Much Cry and Little Wool?: Determining the Exact Role of the Inter-national Criminal Court in Transitional Justice Efforts

Abstract

The International Criminal Court (“ICC”) is a milestone in the fight against impunity. However, the expectations for what the ICC can achieve have often been distorted. Thus, the main research question of this Article is: what exactly is the role of the ICC within transitional justice efforts? My answer consists of three parts. First, there is a need to delimit the ICC’s mandate, namely, what it means to be an international criminal tribunal as opposed to other international bodies, and how the ICC is embedded in a system which includes the States Parties to the ICC Statute. Second, academics and practitioners need to bear in mind that only few perpetrators (the “persons most responsible”) are prosecuted and tried by the ICC. Third, the ICC must be put in context: the ICC is a tool of both justice and peace, but within other transitional justice options that may involve amnesties. The conclusions are three-fold: first, there is a need to keep in mind the ICC’s mandate as an international criminal tribunal and thus limited to the determination of criminal liability of those accused of crimes under its jurisdiction. Second, the difference between the “situation” and “case” notions is necessary to identify how much governmental/state attitudes towards the ICC may change. Finally, notions of peace and justice should be understood broadly and jointly to better situate the ICC’s role.