ISSN 1062-7421
Vol. 11 No. 10 (October 2001) pp. 476-478.
THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A CHALLENGE TO IMPUNITY by Mauro Politi and Giuseppe
Nesi (Editors). Burlington, VT: Ashgate Publishing Co., 2001. 340 pp. Cloth $99.00. ISBN: 0-7546-2154-5.
Reviewed by Donald W. Jackson, Department of Political Science, Texas Christian University.
This is one of many books that have been written--or that are in the process of being written--about the prospects
for a permanent international criminal court (ICC). This edited book contains papers from a conference held at
the University of Trento, Italy in May 1999, less than a year after the Rome United Nations (U. N.) Conference
on the Establishment of the ICC. Several key participants at the Rome Conference were also present at the Trento
meeting, most notably Adrian Bos, who was Chairman of the U. N. Preparatory Committee for the Rome Conference;
Ambassador Philippe Kirsch of Canada, who served as the Chairman of the Committee of the Whole of the Rome Conference
and who probably was the most important player in the success of the conference; and Richard Dicker of Human Rights
Watch, who was a key participant in the NGO coalition's effective lobbying efforts in Rome on behalf of the ICC.
On July 17, 1998, 120 countries voted at the Rome Conference to create an ICC with powers to try crimes of genocide,
crimes against humanity and war
crimes. Only seven countries voted against the creation of the ICC. The seven included the United States. The Rome
Conference followed nearly a decade of preparation--the key draft statute was produced by the U. N.'s International
Law Commission in November 1994, and the final working draft was produced in a January 1998 meeting at Zutphen
in the Netherlands. Serious work toward a permanent ICC followed the creation by the U. N. Security Council of
ad hoc criminal tribunals for the former Yugoslavia (ICTFY) in 1993 and for Rwanda (ICTR) in January 1994.
Leading up to the Rome Conference, Ambassador David Scheffer, chief U. S. negotiator on the ICC, identified the
key issue that concerned the United States. That was the process by which cases might come to the ICC. The U. S.
favored U. N. Security Council referral, with its veto power over referrals representing the certainty that the
U. S citizens could not be brought before the ICC without its consent. Failing such certainty, Senator Jesse Helms
vowed in a March 1998 letter to Secretary of State Madeline Albright that any statute that might bring an American
citizen under the jurisdiction of U. N.-based criminal courts would be "dead on arrival in the U. S. Senate."
Just before leaving office, President Clinton signed the Rome Treaty, principally so that the U. S. could continue
to participate in the negotiations leading to its creation. However, that does not mean that the U. S. will ratify
in the foreseeable future. At last count, 42 of the 60 countries required for implementation of the Rome Statute
have ratified. The prospects for 60
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ratifications are excellent, but the first 60 will not include the United States--that as certain a prediction
as I will ever make about the future.
This book consists of 28 short articles (mostly fewer than ten pages) that review the main institutional, procedural
and jurisdictional features of the Rome Statute; the crimes that it covers, the relationships between the ICC and
other international agencies, and the prospects for the functioning of the new court.
Italy's Minister of Foreign Affairs has described the creation of the ICC as (p. 7) "the most important institutional
advancement of the United Nations after the U. N. Charter itself." Professor Mauro Politi of Trento concludes
in his contribution that the important achievements of the Rome Statue include (p. 11): the "[c]riminalization
of serious violations of humanitarian law committed in internal conflicts" and the inclusion of "grave
breaches" of the Geneva Conventions and other serious violations of humanitarian law.
John Holmes, a member of the mission of Canada to the U. N. and a delegate to the Rome Conference undertakes in
his piece to dispel what he terms "myths" about the Rome Conference, perhaps most notably the that conference
ended up being anti-American, when in fact many concessions were made to the U. S., though, to be sure, not enough
to secure the U. S. vote. Holmes insists that the U. S. must be brought "back into the fold" if the ICC
is to succeed.
One key feature of the Rome Statute that encountered U. S. opposition was the power of the Prosecutor before the
ICC to initiate cases without U. N. Security Council (or U. S.) approval (although with a number of safeguards
and provisos). Thus in many respects the conflict at Rome was between the so-called "like-minded" states
that favored a strong and independent prosecutor and court, on one side, and the United States, on the other. Eventually,
most U. S. allies voted in favor of the statute, and most have ratified, or they are in engaged in the process
of ratification.
The key jurisdictional provision of the Rome Statute is that, except for direct Security Council referrals, jurisdiction
attaches to treaty crimes when either the State of the territory on which the crime was committed OR the State
of which the suspect is a national is a party to the Statute-thus Senator Helm's opposition. An American soldier
serving in a country that had ratified the treaty might be subject to the jurisdiction of the Court. In fact a
number of safeguards make that U. N. likely, the key one being the principle of "complementarity." Under
that principle, if the U. S. invoked its own criminal processes against an alleged treaty crime, the ICC could
not take jurisdiction. However, from another perspective, a country like Iraq might avoid ICC jurisdiction over
crimes committed within Iraq by refusing to ratify the Rome States (again, except for a direct U. N. Security Council
referral).
Another notable feature of the Rome Statute is that "rape, sexual slavery, enforced prostitution, forced pregnancy,
enforced sterilization and other forms of grave sexual violence" were made treaty crimes (see p. 84 et seq.).
In a roundtable discussion toward the end of the book Phillippe Kirsch concluded (p. 294) that the creation and
success of the ICC would involve "a long term and difficult work." "There will be," he said,
"serious ethical and political problems."
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That certainly represents a serious understatement. As Professor Theodore Meron notes in his contribution to the
roundtable (p. 302): "The question is not whether the Court will survive and will be established. I'm sure
that it will. The question is how much relevance it will have to the real world." Hardheaded realists regard
the court as the embodiment of na‹ve idealism. Yet the concluding remarks in the book of Ambassador Francesco Paolo
Fulci, Italy's representative to the U. N., reflect optimism, as he recounts the following anecdote:
"This morning a television man was asking me: "don't you think these people here are visionary people,
look at what they say: a challenge to impunity, do you think it ever will happen?" And I told him: "They
are not visionary people, the are men and women with a great vision who believe in this thing and will work for
this to happen."
The price tag on this book makes it chiefly an acquisition for University libraries. Even for that purpose there
are more comprehensive and detailed treatments of the ICC (Lee, 1999). Probably the chief value of this edited
volume is that it represents, in a concise and convenient format, the contemporaneous thinking of some key participants
and observers of the 1998 Rome Conference.
REFERENCES:
Cassese, Cassese, Albin Eser, and Georgio Gaja (eds.). 2001. INTERNATIONAL CRIMINAL LAW: A COMMENTARY ON THE ROME
STATUTE FOR AN INTERNATIONAL CRIMINAL COURT. Oxford: Oxford University Press.
Carter, Ralph G. and Donald W. Jackson, 2001. "The International Criminal Court; Present at the Creation?"
in Ralph G. Carter (ed.). CONTEMPORARY CASES IN U. S. FOREIGN POLICY: FROM TERRORISM TO TRADE. Washington, DC:
Congressional Quarterly Press.
Lee, Roy S. (ed.). 1999. THE INTERNATIONAL CRIMINAL COURT: THE MAKING OF THE ROME STATUTE, ISSUES, NEGOTIATIONS,
RESULTS. The Hague: Kluwer Law International.
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Copyright 2001 by the author, Donald W. Jackson.