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Part II The Relationship to Domestic Jurisdictions, 9 Self-Referrals as an Indication of the Inability of States to Cope with Non-State Actors

Harmen van der Wilt

From: The Law and Practice of the International Criminal Court

Edited By: Carsten Stahn

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 31 March 2023

Prosecution — Geneva Conventions 1949 — War crimes — Terrorism

Self-referrals have been one of the trademarks of early complementarity practice of the ICC. What they all have in common is that governments contend that they are unable to conduct fair and effective criminal proceedings against non-state actors over whom they do not wield control, and therefore seek the assistance of the ICC. This chapter investigates how the ICC has reacted to these claims of inability, and demonstrates that the ICC has largely side-stepped the issue by holding that a state’s inactivity renders a situation admissible and precludes any assessment of its unwillingness or inability. The ICC provided more clarity on inability and its parameters in a decision on Libya’s challenge to the Court’s jurisdiction, but the tools of the ICC to move against non-state actors remain defective-at least outside the scope of armed conflicts. This invites a reconsideration of substantive parts of the Rome Statute (e.g. in relation to terrorism).

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