During his swearing-in speech, Prosecutor Karim A. A. Khan shared his vision for the International Criminal Court (“ICC”): “ICC is not only a court of last resort . . . in my view, The Hague itself should be a city of last resort.” His statements hinted towards ICC regionalization via holding in-situ trials closer to affected areas. However, it is doubtful if the present ICC structure is even capable of regionalization. This Article highlights that even though the Court is governed byprovisions that enable it to regionalize proceedings by way of holding in-situ proceedings (Articles 3(1), 4(2), and 62 of the Rome Statuteand Rule 100 of the Rules of Procedure), these provisions have been
reduced to mere boiler-plate clauses adopted from other statutes, rendering the Court’s structuring opaque and inaccessible.
The Article analyses the considerations made by the Court in past cases denying in-situ trials, including trials of Lubanga, Bemba, Kenyatta, Ruto & Sang, Gbagbo & Blé Goudé, Ongwen, Ntaganda, the Situation in Bangladesh/Myanmar, and Kani. The failure to move these proceedings closer to the affected communities indicates the ICC’s inherent structural flaws. For a Court responsible for dealing with individual criminal responsibilities for gross international crimes committed across the globe, the cases also illustrate that an ICJ-styled structure is not only ineffective but may also lead to the miscarriage of justice.
Additionally, the Article analyzes other forms of regionalization which lie beyond the ICC structure, such as ad hoc courts and/or hybrid tribunals (which are predominantly implemented ex post facto for temporary purposes); and stand-alone regional courts, such as the judicial system proposed for Africa under the Malabo Protocol. The current, Eurocentric structure of the ICC negatively affects the transparency of the court in several ways. Holding proceedings primarily in The Hague not only indicates the Court’s bias towards Western nations, but detracts from its international legitimacy by portraying an image of “foreign justice.” Moreover, the distance between the Court and affected communities can make it difficult for local individuals and organizations to participate in and observe proceedings, which can detract from transparency and act as a major hindrance to the ICC’s goal of achieving deterrence. The author argues that while the ICC framework permits the Court to hold proceedings away from The Hague, it has rarely considered doing so, possibly due to the ease of holding trials at the already existing seat of the ICC and the structural flaws in actualizing in-situ proceedings. This Article aims to fill the gap in the literature and propose a new “quasi-federal” framework for regionalization. The decentralization of the court in different regions can be seen as a representation of a diverse and equitable court, leading to decolonization of the ICC and increasing its legitimacy and transparency. The proposal hinges on the idea that a system of international criminal justice must be more adaptive to regional/local needs, proactive, independent, and permanent to address the perception of widespread impunity for core crimes and create a sense of deterrence amidst the increase in global democratic backsliding and violence from state actors.
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