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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