Closing the enforcement gap : the International Criminal Court and national authorities
The disparity between norms and their enforcement is a recurrent theme in international law. An examination of theory and practice undertaken in the first part of the research reviews national, internationalised/hybrid and international judicial processes. This identifies both normative and structural weakness in the existent system for the enforcement of international criminal law. The second half of the study compares the relationship that is established between the International Criminal Court and national authorities with previous models to determine whether the Rome Statute promises heightened prospects for actual enforcement. The study suggests that the reliance of the ICC on the support of national authorities will result in a persistence of enforcement gaps in the compliance levels of States with their pre-existing duty to prosecute crimes; in the ability of the Court to secure enforcement of its requests and orders; and in the own Court's operational capacity. Evidence suggests, nonetheless, that the ICC is also helping to close enforcement gaps. At the national level, in particular, because of the Court's jurisdictional and admissibility regime, the ICC is altering incentive structures for national authorities and profoundly altering State behaviour. This has been driven primarily by the desire of States to limit admissibility challenges to domestic jurisdiction based on legislative inconsistencies or domestic inaction. The research shows that the successful closing of enforcement gaps will require the close and effective interaction of national and international jurisdictions. For the treaty signed in Rome is not just about a Court, it is about a system; a global system based on national States. Without national authorities, the ICC will be unable to act. But also conversely, without the catalytic presence of the ICC, it is unlikely that national authorities would be willing to act. As such, the ICC Statute acts as both a standard setting instrument and a compliance-inducing mechanism.