Case Study: The International Criminal Court
Case 258: Establishing an International Criminal Court: The Emergence of a New Global Authority?
Case Study Questions for “Establishing an International Criminal Court: The Emergence of a New Global Authority?”
1. In a couple of paragraphs, briefly describe what the case is about (who, what, where, when).
2. Describe who/what were the main actors and their interests in supporting or opposing the creation of the ICC? (Be sure to outline what were the concerns that the Bush administration had about the Rome Statute.)
3. What is the ICC’s jurisdiction?
4. Why has the court been controversial? (see links)
5. Do you the think the creation of the ICC is an example of a new global governance structure that is emerging in global politics? Why or why not?
https://www.icc-cpi.int/Pages/Main.aspx ICC home page
Establishing an International Criminal Court: The Emergence of a New Global Authority?
Eric K. Leonard
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Part A Establishing an International Criminal Court: The Emergence of a New Global Authority?
E R I C K . L E O N A R D S H E N A N D O A H UN I V E R S I T Y
In 1994, over a one hundred-day period, the violent and systematic slaughter of close to one million people occurred in the African country of Rwanda. This mass killing was one of the worst acts of genocide in history. In the aftermath of the slaughter, the United Nations (UN) Security Council established an ad hoc tribunal to prosecute the guilty parties. The UN Security Council mandated the International Criminal Tribunal for Rwanda (ICTR) to prosecute those individuals guilty of genocide, crimes against humanity, and war crimes.1
Between 1991 and 1999, the former Yugoslavia also experienced a humanitarian crisis. During this period of time, multiple accounts of ethnic and civil war rocked the republics of the former Yugoslavia. The result of this decade-long conflict was hundreds of thousands of peo- ple dead and millions of people displaced from their homes. Through a process known as “ethnic cleans- ing,” Serbian President Slobodan Milosevic attempted systematically to rid Yugoslavia of all non-Serbian citi-
zens. He attempted to achieve this goal via genocide, mass rape, and forced expulsion. In response to this conflict, the international community established the International Tribunal for the former Yugoslavia (ICTY ), another ad hoc tribunal.2 Unfortunately, Slo- bodan Milosevic died while in the custody of the court awaiting the conclusion of his trial.
A primary question that we, as students of world politics, must ask ourselves is whether the form of inter- national justice employed in the aforementioned cases (ad hoc tribunals), along with other forms of ad hoc jus- tice, is sufficient.3 In other words, do such ad hoc forms of justice adequately address the problem of continual violations of humanitarian law? Do they address this problem in a timely manner? Do they address all cases of humanitarian law violations? Along with these ques- tions concerning international justice, we must also ask ourselves what impact humanitarian law has on one of the foundational premises of world politics—state sov- ereignty. In particular, how will a functioning Interna- tional Criminal Court (ICC) impact the traditional global norm of state sovereignty?
A large portion of the international community believes that an ad hoc system of global justice does not adequately address many of the aforementioned ques- tions. According to these actors, if the international
2 Eric K. Leonard
community is ever going to achieve a global system of justice, then we need to establish a permanent interna- tional criminal court. In the summer of 1998, the inter- national community convened the Rome Conference with the hope of accomplishing just such a goal.
PART A: HISTORICAL BACKGROUND4
The post-Cold War era has not been a time of peace and tranquility. Conflict, war crimes, acts of genocide, and crimes against humanity have been a mainstay of world politics since 1989. In order to combat this rising trend, on July 17, 1998, 120 nation-states voted in favor of the Rome Statute for the establishment of a permanent International Criminal Court. Only seven nation-states rejected the statute, including the United States, Israel, and China.5 This resulted in several years of state signa- tures, ratifications, and an “unsigning” of the statute by the global hegemon, until finally the requisite number of ratifications (sixty) was achieved on April 12, 2002.6
Unfortunately, such support did not mean that the road to establishing an ICC was an easy one. The estab- lishment of a permanent ICC traveled a long, hard path, but with the current number of ratifications at 104 nation-states, along with the initiation of several investi- gations, a handful of arrests, and the start of judicial proceedings, it now appears as if the global community is one step closer to a fully functioning institutionalized form of humanitarian law and the possible achievement of global justice.7
Path to Rome
At the outset of this case, it is important to note that the fight to construct an international criminal court is not solely a product of the 1990s, although scholars often consider its current form the result of the changing con- temporary international environment. The interna- tional community first discussed the idea of a permanent international criminal court after World War I. It was at this time that the international community unsuccessfully attempted to establish an international tribunal on war crimes so that the allied powers could try Kaiser Wilhelm II. After World War II, the victori- ous governments established the Nuremberg and Tokyo war crime tribunals, thus setting the precedent for an international criminal court. However, it was in 1948
that the international community took its first real step toward the establishment of a permanent ICC.
It was at this juncture in time that many members of the UN General Assembly called specifically for the establishment of an international criminal court. The UN General Assembly instructed the UN International Law Commission (ILC) to draft a statute dealing with this subject matter and present it to the UN delegates. In both 1953 and 1954, the ILC presented a draft text for the establishment of an ICC to the General Assem- bly. Both times the General Assembly rejected the text, with little or no enthusiasm. At this time, the official reason for abandoning the effort to establish an ICC was that the international community could not agree on a definition of “aggression.” As a result, the society of states simply forgot about the call for a permanent ICC for close to forty years.
In 1989, Trinidad and Tobago resurrected the idea of forming an ICC. Initially, Trinidad and Tobago was hoping to form a court that would prosecute interna- tional drug traffickers. It was only a short time after this request that the General Assembly instructed the ILC to prepare a draft statute on an ICC and to extend its jurisdiction beyond the crime of drug trafficking. In 1994, the ILC submitted its final draft statute, and the General Assembly recommended that an international conference convene to try to negotiate a treaty that would enact the ICC.
The Rome Conference
Between June 15 and July 17, 1998, the Rome Confer- ence for the Establishment of a Permanent Interna- tional Criminal Court convened. At the outset of the conference, it was obvious that the positions of many delegates were already firmly entrenched. Therefore, if the conference leadership were going to acquire enough support for the ICC, there would need to be a tremendous amount of work, negotiation, and coopera- tion among the delegates. The conference leadership, or the Conference Bureau, began the negotiation proce- dures with a distinct plan on how the conference should proceed, what issues the delegates would discuss, and which committees should discuss them (the Courmay- eur Plan).8 Unfortunately, with the commencement of the Rome Conference, it rapidly became apparent that the Courmayeur Plan would not work.
An International Criminal Court 3
The primary problem was that a large portion of the delegates attending the Rome Conference had not participated in the PrepCom, or preconference, meet- ings and therefore lacked a foundational understanding of the draft statute.9 As a result, the Committee of the Whole and its working group found themselves in the position of constantly having to rehash issues that the PrepCom had already debated. It was obvious that the conference leadership had to formulate and initiate a new tactical plan, otherwise the entire Rome Confer- ence would grind to a halt and end in failure.
In order to avoid such a situation, the delegates agreed to participate in several “informal working groups.” Many of these groups were then broken down into even smaller “informal-informal working groups.” According to participants at the conference, a tremen- dous amount of work on the final draft occurred in these smaller informal groups. A typical day for a dele- gate at the Rome Conference consisted of attending official working group meetings, supplemented by “informals” in which, as one observer put it, “the real negotiations took place.”10
The use of “informals,” as a supplement to the for- mal meetings, worked. Progress occurred on many of the most contentious issues (such as jurisdiction, trig- ger mechanisms, and the role of the UN Security Coun- cil), and a final draft began to take shape. On the last day of the conference, Chairman Philippe Kirsch decided that the Conference Bureau’s text be presented to the Committee of the Whole for possible adoption. The Committee of the Whole convened on Friday, July 17, 1998, to discuss adoption of the final draft statute.
At this time, both India and the United States attempted to introduce amendments to the final draft. Fearing a stalemate on these final amendments, Nor- way’s delegate introduced a “no action” motion for both amendments, which was a motion to table the amend- ments and avoid a total collapse of the Rome Confer- ence. The result of the no action motions was an affirmative vote of 114 in favor, 16 against, and 20 abstentions on the introduction of India’s amendment, and 113 in favor, 17 against, and 25 abstentions for the introduction of the U.S.’s amendment. Professor M. Cherif Bassiouni described the ensuing scene as fol- lows:
After the second vote, which was final [on the U.S. proposal], the delegates burst into a spontaneous standing ovation which turned into rhythmic applause that lasted close to 10 minutes, while some delegates embraced one another, others had tears in their eyes. It was one of the most extraordinary emo- tional scenes ever to take place at a diplomatic con- ference. The prevailing feeling was that the long historic journey that started after World War I had finally reached its destination. It was truly a historic moment of great significance for all who had worked so hard to bring about the momentous results.11
The final plenary session convened at around nine o’clock that evening. After the United States called for one more unrecorded vote on the statute, to ascertain one last measurement of who would support the United States in its opposition to the Rome Statute, the official vote occurred. The final vote was 120 in favor, 7 against, and 21 abstentions. The Rome Conference had achieved its ultimate goal, and on the following morn- ing, the Rome Statute of the International Criminal Court was open for signatures. The long journey toward the establishment of an international criminal court had reached a critical moment, and supporters of the ICC mark the events of June 15-July 17, 1998, as a momen- tous occasion not only for advocates of international humanitarian law but also for the principles of interna- tional law and international cooperation in general.
The euphoria of the Rome Conference was only accentuated by the events of April 12, 2002. It was on this date that a group of state representatives, along with a coalition of non-governmental organizations (NGOs), (the CICC, or the NGO Coalition for an Inter- ational Criminal Court), International Criminal Court supporters, and media personnel, gathered at the UN headquarters in New York. The purpose of this gather- ing was to celebrate the establishment of a permanent International Criminal Court. At this event, the Rome Statute for an International Criminal Court received its sixtieth ratification, establishing it as a functioning organization.12 For many states, NGOs, and other human rights advocates, this marked a joyous moment in the struggle to uphold the principles of international humanitarian law and the promise of global justice.
4 Eric K. Leonard
1. The ICTR was established according to UN Security Council Resolution 955 of November 8, 1994. The tribunal began work in January 1997 and, as of April 2007, the tribu- nal has handed down twenty-seven judgments including thirty-three accused. For more information on this tribunal, see http://www.un.org/law.
2. The ICTY was established according to UN Security Council Resolution 827 of May 25, 1993. For more informa- tion, see http://www.un.org/icty.
3. The ICTY and the ICTR are only two such tribunals. Other ad hoc forms of justice include the special courts for Cambodia, East Timor, and Sierra Leone, along with more historical forms of justice, including the International Mili- tary Tribunals at Nuremberg and the International Military Tribunals for the Far East.
4. See Eric K. Leonard, The Onset of Global Governance: International Relations Theory and the International Criminal Court (Aldershot, UK: Ashgate Publishing, 2005), for a detailed account of the history and structure of the ICC.
5. No official record was kept of the vote, however most observers place the number of opposition states at seven. The actual list of opposition states is still contestable. In addition to the United States, Israel, and China, the list typically includes Iraq, Libya, Qatar, and Yemen. Others states that are often included in the list are Algeria, India, Indonesia, and Sudan.
6. As mandated in the Rome Statute, the ICC would only become a fully functioning institution when sixty states rati- fied the statute.
7. For a complete list of state signatories and ratifica- tions, see the case appendix. For a listing of the current inves- tigations, see http://www.icc.org/.
8. The Courmayeur Plan was titled such because of its origin at a meeting in Courmayeur, Italy, May 4–8, 1998.
9. Between 1996 and 1998, there were six PrepCom meetings. The PrepCom leadership invited all nation-states to send delegates, and it was during these meetings that much of the details surrounding the draft statute originated.
10. Donald W. Jackson, “Creating a World Court Is Like Making Sausage—Except It Takes Longer,” The Texas Observer ( June 30, 1998), p. 4.
11. M. Cherif Bassiouni, Statute of the International Crimi- nal Court (Dordecht, The Netherlands: Martinus Nijhoff Pub- lishers, 1992), pp. 31–32.
12. The Rome Statute for the Establishment of a Perma- nent International Criminal Court (reprinted at http:// www.iccnow.org) required sixty state ratifications for the court to come into force. As of May 1, 2007, the statute had 104 ratifications and 139 signatories (although the United States and Israel have withdrawn their signatures). See the appendix for a complete listing of signatories and ratifica- tions.
Part B Establishing an International Criminal Court: The Emergence of a New Global Authority?
E R I C K . L E O N A R D S H E N A N D O A H UN I V E R S I T Y
ACTORS AND NEGOTIATING POSITIONS
In attempting to understand how this regime formation process progressed, it is crucial that one first be aware of the negotiation position of the actors attending the Rome Conference. It is obvious that prior to the confer- ence some states had already defined their positions on the ICC and its many articles. One group of states, enti- tled the “Like-Minded Group,” favored the establish- ment of a strong and independent court. This group, consisting of mostly Western European nation-states, was probably the most outspoken collection of states concerning the need for an international criminal court and, as a result, they emerged as leaders during the Rome Conference. Opposing this group was the United States, along with a collection of mainly nondemo- cratic states. This group felt that the ICC, as embodied in the draft text, was a flawed institution. Finally, the NGO community also played a critical role in the nego- tiation process by assisting the Like-Minded Group in its endeavor. Let us begin this analysis with the advo-
cates of the ICC and why they feel the court is such a necessary institution for the global community.
The Like-Minded Group
The self-named “Like-Minded” countries were the strongest advocates for an independent and powerful ICC. In general, this group of states shared one com- mon interest—the rapid creation of a permanent inter- national criminal court. These states realized that the opportunity to establish such an institution had already slipped away once (fifty years ago), and they believed that if the international community did not act fast, the current movement might also fall short. In order to achieve their goal, the Like-Minded states made sure that they played a crucial role not only in the Rome Conference but also in the PrepCom meetings that led up to the conference.
Throughout the negotiation process, the Like- Minded Group fought to establish a strong and inde- pendent ICC by often leading the PrepCom meetings and always maintaining a high level of visibility. Their efforts did not go unnoticed. Other states began to see the importance of this issue and slowly started to gravi- tate to the Like-Minded Group. At the time of the ILC Draft Statute for an International Criminal Court
6 Eric K. Leonard
(1994), the Like-Minded Group consisted of only a dozen or so countries. As the process progressed and other states became aware of the Like-Minded Group’s intentions, however, the number of adherents to its position began to swell. By the beginning of the Rome Conference, the group was composed of forty-two states. By the end of the conference, the group totaled more than sixty states, including Great Britain, Canada, France, Germany, Italy, the Netherlands, Spain, and many others. These growing membership numbers served as proof that the Like-Minded Group’s guiding principles resonated with a large portion of the global community.
In 1997, the Like-Minded Group explicitly stated its goals. At the December PrepCom meeting, the Like- Minded Group centered its future goals on the follow- ing six guiding principles.13 First, the groupdesired an ICC that would be independent of the UN Security Council. The group believed that this position would assist in the depoliticizing of an ICC and prevent the major powers of the world from vetoing prosecutions that were not in their best interest.
Second, in a further attempt at depoliticization, the Like-Minded Group also advocated the idea of an inde- pendent prosecutor. This principle would give the pros- ecutor the power to initiate an investigation proprio motu (on its own). It would also allow the court to retain a greater sense of independence from both mem- ber states and the Security Council and provide the court with greater legal legitimacy.
Third, the Like-Minded Group advocated the extension of the inherent jurisdiction of the court to cover all “core crimes” (genocide, crimes against humanity, war crimes, and the crime of aggression). This principle would achieve two major functions. First, it would improve the traditional two-track approach to jurisdiction in international courts or tribu- nals. Historically, if a state were party to an interna- tional court or tribunal, this would not necessarily equate with an inherent acceptance of the court’s juris- diction.14 Membership and jurisdiction are two sepa- rate consensual issues, thus making acceptance of the court’s jurisdiction the second step. The ICC alters this two-step process. In the case of the ICC, immediately upon a party state’s ratification of the statute, the court gains automatic jurisdiction over and within the party state. There is no need for two separate forms of con-
sent.15 Second, it allows for greater independence of the court. The ability of the court to pursue prosecu- tions increases, regardless of state consent, by not allowing any opt-in or opt-out clauses.
Fourth, the Like-Minded Group called for the full cooperation of states with the ICC. The necessity of such a proposal is obvious when considering the pleth- ora of tasks that the court has to undertake. The ICC is still an institution composed of nation-states. There- fore, the ICC relies heavily on the assistance of these states for the functioning of the court and the enforce- ment of its decisions. According to the Rome Statute, the ICC will be entirely reliant on member states for the discharge of its functions. Without the full cooperation of its member states, the court would not be able to function in an effective and/or efficient manner.
The Like-Minded Group’s fifth principle advocated the idea of the ICC as the final decision-maker on all issues of admissibility. This objective is essential to the Like-Minded states because of their desire to establish an independent court. As the group perceives it, one way to ensure the fair and independent functioning of the court is to place the burden of admissibility, which is the introduction and acceptance of a case before the court, solely with the elected judges. This would allevi- ate the politicization of the court by state members and would assist in the pursuit of an objective decision- making process that is essential to the pursuit of justice.
The final principle that the Like-Minded Group espoused was a commitment to a successful diplomatic conference in Rome. This group of states realized that more than a half-century’s worth of work was depen- dent on a five-week conference. The group was not under the impression that this step in the formation process would be an easy one; therefore, the group wanted explicitly to state its commitment to a success- ful outcome at the Rome Conference. The approval of the Rome Statute on July 17, 1998, is, in large part, the result of the Like-Minded Group’s dedication to this project. Moreover, although some of the group’s princi- ples exist in the final statute while others do not, it is clear that the involvement of this group of states was crucial to the negotiating process. However, the Like- Minded states were not the only state actors involved. Two other groups of states also played a role in the negotiation process.
Establishing an International Criminal Court 7
The Nonaligned Movement
The nonaligned movement was another group of states that took shape during the statute’s formation process. This group of states played a role in the early stages of negotiation, but its influence dissipated as the process progressed. The nonaligned movement was in favor of an ICC but only if certain conditions were included. In general, these states supported the formation of the ICC if it contained the following principles: (1) the need to include nuclear weapons in the list of prohib- ited weapons, and (2) the necessity to eliminate any control of the court by the Security Council.16
This group of states consisted mainly of nonwest- ern states that, in the instance of the ICC, wished to ini- tiate a countermovement to the western, Security Council powers.17 India served, primarily, as the lead- ership of this group, with a number of Persian Gulf states forming the secondary leadership role. Neverthe- less, the staying power of this group was not long. Two of the primary deficiencies of this group were the lack of total cohesiveness and a weak leadership. These flaws eventually led the members of the nonaligned movement to break away and gravitate either to a more regionally based grouping or toward the Like-Minded Group. Thus, the nonaligned movement’s impact on the negotiations was minimal, although in many ways the nonaligned movement did bolster the Like-Minded Group’s numbers, giving it an edge over the permanent Security Council states.
The P-5, or the United States and its “Allies”
In direct opposition to the Like-Minded Group’s posi- tion was the United States, along with a loosely bound group of permanent Security Council members and nondemocratic states, known as the P-5.18 The U.S.’s opposition to the court centered on the concept of national sovereignty. The United States was concerned that if the Like-Minded states were able to form an ICC with an independent prosecutor who had the power to initiate investigations on its own, then the court could bring U.S. soldiers and policymakers to trial outside of the U.S. court system. It was this fear of an ICC prose- cutor “running wild” and impinging on the national sovereignty not only of the United States, but also of all sovereign states, that fueled the U.S. opposition.
U.S. officials stated that they would oppose the for- mation of an ICC if it included any of the following: (1) any form of jurisdiction over nonparty states; (2) no “opt-out” clause concerning jurisdiction over core crimes; (3) amendment procedures that do not allow states to avoid jurisdiction; (4) an independent or pro- prio motu prosecutor; (5) the inclusion of the crime of aggression as a core crime; (6) the inclusion of crimes of terrorism and drug crimes; and (7) a no reservation clause. that is, any prohibition on adding any reserva- tiouns to the statute.19
It is important to note that the U.S.’s position on the Rome Statute does not mean that the United States opposed the idea of an international criminal court. According to U.S. delegates, an acceptable ICC should first respect the concept of national sovereignty and second, it should not be vulnerable to usage as a politi- cal tool. In other words, the United States wanted to make sure that the ICC would remain under the control of the Security Council instead of an independent pros- ecutor, whom the United States saw as a potential polit- ical tool. As David Scheffer, U.S. ambassador at-large for War Crimes Issues and U.S. delegate representative to the Rome Conference, stated:
The United States has had and will continue to have a compelling interest in the establishment of a per- manent international criminal court. . . . Since 1995, the question for the Clinton administration has never been whether there should be an international criminal court, but rather what kind of court would be in order to operate efficiently, effectively and appropriately.20
The United States was opposed to the final draft statute because, as government officials saw it, the ICC circumvented national sovereignty and the principle of nonintervention. Scheffer stated quite bluntly that the United States would not expose its military forces, its leadership, or its citizens to a court that the United States does not recognize. The only way that the United States would recognize an international criminal court is if the Security Council controlled it. The implemen- tation of this type of trigger mechanism would give the United States veto power over the court’s jurisdiction and, as Scheffer saw it, protect U.S. soldiers and other U.S. citizens from unwarranted prosecution.21
8 Eric K. Leonard
As the Rome Conference progressed, it became obvious that the United States and the Like-Minded Group were going to clash over many of the issues in the draft statute. In the end, the United States refused to approve the Rome Statute, because it failed adequately to address many of the U.S. delegates’ concerns. Despite U.S. opposition, however, the participants overwhelmingly approved the Rome Statute, due in no small part to the growing number of nonaligned states that joined the Like-Minded Group. Nevertheless, not all of the credit for this momentum toward the approval of the Rome Statute can go to the state delegates alone. The nongovernmental organizations that attended also exerted a large degree of influence.
The nongovernmental organization Coalition for an International Criminal Court was a major actor in the formation of the Rome Statute. The coalition had more than eight hundred nongovernmental organizations working for its position, and this grouping generally assisted the Like-Minded states and their cause. The NGO coalition was strongly in favor of an independent court with universal jurisdiction. NGOs, such as Amnesty International, Human Rights Watch, the Law- yers Committee for Human Rights, and the Interna- tional League for Human Rights, provided vital information and analysis to the delegates through infor- mal meetings and aggressive campaigning tactics. In short, this consortium of NGOs provided the delegates with an expert’s analysis of this subject matter and, as a result, exerted a crucial influence on the final draft stat- ute.22 The NGO coalition’s role in the establishment of the ICC was, and continues to be, significant. In many ways, the CICC empowered the Like-Minded states to resist U.S. pressure for a weaker court.
Abram Chayes and Anne-Marie Slaughter stated the significance of the NGO community on the ICC negotiations most poignantly when they affirmed that, “[W]ithout the NGO community, the ICC treaty might not have been concluded.”23 Professor Bassiouni reiter- ated this point when he stated: “Non-governmental organizations, and particularly the ‘NGO Coalition for an ICC’ played an important and useful part in the pro- cess.”24
It is clear that the role of NGOs in the negotiation process was significant. The question that we must now
address is what exactly the role of the NGO community was and how crucial was their presence to the forma- tion of the Rome Statute.
One can view the NGO presence, both before and during the Rome Conference, as an example of the changing nature of world politics and international treaty negotiations. Recently, NGOs have begun to play a much more influential role in the treaty formation process. Former UN Secretary-General Boutros Boutros-Ghali recognized this fact. In 1996, in a state- ment concerning the interaction between NGOs and the United Nations, Boutros-Ghali stated:
Until recently, the notion that the chief executive of the United Nations would have taken this issue seri- ously might have caused astonishment. The United Nations was considered to be a forum for sovereign states alone. Within the space of a few short years, however, this attitude has changed. Nongovernmen- tal organizations are now considered full participants in international life.25
This rise to prominence has affected many issue areas and many treaty negotiations. The importance of NGO input has surfaced during the drafting of the Land Mine Convention, the Antarctic Treaty Consultative Meeting, the Framework Convention on Climate Change, and numerous other treaty negotiations. The community of states now often invites the NGO com- munity to sit at the negotiating table with the delegates, participate in meetings, and assist in the overall negoti- ating process. The Rome Conference is simply another example of the growing influence of NGOs and the importance of their presence during the treaty negotia- tion process.
The influence of the NGO community on the ICC formation process took root on February 25, 1995. It was on this date that a group of NGOs, who were moni- toring the UN debate on the ILC’s Draft Statute for an International Criminal Court, decided to form the NGO Coalition for an International Criminal Court. The pri- mary goal of the CICC was to “advocate the establish- ment of an effective and just international criminal court.”26 At that time, the group consisted of two- dozen or so NGOs. By the time the Rome Conference convened, the CICC included more than eight hundred organizations from every corner of the globe.27 The sheer magnitude of this coalition made it impossible for
Establishing an International Criminal Court 9
the international community of states to ignore them, and throughout the ICC negotiation process the pres- ence and influence of this group was undeniable. In terms of the CICC platform, according to its official statement,
The main purpose of the NGO Coalition for an International Criminal Court is to advocate for the creation of an effective, just and independent Inter- national Criminal Court. The Coalition brings together a broad-based network of over 1,000 NGOs, international law experts and other civil society groups. The multi-track approach of the Coalition involves: promoting education and awareness of the ICC and the Rome Statute at the national, regional and global level; supporting the successful comple- tion of the mandate of the Preparatory Commission and facilitating NGO involvement in the process; promoting the universal acceptance and ratification of the Rome Statute, including the adoption of com- prehensive national implementing legislation follow- ing ratification; and expanding and strengthening the Coalition’s global network.28
The CICC is clearly a forceful advocate for the for- mation of a strong, independent, and fair court that has the ability to pursue universal justice. The coalition sought to achieve this goal through the construction of a statute that would embody the ideas of universal juris- diction, an independent prosecutor, independence from the UN Security Council, complementarity, juris- diction over internal conflicts or civil wars, state-party cooperation, and respect of the rights of the accused. As one can see, this list is very similar to that of the Like- Minded Group. As a result, an alliance developed between these two groups in an attempt to further their common cause. However, the roles that these two groups played were very different. The Like-Minded Group was literally the authors of the statute. In Rome, their vote counted, and in the postconference period,
their domestic legislatures have signed and ratified the statute. The NGO community, due its lack of formal sovereign statehood, did not have a vote nor would it have a seat among the party states upon ratification. Thus, the role of the NGO community had to take on a different form, a form that in many ways complemented the role of the nation-states.
Throughout the negotiation process, the CICC engaged in numerous activities. These included but are not exclusive to
• convening sectoral caucuses (women’s children’s, faith, peace, and victims’), national and regional networks, and issue area working groups;
• maintaining a World Wide Web site and email lists to facilitate the exchange of NGO and expert doc- umentation and information concerning the ICC negotiations and the ad hoc tribunals and to foster discussion and debate about substantive issues;
• facilitating meetings between the coalition and representatives of governments, UN officials, and others involved in the ICC negotiation process;
• promoting education and awareness of the ICC negotiations at relevant public and professional conferences—including UN conferences, com- mittees, commissions, and preparatory meetings; and
• producing newsletters, bulletins, media adviso- ries, reviews, and papers on all aspects of efforts to establish the ICC.29
In general, the CICC acted as a consultant to the Rome Conference participants. The coalition, acting as experts within this issue area, assisted in the accruing of knowledge by state delegates and the dissemination of this knowledge to the larger global community. The information that the CICC provided was not simply objective data but also the interpretation that the CICC wished to convey to the participating states. Many states accepted this type of information because of the expertise that the CICC has within this issue area.
13. Fanny Bendetti and John L. Washburn, “Drafting the International Criminal Court Treaty: Two Years to Rome and an Afterword on the Diplomatic Conference,” Global Gover- nance 25 (1992): p. 21; and William Pace, “Relationship
Between the ICC and Non-governmental Organizations,” in Reflections on the International Criminal Court: Essays in Hon- our of Adriaan Bos, ed. Herman A. M. von Hebel, Johan G. Lammers, and Jolien Schukking (The Hague: T.M.C. Asser
10 Eric K. Leonard
Press, 1999), p. 206, discuss this list of defining principles. 14. Roy S. Lee, “The Rome Conference and its Contribu-
tions to International Law,” in The International Criminal Court: The Making of the Rome Statute—Issues, Negotiations, Results, ed. Roy S. Lee (The Hague: Kluwer Law Interna- tional, 1999), p. 28, cites article 36 of the statute of the Inter- national Court of Justice.
15. Rome Statute of the ICC, article 12.1 at http:// www.iccnow.org.
16. Bendetti and Washburn, “Drafting the ICC,” p. 31. 17. The nonaligned movement dates back to the Cold
War. It was initially an attempt to assert independence from both the western powers and the Soviet bloc. In this case, the goal is to counteract the power of the United States and the other Security Council members.
18. See note five for a list of opposition states. 19. David J. Scheffer, “Development at the Rome Treaty
Conference” (transcript of a speech to the Foreign Relations Committee, United States Senate)” U.S. Department of State Dispatch 9 (1998); and “The United States and the Interna- tional Criminal Court,” The American Journal of International Law 93 (1999), discuss these objections.
20. Scheffer, “The United States and the ICC,” p. 2. 21. Ibid., pp. 19–20. 22. The NGO coalition was especially helpful to the
smaller states. The NGO coalition was able to give them infor- mation concerning occurrences in meetings they could not attend and information that may not have been available to their delegates. The coalition’s impact on these nation-states
was tremendous. 23. Abram Chayes and Anne-Marie Slaughter, “The ICC
and the Future of the Global Legal System,” in The United States and the International Criminal Court: National Security and International Law, eds. Sarah B. Sewall and Carl Kaysen (Lanham, MD: Rowman & Littlefield Publishers, Inc., 2000), p. 241.
24. Bassiouni, Statute of the ICC, p. 25. 25. Boutros Boutros-Ghali, “Foreword,” in NGOs, The UN
and Global Governance, eds. Thomas G. Weiss and Leon Gor- denker (Boulder, CO: Lynne Rienner Publishers, 1996), p. 7. (This author added the emphasis.)
26. William Pace and Mark Thieroff, “Participation of Non-Governmental Organizations,” in The International Criminal Court, p. 391. William Pace served as convenor of the CICC and is executive director of the World Federalist Movement—Institute for Global Policy, which serves as the secretariat for the coalition. Therefore, any statements taken from William Pace are indicative of the CICC’s platform.
27. William Pace, “Relationship Between the ICC and Non-Governmental Organizations,” in Reflections on the Inter- national Criminal Court, p. 200. At the Rome Conference, there were 235 NGOs that were accredited by the General Assembly to act as official participants.
28. The official CICC Web site, http://www.iccnow.org, and every issue of The International Criminal Court Monitor, lists this statement.
29. The International Criminal Court Monitor (any issue) or http://www.iccnow.org.
Part C Establishing an International Criminal Court: The Emergence of a New Global Authority?
E R I C K . L E O N A R D S H E N A N D O A H UN I V E R S I T Y
FOUNDATIONAL PRINCIPLES OF THE COURT
The final Rome Statute consisted of 13 parts and 128 articles. The statute is a very detailed, very thorough document. In order to provide readers and students with a basic understanding of how the court will func- tion, this case now discusses five of the major, and more contentious, aspects of the Rome Statute and the nego- tiation process that surrounded them.
Part 2 of the Rome Statute discusses the jurisdiction of the court. As stated in article 5, the International Crimi- nal Court will have jurisdiction over the following four crimes: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. The court shall only have jurisdiction over these crimes from the time the statute enters into force. Therefore, the ICC is tem- porally bound to the point of its ratification. No crimes
committed before that date are within the court’s juris- diction.
Scholars often refer to the crimes themselves as the “core crimes” of international humanitarian law.30 The definitions of the crime of genocide, crimes against humanity, and war crimes are all predicated on estab- lished international law. The crime of aggression is more problematic, but I will return to this later.
Article 6 of the Rome Statute defines the crime of genocide. The wording of this definition is taken directly from the 1948 Genocide Convention and reads as follows:
For the purpose of this Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to mem- bers of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruc- tion in whole or in part;
12 Eric K. Leonard
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.31
The delegates attending the Rome Conference unanimously consented to this definition and rapidly incorporated it into the statute. Under this article, not only will the act of genocide be punishable, but also conspiracy to commit genocide, public incitement to com- mit genocide, attempted genocide, and complicity in genocide will be punishable.
Article 7 discusses the nature of crimes against humanity. The definition of these crimes proved diffi- cult to negotiate. The final statute lays out a definition that is quite broad and goes beyond the previous defini- tions of crimes against humanity. Both the Nuremberg Charter and the ad hoc tribunals of the 1990s (ICTY and ICTR) contained definitions of such crimes, but the Preparatory Committee determined that the defini- tions found in these documents were insufficient. The definition employed in the final Rome Statute includes acts of murder, extermination, enslavement, deporta- tion or forcible transfer of a population, imprisonment or severe deprivation of physical liberty, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, other forms of extreme sexual violence, persecution against any identifiable group or collectivity, enforced disappearance of persons, apart- heid, or other inhumane acts of a similar character.
The court will consider all of these actions crimes against humanity as long as they are “committed as part of a widespread or systematic attack directed against any civilian population.”32 It is also important to note that the Rome Statute does not require that such acts be committed within the context of an armed conflict. Therefore, according to the Rome Statute’s definition, crimes against humanity can also be committed in times of civil strife or even peace.33 This expansive definition of crimes against humanity allows the ICC to pursue cases that encompass widespread and systematic vio- lence by a government against a domestic civilian popu- lation.
Article 8 of the Rome Statute discusses war crimes. As with the previous two crimes, established interna- tional law guides the Rome Statute’s definition of a war crime. In particular, grave breaches of the 1949 Geneva
Conventions (including Protocol I, Protocol II, and vio- lations of article 3 common to the four Geneva Conven- tions) and the Hague Convention of 1907 form the foundation of this definition.34 The resulting definition of war crimes is extremely inclusive and encompassing. It includes willful killing, torture or inhuman treatment, extensive destruction and appropriation of property, unlawful deportation, taking of hostages, intentionally targeting civilian populations, use of poison weapons or gases, rape, sexual slavery, and starvation, among numerous other violations of international law.
A major point of discussion at the Rome Confer- ence was whether the definition of war crimes is appli- cable to internal conflicts. The court was established to have jurisdiction over war crimes when they are “com- mitted as part of a plan or policy or as part of a large-scale commission of such crimes.”35 In paragraph 2 (b), the statute establishes that this crime applies in situations of international armed conflict, but how does this affect internal conflict? The delegates engaged in a tremendous amount of discussion concerning this issue. The result was a negotiated consensus that allowed for the court’s jurisdiction on war crimes to include inter- nal wars36 but not “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.”37
There was also a tremendous amount of discussion on the issue of nuclear weapons.38 The majority of dele- gates present at the Rome Conference supported the inclusion of nuclear weapon use as part of the war crimes definition, but because international law does not explicitly prohibit the threat or use of such weap- ons, this issue was not included.39 Many participants in the conference also believed that the exclusion of nuclear weapon use would increase support for the entire Rome Statute. Many advocates of the ICC see such a concession as a way to garner support that is more widespread for the ICC among the major world powers, although the official reasoning was that no international legal precedent existed concerning the banning of nuclear weapon use.
The last crime within the court’s jurisdiction is the crime of aggression. This particular crime has proved a sticking point for the establishment of an international criminal court since the early post-World War II era. In 1954, the UN General Assembly prevented the forma- tion of an ICC, because the ILC could not define
Establishing an International Criminal Court 13
“aggression.”40 The UN Special Committee finally defined the concept in 1974, but even an explicit defini- tion did not end the controversy. The 1974 definition was rather expansive, but the primary content of the definition was as follows:
Aggression is the use of armed force by a State against the sovereignty, territorial integrity or politi- cal independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this definition.41
This definition went on to include the following acts as evidence of aggression: invasion or attack by an armed force of a state, bombardment by an armed force of a state, blockade of ports or coasts by an armed force of a state, the use of mercenaries by a state to carry out acts of armed force, and any other act that the Security Council determines is an act of aggression under the provisions of the UN Charter.
With the renewed discussion of an ICC in the 1990s, the debate concerning a definition of the crime of aggression once again took center stage. With neither of the two ad hoc tribunals’ jurisdiction encompassing the crime of aggression, the Preparatory Committee did not have any recent precedent to call upon that dealt with individual acts, not state acts. Despite the definitional problem, it was clear that the Preparatory Committee believed that discussion of this issue must occur in Rome. The crime of aggression was added to the draft statute for the Rome Conference, and it included three definitions.42 As the conference pro- gressed, it became clear that there was support for the inclusion of this crime in the final statute, but once again, there was a lack of consensus on how to define this crime. The result was as follows:
The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accor- dance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.43
The crime of aggression is included in the list of crimes within the jurisdiction of the court, but its defi- nition is yet to be determined.44 Even after this crime is
defined, the definition must then pass through the pro- cedures of an amendment to the statute, as articles 121 and 123 define it. In September 2002, the Assembly of States Parties to the ICC established a Special Working Group on the Crime of Aggression. This group is cur- rently working on a draft text concerning the definition of crimes of aggression. Once this group completes a draft, the text will be forwarded to the Assembly of States Parties for review, and in a subsequent review conference the parties to the ICC will decide whether or not to adopt this text. Unfortunately, this review con- ference will not occur until seven years after the ICC enters into force, but the goal is eventually to have this crime under the jurisdiction of the court.45
In terms of amending the jurisdiction of crimes, if a state party does not approve the amendment, then that state and its nationals shall be exempt from that amend- ment, while remaining party to the treaty. Therefore, if a state party refuses to approve the forthcoming defini- tion of the crime of aggression, then the court “shall not exercise its jurisdiction when committed by that State Party’s nationals or on its territory.”46 This exclusion from amendments only applies to articles 5, 6, 7, and 8, which are the articles relating to crimes under the court’s jurisdiction.
As we can see, the jurisdiction of the court is quite broad. It includes genocide, crimes against humanity, war crimes, and eventually crimes of aggression. It is important to reemphasize that the court substantiated none of these crimes and their definitions. Instead, legal precedent and established international law dictate the scope and application of these crimes.
The exercise of jurisdiction, or trigger mechanisms, was a very contentious issue at the Rome Conference. At the heart of the debate was whether state parties, the Security Council, and/or the independent prosecutor could refer a matter for investigation to the court.47 A large contingent of states, including Germany, along with the NGO coalition, wanted the ICC to have univer- sal and inherent jurisdiction over the four core crimes48—universal in the sense that no state would fall outside of the court’s purview, and inherent in that the prosecutor would have the inherent power to pursue a criminal investigation without needing to consult another authority.
14 Eric K. Leonard
The United States strongly opposed the idea of an international criminal court that held both universal and inherent jurisdiction. For the U.S. delegates, the idea of an independent prosecutor who could trigger an investigation into any state’s domestic realm without having to seek authority from another source was ludi- crous. The United States saw this as a clear violation of the principle of state sovereignty and the foundation for a politicized court that would act not in the name of international justice but rather in its own self-interest. US Ambassador to the United Nations, Bill Richardson explained U.S. concerns in the following manner:
There is also a need for checks and balances with respect to the decisions of a single Prosecutor, who in theory also could be influenced by personal and political considerations. If the Prosecutor has sole discretion to initiate investigations and file com- plaints—as some delegations have sought under the rubric of “inherent jurisdiction”—the results could be more idiosyncratic, possibly even more political, than the decisions of the Security Council.49
U.S. objections to the implementation of universal and inherent jurisdiction led to the need for negotia- tions at the Rome Conference. The United States pro- posed that the Security Council primarily control the trigger mechanisms for the court’s jurisdiction.50 Such a system would be similar to the practice of the war crimes tribunals in the former Yugoslavia and Rwanda. The prosecutor would have wide discretion within the situation once the Security Council approved the court’s jurisdiction over that situation. The U.S. posi- tion obviously clashed with the aforementioned Ger- man proposal, which called for universal jurisdiction with an independent prosecutor. The result was a com- promise between these two positions.
The final draft of the Rome Statute established both preconditions for the exercise of jurisdiction and the trigger mechanisms for an investigation. The court has jurisdiction over a situation if one of the following conditions exists:
(1) A situation in which one or more of such crimes [as stated in article 5 of the Rome Statute] appears to have been committed is referred to the prose- cutor in accordance with article 14;51
(2) A situation in which one or more of such crimes appears to have been committed is referred to the prosecutor by the Security Council acting under chapter VII of the United Nations;52 or
(3) A situation in which the prosecutor has initiated an investigation with respect to such a crime in accordance with article 15.53
In other words, the court may initiate an investiga- tion if a state party, the Security Council, or the prose- cutor refers a situation to the court. If any of these actors determines that any of the crimes defined in arti- cle 5 have been committed, they may refer the case to the prosecutor for further investigation. The case is then in the hands of the prosecutor, and he or she must decide whether there is sufficient evidence to proceed.
Although this appears to be an approval of univer- sal jurisdiction, it is not. Certain preconditions must exist before the court can exercise its jurisdiction. These preconditions establish the territorial jurisdic- tion of the court and limit the application of its power. In other words, article 13 does not give the court uni- versal jurisdiction; instead, it provides certain spatial considerations that determine where and when the court may exercise its power.
According to article 12, the court has jurisdiction within the territory of a state that is party to the statute. Therefore, if one or more of the crimes defined in arti- cle 5 were committed on a state’s territory that is party to the statute, then the ICC has jurisdiction. The ICC also has jurisdiction if the crime was committed on board a vessel or aircraft that is registered by a state that is party to the statute. The ICC’s jurisdiction also extends to a situation in which the perpetrator of the crime is a national of a state that is party to the statute. The ICC also has jurisdiction over a nonparty state if that state voluntarily accepts the court’s jurisdiction.
In combining both the preconditions and the trig- ger mechanisms, the result is the following: The initia- tion of an ICC investigation can be triggered either by a state that is party to the statute, the Security Council, or the prosecutor, as long as the crime occurred on a state’s territory that is party to the statute, or a vessel or aircraft that is registered to that state, or the perpetrator is a national of a state that is party to the statute. The only other time that the ICC can act in a nonparty situa- tion is if that nonparty state consented or if the Security
Establishing an International Criminal Court 15
Council referred it to the court. If the Security Council refers a situation to the court, then and only then does the court have universal jurisdiction.
The court must also incorporate the principle of com- plementarity when considering whether it has legal jurisdiction. The principle of complementarity con- cerns the relationship that the International Criminal Court has with the national authorities and domestic courts of state parties. A major concern for many nation-states is that the formation of a permanent ICC is an infringement of their state’s sovereignty. Advocates of the Rome Statute believe that the inclusion of the principle of complementarity allows for the institution- alization of humanitarian law while still preserving the principle of state sovereignty.
According to article 17.1 of the Rome Statute, the principle of complementarity states that
The Court shall determine that a case is inadmissi- ble where:
(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable to genuinely carry out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness of the State genuinely to prosecute.
Thus, the relationship of the ICC to national judi- cial systems is a complementary one. If, and only if, the domestic judicial system cannot properly investigate or prosecute the alleged crime does the ICC have jurisdic- tion. Such a situation would most likely occur because of a lack of national infrastructure or a collapse of the state’s domestic judicial system. Unwillingness to inves- tigate or prosecute is not as easy to identify.
The Rome Statute holds that if a state is unwilling to investigate a crime, then the ICC has the right to prosecute the accused. The court shall determine unwillingness by whether one or more of the following situations exist: (1) the initiation of national judicial
proceedings occurred for the purpose of shielding the accused from criminal responsibility; (2) an unjustifi- able delay of the court proceedings occurred, thus showing the state’s lack of intent to impose justice; and (3) if a domestic court does initiate judicial proceed- ings, they do not occur in an impartial and neutral man- ner. As a result, the statute of the International Criminal Court asserts that the state in question is not upholding the principles of international justice.54 Therefore, the court has a right to intervene and prosecute.
These three situations are the only ones in which the ICC can impose its jurisdiction on a nation-state and take over the investigation and trial. The reason for the establishment of this type of system is that the court is meant to function for the interests of the victims and the international community as a whole. However, at the same time, the court must also “be complementary to national criminal jurisdictions.”55 As a result, during the Rome Conference it became crucial to the effective- ness of the ICC that the delegates establish specific guidelines concerning situations in which “unwilling- ness” by states to prosecute was occurring.
In the aforementioned situations, article 17.2 (a-c), it is true that the court can claim primacy in a criminal case and override a state’s jurisdiction on that case. Many states, including the United States, see this as a clear violation of national sovereignty and the concept of nonintervention. However, if the ICC is to establish a sense of universal justice, then the provision for the court’s primacy over incapable or unwilling domestic legal systems is crucial. Without the inclusion of com- plementarity and the court’s jurisdictional primacy in certain situations, the ability of states to protect their own citizens from criminal responsibility would increase and the court’s ability to ascertain interna- tional justice and end impunity would decrease.
The ICC and the United Nations
The relationship of the court to the United Nations is an ongoing issue. Article 2 of the ICC states that the Assembly of States Parties will approve an agreement in the future about what the relationship between these two entities will entail. It should be noted that although the court’s relationship to the United Nations is impor- tant, it is the court’s relationship with the Security Council that remains problematic.
16 Eric K. Leonard
I discussed the contentious nature of the Security Council’s role in the ICC earlier in this case, but the importance of this issue warrants some reiteration. The Rome Statute does establish a role for the Security Council. The Security Council can refer a situation to the prosecutor for investigation.56 Thus, the Security Council is one of the trigger mechanisms of the ICC, but it is also the most powerful of the trigger mecha- nisms. This is so because not only can the Security Council initiate an investigation, but also it can initiate an investigation regardless of the state’s relationship to the court.
Acting under article VII of the UN Charter, the Security Council can refer a situation to the prosecutor regardless of whether the territory on which the alleged crime occurred is a party to the ICC or whether the accused is a citizen of a state party. No matter the nationality of the accused or the territory on which the crime took place, the Security Council can declare ICC jurisdiction. In other words, the Security Council is the only trigger mechanism that has the ability to grant the court universal jurisdiction.
Accompanying this powerful provision is the fact that the Security Council can permit a deferral of any ICC investigation for a period of twelve months. According to the Rome Statute,
[N]o investigation or prosecution may be com- menced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Char- ter of the United Nations, has requested the Court to that effect; that request may be reviewed by the Council under the same conditions.57
The Rome Statute grants the Security Council the power both to initiate an investigation and to delay fur- ther action by the court. As a result, it is undeniable that the actions of the UN Security Council will have a bearing on the future of the ICC and the cases that it pursues. Thus, the central debate concerns how much power the ICC should grant the Security Council.
The powers of the Security Council came to a head between 2002 and 2004 over the issue of UN peace- keepers and their relation to the ICC. In 2002, the Secu- rity Council passed Resolution 1422 which provided immunity to personnel from nonparty states participat- ing in UN-established or -authorized missions for a
renewable twelve-month period. This resolution was renewed in 2003 (UN Security Council Resolution 1487) but in 2004 the United States was forced to with- draw its renewal attempt because it could not garner enough support within the Security Council. One can be sure that this issue will not dissipate and that the relationship and/or power of the Security Council in relation to the ICC will remain a central topic of discus- sion in the early years of the court’s work.
The final issue that this case must examine is the enforcement mechanisms for the ICC. As with most intergovernmental organizations, enforcement of the Rome Statute will rely on the state parties. Scholars often see this reliance as the Achilles heel of interna- tional law. John Fried describes this as the “jailer the- ory” of international law.58 This theory describes the foundation of international law as a sizable body of accepted norms but lacking reliable enforcement capa- bilities. Without the ability to enforce these norms, international law remains a weak form of international justice.
The main problem with enforcement is that inter- national law tends toward a system of self-help. The institutionalization of international law usually comes in the form of an intergovernmental organization (IGO). An IGO is an association of states that, through the pro- cess of institutionalization, pursue a common goal.59
State members are the source of power for an IGO and, despite their trans-sovereign mandate, IGOs still rely on sovereign states to enforce the underlying treaty that formed the IGO.60 This is no different for the Interna- tional Criminal Court, which clearly fits the definition of an IGO.
In order to enforce the court’s judgments, the ICC must rely on the state parties to cooperate. Without their cooperation, the ICC cannot fulfill its mandate. Arrests, transfer of prisoners, and enforcement of court sentences all rely on the cooperation of member states.61 If member states refuse to uphold the norms contained within this statute, then the ICC will simply become a dead letter treaty. The only recourse that the ICC has to a state’s failure to comply is referral of the matter to the Assembly of States Parties or the UN Security Council,62 and even then, the enforcement
Establishing an International Criminal Court 17
mechanism relies on the action of nation-states. This issue of enforcement is crucial to an analytical analysis of the ICC. At this point, it is important to note that the enforcement mechanism of the ICC, as with most IGOs, does appear to rely solely on member states. The
question that scholars have to address in the future is whether this form of enforcement prevents the forma- tion of a strong and effective International Criminal Court.
30. Such scholars as Karen Berg, “Permanent Interna- tional Criminal Court,” UN Chronicle 34 (1997); the Lawyers Committee for Human Rights, The Rome Treaty for an Inter- national Criminal Court: A Brief Summary of the Main Issues (New York, NY: International Criminal Court Briefing Series, 1998); and Marie-Claude Roberge, “The New International Criminal Court: A Preliminary Assessment,” International Review of the Red Cross 93 (1998): pp. 671–91, use the term “core crimes.”
31. The only change from the Genocide Convention’s def- inition to the Rome Statute’s definition is the replacement of the word “Convention” for the word “Statute.”
32. Rome Statute of the ICC, article 7.1, at http:// www.iccnow.org.
33. Darryl Robinson, “Defining Crimes Against Human- ity at the Rome Conference,” The American Journal of Interna- tional Law 93 (1999): p. 46.
34. There are also sections of the war crimes article that overlap with the Convention on the Rights of the Child (1989) and the Convention for the Protection of Cultural Property (1954).
35. Rome Statute of the ICC, article 8.1. 36. Rome Statute of the ICC, article 8.2 (f ), states that the
Rome Statute’s definition of war crimes does apply to “armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authori- ties and organized armed groups or between such groups.”
37. Rome Statute of the ICC, article 8.2 (d) and (f ). 38. Mahnoush H. Arsanjani, “The Rome Statute of the
International Criminal Court,” The American Journal of Inter- national Law 93 (1999): pp. 34-35.
39. As Philippe Kirsch and John T. Holmes, in “The Rome Conference on an International Criminal Court: The Negoti- ating Process,” The American Journal of International Law 93 (1999): pp. 7–8, describe it, one of the controversial elements of this negotiation was that the use of nuclear weapons was not prohibited, but the use of chemical and biological weap- ons was. Policymakers often consider the latter weapons the “nuclear weapons of the poor,” and so the issue split the dele- gates between developed versus underdeveloped nations.
40. Bassiouni, Statute of the ICC, p. 14. 41. Report of the Special Committee, Supp. No. 19, A/
9619 of the Twenty-Ninth UN Session, 1974, Article 1. Reprinted in Benjamin B. Ferencz, Defining International Aggression: The Search for World Peace (Dobbs Ferry, New York: Oceana Publications, Inc., 1975), p. 562.
42. Report of the Preparatory Committee on the Estab- lishment of an International Criminal Court: Draft Statute and Draft Final Act, Article 5. Reprinted in Bassiouni, Statute of the ICC, pp. 120–22.
43. Rome Statute of the International Criminal Court, article 5.2.
44. As of May 2007, the member states had not yet agreed upon a definition.
45. For updated information on this issue, see http:// www.iccnow.org/?mod=aggression.
46. Rome Statute of the ICC, article 121.5. 47. Kirsch and Holmes, “The Rome Conference,” pp. 8–9;
and Howard Ball, Prosecuting War Crimes and Genocide: The Twentieth-Century Experience (Lawrence, Kansas: University Press of Kansas, 1999), pp. 211–13.
48. Kirsch and Holmes, “The Rome Conference,” pp. 8–9. 49. I extracted this excerpt from a speech that Bill Rich-
ardson gave to the UN General Assembly on October 31, 1996. Reprinted in Ball, Prosecuting War Crimes, p. 203.
50. David J. Scheffer, “US Policy and the Proposed Per- manent International Criminal Court” (transcript of the Carter Center, Atlanta, GA), U.S. Department of State Dis- patch (1997): p. 2.
51. Article 14 discusses the process by which a state party would refer a case to the prosecutor. This referral should specify the circumstances surrounding the crime and include proper documentation that proves that such a crime has occurred.
52. Chapter VII of the UN Charter concerns the action that the Security Council can take in situations where there is a threat to peace, a breach of the peace, or an act of aggres- sion.
53. Rome Statute of the ICC, article 13. Article 15 of the Rome Statute describes the process that must occur if the prosecutor is to initiate an investigation without referral either by a state party or by the Security Council. This article states that the prosecutor may initiate an investigation pro- prio motu, but that in order to proceed with the investigation and seek an indictment, the prosecutor must submit a request to the Pre-Trial Chamber and receive its authorization.
54. Rome Statute of the ICC, article 17.2 (a), (b), and (c). 55. Ibid., Preamble paragraph 10. 56. Rome Statute of the ICC, article 13 (b). 57. Ibid., article 16. 58. John H. E. Fried, “International Law—Neither Orphan
Nor Harlot, Neither Jailer Nor Never-Never Land,” in Interna-
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tional Law: Classic and Contemporary Readings, eds. Char- lotte Ku and Paul F. Diehl (Boulder, CO: Lynne Rienner Publishers, 1998), p. 27.
59. Robert L. Bledsoe and Boleslaw A. Boczak, The Inter- national Law Dictionary (Santa Barbara, CA: ABC: CLIO, 1987), pp. 75–6.
60. Ursula C. Tafe, Intergovernmental Organizations,” in Beyond Sovereignty: Issues for a Global Agenda, ed. Maryann K. Cusimano (Boston: Bedford/St. Martin’s Press, 2000), pp.
231–34, discusses the reliance that IGOs have on nation-states despite the changing international environment and the rise in trans-sovereign problems.
61. The specifics of these issues are all contained within the Rome Statute. The arresting of accused criminals is con- tained in article 89. Article 89 and article 93.7 also contain the conditions for transfer. Article 103 describes the enforcement of sentencing procedures.
62. Rome Statute of the ICC, article 87.7.
Part D Establishing an International Criminal Court: The Emergence of a New Global Authority?
E R I C K . L E O N A R D S H E N A N D O A H UN I V E R S I T Y
BEYOND THE ROME CONFERENCE63
As stated earlier, the events of the post-Rome Confer- ence era were a whirlwind. There was an immediate flurry of signatories and ratifications, with the culmina- tion of this process on April 12, 2002, when the sixtieth ratification was received and the ICC became a func- tioning institution. This final section of the case will examine the post-Rome era, with an emphasis on two issues: First, what is the current status of U.S. relations with the court; second, how has the court fared in its early attempts to implement a global standard of jus- tice?
Current Status of U.S.-ICC Relations
The post-Rome era has been an exciting and conten- tious time. One of the main reasons for its contentious- ness concerns U.S. policy toward the court. As stated earlier, during the Rome Conference negotiations the Clinton administration stated its desire for an ICC but
not in the Rome Statute form. As a result, the adminis- tration initially signed the Rome Statute (on December 31, 1999) with the stipulation that it would never send the statute to the Senate for ratification. One possible reason for this action concerns the status of signatory states in future ICC negotiations. According to the Rome Statute, if a state signs the statute but does not ratify, the state may still participate in future negotia- tions concerning the rules andregulations of the court. At the time of the U.S.’s signature, some of the issues still under discussion included the crime of aggression and the court’s relationship with the United Nations.
However, upon entering office in 2001, the Bush administration pursued a less amicable policy toward the court. In May 2002, the administration “unsigned” the statute, breaking all ties to the newly formed court. In the words of U.S. Ambassador for War Crimes Issues Pierre-Richard Prosper:
Today, at the request of the president, our mission up—in the United Nations deposited a note with the U.N. secretary-general as the depository of the Rome treaty for the International Criminal Court stating that the United States does not intend to become a party to the ICC treaty and accordingly has no legal obligation as a result of our signature on
20 Eric K. Leonard
December 31st, 2000. The president decided that this step was appropriate and an important one in order make our position clear—our position that we will not support the ICC, believing that the docu- ment is flawed in many regards.64
Since that time, the Bush administration’s opposi- tion to the court has continued and at times intensi- fied.65 In the 2004 presidential debates, president Bush twice referenced the ICC. In both instances, the presi- dent reiterated his opposition to the court due to the fact that it can try American citizens, troops, and diplo- mats. His administration also referenced the court in its 2002 National Security Strategy:
We will take actions necessary to ensure that our efforts to meet our global security commitments and protect Americans are not impaired by the potential for investigations, inquiry, or prosecution by the International Criminal Court (ICC), whose jurisdic- tion does not extend to America and which we do not accept.66
Two major legislative actions have also occurred in the post-Rome Statute era that exemplify the disdain that the Bush administration has for the ICC. The first of these methods are bilateral immunity agreements (BIAs), initiated by the United States, in which both parties agree not to extradite current or former govern- ment officials, military personnel (regardless of their national status), or citizens of the other party to the ICC. The purpose of these agreements, also known as article 98 agreements, is to protect American nationals from politically motivated prosecution in the ICC. As John Bolton articulated in November 2003:
Article 98 agreements serve to ensure that US per- sons will have appropriate protection from politi- cally motivated criminal accusations, investigations, and prosecutions. These straightforward agreements require that our partners agree, either reciprocally or non-reciprocally, not to surrender U.S. persons to the International Criminal Court, not to retransfer persons extradited to a country for prosecution, and not to assist other parties in their efforts to send U.S. persons to the ICC. We have worked hard to find mechanisms and formulations in these agreements that meet our requirement of blanket coverage while
also responding to the needs of our bilateral part- ners.67
In order to ascertain these agreements, the United States has threatened economic sanctions that include the termination of military aid and other forms of for- eign assistance.68 Such a hard-line stance by the Bush administration exemplifies its displeasure with the court and its fears of the court’s jurisdictional reach.
Along with the signing of BIAs, the U.S. govern- ment has also passed domestic legislation with the intent of undermining the ICC.69 The American Ser- vicemembers Protection Act of 2002 stipulates that the U.S. government views the ICC as an institution that exposes U.S. military personnel and governmental offi- cials to prosecution that is not consistent with the U.S. constitution. As a result, the act authorizes the presi- dent:
to use all means necessary and appropriate to bring about the release from captivity of any person described in subsection (b) who is being detained or imprisoned against that person’s will by or on behalf of the International Criminal Court.70
This act also allows the United States to terminate military assistance to ICC party states, limits the avail- ability of U.S. peacekeepers to UN-mandated missions, prohibits the transfer of classified national security information to the ICC, and generally prohibits any cooperative arrangements between the United States and the court. As with the BIAs, this act of Congress is a clear attempt to undermine the actions of the ICC, pub- licly to state U.S. opposition to the court, and generally to limit the ICC in its ability to pursue international jus- tice.
Although the U.S. opposition has grown in the post-Rome era, the administration’s recent actions sig- naled some change in attitude. The most prominent of these actions was the U.S.’s abstention from the UN Security Council vote on ICC jurisdiction within Sudan.71 Although this did not indicate full scale accep- tance of the court, the United States provided some evi- dence of acceptance in its failure to invoke its veto power.
The other area of change concerns the BIAs. On a recent diplomatic mission trip, Secretary of State Con- doleeza Rice alluded to the notion that the United
Establishing an International Criminal Court 21
States may not want to follow through on some of the BIAs it has signed. In her words, cutting off aid to allies and/or important counterterrorism or counterdrug countries is “the same as shooting ourselves in the foot.”72 Further action on this issue was undertaken in September 2006, when the House and Senate approved amendments to the American Servicemembers Protec- tion Act that now allows International Military Educa- tional and Training funding to states that have not yet signed a BIA.73 Again, this type of activity does not pro- vide evidence of U.S. support. However, it does signal an alteration in the attitude of the Bush administration and possibly the initiation of a more benign acceptance of the court and its mandate.
Finally, it is important to mention the current caseload of the ICC and the possible problems and issues that have arisen in the post-Rome era. Presently states par- ties have referred three situations to the prosecutor (the Central African Republic, the Democratic Republic of Congo and Uganda), and the UN Security Council has referred one situation (Sudan). In these situations, the ICC is active in four investigations, has handed down indictments in three cases, and has begun trial proceed- ings in one case.74 All four cases concern African states and, as a result, there have already been some rum- blings concerning neoimperialism.75 However, a more important issue is the states’ response to the opening of ICC investigations.
In Sudan, for instance, after the initial arrest war- rants were issued, the government stated that it would no longer cooperate with the ICC.76 The Sudanese gov- ernment went a step further when the London-based Al Hayat newspaper quoted Zubair Bashir Taha as saying
that his government will kill any party seeking to appre- hend Sudanese officials to bring him before the ICC.77
Also as a result of the ICC arrest warrants, some of the Janjaweed militia leaders in Sudan have broached the possibility of allying themselves with the rebels because they fear prosecution in the ICC. In Uganda, the possi- ble arrest and ICC prosecution of Lord’s Resistance Army members has resulted in stalled peace talks that may or may not result in greater violence and the per- petuation of a crisis rather than the establishment of justice. Such cases, and their subsequent conse- quences, show the impending crises that in the future the ICC will need to cope with if it hopes to become a legitimate international legal institution.
The global community undertook the task of establish- ing a permanent International Criminal Court because it believes that the court will end impunity for those who commit mass atrocities. In this sense, many schol- ars see the court as the first true form of global justice. Whether it will live up to that label remains unknown. However, what we do know is that the success and overwhelming support received at the Rome Confer- ence, the faster-than-expected ratification process, and the start of judicial proceedings all signal a historic step forward in the fight to uphold humanitarian law. Only time will tell whether the Court may become a legiti- mate and successful form of global justice or, as the United States claims, it is an institutionally flawed and politically motivated organization. That is a question that scholars, policymakers and you, the students of international politics, must now debate.
63. Eric K. Leonard, “A Case Study in Declining Hege- mony: Flawed Policy Concerning the ICC,” The Whitehead Journal of Diplomacy and International Relations, 8 (2007): pp. 147–66, serves as the foundation for this section.
64. Pierre-Richard Prosper, Foreign Press Center Briefing (Washington, DC: U.S. Department of State, May 6, 2002), http://fpc.state.gov/9965.htm.
65. Jean Galbraith, “The Bush Administration’s Response to the International Criminal Court,” Berkeley Journal of Inter-
national Law, 21 (2003): pp. 683–702, provides a detailed analysis of Bush administration policy toward the ICC. The one instance in which the U.S. opposition appears to have softened is the UN Security Council decision (UNSC Resolu- tion 1593) to allow ICC jurisdiction over the Darfur crisis. The United States abstained on this vote.
66. The National Security Strategy of the United States of America (September 2002), p. 31. Reprinted at http:// www.whitehouse.gov/ncs/nss.pdf.
22 Eric K. Leonard
67. John Bolton, “American Justice and the International Criminal Court” (remarks at the American Enterprise Insti- tute, Washington, DC, on November 3, 2003). Available at http://www.state.gov/t/us/rm/25818.htm (accessed Febru- ary 14, 2007).
68. This has culminated in the passing of the Nethercutt Amendment, as part of the 2006 joint Appropriations Bill, which authorizes the termination of Economic Support Funds to ICC party states that have not signed a BIA with the United States.
69. See Lilian V. Faulhaber, “American Servicemembers Protection Act of 2002,” Harvard Journal on Legislation 40 (2003): pp. 537–57, for a detailed analysis of this legislation.
70. American Servicemembers Protection Act of 2002, sec. 2008 (a).
71. United Nations, Security Council Refers Situation in Darfur, Sudan, to Prosecutor of International Criminal Court (New York, 2005), SC/Res/1593.
72. Condoleezza Rice, “Trip Briefing, en Route to San Juan, Puerto Rico,” March 10, 2006, see http://www.state. gov/secretary/rm/2006/63001.htm (accessed December 12, 2006).
73. CICC, “Are the United States’ BIAs on the Way Out? New US Legislation Points to a Possible Change in Direc- tion,” Monitor no. 33 (November 2006), p. 20. Accessible at http://www.iccnow.org/. Under the original American Ser- vicemembers Protection Act, such funding would not be pro- vided if a state had not signed a BIA with the United States.
74. This information is accurate as of May 22, 2007. For an updated list of criminal proceedings, see http:// www.icc-cpi.int/cases.html.
75. The following is a list of pending cases: The Prosecu- tor v. Thomas Lubanga Dyilo (Democratic Republic of the Congo); The Prosecutor v. Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo, and Dominic Ongwen (Uganda); and The Prosecutor v. Ahmad Muhammad Harun and Ali Muhammad Lai Abd-Al-Rahman (Sudan).
76. “Sudan announces it will suspend cooperation with International Criminal Court,” International Herald Tribune, March 18, 2007, at http://www.iht.com/articles/ap/2007/03/ 18/africa/AF-GEN-Sudan-ICC.php.
77. “Sudan to behead any suspect attempting to extradite Darfur suspects,” Sudan Tribune, Friday, March 2, 2007, at http://www.sudantribune.com/spip.php?article 20536.
Establishing an International Criminal Court 23
A PPENDI X A Rome Statute Signature (139) and R atif ication (104) Char t , as of May 1, 2007 ( In alphabetical order)
Country Signature Date Ratification Date / Accession (a)
Afghanistan 02/10/03 (a)
Albania 07/18/98 01/31/03
Andorra 07/18/98 04/30/01
Antigua and Barbuda 10/23/98 06/18/01
Argentina 01/08/99 02/08/01
Australia 12/09/98 07/01/02
Austria 10/07/98 12/28/00
Barbados 09/08/00 12/10/02
Belgium 09/10/98 06/28/00
Belize 04/05/00 04/05/00
Benin 09/24/99 01/22/02
Bolivia 07/17/98 06/27/02
Bosnia-Herzegovina 07/17/00 04/11/02
Botswana 09/08/00 09/08/00
Brazil 02/07/00 06/20/02
Bulgaria 02/11/99 04/11/02
Burkina Faso 11/30/98 04/16/04
Burundi 01/17/99 09/21/04
Cambodia 10/23/00 04/11/02
Canada 12/18/98 07/07/00
24 Eric K. Leonard
Cape Verde 12/28/00
Central African Republic 12/07/99 10/03/01
Chad 10/20/99 11/01/06
Colombia 10/10/98 08/05/02
Comoros 09/22/00 08/18/06
Congo (Brazzaville) 07/17/98 05/03/04
Costa Rica 10/07/98 06/07/01
Côte d’Ivoire 11/30/98
Croatia 10/12/98 05/21/01
Cyprus 10/15/98 03/07/02
Czech Republic 04/13/99
Democratic Republic of the Congo 09/08/00 04/11/02
Denmark 09/25/98 06/21/01
Djibouti 10/07/98 11/05/02
Dominica 02/12/01 (a)
Dominican Republic 09/08/00 05/12/05
East Timor 09/06/02 (a)
Ecuador 10/07/98 02/05/02
Estonia 12/27/99 01/30/02
Fiji 11/29/99 11/29/99
Finland 10/07/98 12/29/00
France 07/18/98 06/09/00
Gabon 12/22/98 09/21/00
Gambia 12/07/98 06/28/02
Georgia 07/18/98 09/05/03
Germany 12/10/98 12/11/00
Ghana 07/18/98 12/20/99
Greece 07/18/98 05/15/02
Country Signature Date Ratification Date / Accession (a)
Establishing an International Criminal Court 25
Guinea 09/08/00 07/14/03
Guyana 12/28/00 09/24/04
Honduras 10/07/98 07/01/02
Hungary 12/15/98 11/30/01
Iceland 08/26/98 05/25/00
Iran, Islamic Republic of 12/31/00
Ireland 10/07/98 04/11/02
Italy 07/18/98 07/26/99
Jordan 10/07/98 04/11/02
Kenya 0811/99 03/15/05
Korea, Republic of 03/08/00 11/13/02
Latvia 04/22/99 06/28/02
Lesotho 11/30/98 09/06/00
Liberia 07/17/98 09/22/04
Liechtenstein 07/18/98 10/02/01
Lithuania 12/10/98 05/12/03
Luxembourg 10/13/98 09/08/00
Macedonia, FYR 10/07/98 03/06/02
Malawi 03/03/99 09/19/02
Mali 07/17/98 08/16/00
Malta 07/17/98 11/29/02
Marshall Islands 09/06/00 12/07/00
Mauritius 11/11/98 03/05/02
Mexico 09/07/00 10/28/05
Country Signature Date Ratification Date / Accession (a)
26 Eric K. Leonard
Moldova, Republic of 09/08/00
Mongolia 12/29/00 04/11/02
Namibia 10/27/98 06/25/02
Nauru 12/13/00 11/12/01
Netherlands 07/18/98 07/17/01
New Zealand 10/07/98 09/07/00
Niger 07/17/98 04/11/02
Nigeria 06/01/00 09/27/01
Norway 08/28/98 02/16/00
Panama 07/18/98 03/21/02
Paraguay 10/07/98 05/14/01
Peru 12/07/00 11/10/01
Poland 04/09/99 11/12/01
Portugal 10/07/98 02/05/02
Romania 07/07/99 04/11/02
Russian Federation 09/13/00
St. Kitts and Nevis 08/22/06 (a)
St. Lucia 09/27/99
St. Vincent and Grenadines 12/03/02 (a)
Samoa 07/17/98 09/16/02
San Marino 07/18/98 05/13/99
São Tomé and Principe 12/28/00
Senegal 07/18/98 02/02/99
Sierra Leone 10/17/98 09/15/00
Country Signature Date Ratification Date / Accession (a)
Establishing an International Criminal Court 27
Slovakia 12/23/98 04/11/02
Slovenia 10/07/98 12/31/01
Solomon Islands 12/03/98
South Africa 07/17/98 11/27/00
Spain 07/18/98 10/25/00
Sweden 10/07/98 06/28/01
Switzerland 07/18/98 10/14/01
Syrian Arab Republic 11/29/00
Tajikistan 11/30/98 05/05/00
Tanzania, Democratic Republic of 12/29/00 09/20/02
Trinidad and Tobago 03/23/99 04/06/99
Uganda 03/17/99 06/14/02
United Arab Emirates 11/27/00
United Kingdom 11/30/98 10/04/01
United States of America* 12/31/00
Uruguay 12/19/00 06/28/02
Venezuela 10/14/98 06/07/00
Yugoslavia, Federal Republic of 12/19/00 09/06/01
Zambia 07/17/98 11/13/02
* The United States and Israel have since “unsigned” the Rome Statute. Source: http://web.amnesty.org/pages/icc-signatures_ratifications-eng.
Country Signature Date Ratification Date / Accession (a)
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