Vol. 16 No.2 (February 2006), pp.106-112
THE INTERNATIONAL CRIMINAL COURT, by Olympia Bekou and Robert Cryer (eds). Plymouth: Ashgate, 2004. 550pp. Hardback. $275.00/£135.00. ISBN: 0-7546-2409-9.
Reviewed by Rachel Kerr, Department of War Studies, King’s College London. Email: rachel.kerr [at] kcl.ac.uk
THE INTERNATIONAL CRIMINAL COURT is an edited collection and forms part of the Ashgate Library of Essays on International Law, edited by Robert McCorquodale. The aim of the series is to provide the “essential elements” for the development of knowledge of international law, crucial for all who are involved as practitioners or students of international relations. Although in some respects international criminal law is a relatively under-explored branch of international law, there has been an explosion of articles addressing various issues as a result of the establishment and now more than 10 years’ operation of the International Criminal Tribunals for the Former Yugoslavia and Rwanda. Each of these institutions deserves a volume in its own right. Olympia Bekou and Robert Cryer, who edited this volume, chose to focus exclusively on the International Criminal Court, established on 1 July 2002, upon the sixtieth ratification of the 1998 Rome Statute. Even with this somewhat narrower focus, the task of selecting and ordering articles is a difficult one. The aim of the book is to provide an overview of the Court and the debates that surround it. Does it succeed?
In general the organisation and coverage are sensible and well thought out. Essentially, it is a Reader, and the articles selected for the book are reproduced exactly as they first appeared. The selection succeeds in bringing together a range of views on the Court and the various issues surrounding it and includes some of the most prominent and highly respected authors in the field, many of whom were directly involved in the negotiations on the Rome Statute. Nevertheless, one can always point to omissions in a volume of this kind, where it is impossible to cover everything. In particular, legal issues and legal scholars dominate the collection. Bekou and Cryer explicitly aim to bring together perspectives from international law and criminal law, but it might also have been illuminating to add more from international relations scholars. Political-legal or purely political issues are tantalizingly alluded to, but these issues are often not fully explored, where rich discussion might have contributed to overall understanding.
This is particularly the case because establishment of ad hoc tribunals and the International Criminal Court marked a significant departure in international relations, as well as in international law, that merits more detailed examination than is given here. As the editors point out, in 1990 the establishment of a [*107] permanent international criminal court seemed a long way off, if not impossible. Establishment of the ad hoc tribunals was an important catalyst, which forced the prospect of a permanent court back on the international agenda. Once this happened, progress was startlingly quick, resulting in adoption of the Rome Statute of the ICC just over five years after establishment of the ICTY by a vote of 120 to 7 (with 21 abstentions). Whilst the editors discuss these developments in the introduction, the volume does not address the question of how and why this happened. Why was it that, as David Forsythe argued “What started out mostly as a public relations ploy, namely to create an ad hoc tribunal to appear to be doing something about human rights violations in Bosnia without major risk, by 1998 had become an important global movement in international criminal justice” (p.xi, quoting Forsythe 2000, at 221).
The volume launches straight into the ICC, with an article by Philippe Kirsch and John Holmes, detailing the negotiations at the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, held at Rome from 15 June to 17 July 1998 and the adoption of the Statute. Kirsch and Holmes were intimately involved in these negotiations as government delegates for Canada, and Philippe Kirsch was later appointed the first President of the ICC. They provide a first-hand, detailed account of the conference, which is valuable in as much as it gives a real sense of the enormity of the issues still to be resolved when the conference opened, including seemingly intractable differences of opinion over fundamental issues of jurisdiction, the role of the Prosecutor and the role of the Security Council. William Schabas takes up this theme, from a different perspective, the other side of the sixty ratifications and the Rome Statute’s entry into force, in July 2002. This “remarkable achievement” came about, he argues, not because the Statute is perfect, but because it represents a promising and realistic mechanism, consistent with the logic that international justice contributes to peace and security (p.73).
The conference reached its denouement with the presentation, by the Bureau of the Committee of the Whole of the Conference, of a Draft Statute passed to delegates in the early hours of 17 July and adopted later that day. Kirsch and Holmes attribute this “historic achievement” to the degree of broad support for a court, whatever its form, from the so-called Like-Minded Group (LMG), who otherwise differed on specific points (p.36), to the commitment of individual delegates (p.37) and to the strong, vocal and committed support of civil society and NGOs. The final package presented by the Bureau was sufficiently accommodating to the diverse viewpoints that nothing was deemed important enough to scupper the entire undertaking. It was described elsewhere by Gerry Simpson as “an uncomfortable amalgam of near irreconcilable positions” (p.xii, citing Simpson 1999).
Antonio Cassese’s piece picks up on the marked differences inherent in the treaty, which set in stark relief the many legal and political disputes and compromises reflected in the Statute’s final form, and the myriad issues yet to be resolved. Cassese’s ‘Preliminary Reflections’ on [*108] the Rome Statute is, as the editors of the volume point out, more than its title suggests. It is preliminary in the sense that it was very early days in the Court’s life (the article is a version of a paper given by Cassese in November 1998, less than six months after the Rome Statute was adopted). Key issues still to be resolved were the definition of criminal aggression, the elements of the crimes (now decided upon by the States Parties), and specification of prohibited weapons. These elements, along with what Cassese views as an overly conservative interpretation of the applicable law, especially in maintaining a distinction between international and non-international armed conflict, mean that its contribution to substantive law was somewhat retrograde (p.47).
Some of the issues highlighted by Cassese are picked up in Part 2, which deals with substantive law. William Schabas and Otto Triffterer both address the complexities and challenges of mounting prosecutions for genocide, specifically in proving the mental element of the crime – the intent to destroy, in whole or in part, a particular group. They come to very different conclusions, however. Schabas argues pragmatically that since the threshold is so high, genocide should only be charged in serious cases involving widespread and systematic crimes, otherwise it risks wasting valuable resources. Triffterer argues for a broader interpretation of the mental element so that steps can be taken earlier to prevent genocide, but he fails to address the wider political and practical problems of enforcement. Daryl Robinson provides an exposition of crimes against humanity, focusing on the developments in international law reflected in the Rome Statute, namely that there is no nexus required to armed conflict of any kind, there is no requirement to prove a discriminatory motive, and that crimes of apartheid and forced disappearance are now explicitly recognised as crimes against humanity. Thomas Graditzky discusses war crimes issues at the Rome Conference, one of the more contentious issues with regard to substantive law. Graditzky’s piece is a helpful overview of a complex set of issues and discusses both what made its way into the Statute, and more crucially what was left out and why. Kai Ambos discusses general principles of law, in particular individual criminal responsibility and defences, bringing a criminal law approach to a field that is largely dominated by international lawyers, an explicit aim of the book. Charles Garraway’s contribution on defences is more contentious. He argues against the grain of many prominent international legal scholars that Article 33 of the Rome Statute, providing for superior orders as a defence, is an accurate statement of international humanitarian law and represents a “sensible and practical solution,” offering a limited defence for lower-ranking soldiers to war crimes (not crimes against humanity or genocide) (p.185). It would have been helpful to the reader here to have included the other side of the argument (e.g., Gaeta 1999), although if one refers back to Cassese’s piece, there is discussion of this issue (pp.53-54).
Cassese is more positive about the Rome Statute’s contribution to procedural [*109] international criminal law, which he says represents a “major advance” (p.50, see also Fernandez de Gurmendi and Friman in Part 4), and his overall conclusion is that the Statute represents a “luminous page in world history,” despite being “too obsequious to state sovereignty” (p.68). Cassese reflects a view that runs through this book (with the obvious exception of John Bolton’s essay on the ICC), namely that the establishment of a permanent ICC is a significant achievement that should be applauded, but that the precise details of the substantive law and enforcement mechanisms of the Court leave something to be desired. If the Court fails to fulfill its mandate, it is because it was not bold enough, a reflection of the international political environment in which it was created. It cannot be more than the sum of its creators.
This was especially apparent with regard to one of the most difficult and highly contentious issues in the negotiations at Rome, namely jurisdiction and admissibility. Part 3 discusses these issues. Dapo Akandi addresses the concern, expressed most forcefully by the United States, that jurisdiction over non-parties on the basis of territoriality or Security Council referral is contrary to international law. It is not contrary to international law, he asserts, and the measures taken by the US in particular to shield its citizens will not add to the safeguards already contained in the Statute. One of these safeguards is the principle of complementarity, but in discussing this, John Holmes does not give us any clearer idea of what the criteria of “unwilling” or “unable” might mean in practice. Hans-Peter Kaul and Claus Kress discuss issues of jurisdiction and admissibility in connection with state cooperation, which, they argue, are inextricably linked (p.193). They provide a detailed account of the negotiations that produced the form of jurisdiction and emphasise the “essential paradox of complementarity” when it comes to state cooperation (p.xix). What emerged from the discussions was not the “ideal” of universal jurisdiction twinned with a “vertical” cooperation regime, as practiced by the ad hoc tribunals, but a more qualified approach, and this will have significant implications for the Court’s operation.
It has been noted elsewhere that the ICC, like the ad hoc tribunals, is “a giant without arms and legs.” In order to function, it needs state authorities, but unlike the ICTR and ICTY, it lacks the force of the vertical cooperation regime and the enforcement power of the Security Council. Part 4 of the book comprises articles addressing what promise to be the more contentious issues as the Court begins to operate, namely surrender of “war criminals” (Goran Sluiter), immunities (Steffen Wirth) and the relationship with the Security Council (Morten Bergsmo). Sluiter raises an interesting and important question of whether the cooperation regime might be augmented and strengthened where a case is referred by the Security Council, creating the structure of an ad hoc tribunal within the permanent framework of the ICC (p.286).
A crucial element in determining success for the Court will be the appointment of an astute Prosecutor with “political [*110] smarts” (Schabas, p.79). Certainly, the experience of ICTY has demonstrated the importance of having a strong, independent Prosecutor, able to play a political and diplomatic role, without jeopardizing judicial independence and integrity of the post. The Prosecutor must also be able to operate with an understanding of the relationship between international justice and international peace and security. In particular, he or she will have to resolve difficult questions regarding how to determine whether prosecution is “in the interests of justice.” Linked to this is the question of amnesties. If an amnesty is deemed necessary in order to secure an end to a particular conflict, what is the position with regard to ICC jurisdiction? This issue has been raised in many quarters and is discussed by Michael Scharf. Scharf argues that, notwithstanding the legal obligation to prosecute grave breaches of the 1949 Geneva Conventions and Genocide, the Statute is sufficiently ambiguous to allow for due account to be taken of non-judicial mechanisms for truth-telling and accountability. He uses the examples of Haiti and South Africa to illustrate the advantages of a flexible approach, where the benefits of prosecution may have been outweighed by the disadvantages, although in both cases, the issue is not quite as clear as he suggests. In Haiti in particular, setting aside prosecutions may have stored up trouble for the future (Mobekk 2000).
Morten Bergsmo takes up the theme of peace versus justice in his interesting piece on the Court and the Security Council. Bergsmo identifies a delicate balancing act of international justice with international peace and security and discusses this in relation to the early years of operation of the ICTY, for which he was a Legal Advisor in the Office of the Prosecutor. He identifies five sets of criteria of more general salience, namely, to ensure respect for independence of the judicial process, willingness to arrest suspects, non-applicability of immunities, compliance with cooperation requests, and respect for human rights values. These measures seem to be aimed more at securing the interests of international justice and say little about the standards that international judicial mechanisms might need to adopt to safeguard the interests of peace and security. The relationship between the Security Council and the ICC is crucial in this regard, and, as Bergsmo notes, we ought to be moving toward what Frank Berman calls a “perfect symbiosis” of the interests of international justice and international peace and security (p.385). Bergsmo notes the importance of the Prosecutor in exercising discretion which takes account of the wider interests of justice and peace. The conduct of the Prosecutor will also be crucial in establishing the integrity of the ICC as a whole; as Bergsmo points out, the stance taken by the ICTY Prosecutor over allegations of misconduct by NATO in the Kosovo campaign might have helped to demystify the process of determining what to pursue and what not to pursue and to generate a level of comfort sufficient to see many of these states supporting an independent Prosecutor at Rome (p.378). It remains to be seen how all of this will play out in practice. To date, there has been one referral by the Security Council (Sudan) [*111] and discussion of another situation in which the interests of justice and those of peace might seem to be in conflict (Uganda).
The last section of the book considers future prospects for the ICC, but the selections are somewhat dated, as they were written before the Court came into operation. Much of it is concerned US opposition to the Court, a recurring theme. In an earlier section, Schabas talks of the “Scylla and Charybdis” of opposition from the world’s most powerful state (p.71). To make the US Government’s case, the editors chose a 2000 article by John Bolton, then Senior Vice President of the American Enterprise Institute, and now US Ambassador-designate to the United Nations. Bolton is one of the most vehement critics of the ICC, and his views reflect the more emotional response characterised in much of the debate in the US. What comes through most strongly from Bolton’s piece, identified by David Forsythe as the element underpinning US objections to the court, is “exceptionalism” and a commitment to “power politics.” It might have strengthened the volume to also have included more reasoned arguments, such as those of Ruth Wedgwood (1999) or David Scheffer (1999), as well as the opposing arguments (Hafner, et al. 1999). These reflect a different view—not, as Schabas argues, simply the kind of opposition to international justice per se expressed by Bolton, but opposition to the form it finally took at Rome (p.74).
Generally, while the legal objections to the Court put forward by the US Government are unconvincing, the political implications of these objections are potentially disastrous. In the concluding piece, Robert Cryer and Nigel White address one manifestation of the US objections in their attempt to shield US peacekeeping forces from the Court’s jurisdiction. Notwithstanding the fact that Cryer and White note that Resolution 1422 was deeply flawed in legal terms, it should be viewed in the context of debates about the role of the Security Council at Rome. In light of these debates, the Court’s success may lie in managing a delicate balancing act between the interests of international justice and those of international peace and security.
Forsythe, David P. 2000. HUMAN RIGHTS IN INTERNATIONAL RELATIONS. Cambridge: Cambridge University Press.
Gaeta, P. 1999. “The Defence of Superior Orders: The Statute of the International Criminal Court Versus Customary International Law.” 10 EUROPEAN JOURNAL OF INTERNATIONAL LAW 172-191.
Hafner, G., K. Boon, A. Rubesame and A Huston. 1999. “A Response to the American View as Presented by Ruth Wedgwood.” 10 EUROPEAN JOURNAL OF INTERNATIONAL LAW 108-123.
Mobekk, E. 2000. “The Missing Ingredient: Justice in the International Intervention in Haiti.” 15 INTERNATIONAL RELATIONS 30-40. [*112]
Scheffer, D.J. 1999. “The United States and the International Criminal Court.” 93 AMERICAN JOURNAL OF INTERNATIONAL LAW 12-22.
Simpson, G. 1999. “Throwing a Little Remembrance on the Past: The International Court and the Politics of Sovereignty.” 5 UNIVERSITY OF CALIFORNIA, DAVIS, JOURNAL OF INTERNATIONAL LAW AND POLITICS 133-146.
Wedgwood, R. 1999. “The ICC: An American View.” 93 EUROPEAN JOURNAL OF INTERNATIONAL LAW.
© Copyright 2006 by the author, Rachel Kerr.