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  • Print publication year: 2011
  • Online publication date: November 2014

10 - International criminal justice in the era of failed states: the ICC and the self-referral debate

from PART III - Analytical dimensions of complementarity


At the inception of the UN Charter era, the abominable excesses of totalitarian states in the Second World War prompted international jurists to create coercive global regimes to guard against the abuse of sovereign powers. In the post-Cold War era, however, a new challenge has emerged. The contemporary world is faced with an unprecedented incidence of fragile or failed states besieged by powerful insurgencies or criminal organizations. Where states were once assumed to be the villains in the human rights narrative, they are now often all that stands between a civilian population and a non-state group determined to commit massive human rights atrocities. The consequences of this new reality are reflected in the debate over the right of states to make ‘self-referrals’ under Article 14 of the Rome Statute of the International Criminal Court. Article 14 allows a State Party to refer a situation, including crimes committed within the state's own jurisdiction, to the ICC Office of the Prosecutor for investigation. Since the Statute's inception, the self-referral mechanism has been the subject of considerable controversy among jurists. Some have argued that self-referrals are inconsistent with the independence of the Court and its complementarity scheme. However, recent developments demonstrate that a mutuality of objectives between the Court and fragile states exists when confronting large-scale atrocities by non-state actors. There is no reason why ICC enforcement cannot be variously cooperative and coercive vis-à-vis states, depending on the circumstances. The self-referral mechanism of the Rome Statute, when used judiciously, should thus be seen both as a useful weapon in the battle against impunity and a life-line for fragile states.


International criminal law emerged from the crucible of the Second World War as a response to the abominable excesses of totalitarian states. At the inception of the UN Charter era, this anti-state worldview prompted international jurists to create coercive global regimes to guard against the abuse of sovereign powers. Despite the promises of the Nuremberg Charter, in the years that followed states continued to be the omnipotent villain as millions became victims of atrocities. In the post-Cold War era, however, a new challenge has emerged.

LL.B (Osgoode), LL.M, SJD (Harvard); Professor of International Law, McGill University, Montreal, Canada; formerly Legal Advisor, Office of the Prosecutor, ICTY, The Hague (1994–2000)
Ross, Sara and Walker, Samuel G. in the preparation of this chapter is gratefully acknowledged. This chapter expands upon a previous article by the author, ‘Self-referrals before the International Criminal Court: Are States the Villains or the Victims of Atrocities?’ (2010) 21 Crim. LF103
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