The International Criminal Court (ICC or Court) is an institution born of necessity after a long and arduous process of many false starts. The struggle to establish a permanent international criminal tribunal stretches back to Nuremberg. The dream, which was especially poignant for the international criminal law community, for a permanent international criminal tribunal was realized with the adoption in 1998 of the Rome Statute of the International Criminal Court. The treaty entered into force in 2002. Those were heady days for advocates and scholars concerned with curtailing impunity. No one was more ecstatic about the realization of the ICC than civil society actors across the globe, and particularly in Africa, where impunity has been an endemic problem. Victims who had never received justice at home saw an opportunity for vindication abroad. This optimism in the ICC was partially driven by the successes, however mixed, of two prior ad hoc international criminal tribunals—the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia.

Rules of procedure define the relationship between the needs of effective enforcement of international criminal law—grounded in the interest of combating impunity—and the individual rights of those affected by the process. It has been said that criminal procedure is the “most vulnerable part of a liberal legal system.” It is vulnerable in part because it is adaptable. It can be adapted to promote fairness in the interactions between an individual and the state, or it can be manipulated to facilitate abuses by those in power. A fair system charts a course for the discovery of the truth but recognizes that this destination cannot be reached at all costs. For example, confessions obtained under torture are inadmissible under international rules of procedure and evidence.