Limits of Law in Ending Impunity for State Crime: Time to Re-frame the International Criminal Court's Mandate?

Abstract

Adopting a definition of state crime as deviance, rather than international crime committed by states, this article critically evaluates the limits of law and the efficacy of the Rome Statute in delivering the International Criminal Court's mandate. It suggests that the replication of domestic criminal justice responses – crime defined by the state, an emphasis on individual culpability, reliance on deterrence and the rule of law – is unsuitable for conceiving and tackling state criminality at a supranational level. States may evade the jurisdiction of the Court and exploit delays caused by the Courts' formal rules of procedure and evidence. They may also depend on the non-cooperation of state parties to bring perpetrators to justice and the lack of political unity within the United Nations Security Council. With increasing resort to domestic courts and national agencies to close the impunity gap, it is timely to revisit the Court's mandate, to clarify its function as a supranational regulator in respect of a limited range of offences, rather than the decisive method of ending impunity for state crime that some have claimed and for which others had hoped.