It is true that the ICC represents a natural progression from Nuremberg and Tokyo post-WWII, the ICTY and ICTR in the early 1990s and the proliferation of hybrid and internationalised criminal courts and tribunals since. But it is also true that the ICC is different to all that has preceded it – particularly in the scope of its challenge to Sovereignty. The first cases at the Court have all involved self-referrals by States Parties (DRC, Uganda, CAR and Mali) or proprio motu requests from the Prosecutor which involved the co-operation of States Parties – at least initially (Kenya and Cote D’Ivoire). The two UN Security Council referrals (Sudan/Darfur and Libya) have both created significant challenges for the institution - particularly because of a lack of co-operation and support for the Court’s efforts.
Now, as the ICC moves to investigate alleged conduct on the physical territory of States Parties potentially involving the nationals of non-States Parties, the pressures on the Court are already intensifying. Is the Rome Statute too ambitious? Does the Statute squeeze the Court between a rock and a hard place – damned if it does and damned if it does not take on the more contentious cases?