Vol. 19 No. 1 (January, 2009) pp.14-20

THE POLITICS OF CONSTRUCTING THE INTERNATIONAL CRIMINAL COURT: NGOs, DISCOURSE, AND AGENCY, by Michael J. Struett.  New York: Palgrave Macmillan, 2008. 240pp. Cloth. $79.95. ISBN: 9780230604575.

Reviewed by Victor Peskin, School of Global Studies, Arizona State University

Victor.Peskin [at] asu.edu.

In The Hague, the world’s attempts to build institutions of international justice are on full display. At one end of town, not far from the North Sea, stands the International Criminal Tribunal for the Former Yugoslavia (ICTY), where since the mid-1990s numerous war crimes suspects from all sides of the recent Balkan wars have stood trial. At the other end of town is the temporary home of the more recently established International Criminal Court (ICC). The courtrooms and the procedures employed by the ICTY and ICC have much in common. But these international war crimes tribunals are two different kinds of institutions in authority, jurisdiction, and origin.

The ICTY will complete its mandate and shut its doors in a few years time. But the ICC is intended to last in perpetuity. Where the ICTY has narrowly focused its prosecutions on the atrocities in the former Yugoslavia, the ICC has been created to deliver justice on a global scale. And where the ICTY was created by the 15-member Security Council, the ICC was established through the active participation and consent of 120 states that negotiated the blueprint for the Court during a five-week long conference a decade ago in Rome.

The ICTY and the International Criminal Tribunal for Rwanda (ICTR) have been hailed by human rights activists and legal scholars as revolutionary. These international war crimes tribunals, the first since the World War II-era Nuremberg and Tokyo courts, possess the legal authority to trump state sovereignty by prosecuting individuals suspected of committing war crimes, crimes against humanity, and genocide. Even without the enforcement powers of Nuremberg and Tokyo, the success of the ICTY and ICTR in holding trials has galvanized an era of global criminal accountability, leading to the creation of other ad hoc tribunals and to the ICC itself. With its intended permanence and global scope, the ICC is regarded as the most important of the war crimes courts. It has also been the court most difficult to establish.

The fact that 108 states have now become parties to the Rome Statute of the ICC, and thereby open themselves up to potential prosecution, is a remarkable development in international law and politics. What prompted these states to band together in Rome to empower a court that one day could target their own political and military leaders? This is the central question of Michael J. Struett’s new book, THE POLITICS OF CONSTRUCTING THE INTERNATIONAL CRIMINAL COURT: NGOS, DISCOURSE, AND AGENCY. Struett, an assistant professor of political science at North Carolina State University, also asks another [*15] important question – why did states design the ICC in such a way as to give the Court and particularly its chief prosecutor considerable authority and independence?

For an answer to these questions, Struett points to the crucial role played by international human rights non-government organizations (NGOs) in promoting a standing international criminal court. From the time the idea for such a court was broached in the early 1990s (reviving a failed plan from the early 1950s) to the difficult work of negotiating the Statute in Rome, NGOs were an influential if not always visible force. Struett argues that these organizations – particularly Amnesty International and Human Rights Watch – prodded states to embrace the ICC by galvanizing international support for the norm of universal justice and providing timely and effective challenges to opponents who sought to weaken the Court’s authority. A chief source of the influence of NGOs was their expertise. States – particularly small ones that lacked diplomatic resources – often looked to NGOs to assess proposals on the design of the future court. As the idea for a permanent court gained momentum, human rights NGOs came together in 1995 to form a network called the Coalition for the International Criminal Court (CICC). By the time the Rome conference began in June 1998, the coalition, now comprised of hundreds of organizations, had become a formidable lobbying force.

According to Struett, the CICC successfully framed the terms of the debate, arguing not only for the necessity of a court, but for one that would have enough authority to withstand state attempts to thwart prosecutorial independence. Of critical importance, he writes, was the role of NGOs in ensuring that states were committed to the underlying premise that the ICC must eliminate impunity. The coalition maintained that the ICC should embody the universalistic principle of equal justice that is the bedrock of the international human rights movement, and not become a tool for powerful states to wield against their weaker enemies.

Struett argues that both prior to and during the Rome conference, NGOs helped shape the debate by developing “a normative discourse between nongovernmental organizations, lawyers, academics, international civil servants, and states” (p.23). The power of this discourse, Struett argues, often rendered NGOs more influential than states. “In many respects,” he writes, “it was the NGOs, and not state governments, that predominantly shaped the content of the Rome Statute” (p.23). As benevolent non-state actors, NGOs and their international justice campaign had claimed a morality that states pursuing their strategic interests do not possess. Thus, Struett concludes that the NGO discourse “was morally resonant; consequently they were influential” (p.23).

Through their detailed policy reports and tireless advocacy, NGOs helped establish the raison d’etre of the ICC as a court created to deliver justice globally and fairly. “By the time of the Rome conference in 1998,” writes Struett, “nearly all of the interlocutors accepted these first principles as being the crucial logical foundation for the adoption” (p.39) of the Rome Statute, the Court’s [*16] founding document. This normative foundation would later strengthen the hand of the NGOs and pro-ICC states when it came to negotiating the fine print of the Rome Statute. For example, when the United States sought exemptions from prosecution, states’ earlier commitment to the principle of equal justice made it difficult for them to acquiesce to this bid for American exceptionalism. To be sure, Washington was rebuffed here and elsewhere by NGOs and pro-ICC states. However, in other instances the Statute was weakened in an unsuccessful attempt to secure American acceptance.

As Struett notes, the widespread acceptance of the “first principles” did not guarantee that states would actually cede significant authority to the ICC. When state delegations gathered in Rome, consequential issues – such as the extent of the Court’s jurisdiction and the mechanisms for triggering investigations – had not been resolved. On the matter of jurisdiction, the International Law Commission, back in 1994, proposed that states should have the right to block ICC prosecutions of their own nationals. The plan to give states the upper hand, as Struett observers, reflected a perceived need at the time to placate likely state opposition to a robust court. Another key issue that remained undecided at the start of the Rome conference was the relationship between the ICC and domestic courts. It had become clear that the ICC would complement domestic courts, and only be allowed to take up cases when a state proved unable or unwilling to undertake prosecutions. This has become known as the principle of complementarity. In this respect, the ICC would be a court of last resort. (In contrast, the ICTY and ICTR are courts of first resort and are not required to defer prosecutions to domestic judiciaries.) But how would complementarity at the ICC be designed in the Rome Statute? Would the ICC or the targeted state have the authority to determine the validity of a domestic war crimes prosecution? At Rome, the United States argued for a system of complementarity that would significantly constrain the ICC chief prosecutor. Another critical matter to be resolved at Rome was the role of the Security Council. In an apparent bid to control the ICC’s prosecutorial agenda, the United States and China argued that Council referrals should be the only way to trigger investigations.

Struett concludes that NGOs and allied states that lobbied for a robust court emerged victorious at Rome. To bolster this contention, he notes that in nearly all respects the Rome Statute “nearly fulfilled the wish list” (p.129) of the NGO coalition and their early recommendations. On the issue of jurisdiction, State Parties to the Statute automatically fell under ICC jurisdiction. The complementarity provision was worded to grant the ICC the authority to pass judgment on the integrity of domestic war crimes trials. The bid to give the Security Council sole control over triggering investigations failed. The Council did emerge from Rome with the authority to refer situations to the chief prosecutor. Importantly, however, investigations can also be triggered by state referrals and by the prosecutor himself.

Struett’s claim of the crucial influence of NGOs in the Rome negotiations – and in subsequent efforts to persuade states to ratify the Statute – is certainly a [*17] defensible one. The pivotal role of global civil society in the creation of the ICC is a view advanced by a number of observers of the Court (for example, see Broomhall 2003; Glasius 2005; Paris 2008; Schiff 2008). In key respects, however, Struett falls short of making a strong case for such a high level of NGO influence. For Struett, a recurring problem is one of evidence. While he provides examples of NGO activism, the problem lies in a general failure to substantiate a link between this activism and the specific outcomes of the Rome process. In his methodological discussion, Struett acknowledges both the need to substantiate his argument and the difficulty of doing so. As he points out, “causation is an elusive phenomenon in the social sciences” (p.25). Therein, he says, lies the value of his proposed approach of “process tracing” (p.34) to assess the hypothesized NGO role. Process tracing is a qualitative methodology to examine and explain different stages of decisionmaking. Key to his approach is to analyze NGO discourse (e.g., policy reports) and conduct in-depth, open-ended interviews with NGO activists and state actors to determine the extent of NGO influence on state delegations in Rome.

While Struett’s choice of interviewing and discourse analysis appears sound, the problem lies in its uneven and incomplete execution. In his empirical chapters, Struett seems to back away from his earlier aim of rigorously tracing the process of NGO influence on the final outcomes in Rome. In his discussion of the Rome conference in Chapter Six, Struett writes that the complexity of the negotiations renders it too difficult “to trace every possible act of [NGO] persuasion” (p.116). Yet, there is still more he could have done – particularly by more effectively drawing on his interviews with NGO and state representatives – to substantiate his claim of strong NGO influence. Instead, in this chapter he settles for the weaker claim that NGO influence “can be logically related to the choices that were made in the final drafting of the Rome Statute” (p.116). In other words, he contends that NGO influence can be inferred by the fact that the Statute bears a close resemblance to the early proposals advanced by NGOs. But this inference confounds correlation with causation. Struett also contends that his claim of NGO influence “is buttressed by extensive anecdotal evidence that NGO analyses were repeated in countless conversations leading up to and during the negotiations themselves” (p.116). However, he does not often share these anecdotes with the reader. Anecdotes, of course, are a valid part of discourse. Conveying them would have strengthened his argument as well as made his account of the historic Rome conference more evocative.

Struett’s treatment of the decision to convene the Rome conference is one of a number of lost opportunities to convince the reader of strong NGO influence. Struett notes that holding such a conference was by no means inevitable. Knowing this, NGOs “worked constantly to create a sense of urgency among state delegations in order to move the process forward” (pp.104-105). But he does not demonstrate how NGOs created this sense of urgency or whether their actions significantly moved states to hold a conference. [*18]

Moreover, Struett highlights purported NGO influence in a manner that tends to discount the importance of pro-ICC states in shaping the Statute. Consider his account of the debate over ICC jurisdiction. Struett reports that the United States lobbied for a proposal that would only allow ICC prosecution of state nationals when the particular state consented on a case-by-case basis. In the end, there was widespread state opposition to such a provision, and it did not appear in the Statute. With little evidence, Struett asserts that the exclusion of this provision “can only be explained in light of the rhetorical positions of the pro-ICC NGOs” (p.100). To support this bold claim, he maintains that NGO arguments “prevailed because they were oriented toward creating a discourse that could be normatively justified as producing justice for all” (p.100). Another case of asserting NGO influence without demonstrating it occurs in Struett’s discussion of the negotiations on the independence of the chief prosecutor and the role of the Security Council. Struett asserts that an NGO-run newspaper wielded its influence by publishing an article criticizing the proposal to give the Council sole control over triggering investigations. And, he claims (though without supporting evidence from his interviews) that the newspaper article “assured that delegates to the Rome conference would have to consider its implications” (p.129). In these examples we see a return to Struett’s formula that posits NGO influence as naturally flowing from the resonance of its discourse. Perhaps. But here, Struett does not persuasively show how or indeed whether NGO use of this normative argument shaped state preferences. He also does not adequately consider a leading alternative hypothesis – that is, the extent to which pro-ICC states may have acted largely on their own accord to counter the effort to weaken the Court.

This is not to say that Struett is blind to state participation in the writing of the Rome Statute. He does sometimes integrate state actors into his empirical chapters and shows the give and take between states prior to and during the Rome conference. Moreover, Struett provides the reader with an accessible account of how the complex negotiations evolved. (And in Chapter Three, he provides an excellent analysis of why the post-World War II plan for a global war crimes court foundered.) But he does not often explicitly credit states for playing a decisive role in shaping the Rome Statute and driving the creation of the ICC. Even when he provides evidence of state initiative, he often does not acknowledge that his hypothesis of crucial NGO influence is challenged. Struett’s argument would have been more measured and nuanced had he done more to highlight disconfirming evidence by explicitly accounting for instances of limited NGO influence, as well as recognizing the full range of NGO strategic action.

Struett does not delve into the political calculus behind NGO advocacy of compromises that diminished the authority of the ICC. The following example is a case in point. Struett writes that NGO and state supporters of a strong chief prosecutor gave ground to the opposition by acknowledging that there was “some merit” (p.127) to concerns about granting the prosecutor too much authority. Is this an implicit NGO acknowledgment of the danger of [*19] excessive prosecutorial power or is it a strategic NGO retreat in the face of strong state resistance? Struett provides too little information to answer this question or to probe the strategic dimensions of NGO decisionmaking.

One might reasonably come away from this book, which places such great emphasis on the principled nature of NGO action and discourse, thinking that NGOs would refuse to support proposals that could weaken the ICC. But at times the Coalition for the International Criminal Court did lend its backing to such proposals. How then should we understand Struett’s mention that the CICC advocated for Singapore’s proposal to grant the Security Council authority to halt Court investigations or prosecutions for renewable one-year periods? On one hand, the CICC’s advocacy role seems puzzling since this provision (which appears in Article 16 of the Statute) effectively gives the Council power to block prosecutions indefinitely. On the other hand, one suspects that the savvy CICC might have backed Article 16 in an effort to exert influence over the rules governing its implementation. In this respect, it is important to note that Article 16 cannot be easily invoked insofar as it can be blocked by a single permanent Council member. Perhaps the limits of the CICC’s influence over states in Rome compelled it to act strategically, settling for what justice could be attained even if this fell well short of the foundational principle of universal justice.

THE POLITICS OF CONSTRUCTING THE INTERNATIONAL CRIMINAL COURT would have been enhanced with a more sustained explanation of the efficacy of NGO activism. In his introductory chapters, Struett establishes high expectations for doing so by repeatedly telling the reader of the crucial role of NGOs. He also promises to identify the conditions for NGO success in helping to create the ICC, a move intended to provide insight into why some global civil society campaigns succeed while others fail. It is with these expectations that the reader waits for a synthetic conclusion chapter that will clearly lay out the factors that explain NGO success in the case of the ICC. In the conclusion, however, Struett leaves his central focus by the wayside in the pursuit of a diffuse discussion of a range of themes related to the legitimacy and future success of the Court.        

The text is also undermined in a number of smaller, but consequential ways. In part of Chapter Seven, for instance, Struett sets out to show how NGOs worked to secure state ratifications in Britain, Uganda, and Argentina. However, the British and Uganda case studies offer little information on the NGO role. The book also suffers from numerous grammatical mistakes that pose a distraction to the reader. In places the book feels a few years out of date. For example, the author does not cite or engage Marlies Glasius’ important 2005 study, THE INTERNATIONAL CRIMINAL COURT: A GLOBAL CIVIL SOCIETY ACHIEVEMENT. In the same vein, Struett’s discussion of an NGO conference held in Turkey in 2005 could have been brought up to date. He cites the conference as “an example of the information transmitting techniques that NGOs have now perfected” (p.147). But by not reporting on the results of the conference, the reader is left again to question the actual extent of NGO influence. [*20]

As Struett correctly points out, the role of NGOs in the construction of the ICC is not only a matter of history, but remains relevant to the Court’s ongoing bid for universal state ratifications of the Rome Statute. Perhaps it is just as important to understand the role that NGOs are now playing in providing political support to the ICC and its chief prosecutor as they try to build international pressure for the handover of key suspects, particularly those implicated in atrocities in northern Uganda and the Darfur region of Sudan. With no enforcement powers of its own, the ICC must turn to powerful international actors to press recalcitrant states to cooperate. It is here that NGOs can play an indispensable role by amplifying the ICC’s voice and making such international pressure a moral and strategic imperative.

REFERENCES:

Broomhall, Bruce. 2003. INTERNATIONAL JUSTICE & THE INTERNATIONAL CRIMINAL COURT: BETWEEN SOVEREIGNTY AND THE RULE OF LAW. Oxford: Oxford University Press.

Glasius, Marlies. 2005. THE INTERNATIONAL CRIMINAL COURT: A GLOBAL CIVIL SOCIETY ACHIEVEMENT. New York: Routledge.

Paris, Erna. 2008. THE SUN CLIMBS SLOWLY: JUSTICE IN THE AGE OF IMPERIAL AMERICA. Toronto: Random House of Canada.

Benjamin N. Schiff. 2008. BUILDING THE INTERNATIONAL CRIMINAL COURT. New York: Cambridge University Press.

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© Copyright 2009 by the author, Victor Peskin.