Volume 87, Number 4

October 2012

Catalyzing National Judicial Capacity: The ICC’s First Crimes Against Humanity Outside Armed Conflict

Carey Shenkman

This Note joins two previously parallel tracks of scholarship regarding the International Criminal Court (ICC). The first track studies the ICC’s authority to prosecute certain crimes that do not have links to armed conflict. This power means that the ICC could have jurisdiction over repression of mass civil uprisings of the type occurring in the Arab Spring. The second branch of scholarship concerns “complementarity,” or the principle of ICC deference to national prosecutions, and how that practice pressures reform in national judiciaries. This Note argues, at their intersection, that the prosecution of cases outside armed conflict by the ICC further encourages national judicial reform by mobilizing civil society groups. I call this “capacity catalyzing.” Because states wish to retain control over national prosecutions that may infringe upon their sovereignty, especially in the prosecution of cases outside armed conflict, these cases create an incentive for states to avert ICC prosecution by trying the cases themselves. I demonstrate this through two recent ICC cases that occurred outside armed conflict. In Kenya in 2007, pro-government forces and criminal organizations perpetrated killings against civilians during post-election violence. In Libya in 2011, anti-government protests snowballed over two weeks before civil war began. The ICC only focused on these crimes in its initial warrant. When crimes against humanity were allegedly committed, armed conflict did not exist in either country. The ICC’s involvement in these cases has encouraged national judicial reform.