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In the pursuit of individual international criminal accountability an essential element in making the law effective lies in the ability of States - or international judicial bodies - to secure the presence of the accused to stand trial. Yet it is this very aspect of the judicial process which has proven highly problematic. The difficulties are exemplified through the experiences of extradition at the inter-state level and, latterly, surrender to internationalised courts such as the International Criminal Tribunals for the Former Yugoslavia and Rwanda and the Special
Court for Sierra Leone. Despite the fact that prosecutions are required for many international crimes, States have not traditionally tended to comply with the basic international obligation to prosecute international criminals or, in default, to deliver them up to stand trial elsewhere, encompassed in the maxim aut dedere aut judicare.
The future viability of an international criminal justice system relies on States’ willingness to ensure that indicted individuals are made available for trial. The paper therefore addresses the perennial problem of getting
States to comply with what I shall term the ‘surrender norm’ through an exploration of aspects of international legal and international relations theory, and argues how a treaty regime such as the one that was created to establish the International Criminal Court (ICC) can help in the process of achieving widespread compliance with key international legal norms.
The power of international legal norms lies in the fact that they are created and shaped through the horizontal and vertical processes that are at play in the international legal system 1 . In this paper I argue that States can ultimately be persuaded to obey habitually their international legal obligations if the power of these processes is harnessed. First, the hori zontal dynamic encourages the formation of ‘shared interests’ – such as the collective desire to see that international criminals are brought to trial. These interests are then interpreted, becoming recognised legal norms in the process. The horizontal aspect must, however, be supplemented by activity on the vertical axis. Through this process, the legal norm is translated into the domestic legal system and achieves its binding quality.
1 These two dynamics encompass the constitutive elements of Harold Koh’s theory of transational legal process. See further, Harold H. Koh, ‘The 1998 Frankel Lecture: Bringing
International Law Home’ (1998) 35 Houston Law Review 623.
Name: Kate Brookson-Morris
University: University of Birmingham
Programme: PhD

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While instructive in depicting how international legal norms can achieve their authoritative and binding quality, the horizontal and vertical processes cannot on their own inspire widespread compliance with the surrender norm. This is where I submit that the ICC treaty regime can help. Without doubt, the ICC operating as a judicial institution is poised to make a significant and important contribution to achieving international criminal justice. This is not, however, the focus of this paper. Instead, I argue that channelling the power of the horizontal and vertical processes through an international treaty regime such as the one used to establish the institution 2 of the ICC marks the advent of a powerful new dynamic in our attempts to secure compliance with the ‘surrender norm’.
When the interests that give rise to the creation of legitimate legal obligations are channelled through a treaty regime and its corresponding institution – such as the ICC – this creates a powerful transformative dynamic in the international legal community. The paper therefore draws on important aspects of international legal and international relations theory to demonstrate how the establishment of the ICC can be marked out as representative of the first time in the history of international criminal law that we have in place an international regime that has the potential to harness powerful international dynamics and to ‘bring home’ important international legal norms , such as the ‘surrender norm’, to States.
2 Here I refer to institution in the international relations sense, see for example, Judith
Goldstein, Miles Kahler, Robert O. Keohane & AnneMarie Slaughter ‘Introduction:
Legalization & World Politics’ in Judith Goldstein et al, eds., Legalization and World Politics
(Boston, Mass: The MIT Press, 2001) at 1, and Robert O. Keohane ‘International Institutions:
Tw o Approaches’ (1988) 32 International Studies Quarterly 379-396.
Name: Kate Brookson-Morris
University: University of Birmingham
Programme: PhD