Keywords: International Criminal Court; International Cooperation; Unwillingness and Inability to Cooperate; Legal Rules; Political Context; Policy Choices.
This paper highlights the basic features of the cooperation regime under the Rome Statute, as envisaged by the drafters. It next examines how it has (or has not) worked in practice in the different situations before the ICC since its establishment. Cooperation has worked to some extent in the situations referred by the State parties - which are all situations of self-referrals - and in Côte d'Ivoire, where this non-party State lodged a declaration of acceptance of the Court's jurisdiction and the Prosecutor subsequently initiated investigations "proprio motu". In all other cases, cooperation has not been successful. The situation is particularly critical where the matter was referred to the Court by the Security Council. The question of whether the ICC cooperation regime could have been - or could be - drafted differently so as to make it more effective, is answered in the negative. Some of the limits of the ICC are inherent to the reality of international politics and can hardly be overcome by international law. The real challenge is how to make it in the States' interest to cooperate in the Court's investigations and prosecutions and to contribute more generally to the repression of core international crimes. We conclude that different policy choices of the organs of the Court could contribute to achieve this result.