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1 J. Int'l Crim. Just. 585 (2003)
Will the ICC Have an Impact on Universal Jurisdiction

handle is hein.journals/jicj1 and id is 591 raw text is: Will the ICC have an Impact
on Universal Jurisdiction?
Louise Arbour*
I should state at the outset that my comments here are not in the form of advocacy,
but simply in the form of observation and speculation. In reflecting on what is to come,
I am not embracing either the growth or the curtailment of universal jurisdiction in
parallel with the development of the International Criminal Court (ICC). I would
simply like to focus on the question of which forum, the newly-created ICC or national
courts, is most likely to dominate the enforcement of international humanitarian law
in the years to come. I postulate, essentially, that as we now stand, we should expect a
continued growth in the reach of national courts for international crimes committed
outside their territory, above and beyond any activities that the ICC may undertake in
its own right in the foreseeable future.
I suppose it could be said of any criminal court that its ultimate success would
consist of having no work to do. This would have to assume total compliance with the
law, whether generated by deterrence or otherwise. Nobody seriously suggests that
this is a real possibility, any more than anybody seriously suggests that we should
abolish criminal courts because they are inefficient at guaranteeing total legal
The same is not true of the ICC. In fact, the jurisdictional structure of the ICC is such
that its ultimate success may very well be measured by how few cases it will have to
prosecute. Not because of some Utopian notion that it will serve as a better deterrent
than national criminal courts do, but because it is a default jurisdiction, which should
only be activated if and when national courts fail to prosecute the crimes falling within
their overlapping jurisdiction with the ICC. In that sense, the greatest success of the
ICC may consist of encouraging full and fair domestic prosecutions, backed up by the
possibility of the international forum taking over if national courts are unwilling or
unable to execute the work themselves. For the States Parties to the Rome Statute,
there had to be a real expectation that the ICC should not have very much actual
prosecuting to do, and that this would be a very good thing indeed.
As they embraced the need to enforce international humanitarian law through
personal criminal responsibility, there is no doubt that the States Parties to the ICC
*   Justice of the Supreme Court of Canada; former Chief Prosecutor, ICTY/ICTR; member of the Board of
Journal of International Criminal Justice 1 (2003). 585-588
Journal of International Criminal Justice 1, 3 © Oxford University Press, 2003. All rights reserved

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