Self-referrals to the international criminal court: legal analysis, case studies and critical evaluation

Abstract

The main contributor of situations before the International Criminal Court (hereinafter ICC) has been state parties that have referred situations on their own territory to the ICC through “self-referral”. This study examines the concept of self-referral tracing the history of voluntary deferral by states of their jurisdiction over international crimes up to the enactment of the Rome Statute. The study finds that states were historically reluctant to have international crimes committed on their territory handled by other bodies or states. The self-referrals under the ICC regime are therefore a novelty in international criminal law. The legality of the act of self-referral under the Rome Statute is also examined and it is concluded that self-referrals are provided for within the Statute, although their legality has been questioned. The study establishes that self-referrals have seen unprecedented cooperation by territorial states but have also been selective in nature, targeting only non-state actors (rebel groups) .The study further compares the ICC’s handling of two other situations (Kenya and Darfur) which were triggered by antagonistic proprio motu and UN Security Council referrals respectively. The ultimate collapse of cases arising out of the Kenyan situation plus the suspension of investigations in Darfur due to non-cooperation is significant when compared with the relative successes registered with self-referred situations. The study concludes that whereas self-referrals may involve concessions to the territorial state like non-prosecution of state actors, this is a necessary evil to ensure successful investigations and prosecutions of international crimes. I recommend at the end of the study that in order to shield the office of the ICC Prosecutor from the diplomacy, dirty international politics and compromises at play in securing referrals as well as cooperation during the entire prosecution process, there should be a separate organ of the ICC handling investigations and interactions with states.