Bad Analogy: Why the Divergent Institutional Imperatives of the Ad Hoc Tribunals and the ICC Make the Lessons of Rule 11 bis Inapplicable to the ICC's Complementarity Regime



McAuliffe, Padraig ORCID: 0000-0002-7712-5472
(2014) Bad Analogy: Why the Divergent Institutional Imperatives of the Ad Hoc Tribunals and the ICC Make the Lessons of Rule 11 bis Inapplicable to the ICC's Complementarity Regime. International Organizations Law Review, 11 (2). 345 - 427.

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Abstract

The International Criminal Court (‘icc’) lacks the capacity to pursue accountability for all but a handful of alleged perpetrators. Scholars and policy-makers have argued that the natural response to this state of affairs is for the icc to reconstruct, enhance or develop both the ability and the willingness of the national legal system to effectively account for international crimes that lie beyond the reach of the Court, and assume the success of the ad hoc Tribunals’ Rule 11bis process (adopted as a result of their Completion Strategies) in transferring responsibility to the states concerned offers a model for so doing. However, this first comprehensive comparison of the two processes demonstrates that the institutional imperatives of Rule 11bis process ensured it would have a more beneficial impact on the domestic justice sector than the icc, whose imperatives rely far less on the domestic assumption of the responsibility to prosecute. This article traces how the ad hoc tribunals’ institutional Completion Strategy promotes different incentives to those of the icc’s institutional continuation strategy. While the latter has undermined domestic prosecutions by seeking co-operative relationships with self-referring states under burden-sharing (and indeed congratulates itself on such collaboration), the former has been more successful in catalysing domestic trials by adopting a more competitive, transactional approach to jurisdiction that was modified over time in accordance with the emerging institutional capacities of the states in question.

Item Type: Article
Additional Information: ## TULIP Type: Articles/Papers (Journal) ##
Uncontrolled Keywords: International Criminal Court, ad hoc tribunals, rule 11bis, complementarity, justice sector reform
Depositing User: Symplectic Admin
Date Deposited: 02 Mar 2017 16:40
Last Modified: 15 Sep 2022 07:11
DOI: 10.1163/15723747-01102005
URI: https://livrepository.liverpool.ac.uk/id/eprint/3006160