The Permanent International Criminal Court: Legal and Policy Issues.

Vol. 14 No.10 (October 2004), pp.813-815

THE PERMANENT INTERNATIONAL CRIMINAL COURT: LEGAL AND POLICY ISSUES, by Dominic McGoldrick, Peter Rowe, and Eric Donnelly (eds). Oxford and Portland, OR: Hart Publishing, Studies in International Law, 2004. 514pp. Paper £35.00 / $70.00. ISBN: 1-84113-281-0.

Reviewed by Lynn M. Maurer, Department of Political Science, Southern Illinois University Edwardsville. Email: lmaurer@siue.edu

This legal analysis of the International Criminal Court is well couched in current comparative perspective. The edited collection of articles includes all aspects of the ICC from the historical development of institutions and international humanitarian law through current responses to its recent establishment. It is a marvelous blend of theory, analysis, and real world politics presented in a coherent and linear fashion. The editors carefully organize the fifteen articles – representing thirteen scholars – into meaningful sections; each section contains two to four articles presented so that the subject matter of each builds upon the last and introduces the next.

The book can thus be read from cover to cover to comprehend the full development of international humanitarian and criminal law, the processes of international negotiation, and the practice and consequences in conflicts currently being tried. However, this is also a practical reference handbook for both research and teaching. This reviewer began the book with Byron’s chapter on Genocide for immediate application in an upper-level undergraduate course on War and Peace, followed closely by Peter Rowe’s explanation of War Crimes, and McCormack’s Crimes Against Humanity. Chapters of the book could be read directly by advanced undergraduate or graduate students in courses that deal with the changing nature of war, peace, sovereignty, and all aspects of humanitarian law.

I offer only two suggestions for improvement. First, a simple glossary would be useful for those of us who are not international legal scholars. Second, the inclusion of more women scholars is needed. Just as we are striving to include more women at the level of international peace-making processes and judicial proceedings, the discipline needs to respond by supplying analyses of women scholars.

In the first section, “The Origins and Development of the Permanent International Criminal Court,” McGoldrick traces the history and development of international criminal law from the International Military Tribunals (IMTs) at Nuremberg and Tokyo through the International Criminal Tribunals for Yugoslavia and Rwanda (ICTY and ICTR). Since Nuremberg, the author points out, international human rights law has increasingly superceded the jurisdiction of the State. Both Nuremberg and Tokyo dealt with crimes against peace, war crimes, and crimes against humanity and the legal development of these notions is traced throughout the book. [*814] While the ICTY and ICTR derived their authority from the United Nations Security Council, their historical legitimacy rests on the existence of the IMTs at Nuremberg and Tokyo. In turn, the Yugoslav and Rwandan ad hoc tribunals serve as a basis for the 1998 Rome Statute of the International Criminal Court (ICC) and its entry into force in 2002. Simpson, like McGoldrick, traces more than the institutional development of international courts in considering the challenges to national sovereignty and the international establishment of a “moral memory.” Simpson’s article is perhaps most intriguing in its brief discussion of remembering and forgetting in which he touches on the educative role of international trials and their potential to tell the truth about past atrocities, while perhaps bringing closure to those who remember.

Both articles in the second section, “Jurisdiction and Admissibility,” deal with the jurisdictional struggles among the ICC, the State, and the UN Security Council. Cameron’s piece neatly lays out the nuances among crimes (and persons) that might be tried by the State and those that might be tried by the ICC, underlining the necessity (though narrow) for the ICC, particularly in cases in which State agents commit the crimes. While pointing out the limitations of the ICC, he remains optimistic about its potential effectiveness. Sarooshi’s piece focuses on the relationship between the ICC and the UN Security Council. He adeptly explains the potential dilemma posed if the Security Council’s political interests compromise the justice-seeking goal of the ICC. The strength of his argument is provided by the in depth look at the negotiations of the Treaty of Rome surrounding this issue.

By the time the reader reaches Section III, one feels fully versed in the development of international criminal law and is ready to dive into the heart of the matter. In many ways, this section, “The Crimes,” is the core of the book; it deals with violations of human rights, without which there would be no need for a judicial response from the international community in the form of the ICC. This is the section that I found most helpful as an educator. Schabas, Byron, McCormack, and Rowe deal with and clarify concepts with which everyone has at least a passing familiarity. Crimes of aggression, war crimes, genocide, and crimes against humanity are explained step by step in terms of their conceptual and historical development, the negotiations surrounding their legal definitions and status, and the possible consequences of international trials regarding these crimes. Although I group them together in a brief description for the purposes of this review, each article is worthy of a leisurely reading which is sure to enlighten the reader.

The next two sections, “Liability and Defences,” and “Evidence and Victims,” delve into the realm of the individuals involved in the trials—victims and defendants. Cryer examines the liabilities for which one may be brought to the ICC: crimes of omission, perpetration, ordering or soliciting, aiding, abetting, and complicity, and finally inchoate crimes, such as inciting genocide. Crimes must be committed with intent and knowledge and military commanders are liable in terms of superior responsibility. Like Sarooshi, [*815] Cryer links the liabilities enumerated in the Rome Statute to the negotiations, carried out by representatives who had difficulty reaching a common ground owing to different legal frameworks (both civil law and common law), as well as different languages. Thus, mere translations were not sufficient to overcome difficulties in communication.

Bantekas explores the defenses that may be submitted by the accused according to the Rome Statute: superior orders, duress and necessity, self defense, intoxication, mistake of fact or mistake of law, and mental incapacity. For each defense, Bantekas offers an example of it being used successfully or unsuccessfully by the defendant, affording the reader a real-life application.

Gray’s chapter on evidence is clear, logical, and interesting. After exploring types of evidence allowed by the ICC, Gray turns to the victims’ rights. The Rome Statute allows for a Victim and Witnesses Unit to address victims’ needs that fall outside traditional testimony. There is some leeway for video-link testimonies and anonymous witnesses –all carried out without denying the rights of the accused. Haslam explores the Rome Statute’s departure from traditional treatment of victims to one that takes into account the victims’ welfare and perhaps, even healing. As the ICTY and ICTR have been seen as damaging to some victims, the new approach of the ICC provides for victim participation that allows them to benefit by telling their stories as survivors of human rights abuses, and not just “witnesses.”

In the penultimate section, “National Implementation and Political Responses,” Turns and McGoldrick lead us through a comparative tour of the participation and subsequent responses of the signatories. Most notable among the cases covered by McGoldrick is that of the United States who “unsigned” the treaty fearing that its disproportionately large international presence in the world may lead to a compromise in its sovereignty. Turns reports on and analyzes the implementation of the Rome Statute at the State level. Both of these authors provide a comparative analysis that puts the ICC into international perspective at the State level. Finally, McGoldrick provides his summary and conclusion by analyzing the “Significance of the International Criminal Court.” He stresses its real potential in ensuring justice, addressing progressive developments in international humanitarian law – such as gender justice – and establishing a truthful account of history. McGoldrick’s final chapter – as well as the entire book – assures us that the International Criminal Court will play a role in international peace and security, as well as the new international legal order.

In all, the book provides an comprehensive, coherent, and well-written account of all aspects of the International Criminal Court. The editors have done a fine job of presenting works of outstanding scholars on a complex subject in a book to which many scholars – and certainly this reviewer – will refer for many years to come.

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