9 Fall 2023 Court’s procedural law, all add to the formidable challenges facing the Court. There is more to the story. Since the first Prosecutor’s term of office, the Court has been experiencing superfluous internal quarrels. There have even been signs that charges were brought in undue haste more than once. The ICC could thus not avoid the question of whether its limited output after almost two decades of existence was perhaps also due to certain homemade problems. Against this background, the prevailing mood vis-à-vis the Court underwent a significant change compared with the honeymoon phase: increasingly often, there was talk of a crisis or of the Court having arrived at a crossroads. At times, the pendulum swung a bit too heavily towards a sense of crisis and many lost sight of the fact that the ICC, which was still in an early stage of its existence, had already made a number of significant contributions to the consolidation of international criminal law. Consider, for example, the law against the abuse of children for war purposes, the law against the violation of reproductive rights, and the law against the destruction of cultural property. V. Weather Lights And then came February 24, 2022. At the end of her term in 2021, Fatou Bensouda left a file for her successor, Karim Khan, resulting from her preliminary investigation which enabled the opening of a formal investigation into the Situation of Ukraine. It is telling that Prosecutor Bensouda left it to her successor to decide whether to make this Situation one of his priorities, even in light of the Court’s budgetary restraints. It is likely that President Putin’s escalation of Russia’s violence against Ukraine to the extent that it became an outright war of aggression, would by itself have left the new Prosecutor with no choice other than to act. Then, all of a sudden, the States Parties rediscovered the purpose of the Court. On February 28, 2022, Prosecutor Khan confirmed that he would seek authorization from the Pre-Trial Chamber to open an investigation into the Situation of Ukraine. In doing so, he underlined that an ICC State Party’s referral of the Situation to the Office would allow for investigations to begin without delay. Only 48 hours after this statement, 39 states collectively responded, referring the situation to the Prosecutor and allowing him to immediately open an active investigation. Currently, a total of 43 States Parties have referred the Situation of Ukraine to the ICC, representing more than one third of all parties to the Statute. It is of note that, with respect to events unfolding since February 24, 2022, the opening of the investigation by Prosecutor Khan was done in parallel to national investigations, not only in Ukraine. This revitalization of support for the Court’s work is particularly striking considering that the Court’s investigative activity in the Situation of Ukraine is essentially directed against nationals of a non-State Party. In the skeptical years before, one repeatedly heard that States Parties should conceive of themselves as a “club of likeminded States” which should better confine their appetite for international criminal justice among themselves. With the Situation of Ukraine, however, the Court’s original mission has powerfully resurfaced. The establishment of the first permanent international criminal court in legal history, vested by its institutional design with a credible universal orientation, was now entrusted with the mission of reconfirming core rules of the international legal order in case of violation and to provide victims of grave offenses with some measure of relief. Interestingly, the United States has repeatedly welcomed the Court’s activity in the Situation of Ukraine. Yet if the United States wishes to act consistently, this can only mean that it is willing to reconsider its opposition to the Court exercising jurisdiction over nationals of non-State Parties. VI. Lightning None of the aforementioned developments give reason for exuberance or even nonchalance. States Parties must not only provide the ICC with a sufficient budget but also insist on the highest professional standards for selecting judges. In addition, a rigorously professional spirit within the Court’s judiciary will help the Court work through the long list of recommendations compiled by a group of independent experts and submitted to improve the Court’s conduct of proceedings. Irrespective of what is already a remarkable jurisprudential acquis (inevitable imperfections notwithstanding), the ICC’s judiciary will continue to be confronted with demanding challenges in the foreseeable future. This is true for both new legal questions that will almost certainly arise, as well as familiar legal issues of quite considerable practical importance. One primary challenge is that the Court has not fully consolidated its own case law, often because of deeply rooted differences in the various legal cultures operating within the ICC. One may think of legal aspects in the areas of evidence, appeals, and substantive criminal law, as the proper delineation between the different forms of individual criminal responsibility. Yet when it comes to the ICC Statute’s novel approach to providing reparations, it is
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