidance on when the Court may enter a new situation, it offers no explicit guidance on exit whatsoever. This Article fills that lacuna, pro- posing a framework to guide exit decisionmaking that draws on both statu- tory and policy prescriptions, as well as insights from analogous interna- tional institutions. The Article is driven by a concern that the failure to start planning for exit undercuts the Court's placement within a system of com- plementarity, creating a moral hazard in which domestic justice systems (and those who could support them) come to rely on the ICC in lieu of developing their own capacity to prosecute international crimes. Framed in the positive, planning for exit could present an opportunity to catalyze the development of domestic justice systems and provide a secondary benefit of alleviating the current strain on the Court's resources. The consideration of exit decisionmaking also provides a new occasion to assess and extend our understanding of prosecutorial discretion, an issue that the Court has been grappling with since its inception. This Article argues that the Prosecutor's ability to navigate exit in a way that is acceptable to the Court's key stake- holders will be crucial to the ICC's ability to implement its mandate over the long term. INTRODUCTION ......................................... 2 I. WHY EXIT?.. .............................. 11 A. The Complementarity Imperative ............... 11 B. Perceived Inefficiency .. ..................... 14 C. Resource Constraints . ...................... 15 1. Alternatives to Exit ...................... 16 II. THE EXIT PROBLEM ............................. 22 * Associate-in-Law, Post-doctoral Research Fellow, Lecturer in Law, Co- lumbia Law School; J.D., Harvard Law School; M.P.P., Harvard Kennedy School. I am especially grateful to Meg deGuzman, David Pozen, Saira Mohamed, Sasha Greenawalt, Kevin Arlyck, Pamela Bookman, and Allison Tait for detailed feedback. I am also indebted to participants of the Junior International Law Scholars Annual Meeting (Jan. 2014) and the Columbia Law School Associates and Fellows Workshop (Nov. 2013). Any errors or omissions are entirely my own. 1 Imaged with Permission of N.Y.U. Journal of International Law and Politics

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