This article is based on the proposition that the International Criminal Court (ICC) will need to become less ‘international’ and more ‘domestic’ if international justice is to stay relevant over the next ten years. The legal basis for this shift is already embodied in the ICC's core principle of complementarity that gives nation states jurisdiction over international crimes when conditions of judicial competency have been met. However, this jurisdictional shift from the ICC to domestic courts will have significant and far-reaching consequences. Building the capacity of national judicial systems will become increasingly important in the years ahead. The challenges will be daunting. The article maintains that it is paramount that the international community provide some discernible assistance to these new domestic courts to ensure that domestic proceedings are consistent with international norms. It sets out an effective mechanism that could be created to assist in this endeavour.

The article also looks at the challenges faced by the ICC and nation states in determining a state's inability to prosecute. Obviously, when there is total or substantial collapse of the judicial system, it is not difficult to determine that a state is incapable of undertaking trials. However, in more nuanced situations, the idea that the ICC will pass judgment on state courts is highly controversial. The inherent ambiguity and subjectivity in defining what constitutes inability to prosecute could easily place the court in a ‘stand-off’ with a nation state. The article sets out an approach for an objective, impartial and non-political evaluation regarding a state's ability to carry out judicial proceedings consistent with international standards. Such an evaluation would not be binding on the ICC, but would offer guidance in rendering a fair decision and impart valuable legitimacy.