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The International Criminal Court and its implications for the international legal order

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Title:
The International Criminal Court and its implications for the international legal order
Creator:
Ganbold, Enkhtungalag
Place of Publication:
Denver, CO
Publisher:
University of Colorado Denver
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English
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vii, 56 leaves : ; 28 cm

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International law ( lcsh )
International law ( fast )
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bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

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Bibliography:
Includes bibliographical references (leaves 53-56).
Thesis:
Political science
General Note:
Department of Political Science
Statement of Responsibility:
by Enkhtungalag Ganbold.

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|University of Colorado Denver
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|Auraria Library
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ocm50726479
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Full Text
THE INTERNATIONAL CRIMINAL COURT AND ITS IMPLICATIONS
FOR THE INTERNATIONAL LEGAL ORDER
by
Enkhtungalag Ganbold
Diploma, School of Foreign Affairs, 1996
B.A., Otgontenger Law School of Mongolia, 1998
A thesis submitted to the
University of Colorado at Denver
in partial fulfillment
of the requirements for the degree of
Master of Arts
Political Science


This thesis for the Master of Arts
degree by
Enkhtungalag Ganbold
has been approved
by
Stephen Thomas


Ganbold, Enkhtungalag (M.A., Political Science)
The International Criminal Court and Its Implications for the
International Legal Order
Thesis directed by Associate Professor Stephen Thomas
ABSTRACT
Long considered as overly idealistic and unattainable by political analysts
and scholars, the global tribunal, as agreed by 120 states at the Rome treaty in
1998, is expected to be established within a year. The urgency and support for
such a credible institution are increasingly evident in light of gross violations of
human rights which occur domestically, transnationally and internationally.
My overall arguments are constructed based upon the historical survey of
the development of international law. The present thesis contends that the
proposed permanent International Criminal Court (ICC) will, once created, be a
strong human rights enforcement regime. Hence, the work seeks to determine
how tiie Court will contribute to the enforcement of international law and what its
potential implications are for the efforts in international peace and security.
This abstract accurately represents the content of the candidates thesis. I
recommend its publication.
Signed
Stephen Thomas
m


DEDICATION
I dedicate this thesis to my parents for their constant support while I pursued my
undergraduate studies and for giving me courage in my further pursuit for
graduate studies.


ACKNOWLEDGMENT
My sincere thanks to my mentor William R. Pace for his dedication and
inspiration in the establishment of the International Criminal Court. I would also
like to thank my advisor Stephen Thomas and the rest of my thesis committee,
Professors Glenn Morris and Lucy Ware McGuffy for their patience, insights
and availability during the course of this work.


CONTENTS
CHAPTER
1. INTRODUCTION....................................... 1
Outline of the Thesis........................... 1
The History of International Justice and Human
Rights Law.............*......................... 4
2. THE INTERNATIONAL LEGAL ORDER AND
THE NEED FOR PERMANENT JUDICIAL BODY................ 7
Evolution of International Law.................. 7
International Military Tribunals................. 10
' United Nations Efforts and Cold War Era.........12
Post Cold-War and March to the Road to Rome...... 13
3. THE ROME CONFERENCE AND ADOPTION OF THE ROME
TREATY: POWER AND JURISDICTION OF THE ICC............ 17
The Adoption of the ICC Statute.................. 17
Crimes Within the Jurisdiction of the Court......19
Trigger Mechanism and Investigation..............24
Composition and Function of the ICC............. 29
vi


4. THE CONTRIBUTIONS OF THE COURT IN
INTERNATIONAL LAW................................. 32
Principle of Complementarity.................. 32
Universal Jurisdiction Basis.................. 34
The ICC as an Impartial Enforcement Mechanism. 35
The Role of ICC in Maintaining Peace..........36
5. THE IMPLICATIONS OF THE ICC FOR
INTERNATIONAL ACTORS............................. 38
Forces Affecting the ICC.......................38
The Status of Worldwide Ratification...........41
Sovereignty Versus International Justice:
The U.S. Dilemma.............................. 41
6. CONCLUSIONS..................................... 46
NOTES............................................... 49
BIBLIOGRAPHY........................................ 53
vu


CHAPTER 1
INTRODUCTION
The purposes and functions of a permanent international criminal
court combine humanistic values and policy considerations
which are not only essential to the attainment of justice, redress
and prevention, but also to the preservation, restoration and
maintenance of peace.
M. Cherif Bassiouni
Outline of Thesis
The urgency of a credible institution which can bring to justice
perpetrators of the most heinous crimes is increasingly evident in light of gross
violations of human rights which occur domestically, transnationally and
internationally. In fact, it is thought that if all states were able to bring justice to
perpetrators of these crimes or prevent them before they occur, the world would
not need the International Criminal Court (ICC). Since States are rarely able to
bring these criminals to justice, the mere presence of the ICC might deter
atrocities and therefore help contribute to international security and peaceful
order.1 The absence of such an institution may serve as an incentive for impunity,
causing the suffering of innocent people, including women and children.
1


The proposed ICC is designed to fill the gap in codification and
enforcement of international law. The Rome Statute (or the ICC Statute),
instituting the creation of the global Court, was adopted by an overwhelming
majority of 120 States. The Court will start functioning next year. For the first time
in history, persons committing genocide, war crimes and crimes against humanity
will be subject to indictment, arrest, prosecution and imprisonment at the hands of
a permanent court created by a multilateral treaty.
The proposed thesis can be formulated by asking the following core
questions concerning the complexity and implications for the ICC regime: What
implications does the proposed Court have on the international legal order? Would
the Court contribute or complicate the efforts to promote international peace and
security? Will the Statute contribute to the enforcement of international law? How
will it function and enforce its rulings? In what way would national sovereignty
interests be impinged? Due to the scope and gravity of this proposed institution,
the international community is now confronted with these questions.
The hypothesis of my thesis is that the ICC will contribute significantly to
the international justice system. My overall arguments are constructed based upon
a historical survey of the development of international law. I will argue that the
ICC will advance the enforcement mechanism of international law by allocating
legal responsibility to the states. This function is also called a complementarity
2


principle, wherein individual states retain their primary jurisdiction to prosecute
those who commit gross human rights violations.
Conscious of the highly controversial issues that the subject matter raises, I
propose to examine the reasoning of international actors and experts in the field by
presenting their arguments and concerns.
The framework will be constructed in six parts: Chapter 1 will introduce
the need and current issues in the enforcement of international law.
Chapter 2 of the research will aim at providing an overview of the history
of the international justice system and international humanitarian law. The core of
this chapter delineates how a new paradigm within the outset of contemporary
international law has occurred, partially contributing to the birth of the ICC.
Chapter 3 will be devoted to illustrating a clear synopsis of the ICC, its
evolution, characteristics and functions. Three issues will be discussed to highlight
the importance of the ICC: namely, the role of this institution in strengthening the
international criminal law; the principle of complementarity and its contributions to
the national legal system; and the ICCs contribution to maintaining peace and
deterrence of the worst war crimes.
Different perspectives of the international actors on the ICC will be
examined in Chapter 4. In order to understand the scope of national interests and
advocacy efforts in the ICC, three groupings will be examined: 1) the European
3


Union and the group of like-minded governments; 2) the United States; 3) the
coalition of non-governmental organizations. Their relative issues and interests will
be explored to assess the overall affect and challenges that are confronting the
proposed Court.
The final Chapter will draw conclusions from the previous sections and
summarize the hypothesis and arguments.
The History of International Justice and Human Rights Law
The journey of mankind towards attainment of peace through judicial
means dates back to centuries past. Since ancient times, sovereigns have formed
alliances and entered into treaties designed for mutual security and protection.
Primitive forms of supranational justice existed in the ancient Greek epoch.2 In the
' Middle Ages, ad hoc tribunals were set up by the members of victorious alliances
to try the defeated army chiefs after war. The idea to establish an international
criminal court was not catalyzed however until the end of World War 1(1919)
when the Treaty of Versailles provided for ad hoc tribunals.3 Since then, the
worlds major powers have been selectively creating ad hoc bodies to investigate
certain international crimes, failing, at the same time, to establish a permanent
system of international criminal justice.4
4


A lengthy catalogue of atrocities serves as a tragic reminder of the fragility
of commitments made by the international community to ensure greater respect
and protection for human life. Humankind has entered the twenty-first century
seeking credible institutional mechanisms capable of restraining its darkest
impulses. Too often perpetrators of the most heinous crimes have gone
unpunished, benefiting from a culture of impunity.3
Meanwhile, bodies of international human rights and humanitarian law
providing for the norms6 to ensure greater respect and protection for human rights
have been slowly developing. The Hague Conventions and Declarations (1899 and
1907), the Genocide Convention (1948), the Geneva Convention (1949) and
Additional Protocols (1977) have each formulated international norms for
protection of human rights and laws governing conduct of war. This rise of
international law elevated the aspirations of international civil society for the
establishment of a permanent system of international criminal justice.7
Despite this effort, the twentieth century was the most war-ravaged century
in history: an estimated 170 million people died in World War I and World War n,
and subsequently more than 250 conflicts have since occurred.8 This is partially
due to the lack of enforcement of international treaties and customs produced over
the centuries. In addition, the international legal community must either develop
5


the political institutions or the legal mechanisms to assure that international
instruments will be respected and enforced by all parties.9
Is conflict a perpetual force? Does the competitive element in international
life pervasively threatens to erupt into violence? Is peace a possibility? Various
political theories have sought to explain reasons for such regretful human
inclination. The realist school, for instance, takes a pessimistic stance and explains
the principal problem in human nature and anarchy as well as power.10 However,
the classical realism, in the authors view, ought to be accounted for its escapism
to realize that power is not the only goal to pursue, but among the sets of interests
the nation-state seeks to achieve. Particularly, it is true in the concert of modem
international politics where set of rules and laws regulate mutual relations, and
international cooperation is increasing with the efforts of globalization. In recent
years, many conventions and treaties have been adopted proposing for measures to
eradicate transnational crimes. The nature of these transnational and international
crimes requires international cooperation and states have acknowledged that it
would be in their interests to do so.11 States have indicated that creating -
institutions that accommodate such cooperation could be a useful strategy to help
maintain domestic and international security.12
6


CHAPTER 2
THE INTERNATIONAL LEGAL ORDER AND THE
NEED FOR PERMANENT JUDICIAL BODY
Evolution of International Law
The necessity for a world government structure is to facilitate world affairs
in peaceful manners. International law is thought to be a medium to devise and
maintain a system of order for the international community. International law
posits institutions and processes that transcend domestic law and politics. Within a
half-century of its existence of the United Nations and its organs, over 500 multi-
lateral treaties have been created, representing the largest contribution in the entire
history of humankind. These international legal instruments dealing with virtually
all aspects of human activity have greatly affected international politics.
International treaties and customs have thus produced rules and norms
prohibiting armed conflicts and crimes of international concern. The rise of
international human rights and humanitarian law, providing for the codification of
norms to protect human rights and govern laws of war,13 have established new
legal regimes. The latter can assist in effectuating the transition from a culture of
impunity to one of accountability. Such a legal regime capable of transcending
7


domestic policies constitutes a new paradigm in international politics. States are
presumed to enter into a social contract for peaceful co-existence and obligation
under established laws and customs. For example, an international obligation to
prosecute genocide and grave breaches of the Geneva Conventions was provided
in the Genocide Convention and the Geneva Conventions and its Protocols. As
such, the Genocide Convention imposes an absolute obligation to States to
provide effective penalties for persons guilty of genocide.14 This is indeed a
realization not only of individual accountability for perpetrators, but also a trend
towards greater democratization in international politics. Because the development
of international law is a product of all members of the United Nations!, it reflects
the transcendence in the international process. Today small countries influence
international politics through law more than in the last century.
The third world is the bearer of democratizing tendency in international
relations and will exercise an influence on the evolution of international law
in the direction of a greater equality of opportunity and of a better
protection of underprivileged countries.15
Nonetheless, the record of enforcement of these rules is dismal, and there is no
judicial body to oversee the enforcement. The deficiency in enforcement can be
accounted for by the fact that the violations of international humanitarian law are
not punished.
Law that is not properly enforced loses its credibility. Human rights law
practitioners have thus sought ways to enhance the means of enforcement. A
8


cornerstone of this effort has centered upon the framework of the penal law: the
condemnation of certain behavior as criminal, not simply a breach of treaty or
customary international law obligations, but the imposition of individual criminal
responsibility.16
In contrast, in traditional international law, rights and duties were
prescribed primarily to govern relations amongst states,17 wherein the states
retained criminal jurisdiction over conduct committed on their territory or by their
nationals. To this extent, punishing crimes was largely a matter for a sovereign
nation and maintaining this sovereign right, following the Westphalian conception,
is a principal concern of many states.18 This idea is dated, as the nature of armed
conflicts has increasingly become internal as opposed to inter-state. Failure of the
national criminal systems to enforce rules has continued to impede effective
transition to a system of international criminal justice.19 UN Secretary General Kofi
Annan meticulously described it:
International conventions have traditionally looked to states to protect
civilians, but today this expectation is threatened in several ways. First,
states are sometimes the principal perpetrators of violence against the very
citizens that humanitarian law requires them to protect. Second, non-state
combatants, particularly in collapsed states, are often either ignorant or
contemptuous of humanitarian law.20
Failure to prosecute leaders responsible for human rights abuses breeds contempt
for the law and can serve to discourage future human rights abuses. The
9


international judicial body offers an alternative forum where perpetrators from
collapsed States still have a venue for an impartial trial. This can help reinforce a
respect for law and a new government, while playing an important role in peaceful
transition.21 International tribunals in Nuremberg and Tokyo are examples of such
reconciliation from the turbulent wars.
International Military Tribunals
In the aftermath of World War n, the major victorious Allies established
the International Military Tribunal (IMT), sitting at Nuremberg, and the
International Tribunal for the Far East (IMTFE), sitting at Tokyo, to prosecute
individuals for crimes against peace, war crimes, and crimes against humanity.
These post-war experiences constitute significant precedents for the ICC and for
the establishment of the effective system of international justice.22 However, since
both tribunals were established and consisted of members of the victorious allies,
the perceived outcome was seen one of victors justice. Adolf Hitler never once
dreamt about being tried in an international court even prior to his attack in
Poland. This is explicit in his reference to Armenians: Who still talks nowadays of
the extermination of Armenians?.23
Notwithstanding the shortcomings of imposed victors justice,24 the
tribunals were essential in developing principles of international criminal law
10


norms, in particular, with recognition of a concept of individual criminal
i
responsibility. The Nuremberg tribunal ruled for the first time in history that:
Crimes against international law are committed by men, not by abstract
entities, and only by punishing individuals who commit such crimes can the
provisions of international law be enforced.25
These judgments were unsuccessfully challenged by some legal scholars who
questioned the validity of the subject matter jurisdiction that were considered in
these tribunals.26 In accordance to a nexus of international law principle nullum
crimen sine lege, no crimes shall be recognized (thus punished) without existing
laws that define it. According to American officials at that time, the proposed
international tribunal would be illegitimate because it appeared to be unknown in
the practice of nations.27 However, these principles of international law were
unanimously affirmed by the first General Assembly of the United Nations.28
The judgment of Nuremberg tribunal is the essence and foundation of the
ICC. The recognition that an individual has criminal responsibility under
international law was a major breakthrough in the development of international
law.
11


United Nations Efforts and Cold War Era
In 1947, the United Nations General Assembly in its Resolution 95(1)
affirmed the principles of international law in recognition of Nuremberg Charter
and its judgment. In the same Resolution, the General Assembly first mandated the
International Law Commission to prepare a draft code of offenses against the
peace and security of mankind, formulating the principles of international law
based on the precedent of the military tribunal of Nuremberg and its judgments.29
This task later became the foundation for the draft statute of the ICC. The
adoption of the Rome treaty thus took half a century to be realized.30 Although
states were generally supportive of the creation of the ICC, many controversial
issues were confronted. The Cold War generally delayed the process and the
permanent members of the Security Council regarded the issue politically
premature.31 Many states were concerned with their sovereignty interests. Some
other factors which thwarted this process were the states inability to form a
consensus on the definition of aggression and their inability to sufficiently to
recognize the international penal law.
Lack of recognition of international system can be seen in the writings of
renowned legal scholars. In 1950, Georg Schwarzenberger, British international
scholar, wrote: International criminal law in any true sense doesnt exist. He was
referring to the developing international law which would not only apply to states
12


but also to its citizens. Schwarzenberger argued that international criminal law
that is meant to be applied to the world powers was contradiction in terms
because it presupposes an international authority which is superior to these
states.32
Conversely, international law began to develop with increasing clarity.
The large body ofinternational humanitarian law encompassing both the
law of armed conflict and certain aspects of human rights law has become
more specific, not only about the obligations to be observed by
governments and armed forces, but also about implementation. A key
development is the unambiguously clear identification of certain violations
as international crimes, which states and international organizations have a
responsibility to take actions against; and in respect of which no one, not
even a head of government or state, can claim absolute immunity.33
Slowly these positive developments of international law have brought about a
favorable environment within the international community. The Genocide
Convention (1948), and the four Geneva Conventions (1949) and Additional
Protocols (1977) have formulated international norms prohibiting crimes of
international concern and armed conflicts.
The Post-Cold War and March to the Road to Rome
Throughout the 1980s, representatives of the German government and
others repeatedly called at the General Assembly to set up an international criminal
court. In 1987, Soviet Premier Mikhail Gorbachev raised the need for such a court
13


to address crimes of terrorism, both in a speech to the UN General Assembly and
in a letter to the UN Secretary General.34 The tide toward an international criminal
court began to turn in 1989, when A.N.R. Robinson, then Prime Minister of
Trinidad and Tobago, led Caribbean States in calling for an international criminal
court to prosecute major drug traffickers. The General Assembly resolution which
resulted in December 1989, requested the International Law Commission (ILC) to
address the question of establishing an international criminal court or other
international criminal trial mechanism.35 The General Assembly committed itself
to readdressing the question of an international criminal court in its forty-fifth
session, when examining the report of the ILC. Meanwhile the atrocities
committed in the former Yugoslavia and Rwanda, contributed significantly to the
consideration of a permanent institution. Due to international pressure and absence
of effective trial mechanism, the Security Council created ad hoc tribunals under
Chapter VII of the United Nations Charter. The formations of these post-Cold
War ad hoc tribunals have reaffirmed the Nuremberg principles and elaborated
international criminal law and procedures.
After the formation of the ICTY, the General Assembly felt a renewed
impetus for action, calling for a completed draft statute to the Sixth Committee
conference to finalize and adopt the statute. The ILC submitted a draft statute to
the Sixth Committee by July 1994 and recommended that the General Assembly
14


convene a diplomatic conference to finalize and adopt the statute. A number of
supportive States engaged in a debate supporting the ELC recommendation for a
diplomatic conference. However, in the face of opposition from three permanent
members of the Security Council (France, the United Kingdom and the United
States), these States agreed to call instead for an Ad Hoc Committee on the
Establishment of an International Criminal Court to further study issues relating to
the ICC. By the end of 1995, the small group of supportive States inside the Ad
Hoc Committee continued to work together and expanded to include close to
twenty like-minded States. This Committee convened twice in 1995 and led to the
formation of the Preparatory Committee, which held eight sessions between 1996
to 1998. The Ad Hoc Committee meetings took the format of informal and friendly
discussions of the subject matter. A relatively advanced stage of work reached at
the Preparatory Commission. Because the core issues addressed at the Preparatory
Committee were of a technical nature it proceeded with less politicization and led
to the Rome conference.36 During these sessions the Committee elaborated the
proposed ILC draft statute and produced reports on such key issues as the
definition of crimes, the principle of complementarity, the jurisdiction of the Court,
the relationship between the Court and the Security Council, the role of the
Prosecutor, judicial cooperation and enforcement.
15


The Draft Statute and Draft Final Act submitted to the Rome Diplomatic
Conference were completed on 3 April 1998 with a consolidated text of 173
pages, containing 116 draft articles which had some 1300 words in brackets,
indicating multiple options to entire provisions.
16


CHAPTER 3
THE ROME CONFERENCE AND ADOPTION OF
THE ROME TREATY: POWER AND
JURISDICTION OF THE ICC
And I agree with you [NGO Coalition for ICC] we will have the
court. Im determined to work with the governments and with you
to ensure that the Court is established in the next year. The Court
will function and those who have been hesitant will in time, come
on board. I dont think we should be deterred. We have lots of
work to do...And I think the climate has changed somewhat since
the 11th of September and I think we are going to get much more
support that we had not counted on.
UN Secretary General Kofi Annan37
The Adoption of the ICC Statute
On 17 July 1998, after three years of intense discussions and a final five-
week negotiation, 160 governments voted for the establishment of a permanent
International Criminal Court. In the march toward universal human rights and the
rule of law38 that will transform the human rights landscape, the international
community of states agreed, by an overwhelming majority 120 in favor and only 7
against, to create a permanent global judicial institution to bring the worlds worst
human rights criminals to justice. The ICC is being established for the purposes of
investigating and prosecuting individuals who commit the most serious crimes of
17


international concern: namely genocide, crimes against humanity, war crime sand
once defined, crime of aggression.
The Rome treaty of the International Criminal Court (ICC) is said to mark
the beginning of a new phase in the history of international justice. Indeed, the ICC
marks a significant turning point in the way the international community views
peace, transition, and the enforcement of international law.39 It is intended to
provide a key mechanism for protection of human rights and for the enforcement
of victims rights to justice and reparation.40 Therefore, implementing and
enforcing human rights norms have been the main purpose of establishing a
permanent international criminal court.
The International Criminal Court is widely heralded as the cornerstone of
an emerging system of international justice which makes international standards of
conduct more specific, provides an important mechanism for implementation of
these standards and allows no individual to claim immunity from prosecution.
Prosecuting persons responsible for violations of international humanitarian
law can serve to discourage future human rights abuses, deter vigilante justice, and
reinforce respect for law and a new government. Failure to prosecute leaders
responsible for human rights abuses breeds contempt for the law and encourages
future violations.41
18


The development of the Rome Statute reflects the increasing centrality of
the individual in international law, and in particular an international consensus
about the accountability of individuals as perpetrators and the need to address the
suffering of individual victims.
Crimes Within the Jurisdiction of the Court
The Rome Statute defines the core crimes based upon customary
international law and also incorporates developing principles of international law.
These definitions are the first effort in the international community to prescribe the
most heinous crimes of international concern in a single multilateral treaty.
Genocide is defined in Article 6 in accordance with the 1948 Convention
on the Prevention and Punishment of the Crime of Genocide Convention (ratified
by 123 states) as one of a list of enumerated acts committed with intent to
destroy, in whole or in part, a national, ethical, racial, or religious group as such.
This includes killing members of the group, causing serious bodily or mental harm
to members of the group, deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole or in part, imposing
measures intended to prevent births within the group, and forcibly transferring
children of the group to another group. In the draft Statute of 1994, the ILC
already acknowledged that this crime is clearly and authoritatively defined under
19


customary international law, which be committed either in time of peace or in time
of war.42 As a result, the definition of the crime was agreed without substantial
debate or consideration of the possibility of extending the definition to cover, inter
alia, social and/or political groups.
In Article 7, the Statute defines crimes against humanity, in keeping with
Article 6(c) of the Nuremberg Charter, Article 5 of the Statute of the International
Criminal Tribunal for the former Yugoslavia, Article 3 of the Statute of the
International Criminal Tribunal for Rwanda, and other precedents such as relevant
conventions, and ILC commentaries, as a specific list of inhumane acts when
committed as part of a widespread or systematic attack against any civilian
population, with knowledge of the attack. The list of acts includes the following:
murder; extermination; enslavement; deportation or forcible transfer of population;
imprisonment or other severe deprivation of physical liberty in violation of
fundamental rules of international law; torture; rape, sexual slavery, enforced
prostitution, forced pregnancy, enforced sterilization, or any other form of sexual
violence of comparable gravity; and persecution against any identifiable group or
collectivity on political, racial, national, ethnic, cultural, religious, gender; enforced
disappearance of persons; the crime of apartheid; and other inhumane acts of a
similar character intentionally causing great suffering, or serious injury to body or
20


to mental or physical health; or other grounds that are universally recognized as
impermissible under international law. The Statute defines the [a]ttack directed
against any civilian population as a course of conduct involving the multiple
commission of acts referred to in paragraph 1 against any civilian population,
pursuant to or in furtherance of a State or organizational policy to commit such
attack. There was extensive debate in Rome as many delegations advocated for a
more precise and detailed definition of crimes. Disagreement mainly centered
around the conditions under which the commission of such acts constitute a crime
against humanity or threshold tests such as whether the attack should instead be
widespread and systematic.43 Many delegations and human rights groups were
happy with the final adoption of wide or systematic, although some still saw the
threshold as too restrictive.44 Overall, the crime against humanity, defined as the
specific list of acts, are broader than those contained in the legal instruments and
provide more specificity. This is an example of how the Statute pushes forward
developing areas of international as well as codifying customary international law.
Introduction of sexual and gender crimes, for instance, was considered to reflect
progressive evolution of customary international law.45
The war crimes provision of Article 8 includes: 1) the grave breaches and
Common Article 3 of the 1949 Geneva Conventions (ratified by 186 states); and 2)
21


the grave breaches Protocol I of 1977 (ratified by 147 states) and Protocol II
(ratified by 139 states), which are deemed part of the customary law of armed
conflicts, including prohibitions of certain weapons. The Statute gives the Court
jurisdiction over an exhaustive list of war crimes, with separate lists for
international conflicts (containing 34 crimes) and non-international conflicts
(containing 16 crimes), the vast majority of which taken directly from, or clearly
derives from, established provisions of international law. In view of the abundance
of precedents, major contention arose in the process selecting norms applicable to
armed conflict that demanded international prosecution. As a result, the ICC
formulations are more restrictive than the established definitions on which they are
based and constitute crimes in particular when committed pursuant to a plan or a
policy or as part of the large scale commission of such crimes. This does not
impose jurisdictional limitations on the Court, but provides specification of the
existing norms under international law. Critics, however, note that the Statute is
far from comprehensive, having omitted various provisions of the Hague and
Geneva law, thus excluding them from the Courts jurisdiction.46 In particular,
failure of inclusion of nuclear weapons in the list of prohibited weapons brought
about shortcomings of effective preventative clause in the Statute. Another major
compromise was attained as an accommodation to a French proposal to include a
seven-year transitional period for war crimes (Article 124) allowing ratifying
22


States to opt out from the war crimes provision for the period of seven years the
treaty enters into force for them. This bargain was reached instead of the initial US
proposed for a ten-year opt-out provision for both crimes against humanity and
war crimes, which critics feared would severely affect the Courts jurisdiction.
As a result of ongoing unresolved negotiations, aggression, provided for in
Article 5(l)(d), is not defined in the Statute. Article 5(2) provides for the eventual
definition of aggression. This crime will only enter into effect after a definition is
adopted by the Assembly of States Parties (composed of the first sixty states
ratifying the Statute), and will not be applicable to any states parties that have not
accepted the amendment. In any event, aggression will apply prospectively (Article
22(1))47 as with all crimes of the Rome Statute which can thus be added to it by
amendment. Due to lack of agreement on a clear legal definition and the political
sensitivity of a crime aimed directly at heads of state, the crime of aggression has
been one of the most contentious points in Rome negotiations. The reference to
any future provision being consistent with the UN Charter has been interpreted by
some as indicating that the Security Council would be required to make a prior
determination that an act of aggression had occurred before the ICC could
prosecute this crime.
23


In addition, each crime is subject to clarification and definitions under the
Elements of Crimes and Rules of Procedure and Evidence and Evidence, further
adopted by states at the Preparatory Commission session in June 2000.
Thus, the Rome treaty largely embodies pre-existing, well-defined crimes
under international customary law and improves on their content through greater
specificity. Notwithstanding the fact that the treaty omits some crimes under
customary international law, it does clearly articulate core crimes of international
concern and reflects progressive development of international law. In short, the
definition of crimes contained in the Statute reflects existing practices and
affirms current development in international law.
Trigger Mechanism and Investigation
The referrals for initiating jurisdiction over these crimes can derive from
any of three sources: the UN Security Council, a State Party to the Statute, or the
Prosecutor acting on his or her independent motion. The preconditions of the
exercise of the ICC jurisdiction require that the crimes covered under the Statute
occur on the territory of a State Party (states can accept jurisdiction of the Court
by ratifying the Statute) or that the accused derive his or her nationality from a
State Party, except in cases of Security Councils referral. The Rome treaty can
exercise a universal jurisdiction under a situation triggered by the Security Council
24


referral to the ICC. This was a disappointment to many states, scholars and
activists advocating for a much stronger Court with broader jurisdiction.
State Parties may refer situations to the Court in which one or more
crimes appear to have been committed. The Statute provides that no investigation
or prosecution can be commenced or proceeded with for a renewable period of
twelve months where the Security Council, acting under Chapter VII, has so
decided. Deferral would require a decision of the Council, and therefore excludes
the possibility of one states veto blocking jurisdiction, but does leave open the
possibility of unlimited renewal and perpetual deferral.48
The ICC Prosecutor, acting under proptio motu (on his or her own
motion), can investigate allegations of crimes on information from victims, non-
governmental organizations or other reliable sources (Article 15). This is
considered as a crucial development by proponents as it enables victims and
survivors to trigger investigations where the Security Council or states are
unwilling and unable to take action. The Statute contains numerous safeguards
and checks on prosecutorial discretion as a result of the concern of many delegates
about politically motivated or unwarranted investigations. These include election
of the Prosecutor and Deputy Prosecutor by an absolute majority of the Assembly
of States Parties; the requirements of a reasonable basis for an investigation to
25


proceed; informing Pre-Trial Chamber and depending upon triggering party,
Security Council or State Party, about decision to proceed or not to proceed with
the concerned case. In situations where the Prosecutor decides not to proceed with
the case in accordance with the interests of justice, the Pre-Trial Chamber may
initiate a review and the Prosecutors decision not effective until the Pre-Trial
Chamber confirms it. The power of the Prosecutor is also limited when conducting
independent investigations. For example, if national authorities refuse to provide
relevant evidence as they consider acts prohibited under their domestic laws or for
national security reasons. This was thought a means to preserve the national
sovereignty and not to interfere with the internal affairs of States. In addition, there
are codes of conduct and other high qualifications for the Prosecutor.
Given the scope of the Courts jurisdiction and absence of a police force to
enforce its decisions, it is crucial to examine the powers of an independent
Prosecutor. The effectiveness of the Court relies significantly on the Prosecutors
power. In general terms, the powers of the Prosecutor to conduct an investigation
are seriously limited. It was always envisaged that the ICC would largely be
dependent upon state cooperation, and to a lesser degree, upon the Security
Council. Thus, the collaboration of the Prosecutor, national authorities, and the
Security Council is vital for the effectiveness and successful operation of the
Court.
26


The Office of the Prosecutor is an independent organ of the Court,
responsible for receiving the referrals and substantiated information that can
trigger an investigation and ultimately a prosecution by the Court, including
obtaining evidence and witnesses, and gaining custody of the accused, issuing
subpoenas, conducting on-site investigations, and prosecuting indicted individuals
in trial chambers. The Prosecutor will be assisted by one or more Deputy
Prosecutors and is to appoint advisors with legal expertise on specific issues,
including sexual and gender violence and crime against children, The Prosecutor
and Deputy Prosecutor are to be persons of high moral character highly
competent and having extensive experience in the prosecution or trial of criminal
cases. They will also serve full time for a non-renewable term of nine years and will
be of different nationalities.
In order for the Prosecutor to initiate an investigation, he or she must
determine that no adequate national investigation has already taken place. Where
there are national authorities, they are relied upon to take necessary steps. Any
state, whether a State Party or non-state party to the treaty, may inform the Court
that it is dealing with the situation domestically and the Prosecutor will defer to
that investigation, unless the Pre-Trial Chamber decides to authorize the
investigation on the basis that the State Party concerned is unable to investigate or
prosecute.49
27


The Prosecutors deferral is open to review after six months or at any time
when there has been a significant change in the states unwillingness or inability
genuinely to carry out the investigation. However, States have several
opportunities to challenge the Court. States can challenge a Pre-Trial Chambers
ruling of unwillingness or inability to investigate. And again States, including non-
state parties have yet another opportunity to block a prosecution by challenging
the admissibility of particular cases.50 Decisions can further be appealed to the
Appeals Chamber. These are important provisions for protecting sovereignty of
states and reserving them rights for fair trials. They should be reviewed in the
context of the Statutes explicit requirement that States Parties comply with
requests of the Court.
28


Composition and Functions of the ICC
The design of the Court aims to provide structures and procedures that
ensure efficiency, competence, fairness and impartiality to States Parties and to
persons brought before the Court. States Parties control the initial election of
judges, the Prosecutor and any Deputy Prosecutors. The Court will consist of a
number of organs: the Pre-Trial and Appeals Divisions, the Office of the
Prosecutor and the Registry. An Assembly of State Parties will perform
management oversight and other important functions responsible for the proper
administration of the Court. The judges will be elected by the Assembly of States
Parties to nine-year non-renewable terms, to be chosen from persons of high
moral character, impartiality and integrity possessing the qualifications for the
highest judicial office in their home country. At least nine will have established
competence in criminal law and procedure, with the necessary experience in
criminal proceedings, and at least five will have established competence in relevant
areas of international law such as humanitarian and human rights law, with
extensive relevant professional legal experience. In selecting judges, State Parties
are to take into account the need for representation of the principal legal systems
and the geographical regions of the world, for fair representation of male and
female judges with legal expertise in specific issues, such as violence against
women and children. The three judges forming the Presidency will serve full time.
29


The President and four other judges will form the Appeals Division, which will sit
as a single Appeals Chamber. Not less than six judges will comprise the Trial
Division, which will perform its work through one or more Trial Chambers of the
judges. The Pre-Trial Division, which plays an extensive role in the conduct of
investigations, will consist of not less than six judges performing their functions in
Pre-Trial Chambers of either three judges or one judge, depending on the function
exercised. The judges in the Pre-Trial and Trial Divisions will serve for three years
in the division to which they are assigned. Judges are to be independent in the
performance of their functions, and are not to engage in any activity likely to
interfere with those functions or with confidence in their independence. An
absolute majority of the judges may disqualify from a case, any judge who might
raise doubts as to impartiality.
The Registry is responsible for the non-judicial administration of the Court
and is under the care of the Registrar, the ICCs chief administrative officer, and a
Deputy Registrar (should the need arise). The Registry will contain a Victims and
Witnesses Unit to provide appropriate protective measures and security
arrangements, counseling and other assistance.
Judges, the Prosecutor, the Registrar and their respective Deputies can be
removed from office for serious breach of their duties under the Statute or for
inability to exercise the functions required of them.
30


The Assembly of States Parties is the forum in which key decisions
affecting the vitality and effectiveness of the Court will be made. As such,
participating States Parties will have an important role to play in fostering the
development of international law and contributing to the wider effects that the
Statute will have on international life. The structure and function of the Assembly
are designed by the Statute in order to provide States Parties with an effective
power of managerial oversight without affecting the independence of the Court.
The Assembly will begin its session with at least sixty members and will have a
Bureau of eighteen members, including a President and two Vice-Presidents, who
will meet at least once a year. Ratification of the Statute by a Statute enables
States to sit in the Assembly of States Parties.
31


CHAPTER 4
THE CONTRIBUTIONS OF THE COURT TO
INTERNATIONAL LAW
Principle of Complementarity
The cornerstone of the ICC is the principle of complementarity. The ICC is
neither a supra-national body nor is it a substitute for national criminal jurisdiction;
it is designed to supplement the exercise of national jurisdiction.51 The principle
sets forth that national criminal jurisdiction always has the priority over the ICC,
except for when States prove to be unable or unwilling to genuinely carry out
investigations and prosecutions that appear to fall within the ICCs jurisdiction.52
The grounds for admissibility and determination of inability and unwillingness are
carefully crafted in the Statute, as many delegates were concerned about politically
motivated prosecutions.
The Rome Statute establishing the ICC is envisaged to enhance the
universal application of international criminal law. In the long run, the principle of
complementarity will likely contribute to the ability of national criminal justice
systems to fulfill their obligations to prosecute crimes under the ICC jurisdiction.
To this effect, strong national implementing legislation, with explicit provisions for
32


the crimes in the ICCs jurisdiction and for judicial cooperation and assistance to
the Court, is necessary to strengthen national legal systems. An incorporation of
these jurisdictional powers at both the national and international levels is likely to
strengthen the application and enforcement of international law.
Indeed, the Rome Statute is really the first instrument that clearly
embodies an effort by the international community to articulate its jurisdiction to
prescribe, to adjudicate, and to enforce all in one instrument...[T]he jurisdictional
theories of the Statute are arguably quite revolutionary in nature.53 The Statute is
the first international instrument to lay out in a relatively comprehensive way the
general principles of criminal law found in most national legal systems.54
Furthermore, the Statute is deemed to be a great accomplishment in the
process of convergence of many bodies of law, such as humanitarian, human
rights, administrative, criminal and comparative law.
33


Universal Jurisdiction Basis
The Preamble of the Statute specifies that the atrocities addressed are so
severe as to deeply shock the conscience of humanity.55 Given the unique nature
of the core crimes within the ICCs subject matter jurisdiction, the universal basis
is also relevant. The concept of universal jurisdiction rests on the theory that
those committing such heinous acts as genocide, crimes against humanity and
grave breaches of and serious violations of international humanitarian law56 are
hostis generis the enemy of all mankind.57 Universal jurisdiction provides every
state with jurisdiction over a limited category of offenses generally recognized as
being of universal concern, regardless of where the offense occurred, the
nationality of the perpetrator, or the nationality of the victim.58 Currently, the
crime of genocide and grave breaches of the Geneva Conventions and its Protocols
provide for universal jurisdiction.
Some States (Belgium, Canada, New Zealand, South Africa, Switzerland)
when enacting the Rome Statute specifically provided for universal jurisdiction
over these crimes in their domestic legislation. Ramifications of the ICC treaty
therefore complement efforts to expand the reach of the universal criminal
jurisdiction, which will also significantly contribute to the development and
enforcement of international law.
34


The ICC as an Impartial Enforcement Mechanism
The proposed International Criminal Court will play an important role in
filling the gap in codification and enforcement of the international law. It
contributes significantly to the creation of an international criminal justice system.
This system comprises a set of eleven general principles of criminal law
coupled with essential legal provisions and procedural rules governing
judicial functioning of the Court...Many principles, provisions and
procedural rules appear for the first time in an international treaty. These
agreed-upon fundamental criminal laws and procedures therefore constitute
therefore the first true international criminal justice system in codified
treaty form.59
Such an elaboration of the contents of these criminal law principles in
addition to innovations are regarded as a great achievement in the field,
representing a significant progress in strengthening the system. The Statute is
designed to provide every individual appearing before Court with the highest
standards of justice and guarantees of due process and fair trial. The pillars of such
development embrace all the basic values taking into account the major concerns
and interests of different national legal systems.60
A major contribution of the Rome Statute to international criminal law and
procedure is attention of nuances of due process. These include, presumption of
innocence, assistance of counsel, right to remain silent, privilege against self-
incrimination, protection against double jeopardy, and right to examine adverse
witnesses, etc.61
35


In addition, national criminal systems could be enhanced, in some cases,
through introduction of international norms of due process and fair trial in the
process of ratifying and implementing the Rome Statute.
The Statute also reflects the advancement of international criminal law to
prosecute individual actors, differentiating them from the collectivity they claim to
represent. It is this focus on individual responsibility that allows international
criminal law to contribute to the reconciliation of communities.62
The Role of ICC in Maintaining Peace
The ICC is a result of efforts of the members of international community to
put an end to impunity and to facilitate the peaceful reconciliation of armed
conflicts. The long-term effect of the ICC can amount to deterring atrocities, thus
bringing about a more favorable environment for peace and security among
nations. It could reduce the inevitably high cost of ending armed conflicts and
repairing their results.
The delicate balance between the peace and security is evident in the role
the ICC can play as an extension of the Chapter YII of the United Nations
Charter. In fact, the ICC is an important tool the Security Council can use in its
efforts to maintain peace and security.
36


Because of the link between the ICC and the Security Council, the five
permanent members support for the Court was crucial from the initial phases of
the negotiations. This was often difficult to attain as all members were concerned
with the restriction of their powers and reach of the Court. At the Rome
Conference, two of the Security Council members, U.S. and China, voted against
the adoption of the ICC treaty.
Independence of the ICC from the Security Council was advocated by
proponents of a strong and effective international judicial body. It was agreed that
the Security Council could have undermined the Courts effectiveness if the ICC
was fully responsible to the Security Council. However, the Security Council can
empower the Court with universal jurisdiction if it chooses to refer cases to the
Court. Therefore, the effective collaboration of the Council and the Court is
crucial to preservation of international peace and security.
37


CHAPTER 5
THE IMPLICATIONS OF THE ICC
FOR INTERNATIONAL ACTORS
We make the institutions, and then they make us.
Winston Churchil
The Statute is extraordinary for many reasons, only one of which is
the new permanent legal institution that will result from its entry
into force. The potential legacy of the Rome Statute and of the
diplomatic process that fostered it is much broader.
William R. Pace, Convenor of the Coalition for ICC
Forces Affecting the ICC
Although governments and politicians at the national and international level
are officially empowered with negotiating and decision-making powers, many
others contributed to the creation of the ICC. From the renewed call for the Court
following World War II to the present day efforts to create an International
Criminal Court, literally thousands of individuals have brought their own personal
and professional to bear on this effort. The constructive evolution of coordination
among governments, and between governments, civil society and international
organizations, and the influence of their cumulative contributions to the Court
signal a significant success for this new approach to international diplomacy.63
38


The accomplishments at Rome were welcomed by governments,
politicians, media commentators, non-governmental organizations and academics.
The design of the Statute is based on the principles of state equality and the
process of compromise, geared towards the achievement of broad governmental
agreement.64 Prior to and at the Rome Conference, most governments were
favorable and supportive of the establishment of the Court, but were at odds
because of their different legal systems, values and concerns which naturally
resulted in numerous and diverse government positions.65 However, a supportive
group of like-minded governments were principal in pushing the negotiation
process forward based on their common interests.
The unprecedented contributions of civil society to the creation of the ICC,
coordinated with the efforts of the like-minded governments, have been described
as the new diplomacy. This has been commented by the government delegates,
and illustrated in the words of the Secretary-General Kofi Annan:
I think it is clear that there is a new diplomacy, where NGOs,
peoples from across nations, international organizations, the Red
Cross, and governments come together to pursue an objective.
When we do-and we are determined, as has been proven in the land
mines issues and the International Criminal Courtthere is nothing
we can take on that we cannot succeed in, and this powerful
partnership for the future.
The non-governmental organizations (NGOs) made substantive
contributions to efforts to create the ICC even before the establishment of the
39


Coalition for an ICC in February 1995. These contributions were fostered by a
working environment at the United Nations that suddenly evolved from one of
obstruction to one of growing consensus and momentum.66 The Coalition for an
ICC built upon this environment by creating effective networks at the regional and
national levels to promote awareness campaigns on the future ICC. The Coalition
also provided in-depth analysis of ongoing issues, producing papers and
information bulletins for the government and media representatives. Indeed, the
contributions of civil society in the ICC efforts are innumerable.
The governments are now confronted with the policy choices, whether to
become a party to this treaty-based international institution, or not. By being
among the first sixty States to ratify, States will be entitled to become members of
the Assembly of State Parties which controls the initial election of judges and the
Prosecutor, and will be vested with important powers and responsibilities for the
oversight of the operation of the Court. By ratifying, the heads of states also lose
immunity from criminal responsibility, an important privilege still retained for many
most states.
Many challenges for the establishment and success of the ICC still remain.
The government delegates, regional alliances, civil society and academics roles
each have to play in concluding outstanding issues of the Court.
40


The Status of Worldwide Ratification
The pace of ratification of the treaty has exceeded expectations of many.
As of October 22, 2001, forty-three States, of requisite sixty, have accepted the
jurisdiction of the ICC. Reports indicate that about fifty countries are advanced in
their process of ratification. These States represent all regions and represent legal
systems of the world. Many States have continued to advocate for the Court in the
face of US opposition. Yet, at the current stage, nearly half of the ratifications
come from European Union members (seventeen EU members have ratified, and
all except for Turkey signed the Statute). Recent conflicts in the former
Yugoslavia are one factor accounting for this support. Also, most members of the
EU are also members of the like-minded group, created in 1994 and committed to
the effective establishment of the Court. Although some states remain concerned
with the proposed institution, in order for the Court to be a truly universal body,
strong support and representation of all regions is necessary.
Sovereignty Versus International Justice: The US Dilemma
Foreign policy is the face a nation wears to the world, wrote Schlesinger.
The United States was initially a principal supporter of the creation of the ICC, and
had significantly contributed to the elaboration of the Rome Statute. However, the
US position reversed in the course of preparatory negotiations and now the U.S.
41


openly opposes the ICC. The delegation which participated in the ICC process,
even first prior to Rome negotiations, clearly stated that it would oppose any
treaty that claimed jurisdiction over non-party nationals, claiming that it is
unacceptably flawed in this respect.67 Second, it argued that a broad jurisdiction
of the Court may be overwhelming, and that absence of accountability would lead
to political manipulation. Third, the United States has claimed an opposition to the
establishment of an independent Prosecutor. Fourth, the possible inclusion of
aggression in the Courts jurisdiction disappointed US delegates, who feared that
the Court might be empowered to address the crime without a prior Security
Council determination. Fifth, the US delegation therefore argued that the
institutional safeguards envisaged in the ICC Statute were not sufficient to satisfy
their due process concerns. Sixth, in accordance to above concern for safeguards,
it claimed that certain substantive principles of criminal law, in particular, should
be altered to allow an exemption from jurisdiction for official acts. This latter was
a serious concern as the agreed-upon Statute would render a soldier acting under
superior orders or the superior giving orders liable. It should be noted that any
military order commanding genocide and crimes against humanity are already
considered unlawful under customary international law.68 However, in case the US
military operation on the territory of State Party, if referred to the ICC appears to
42


fall under its jurisdiction, the US would need to prove the validity of such
command order.
In August 1997, prior to Rome conference, the US delegation circulated a
non-paper suggesting that the proposed Court, in the interest of international
peace and national reconciliation, should take amnesties into account when
deciding whether to exercise jurisdiction over a situation or to prosecute a
particular offender. The experts analysis provide that the Rome Treaty does not
overrule against amnesties, neither it is explicit about it.
Finally, the United States has claimed an opposition to the no reservation
clause and other statutory provisions.
While many of the US concerns were accommodated during this
negotiations, David Scheffer, US Ambassador-at-Large for War Crimes Issues and
a head of the US delegation in Rome, concluded in his statement before the Senate
Foreign Relations Committee, I regret to report that certain [US] objectives were
not achieved and therefore we could not support the draft that emerged. He
further stated during the Preparatory committee session, that
The Rome Treaty will become the single most effective break on the
international and regional peacekeeping in the 21st century. [The]
fundamental flaws in the Rome Treaty mean that the United States will not
sign the present text of the treaty, nor is there any prospect of signing the
existing text in the future.
43


However, in the eleventh hour, David Scheffer signed the treaty after the
Presidents last-minute approval. Former President Clinton did not recommend the
treaty to the Senate for ratification, and noted that he remained concerned about
its flaws.
The current Bush administration is conducting an internal review on the
Court to determine its position, but is more hostile towards the ICC. Critics
diverge on whether the lack of US support will undermine the effective entry into
force of the Statute. However, the successful adoption of the treaty and the current
progress of ratification suggest that it will not.
The current US administration has recently indicated support for the
American Servicemembers Protection Act (ASPA) which was reintroduced to
the Senate by Jesse Helms (R-NC) on September 26, 2001 as an amendment to the
Department of Defense Authorization bill. On October 2, 2001, a cloture motion
succeeded in closing the debate on the amendment and thereby preventing its
passage. It is expected to be introduced again as an amendment to other bills.
Previously, House Representative Tom Delay (R-ID) submitted the ASP A as an
amendment to the Foreign Relations Authorization act and the act passed in the
House by a vote of 282-137, on May 10, 2001.
At the time of the September 11th attacks the ongoing policy review
included several option, including unsigning the treaty and a global anti-
44


ratification campaign. The current status of the internal policy review to
determine the approach to the ICC, especially in light of the recent US efforts to
build coalition to fight against international terrorism, is unknown. However,
international and US commentators increasingly stress the importance of fighting
the declared war by legal means, in particular use of an international tribunal to
prosecute alleged terrorist Osama Bin Laden, which would have benefits of
rendering a judicial and impartial verdict, as opposed to often counter-productive
military strikes.69
45


CHAPTER 6
CONCLUSIONS
The purpose of this research was to demonstrate that the proposed
International Criminal Court as adopted in the Rome Statute contributes to the
international justice system by creating an enforcement mechanism. This effort
was necessitated due to the lack of enforcement of international law, especially
where internal conflicts have taken the highest toll in the history of mankind. The
ICC is a potential key mechanism of enforcement and, in effect, an international
human rights and humanitarian law enforcement regime. The current absence of a
global judicial institution to prosecute leaders responsible for human rights
atrocities is thought to encourage future violations resulting in suffering and death
of more innocent civilians. The failure of national systems to enforce international
law has continued to impede an effective transition to a system of international
criminal justice. The ICC as a permanent global institution will facilitate the
transition to accountability and stability of international justice.
Although the Rome Statute is a result of compromises and national
sovereign interests, it is an achievement in the field of international law. The
definitions of crimes contained in the Statute reflect existing practices under
46


international customary law and affirm current development in international law.
Clear articulation and introduction of sexual and gender crimes are considered to
enrich the content and specificity of international humanitarian law.
The development of the Rome Statute reflects the increasing centrality of
individuality in international law, and in particular an international consensus about
the accountability of individuals as perpetrators and the need to address suffering
of individual victims. It marks a significant point in the way international
community views peace, transition, and the protection of human rights and
enforcement of victims rights to justice and reparation.
Incorporation of jurisdictional powers at both the national and international
levels is envisaged to enhance the universal application of international criminal
law and enforcement thereof. The complementary nature of the ICC is likely to
contribute to national criminal justice systems by encouraging them to fulfill their
existing obligations to prosecute crimes of international concern. The Statute is
revolutionary in that it is the first instrument to lay out the general principles of
criminal law found in most national legal systems, also including the most
extensive due process and fair trial provisions. It is likely to mark the beginning of
a permanent system of international criminal justice, with the potential to
contribute to the legal order of international peace and security.
47


The ramifications of the ICC treaty is also relevant to the efforts in the
universal criminal jurisdiction, which will significantly contribute to the
development and enforcement of international law.
The ICC can be used as an extension of the Chapter VII of the United
Nations Charter in the efforts for maintaining peace and security. The effective
collaboration and distribution of powers between the ICCs Prosecutor and the
UN Security Council are crucial aspects of preservation of peace and security.
Without a police force and given its limited jurisdiction, the cooperation of States
of Parties is important in the enforcement of the ICCs decisions. The potential
benefit of the United States support and collaboration in this regard cannot be
understated. The wide range of ratifications by States from around the world,
accompanied with strong implementing legislation that will allow effective judicial
cooperation with and assistance to the Court are equally important.
Finally, the accomplishment of the creation of the ICC marks a potential
milestone for more openness in international diplomacy by which various
international actors establish partnerships to advance the development of law. The
result is a balance between democratic accountability and preservation of sovereign
rights.
48


NOTES
1 Cherif Bassiouni, Searching for Peace and Achieving Justice: The Need for
Accountability, Law and Contemporary Problem 9 (1996): 59. Professor Cherif
Bassiouni is a founding member of the International Law Commission (ILC), which
was mandated by the General Assembly to prepare a Draft Code of Offences
Against the Peace and Security of Mankind a basis for the Draft Statute for an
ICC.
2 Christopher Keith Hall, The International Criminal Court Monitor N. 6
(November 1997). The ICC Monitor is a regular publication prepared by the
Secretariat of the Coalition for International Criminal Court,
httD://www.iccnow.org/html/monitor.
3 Cherif Bassiouni, An International Criminal Code and Draft Statute for an
International Criminal Tribunal (1987), Benjamin Ferencz, An International
Criminal Court (2 vols. 1980). Professor Ferencz is a former Prosecutor at an
International Criminal Tribunal sitting at Nuremberg.
4 Cherif Bassiouni, Cour Penale Internationale: Ratification et mise en oevre
dans les legislations rationales, Revue International De Droit Penal Winter (2000):
71; Nouvelles Etudes P&iales. Association Internationale De Droit Pdnal (1999).
5 See Guiliano Vassali, La Giustizia Intemazionale Penale (1995);
International Courts for the Twenty-First Century (Mark W. Janis ed. 1992); Farhad
Malekian. International Criminal Law: The Legal and Critical Analyses of
International Crimes (1991).
6 See 1899 and 1907 Hague Conventions and Declarations, 1948 Convention
on the Prevention and Punishment of the Crime of Genocide (1948), 1949 Geneva
Convention on the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field, Geneva Convention Relative to the Treatment of
Prisoners of War, Geneva Convention Relative to the Protection of Civilian Person
in Times of War, and 1977 Protocols Additional to the Geneva Conventions.
7 International Parliamentary Union, World Federalist Movement, and other
civil society advocated for a permanent international justice system via creation of
international criminal court.
8 M. Cherif Bassiouni, The Normative Framework of International
Humanitarian Law: Overlaps, Gaps and Ambiguities (1998).
9 W. Michael Reisman, Legal Responses to Genocide and Other Massive
Violations of Human Rights, Law and Contemporary Problem (1996): 75.
10 Niccol Machiavelli, The Prince. (Written circa 1515, translated by W. K.
Marriott). See Machiavelli Online is available at:
http://www.sas.uDenn.edu/~PCTOse/mach/indexl.htm
11 In recent years, many conventions and treaties were adopted proposing for
methods to fight against transnational crimes. In the wake of the September
11th tragedy, the United Nations called for a special measures to fight against
49


international terrorism at its 56th session. All states emphasize the importance of
strong legal measures to fight against these crimes. For country statements, please
refer to: htto://www.un.org/teiTorism.
12 According to neofunctionalist school, creating institutions that serve interests
of given states are proven to be a more effective method than dominance of one or
more resourceful countries. See Jeffrey C. Alexander, Neofunctionalism & After:
Collected Readings. 1997
13 See 1899 and 1907 Hague Conventions and Declarations, the Genocide
Convention, and the Geneva Convention and Additional Protocols.
14 See 1948 Genocide Convention; Michael Scharf, The ICC and Its
Jurisdictions Over the Nationals of Non-Party States: A Critique of the US
Opposition, Law and Contemporary Problem (2000): 63. Also, available online at:
http://www.law.duke.edu/ioumal/63LCPScharf.
15 Robert Jackson, Quasi-states: Sovereignly, International Relations and the
Third World, Cambridge Studies in International Relations: 12, p. 105.
16 Leila Nadya Sadat & S. Richard Carden, The New International Criminal
Court: An Uneasy Revolution, Georgetown Law Journal (2000): 88.
17 Robert Jackson, Quasi-states: Sovereignty, International Relations and the
Third World. Cambridge Studies in International Relations 12.
18 Bruce Broomhall, ICC Ratification and Implementing Legislation.
Association International de Droit Pdnal, pp.114-115,1999.
19 Benjamin Ferencz, An International Criminal Court (2 vols. 1980).
20UN Secretary-General Kofi Annan, Millennium Report, March 2000
21 Michael Scharf Justice versus Peace, The United States and the
International Criminal Court. (2000) edited by Sarah Sewall and Carl Kaysen, pp.
181-183.
22 Cherif Bassiouni, Statute of the ICC: A Documentary History (1998).
23 Hitlers notion provides for the creation of a new world order requiring
mass murder for which Hitler cited the example of [Chijnghis Khaan who sent
millions of women and children to death knowingly and cheerfully. See David
Irving, Hitlers War, 1999; Who Still Talks Nowadays of the Extermination of
the Armenians?, New York Times. November 24,1945: Vol. LCV No.
32,081.
24 Supra
25 UN Annual Report, International Crimes. Peace, and Human Rights (2000)
26 Memorandum of Reservations Presented by the Representatives of the
United States to the Report of the Commission of Responsibilities, April 1919,
Annex n, cited in American Journal of International Law: 127 (1920). The United
States reversed its position 30 years later when it advocated the establishment of
Nuremberg tribunal to prosecute Nazi war criminals. See Telford Taylor, The
Anatomy of Nuremberg Trials. 1992.
21 Ibid
28 GA Res.95 (1), 11 December 1946 as cited in New Legal Foundations for:
Global Survival, by Benjamin Ferencz, 1993, p.10.
50


29 Cherif Bassiouni, Nouvelles Etudes Pdnales. pp. 14-15 (1999); See Roy S.
Lee, The International Criminal Court: The Making of the Rome Statute. Issues.
Negotiations. Results (1999)
30 Cherif Bassiouni, The Statute of the International Criminal Court: A
Documentary History (1998).
31 Supra
32 UN Legal Order, American Society of International Law (1997)
33 Rolf Fife, The Evolution of International Criminal Law, Strategic Policy
Issues. London, 2000
34 Amnesty International, The International Criminal Court: Making the Right
Choices-Part I, January 1997, p.5 (citing John Quigley, Perestroica and
International Law, American Journal International (1998): p. 788.
35 Supra
36 Douglas Cassesse, International Criminal Court and Its Jurisdictions (1999).
37 Speech by UN Secretary General Kofi Annan, at CICC reception, on 27
September 2001; available at: http://www.iccnow.org.
38 See Statement of Kofi Annan, UN Secretary-General, on the adoption of the
Rome Treaty at the Rome Diplomatic Conference of Plenipotentiaries, Rome, Italy,
17 July 1998. See CICC website: http://www.iccnow.org.
39 Bruce Broomhall, ICC Ratification and Implementation Manual (1999):
pp.46-47
40 Amnesty International 2000, annual report, visit http://www.amnestv.org.
41 Michael Scharf Justice versus Peace, The United States and the
International Criminal Court (2000) edited by Sarah Sewall and Carl Kaysen, pp.
181-183.
42 Roy Lee, The International Criminal Court: The Making of the Rome
Statute. 1998: p.89
43
Ibid.
44 See Summary of the Key Provisions of the ICC Statute by Human Rights
Watch, September 1998.
45 See Cherif Bassiouni, International Criminal Court, Revue Internationale
de Droit Penal (Vol.71).
46 See Summary of the Key Provisions of the ICC Statute by Human Rights
Watch, September 1998.
47 See Cherif Bassiouni, International Criminal Court Revne Internationale
de Droit Pdnal (Vol.71), 2000.
48 Supra
49 Composition and functions of the Pre-Trial Chamber and other organs of the
Court are given below. See Chapter 3 Composition and Functions of the ICC.
50 Ibid
51 The principle of the primacy of national legal systems and ICCs
complementarity are evidently indicative in other provisions of the ICC, such as
in Part 9, Article 15(4), and Article 15.
52 The Court will determine that a case is inadmissible if: a) the case is being
investigated by a state with jurisdiction over it, unless the state is unwilling or
unable to cany out these obligations [Article 17(l)(a)]; b) the case has been
51


investigated by a state with jurisdiction and the state has decided not to prosecute,
unless the decision resulted from the unwillingness or inability of the state to
genuinely prosecute [Article 17(l)(b)]; c) the person has already been tried for
conduct which formed the basis of the subject of the complaint [Article 17(l)(c)];
and d) the case is not of sufficient gravity to justify further action by the Court
[Article 17(l)(d).
53 Leila Nadya Sadat, Redefining Universal Jurisdiction, discussion paper for
the Conference on Universal Jurisdiction, November 3, 2000, New England School
of Law.
54 Per Saland, International Criminal Law Principles, pp. 190-191; edited by
Roy S. Lee, Making of the Rome Statute: Issues. Negotiations. Results (1999).
55 The Preamble, Rome Statute of the ICC.
56 See, e.g., "U.N. Impunity Guidelines, supra note 3, at Definition B. It is
relatively uncontroversial to assert that universal jurisdiction may be exercised by
states as a matter of customary international law with respect to these offenses. A
question remains, however, as to whether the offenses must rise to a certain level of
gravity or seriousness before universal jurisdiction is triggered.
57 Christopher C. Joyner, Arresting Impunity: The Case for Universal
Jurisdiction in Bringing War Criminals to Accountability, Law and Contemporary.
Problems 59 (1996): pp.153, 165.
58 See Kenneth C. Randall, Universal Jurisdiction Under
International Law, Texas Law Review 66 (1988): pp. 785-786.
59 See Roy S. Lee, Making of the Rome Statute: Issues. Negotiations.
Results (1999): pp. 32-33, also Chapters 5-9. The eleven general principles of
criminal law principles cover essential components and functioning of the
Court. The provisions of the Statute were firrther supplemented by adoption of
the Elements of Crimes and Rules and Procedure and Evidence by the
Preparatory Commission sessions in June 2000, in elaborating the
interpretative clauses.
60 Ibid
61 Ibid, Article 66; Article 67(l)(b),(d)); Article 67(l)(g)); Article 54
(l)(a), Article 67(l)(g)); Article 20.
62 Supra, Bruce Broomhall
63 Manuscript by William Pace and Jennifer Schense in Chapter X
edited by Antonio Cassese.
64 Supra Bruce Broomhall, ICC Ratification and Implementation
Manual (19991.
65 See Roy S. Lee, The International Criminal Court: The Making of
the Rome Statute. Issues. Negotiations. Results (1999).
66 Supra
67 William Lietzau, International Criminal Law After Rome:
Concerns from a U.S. Military Perspective, Law and Contemporary Problems
64 (2001). Also See One Road Away from Rome: Concerns Regarding
International Criminal Court, Journal of Legal Studies. 9 United States Air
Force Academy Journal of Legal Studies 33 (1999).
52


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the Establishment of an International Criminal Court", 92 American Journal of
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La Haye, Eve "The Jurisdiction of the International Criminal Court: Controversies
over the Preconditions for Exercising Its Jurisdiction", 46 Netherlands
International Law Review 1-25 (No. 1, 1999).
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Hebei, Herman von "Putting an End to Impunity: From the Hague to Rome",
1998-1999 Hague Yearbook of International Law 83-90.
Howard, Robert J. "An Economic Paradigm for the Debate Concerning the
Jurisdictional Extent of the International Criminal Court", 8 Touro International
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Lattanzi, Flavia "Competence de la Cour penale intemationale et consentement des
etats", 103 Revue generate de droit international public 425-444 (No.2, 1999).
Marquardt, Paul D. "Law Without Borders: The Constitutionality of an
International Criminal Court," 33 Columbia Journal of Transnational Law 73
(1995).
Miskowiak, Kristina The International Criminal Court: Consent. Complementarity
and Cooperation (Copenhagen: DJOF Publishing, 2000).
Oosterveld, Valerie L. "The Making of a Gender Sensitive International Criminal
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Oosthuizen, Grabriel H. Some Preliminary Remarks on the Relationship Between
the Envisaged International Criminal Court and the UN Security Council", 46
Netherlands International Law Review 313-342 (1999)(no.3).
Roberge, Marie-Claude "The New International Criminal Court: a Preliminary
Assessment", 38 International Review of the Red Cross 671-683 (no. 325, 1998).
Robinson, Darryl "Defining 'Crimes against Humanity* at the Rome Conference",
93 American Journal of International Law 43-57 (1999).
Roht-Arriaza, Naomi "Institutions of International Justice", 52 Journal of
International Affairs 473-491 (No.2, Spring 1999).
Ruegenberg, Guido "The Independence and Accountability of Prosecutor of a
Permanent International Criminal Court", 1999 Zeitschrift fur Rechtspolitik (ZRPJ
68 (1999).
Sadat, Leila Nadya & Carden, S. Richard "The New International Criminal Court:
An Uneasy Revolution", 88 Georgetown Law Journal 381-474 (March 2000).
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Schabas, William A. "Montreal Follow up to Rome: Preparing for Entry into Force
of the International Criminal Court Statute", 20 Human Rights Law Journal. No.4-
6, 157-166 (October 29, 1999).
Scharf, Michael P. "The Politics of Establishing an International Criminal Court", 6
Duke Journal of International and Comparative Law 167-173 (1995).
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56


Full Text

PAGE 1

THE INTERNATIONAL CRIMINAL COURT AND ITS IMPLICATIONS FOR THE INTERNATIONAL LEGAL ORDER by Enkhtungalag Ganbold Diploma, Schooi of Foreign Affairs, 1996 B.A., Otgontenger Law School of Mongolia, 1998 A thesis submitted to the University of Colorado at Denver in partial fulfillment of the requirements for the degree of Master of Arts Political Science 2001

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This thesis for the Master of Arts degree by Enkhtungalag Ganbold has been approved by Stephen Thomas Glenn Morris Date

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Ganbold, Enkhtungalag (M.A., Political Science) The International Criminal Court and Its Implications for the International Legal Order Thesis directed by Associate Professor Stephen Thomas ABSTRACT Long considered as overly idealistic and unattainable by political analysts and scholars, the global tribunal, as agreed by 120 states at the Rome treaty in 1998, is expected to be established within a year. The urgency and support for such a credible institution are increasingly evident in light of gross violations of hwnan rights which occur domestically, transnationally and internationally . MY overall argwnents are constructed based upon the historical survey of the development of international law. The present thesis contends that the proposed permanent International Criminal Court (ICC) will, once created, be a strong human rights enforcement regime. Hence, the work seeks to determine how the Court will contribute to the enforcement of international law and what its potential implications are for the efforts in international peace and security. This abstract accurately represents the content of the candidate's thesis. I recommend its publication. Signed Stephen Thomas iii

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DEDICATION I dedicate this thesis to my parents for their constant support while I pursued my undergraduate studies and for giving me courage in my further pursuit for graduate studies.

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ACKNOWLEDGMENT My sincere thanks to my mentor William R. Pace for his dedication and inspiration in the estabJishment of the International Criminal Court. I would also like to thank my advisor Stephen Thomas and the rest of my thesis committee, Professors Glenn Morris and Lucy Ware McGuffy for their patience, insights and availability during the course of this work.

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CONTENTS CHAPTER 1. INTRODUCTION ......... 1 Outline of the Thesis......................................................... 1 The History of International Justice and Human Rights Law.......................................................................... 4 2. THE INTERNATIONAL LEGAL ORDERAND 11ffi NEED FOR PERMANENT JUDICIAL BODY.............. 7 Evolution of International Law.......................................... 7 International Military Tribunals....................................... . 10 United Nations' Efforts and Cold War Era. .......................... 12 Post Cold-War and March to the Road to Rome .... ............ 13 3.THE ROME CONFERENCE AND ADOPTION OF THE ROME TREATY: POWER AND JURISDICTION OF THE ICC ......... 17 The Adoption of the ICC Statute ......................................... 17 Crimes Within the Jurisdiction of the Court......................... 19 Trigger Mechanism and Investigation.................................. 24 Composition and Function of the ICC............... .. .. . ........ 29 vi

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4. THE CONTRIBUTIONS OF THE COURT IN IN'fERN"ATIONAL LAW:......................................................... 32 Principle of Complementarity .............................................. 32 Universal Jurisdiction Basis................................................. 34 The ICC as an Impartial Enforcement Mechanism.............. 35 The Role of ICC in Maintaining Peace ........ ........................ 36 5. THE IMPLICATIONS OF THE ICC FOR IN'fERN"ATIONAL ACTORS ................................. .......... 38 Forces Affecting the ICC ...................................................... 38 The Status of Worldwide Ratification ................................... 41 Sovereignty Versus International Justice: The U.S. Dilemma ............................................................... 41 6. CONCLUSIONS .... ...................................................................... 46 NO'fES .......................................................................................... 49 BffiLIOGRAPHY ............................................................................ 53 Vll

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CHAPTER I INTRODUCTION The purposes and functions of a permanent international criminal court combine humanistic values and policy considerations which are not only essential to the attainment of justice, redress and prevention, but also to the preservation, restoration and maintenance of peace. M. Cherif Bassiouni Outline of Thesis The urgency of a credible institution which can bring to justice perpetrators of the most heinous crimes is increasingly evident in light of gross violations of human rights which occur domestically, transnationally and internationally. In fact, it is thought that if all states were able to bring justice to perpetrators of these crimes or prevent them before they occur, the world would not need the International Criminal Court (ICC). Since States are rarely able to bring these criminals to justice, the mere presence of the ICC might deter atrocities and therefore help contribute to international security and peaceful order.1 The absence of such an institution may serve as an incentive for impunity, causing the suffering of innocent people, including women and children. 1

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The proposed ICC is designed to fill the gap in codification and enforcement of international law. The Rome Statute (or the ICC Statute), instituting the creation of the global Court, was adopted by an overwhelming majority of 120 States. The Court will start functioning next year. For the first time in history, persons committing genocide, war crimes and crimes against humanity will be subject to indictment, arrest, prosecution and imprisonment at the hands of a permanent court created by a multilateral treaty. The proposed thesis can be formulated by asking the following core questions concerning the complexity and implications for the ICC regime: What implications does the proposed have on the order? Would the Court contribute or complicate the efforts to promote international peace and security? Will the Statute contribute to the enforcement of international law? How will it function and enforce its rulings? ID. what way would national sovereignty interests be impinged? Due to the scope and gravity of this proposed institution, the international community is now confronted with these questions. The hypothesis of my thesis is that the ICC will contribute significantly to the international justice system. My overall arguments are constructed based upon a historical survey of the development of international law. I will that the ICC will advance the enforcement mechanism of international law by allocating legal responsibility to the states. This function is also called a "complementarity" 2

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principle, wherein individual states retain their primary jurisdiction to prosecute. those who commit gross human rights violations. Conscious of the highly controversial issues that the subject matter raises, I propose to examine the reasoning of international actors and experts in the field by presenting their arguments and concerns. The framework will be constructed in siX parts: Chapter 1 will introduce the need and current issues in the enforcement of international law. Chapter 2 of the research will aim at providing an overview of the history of the international justice system and international humanitarian law. The core of this chapter delineates how a new paradigm Within the outset of contemporary international law has occurred, partially contributing to the birth.ofthe ICC. Chapter 3 will be devoted to illustrating a clear synopsis of the ICC, its evolution, characteristics and functions. Three issues will be discussed to highlight the importance of the ICC: namely, the role of this institution in strengthening the international criminal law; the principle of complementarity and its contributions to the national legal system; and the ICC's eontribution to maintaining peace and deterrence of the worst war crimes. Different perspectives of the international actors on the ICC will be examined in Chapter 4. In order to understand the scope of national interests and advocacy efforts in the ICC, three groupings will be examined: 1) the European 3

PAGE 11

Union and the group of 'like-minded' governments; 2) the United States; 3) the coalition of non-governmental organizations. Their relative issues and interests will be explored to assess the overall affect and challenges that are confronting the proposed Court. The final Chapter will draw conclusions from the previous sections and summarize the hypothesis and arguments. The History of International Justice and Huinan Rights Law The journey of mankind towards attainment of peace through judicial means dates back to centuries past. Since ancient times, sovereigns have formed alliances and entered into treaties designed for mutual security and protection. Primitive forms of supranational justice existed in the ancient Greek epoch. 2 In the I Middle Ages, ad hoc tribunals were set up by the members of victorious alliances to try the defeated army chiefs after war. The idea to establish an international criminal court was not catalyzed however until the end ofWorld War I (1919) when the Treaty of Versailles provided for ad hoc tribunals. 3 Since then, the world's major powers have been selectively creating ad hoc bodies to investigate certain international crimes, failing, at the same time, to establish a permanent system of international criminal justice. 4 4

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A lengthy catalogue of atrocities serves as a tragic reminder of the fragility of commitments made by the international community to ensure greater respect and protection for human life. Humankind has entered the twenty-first century seeking credible institutional_mechanisms capable of restraining its darkest impulses. Too often perpetrators of the most heinous crimes have gone unpunished, benefiting from a culture ofimpunity.5 Meanwhile, bodies of international huinan rights and humanitarian law providing for the nonns6 to ensure greater respect and protection for human rights have been slowly developing. The Hague Conventions and Declarations (1899 and 1907), the Genocide Convention (1948), the Geneva Convention (1949) and Additional Protocols ( 1977) have each formulated international-norms for protection of human rights and laws governing conduct of war. This rise of international law elevated the aspirations of international ciVil society for the establishment of a permanent system of international criminal justice. 7 Despite this effort, the twentieth century was the most war -ravaged century in history: an estimated 170 million people died in World War I and World War II, and subsequently more than 250 conflicts have since occurred. 8 This is partially due to the lack of enforcement of international treaties and customs produced over the centuries. In addition, the international legal community must either develop 5

PAGE 13

the political institutions or the legal mechanisms to .assure that international instruments will be respected and enforced by all parties.9 Is conflict a perpetual force? Does the competitive element in international life pervasively threatens to erupt into violence? Is peace a possibility? Various political theories have sought to explain reasons for such regretful human inclination. The realist school, for instance, takes a pessimistic stance and explams the principal problem in human nature and anarchy as well as power.10 However, the classical realism, in the author's view, ought to be accounted for its escapism to realize that power is not the only goal to pursue, but among the sets of interests the nation-state seeks to achieve. Particularly, it is true in the concert of modem international politics where set of rules and laws regulate mutual relations, and intemation,al cooperation is increasing with the efforts of globalization. In recent years, many conventions and treaties have been adopted proposing for measures to eradicate transnational crimes. The nature of these transnational and international crimes requires international cooperation and states have acknowledged that it would be in their interests to do so.11 States have indicated that creating that accommodate such cooperation could be a useful strategy to help maintain domestic and international security.12 6

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CHAPTER2 1HE INTERNATIONAL LEGAL ORDER AND THE NEED FOR PERMANENT JUDICIAL BODY Evolution of International Law The necessity for a world government structure is to facilitate world affairs in peaceful manners. International law is thought to be a medium to devise and maintain a system of order for the international community. International law posits institutions and processes that transcend domestic law and politics. Within a half-century ofits existence of the United Nations and its organs, over 500 multilateral treaties have been created, representing the largest contribution in the entire history of humankind. These international legal instruments dealing with virtually all aspects of human activity have greatly affected international politics. International treaties and customs have thus produced rules and norms prohibiting armed conflicts and crimes of international concern. The rise of international human rights and law, providing for the codification of norms to protect human rights and govern laws of war, 13 have established new legal regimes. The latter can assist in effectuating.the transition from a culture of impunity to one of accountability. Such a legal regime capable of transcending 7

PAGE 15

domestic policies constitutes a new paradigm in international politics. States are presumed to enter into a social contract for peaceful co-existence and obligation under established laws and customs. For example, an international obligation to prosecute genocide and grave breaches of the Geneva Conventions was provided in the Genocide Convention and the Geneva Conventions and its Protocols. As such, the Genocide Convention imposes an "absolute obligation" to States to "provide effective penalties for persons guilty ofgenocide."14 This is indeed a realization not only of individual accountability for perpetrators, but also a trend towards greater democratization in international politics. Because the development of international law is a product of all members of the Uruted it reflects the transcendence in the international process. Today small countries influence international politics through law more than in the last century; The third world is the bearer of democratizing tendency in international relations and will exercise an influence on the evolution of international law in the direction of a greater equality of opportunity and of a better protection ofunderprivileged countries.15 Nonetheless, the record of enforcement of these rules is dismal, and there is no judicial body to oversee the enforcement. The deficiency in enforcement can be accounted for by the fact that the violations of international humanitarian law are not punished. Law that is not properly enforced loses its credibility. Human rights law practitioners have thus sought ways to enhance the means of enforcement. A 8

PAGE 16

cornerstone of this effort has centered upon the framework ofthe penal law: the condemnation of.certain behavior as criminal, not simply a breach of treaty or customary international law obligations, but the imposition of individual criminal responsibility.16 In contrast, in traditional international law, rights and duties were prescribed primarily to govern relations amongst states,17 wherein the states retained criminal jurisdiction over conduct committed on their territory c;>r by their nationals. To this .extent,. punishing crimes was largely a matter for a sovereign nation and maintaii:t.ing this sovereign right, following the Westphalian conception, is a principal concern of many states. 18 This idea is dated, as the nature of armed conflicts has increasingly become internal as opposed to inter-state. Failure of the national criminal systems to enforce rules has continued to impede effective transition to a system of international criminal justice. 19 UN Secretary General Kofi Annan meticulously described it: International conventions have traditionally looked to states to protect civilians, but today this expectation is threatened in several ways. First, states are sometimes the principal perpetrators of violence against the very citizens that humanitarian law requires them to protect. non-state combatants, particularly in collapsed states, are often either ignorant or contemptuous of humanitarian law. 20 Failure to prosecute leaders responsible for human rights abuses breeds contempt for the law and can serve to discourage future human rights abuses. The 9

PAGE 17

international judicial body offers an alternative forum where perpetrators from collapsed States still have a venue for an impartial trial. This can help reinforce a respect for law and a new government, while playing an important role in peaceful transition.21 International tribunals in Nuremberg and Tokyo are examples of such reconciliation from the turbulent wars. International Militazy Tribunals In the aftermath of World War IT, the major victorious Allies established the International Military Tribunal (IMT), sitting at Nuremberg, and the International Tribunal for the Far East (IMTFE), sitting at Tokyo, to prosecute individuals for crimes against peace, war crimes, and crimes against humanity. These post-war experiences constitute significant precedents for the ICC and for the establishment of the effective system of international justice. 22 However, since both tribunals were established and consisted of members of the victorious allies, the perceived outcome was seen one ofvictor'sjustice. AdolfHitler never once dreamt about being tried in an international court even prior to his attack in Poland. This is explicit in his reference to Annenians: "Who still talks nowadays of the extennination of Armenians?. "23 Notwithstanding the shortcomings of"imposed victors' justice,"24 the tribunals were essential in developing principles of international criminal law 10

PAGE 18

norms, in particular, with recognition of a concept of individual criminal responsibility. The Nuremberg tribunal ruled for the first time in history that: Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.25 judgments were unsuccessfully challenged by some legal scholars who questioned the validity .of the subject matter jurisdiction that were considered in these tribunals. 26 In accordance to a nexus of international law principle nu/lum crimen sine lege, no crimes shall be recognized (thus punished) without existing laws that define it. According to American officials at that time, the proposed international tribunal would be illegitimate because it "appeared to be unknown in the practice of nations. "27 However, these principles of international law were unanimously affirmed by the first General Assembly of the United Nations.28 The judgment ofNuremberg tribunal. is the essence and foundation of the ICC. The recognition that an individual has criminal responsibility under international law was a major breakthrough in the development of international law. 11

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United Nations' Efforts and Cold War Era In 1947, the United Nations General Assembly iil its Resolution 95(1) affirmed "the principles of international law in recognition ofNuremberg Charter and its judgment. In the same Resolution, the General Assembly first mandated the International Law Commission to prepare a draft code of offenses against the peace and security of mankind, formulating the principles of international law based on the precedent of the military tribunal of Nuremberg and its judgments.29 This task later became the foundation for the draft statute of the ICC. The adoption of the Rome treaty thus took half a century' to be realized. 30 Although states were generally supportive of the creation of the ICC, many controversial issues were confronted. The Cold War generally delayed the process and the permanent members of the Security Council regarded the issue "politically premature."31 Many states were concerned with their sovereignty interests. Some other factors which thwarted this process were the states' inability to form a consensus on the definition of aggression and their inability to sufficiently to recognize the international penal law. Lack of recognition of international system can be seen in the writings of renowned legal scholars. In 1950, Georg Schwarzenberger, British international scholar, wrote: "International criminal law in any true sense doesn't exist." He was referring to the developing international law which would not only apply to states 12

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but also to its citizens. Schwarzenberger argued that "international criminal law that is meantto be applied to the world powers" was "contradiction in terms" because it presupposes "an international authority which is superior to these states. "32 Conversely, international law began to develop with increasing clarity. The large body of 'international humanitarian law' encompassing both the law of anned conflict and certain aspects of human rights law -has become more specific, not only about the obligations to be observed by governments and anned forces, but also about implementation. A key development is the unambiguously clear identification of certain violations as international crimes, which states and international organizations have a responsibility to take actions against; and in respect of which no one, not even a head of government or state, can claim absolute immunity?3 Slowly these positive developments of international law have brought about a favorable environment within the international community. The Genocide Convention (1948), and the four Geneva Conventions (1949) and Additional Protocols ( 1977) have formulated international norms prphibiting crimes of international concern and anned conflicts. The Post-Cold War and March to the Road to Rome Throughout the 1980s, representatives of the German government and others repeatedly called at the General Assembly to set up an international criminal court. In 1987, Soviet Premier Mikhail Gorbachev raised the need for such a court 13

PAGE 21

to address crimes of terrorism, both in a speech to the UN General Assembly and in a letter to the UN Secretary General.34 The tide toward an international criminal court began to tum in 1989, when A.N.R. Robinson, then Prime Minister of Trinidad and Tobago, led Caribbean States in calling for an international criminal court to prosecute major drug traffickers. The General Assembly resolution which resulted in December 1989, requested the International Law Commission {ILC) to "address the question of establishing an international criminal court or other international criminal trial mechanism. "35 The General Assembly committed itself to readdressing the question of an international criminal court in its forty-fifth session, when examining the report of the ILC. Meanwhile the atrocities committed in the former Yugoslavia and Rwanda, contributed significantly to the consideration of a permanent institution. Due to international pressure and absence of effective trial mechanism, the Security Council created ad hoc tribunals under Chapter Vll of the United Nations Charter. The formations of these post-Cold War ad hoc tribunals have reaffirmed the Nuremberg principles and elaborated international criminal law and procedures. After the formation of the ICTY, the General Assembly felt a renewed impetus for action, calling for a completed draft statute to the Sixth Committee conference to fiitalize and adopt the statute. The ILC submitted a draft statute to the Sixth Committee by July 1994 and recommended that the General Assembly 14

PAGE 22

convene a diplomatic conference to finalize and adopt the statute. A number of supportive States engaged in a debate supporting the ILC recommendation for a diplomatic conference. However, in the face of opposition from three permanent members of the Security Council (France, the United Kingdom and the United States), these States agreed to call instead for an Ad Hoc Coinmittee on the. of an International Criminal Court to further study issues relating to the ICC. By the end of 1995, the small group of supportive Siates inside the Ad Hoc Coinmittee continued to work together and expanded to include close to twenty like-minded States. This Committee convened twice in 1995 and led to the formation of the Preparatory-Committee, which held eight sessions between 1996 to 1998. The Ad Hoc Committee meetings took the format of informal and friendly discussions of the subject matter. A relatively advanced stage of work reached at the Preparatory Coinmission. Because the core issues addressed at the Preparatory Committee were of a technical nature it proceeded with less politicization and led to the Rome conference. 36 During these sessions the Committee elaborated the proposed ILC draft statute and produced reports on such key issues as the definitiOJ:t of crimes, the principle of complementarity, the jurisdiction of the Court, the relationship between the Court and the Security Council, the role of the Prosecutor, judicial cooperation and enforcement. 15

PAGE 23

The Draft Statute and Draft Final Act submitted to the Rome Diplomatic Conference were completed on 3 April 1998 with a consolidated text of 173 pages, containing 116 draft articles which had some 1300 words in brackets, indicating multiple options to entire provisions. 16

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CHAPTER3 THE ROME CONFERENCE AND ADOPTION OF THE ROME TREATY: POWER AND JURISDICTION OF THE ICC And I agree with you [NGO Coalition for ICC] we will have the court. I'm determined to work with the governments and with you to ensure that the Court is established in the next year. The Court will function and those who have been hesitant will in time, come on board. I don't think we should be deterred. We have lots of work to do ... And I think the climate has changed somewhat since the II th of September and I think we are going to get much more support that we had not counted on. UN Secretary General Kofi Annan37 The Adoption of the ICC Statute On I7 July I998, after three years of intense discussions and a final five-week negotiation, I60 governments voted for the establishment of a permanent International Criminal Court. In the "march toward universal human rights and the rule of law"38 that will transform the human rights landscape, the international community of states agreed, by an overwhelming majority I20 in favor and only 7 against, to create a permanent global judicial institution to bring the world's worst human rights criminals to justice. The ICC is being established for the purposes of investigating and prosecuting individuals who commit the most serious crimes of I7

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international concern: namely genocide, crimes against humanity, war crime sand once defined, crime of aggression. The Rome treaty of the International Criminal Court (ICC) is said to mark the beginning of a new phase in the history of international justice. Indeed, the ICC marks a significant turning point in the way the "international community views peace, transition, and the enforcement It is intended to provide a key mechanism for protection of human rights and for the enforcement of victims' rights to justice and reparation. 40 Therefore, implementing and enforcing human rights norms have been the main purpose of establishing a permanent international criminal court: The International Criminal Court is widely heralded as the cornerstone of an emerging system of international justice which makes international standards of conduct more specific, provides an important mechanism for implementation of these standards and allows no individual to claim immunity from prosecution. Prosecuting persons responsible for violations of international humanitarian law can serve to discourage future human rights abuses, deter vigilante justice, and reinforce respect for law and a new government. Failure to prosecute leaders responsible for human rights abuses breeds contempt for the law and encourages future violations. 41 18

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The development of the Rome Statute reflects the increasing centrality of the individual in international law, and in particular an international consensus about the accountability of individuals as perpetrators and the need to address the suffering of individual victims. Crimes Within the Jurisdiction of the Court The Rome Statute defines the core crimes based upon customary international law and also incorporates developing principles of international law. These definitions are the first effort in the international community to prescribe the most heinous crimes of international concern in a single multilateral treaty. Genocide is defined iri Article 6 in accordance with the 1948 Convention on the Prevention and Punishment of the Crime of Genocide Convention (ratified by 123 states) as one of a list of enumerated acts committed with "intent to destroy, in whole or in part, a national, ethical, racial, or religious group as such." This includes killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to. bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group, and forcibly transferring children of the group to another group. In the draft Statute of 1994, the ll.C already acknowledged that this crime is "clearly and authoritatively defined" under 19

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customary international law, which be committed either in time of peace or in time ofwar.42 As a result, the definition of the crime was agreed without substantial debate or consideration of the possibility of extending the definition to cover, inter alia, social and/or political groups. In Article 7, the Statute defines crimes against humanity in keeping with Article 6(c) of the Nuremberg Charter, Article 5 of the Statute ofthe International Criminal Tribunal for the former Yugoslavia, Article 3 of the Statute of the International Crimin3.1 Tribunal for Rwanda, and other precedents such as relevant conventions, and ILC commentaries, as a specific list of"inhumane acts" when committed as part of a ''widespread or systematic attack against any civilian population, with knowledge of the attack." The list of acts includes the following: murder; extermination; enslavement; deportation.or forcible transfer of population; imprisonment or other severe deprivation of physical liberty in violation of fundamental rules ofintemationallaw; torture; rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; and persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender; enforced disappearance of persons; the crime of apartheid; and other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or 20

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to mental or physical health; or other grounds that are universally recognized as impermissible under international law. The Statute defines the "[a]ttack directed against any civilian population" as "a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack." There was extensive debate in Rome as many delegations advocated for a more precise and detailed definition of crimes. Disagreement mainly centered around the conditions under which the commission of such acts constitute a crime against humanity or "threshold tests" such as whether the attack should instead be widespread and systematic.43 Many delegations and human rights groups were happy with the :finat adoption of''wide or systematic," although some still saw the threshold as too restrictive. 44 Overall, the crime against humanity, defined as the specific list of acts, are broader than those contained in the legal instruments and provide more specificity. This is an example of how the Statute pushes forward developing areas of international as well as codifying customary international law. Introduction of sexual and gender crimes, for instance, was considered to reflect progressive evolution of customaryinternationallaw.45 The war crimes provision of Article 8 includes: 1) the "grave breaches" and Common Article 3 of the 1949 Geneva Conventions (ratified by 186 states); and 2) 21

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the "grave breaches" Protocol I of 1977 (ratified by 14 7 states) and Protocol IT (ratified by 139 states), which are deemed part of the customary law of armed conflicts, including prohibitions of certain weapons. The Statute gives the Court jurisdiction over an exhaustive list of war crimes; with separate lists for international conflicts (containing 34 crimes) and non-international conflicts (containing 16 crimes), the vast majority of which taken directly from, or clearly derives from, established provisions of international law. In view of the abundance of precedents, major contention arose in the process selecting norms applicable to armed conflict that demanded international prosecution. As a result, the ICC formulations are more restrictive than. the established defu:ritions on which they are based and constitute crimes "in particular when committed pursuant to a plan or a policy or as part of the large scale commission of such crimes." This does not impose jurisdictional limitations on the Court, but provides specification of the existing norms under international law. Critics, however, note.that the Statute is "far from comprehensive," having omitted various provisions of the Hague and Geneva law, thus "excluding them from the Court'sjurisdiction."46 In particular, failure of inclusion of nuclear weapons in the list of prohibited weapons brought about shortcomings of effective preventative clause in the Statute. Another major compromise was attained as an accommodation to a French proposal to include a seven-year transitional period for war crimes (Article 124) allowing ratifying 22

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States to opt out from the war crimes provision for the period of seven years the treaty enters .into force for them. This bargain was reached instead of the initial US proposed for a ten-year opt-out provision for both crimes against humanity and war crimes, which critics feared would severely affect the Court's jurisdiction. As a result of ongoing unresolved negotiations, aggression, provided for in Article S(I)(d), is not defined in the Statute. Article 5(2) provides for the eventual definition of aggression. This crime will only enter into effect after a definition is adopted by the Assembly of States Parties (composed of the first sixty states ratifying the Statute), and will not be applicable to any states parties that have not accepted the amendment. In any event, aggression will apply prospectively (Article 22(1))47 as with all crimes of the Rome Statute which can thus be added to it by amendment. Due to lack of agreement on a clear legal definition and the political sensitivity of a crime aimed directly at heads of state, the crime of aggression has been one of the most contentious points in Rome negotiations. The reference to any future provision being consistent with the UN Charter has been interpreted by some as indicating that the Security Council would be required to make a prior determination that an act of aggression had occurred before the ICC could prosecute this crime. 23

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In addition, each crime is subject to clarification and definitions under the Elements of Crimes and Rules of Procedure and Evidence and Evidence, further adopted by states at the Preparatory Commission session in June 2000. Thus, the Rome treaty largely embodies pre-existing, well-defined crimes under international customary law and improves on their content through greater specificity. Notwithstanding the fact that the treaty omits some crimes under customary international law, it does clearly articulate core crimes of international concern and reflects progressive development of international law. In short, the definition of crimes contained in the Statute reflects "existing practices" and affirms current development in international law. Trigger Mechanism and Investigation The referrals for initiating jurisdiction over these crimes can derive from any of three sources: the UN Security Council, a State Party to the Statute, or the Prosecutor acting on his or her independent motion. The preconditions of the exercise of the ICC jurisdiction require that the crimes covered under the Statute occur on the territory of a State Party (states can accept jurisdiction of the Court by ratifying the Statute) or that the accused derive his or her nationality from a State Party, except in cases of Security Council's referral. The Rome treaty can exercise a universal jurisdiction under a situation triggered by the Security Council 24

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referral to the ICC. This was a disappointment to many states, scholars and activists advocating for a much stronger Court with broader jurisdiction. State Parties may refer "situations" to the Court in which one or more crimes appear to have been committed. The Statute provides that no investigation or prosecution can be commenced or proceeded with for a renewable period of twelve months where the Security Council, acting under Chapter VII, has so decided. Deferral would require a decision of the Council, and therefore excludes the possibility of one state's veto blocking jurisdiction, but does leave open the possibility of"unlimited renewal and perpetual deferral."48 The ICC Prosecutor, acting under proptio motu (on his or her own motion), can investigate allegations of crimes on information from victims, non governmental organizations or other reliable sources (Article 15). This is considered as a crucial development by proponents as it enables victims and survivors to trigger investigations where the Security Council or states are unwilling and unable to take action. The Statute contains numerous safeguards and checks on prosecutorial discretion as a result of the concern of many delegates about politically motivated or unwarranted investigations. These include election of the Prosecutor and Deputy Prosecutor by an absolute majority of the Assembly of States Parties; the requirements of a reasonable basis for an investigation to 25

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infonning PreTrial Chamber and depending upon triggering party, Security Council or State Party, about decision to proceed or not to proceed with the concerned case. In situations where the Prosecutor decides not to proceed with the case in accordance with the "interests of justice," the Pre-Trial Chamber may initiate a review and the Prosecutor's decision not effective until the PreTrial Chamber confirms it. The power of the Prosecutor is also limited when conducting independent investigations. For example, if national authorities refuse to provide relevant evidence as they consider acts prohibited under their domestic laws or for national security reasons. This was thought a means to preserve the national sovereignty and not to interfere with the internal affairs of States. In addition, there are codes of conduct and other high qualifications for the Prosecutor. Given the scope ofthe Court's jurisdiction and absence of a police force to enforce its decisions, it is crucial to examine the powers of an independent Prosecutor. The effectiveness of the Court relies significantly on the Prosecutor's power. In general terms, the powers of the Prosecutor to conduct an investigation are seriously limited. It was always envisaged that the ICC would largely be dependent upon state cooperation, and to a lesser degree, upon the Security Council. Thus, the collaboration of the Prosecutor, national authorities, and the Security Council is vital for the effectiveness and successful operation of the Court. 26

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The Office of the Prosecutor is an independent organ of the Court, responsible for receiving the referrals and substantiated information that can trigger an and ultimately a prosecution by the Court, including obtaining evidence and witnesses, and gaining custody of the accused, issuing subpoenas, conducting on-site investigations, and prosecuting indicted individuals in trial chambers. The Prosecutor will be assisted by one or more Deputy Prosecutors and is to appoint advisors with legal expertise on specific issues, including sexual and gender violence and crime against children, The Prosecutor and Deputy Prosecutor are to be persoll& "of high moral character" highly competent and having extensive experience in the prosecution or trial of criminal cases. They will also serve full time for a non-renewable term of nine years and will be of different nationalities. In order for the Prosecutor to initiate an investigation, he or she must determine that no adequate national investigation has already taken place. Where there are national authorities, they are relied upon to take necessarjr steps. Any state, whether a State Party or non-state party to the treaty, may inform the Court that it is dealing With the situation domestically and the Prosecutor will defer to that investigation, unless the PreTrial Chamber decides to authorize the investigation on the basis that the State Party concerned is unable to investigate or prosecute. 49 27

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The Prosecutor's deferral is open to review after six months or at any time when there has been a significant change in the state's unwillingness or inability genuinely to carry out the investigation. However, States have several opportunities to challenge the Court. States can challenge a PreTrial Chamber's ruling of unwillingness or inability to investigate. And again States, including nonstate parties have yet another opportunity to block a prosecution by challenging the admissibility of particular cases. 50 Decisions can further be appealed to the Appeals Chamber. These are important provisions for protecting sovereignty of states and reserving them rights for fair trials. They should be reviewed in the context of the Statute's explicit requirement that States Parties comply with requests of the Court. 28

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Composition and Functions of the ICC The design of the Court aims to provide structures and procedures that ensure efficiency, competence, fairness and impartiality to States Parties and to persons brought before the Court. States Parties control the initial election of judges, the Prosecutor and any Deputy Prosecutors. The Court will consist of a number of organs: the Pre-Trial and Appeals Divisions, the Office ofthe Prosecutor and the Registry. An Assembly of State Parties will perform management oversight and other important functions responsible for the proper administration of the Court. The judges will be elected by the Assembly of States Parties to nine-year non-renewable terms, to be chosen from persons "of high moral character, impartiality and integrity'' possessing the qualifications for the highest judicial office in their home country. At least nine will have established competence in criminal law and procedure, with the necessary eXperience in cririrlnal proceedings, and at least five will have established competence in relevant areas of international law such as humanitarian and human rights law, with extensive relevant professional legal experience. In selecting judges, State Parties are to take into account the need for representation of the principal legal systems and the geographical regions of the world, for fair representation of male and female judges with legal expertise in specific issues, such as violence against women and children. The three judges forming the Presidency will serve full time. 29

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The President and four other judges will form the Appeals Division, which will sit as a single Appeals Chamber. Not less than six judges will comprise .the Trial Division, which will perform its work through one or more Trial Chambers of the judges. The PreTrial Division, which plays an extensive role in the conduct of investigations, will consist of not less than six judges performing their functions in PreTrial Chambers of either three judges or one judge, depending on the function exercised. The judges in the PreTrial and Trial Divisions will serve for three years in the division to which they are assigned. Judges are to be independent in the performance of their functions, and are not to engage in any activity likely to interfere with those functions or with co:nfidence in their independence. An absolute majority of the judges may disqualify from a case, any judge who might raise doubts as to impartiality. The Registry is responsible for the non-judicial administration of the Court and is under the care ofthe Registrar, the ICC's chief administrative officer, and a Deputy Registrar (should the need arise). The Registry will contain a Victims and Witnesses Unit to provide appropriate protective measures and security arrangements, counseling and other assistance. Judges, the Prosecutor, the Registrar and their respective Deputies can be removed from office for serious breach of their duties under the Statute or for inability to exercise the functions required of them. 30

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The Assembly of States Parties is the forum in which key decisions affecting the vitality and effectiveness of the Court will be made. As such, participating States Parties will have an important role to play in fostering the development of international law and contributing to the wider effects that the Statute will have on international life. The structure and function ofthe Assembly are designed by the Statute in order to provide States Parties with an effective power of managerial oversight without affecting the independence of the Court. The Assembly will begin its session with at least sixty members and will have a Bureau of eighteen members, including a President and two Vice-Presidents, who . will meet at least once a year. Ratification of the Statute by a Statute enables States to sit in the Assembly of States Parties. 31

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CHAPTER4 THE CONTRIBUTIONS OF THE COURT TO INTERNATIONAL LAW Principle of Complementarity The cornerstone of the ICC is the principle of complementarity. The ICC is neither a supra-national body nor is it a substitute for national criminal jurisdiction; it is designed to supplement the exercise of national jurisdiction. s 1 The principle sets forth that national criminal jurisdiction always has the prioritY over the ICC, except for when States prove to be unable or unwilling to genuinely carry out investigations and prosecutions that appear to fall within the ICC's jurisdiction. Sl The grounds for admissibility and determination of inability and unwillingness are carefully crafted in the Statute, as many delegates were concerned about politically motivated prosecutions. The Rome Statute establishing the ICC is envisaged to enhance the universal application of international criminal law, In the long run, the principle of complementarity will likely contribute to the ability of national criminal justice systems to fulfill their obligations to prosecute crimes under the ICC jurisdiction. To this effect, strong national implementing legislation, with explicit provisions for 32

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the crimes in the ICC's jurisdiction and for judicial cooperation and assistance to the Court, is necessary to strengthen national legal systems. An incorporation of these jurisdictional powers at both the national and international levels is likely to strengthen the application and enforcement of international law. Indeed, the Rome Statute is really the "first instrument that clearly embodies an effort by the international community to articulate its jurisdiction to prescribe, to adjudicate, and to enforce all in one instrument...[T]he jurisdictional theories of the Statute are arguably quite revolutionary in nature."53 The Statute is the first international instrument to lay out in a relatively comprehensive way the general principles of criminal law found in most national legal systems. 54 Furthermore, the Statute is deemed to be a great accomplishment in the process of convergence of many bodies of law, such as humanitarian, human rights, administrative, criminal and comparative law. 33

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Uriiversal Jurisdiction Basis The Preamble of the Statute specifies that the atrocities addressed are so severe as to "deeply shock the conscience ofhumanity."55 Given the unique nature of the core crimes within the ICC's subject matter jurisdiction, the universal basis is also relevant. The concept of universal jurisdiction rests on the theory that those committing such heinous acts as genocide, crimes against humanity and grave breaches of and serious violations of international humarutarian laws6 are hostis generis -the enemy of all mankind. s7 Universal jurisdiction provides every state with jurisdiction over a limited category of offenses generally recognized as being of universal concern, regardless of where the offense occurred, the nationality of the perpetrator, or the nationality of the victim. 58 Currently, the crime of genocide and. grave breaches of the Geneva Conventions and its Protocols provide for universal jurisdiction. Some States (Belgium, Canada, New Zealand, South Africa, Switzerland) when enacting the Rome Statute specifically provided for universal jurisdiction over these crimes in their domestic legislation. Ramifications of the ICC treaty therefore complement efforts to expand the reach of the universal criminal jurisdiction, which will also significantly contribute to the development and enforcement ofintemationallaw. 34

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The ICC as an Impartial Enforcement Mechanism The proposed International Criminal Court will play an important role in filling the gap in codification and enforcement of the international law. It contributes significantly to the creation of an international criminal justice system. This system comprises a set of eleven general principles of criminal law coupled with essential legal provisions and procedural rules governing judicial functioning of the Court ... Many principles, provisions and procedural rules appear for the first time in an international treaty. These agreed-upon fundamental criminal laws and procedures therefore constitute therefore the .first true international criminal justice system in codified treaty form. 59 Such an elaboration of the contents of these criminal law principles in addition to innovations are regarded as a "great achievement" in the field, representing a significant progress in strengthening the system. The Statute is designed to provide every individual appearing before Court with the highest standards of justice and guarantees of due process and fair trial. The pillars of such development embrace all the basic values taking into account the major concerns and interests of different national legal systems. 60 A major contribution of the Rome Statute to international criminal law and procedure is attention of "nuances of due process." These include, presumption of innocence, assistance of counsel, right to remain silent, privilege against self-incrimination, protection against double jeopardy, and right to examine adverse witnesses, etc.61 35

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In addition, national criminal systems could be enhanced, in some cases, through introduction of international norms of due process and fair trial in the process of ratifying and implementing the Rome. Statute. The Statute also reflects the advancement of international criminal law to prosecute individual actors, differentiating theni from the collectivity they claim to represent. It is this focus on individual responsibility that allows international criminal law to contribute to the reconciliation of communities. 62 The Role of ICC in Maintaining Peace The ICC is a result of efforts ofthe members of international community to put an end to impunity and to facilitate the peaceful reconciliation of armed conflicts. The long-term effect of the ICC can amount to deterring atrocities, thus bringing about a more favorable environment for peace and security among nations. It could reduce the inevitably high cost of ending armed conflicts and repairing their results. The delicate balance between the peace and security is evident in the role the ICC can play as an extension of the Chapter Yll of the United Nations' Charter. In fact, the ICC is an important tool the Security Council can use in its efforts to maintain peace and security. 36

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Because of the link between the ICC and the Security Council, the five permanent members' support for the Court was crucial from the initial phases of the negotiations. This was often difficult to attain as all members were concerned with the restriction of their powers and reach of the Court. At the Rome Conference, two of the Security Council members, U.S. and China, voted against adoption of the ICC treaty. Independence of the ICC from the Security Council was advocated by proponents of a strong and effective international judicial body. It was agreed that the Security Council could have undermined the Court's effectiveness if the ICC was fully responsible to the Security Council. However, the Security Council can empower the Court with universal jurisdiction if it chooses to refer cases to the Court. Therefore, the effective collaboration of the Council and the Court is crucial to preservation of international peace and security. 37

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CHAPTERS THE IMPLICATIONS OF THE ICC FOR INTERNATIONAL ACTORS "We make the institutions, and then they make us." Winston Churchil The Statute is extraordinary for many reasons, only one of which is the new permanent legal institution that will result from its entry into force. The potential legacy of the Rome Statute and of the diplomatic process that fostered it is much broader. William R. Pace, Convenor of the Coalition for ICC Forces Affecting the ICC Although governments and politicians at the national and international level are officially empowered with negotiating and decision-making powers, many others contributed to the creation of the ICC. From the renewed call for the Court following World War IT to the present day efforts to create an International Criminal Court, literally thousands of individuals have brought their own personal and professional to bear on this effort. The constructive evolution of coordination among governments, and between governments, civil society and international organizations, and the influence of their "cumulative contributions to the Court signal a significant success for this new approach to international diplomacy."63 38

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The accomplishments at Rome were welcomed by governments, politicians, media commentators, non-governmental organizations and academics. The design of the Statute is based on the principles of state equality and the process of compromise, geared towards the achievement of broad governmental agreement. 64 Prior to and at the Rome Conference, most governments were favorable and supportive of the establishment of the Court, but were at odds because of their different legal systems, values and concerns which naturally resulted in numerous and diverse government positions.65 However, a supportive group oflike-minded governments were principal in pushing the negotiation process forward based on their common interests. The unprecedented contributions of civil society to the creation of the ICC, coordinated with the efforts of the like-minded governments, have been described as the "new diplomacy." This has been commented by the government delegates, and illustrated in the words of the Secretary-General Kofi Annan: I think it is clear that there is a new diplomacy, where peoples from across nations, international organizations, the Red Cross, and governments come together to pursue an objective. we do--and we are determined, as has been proven in the land mines issues and the International Criminal Court--there is nothing we can take on that we cannot succeed in, and this powerful partnership for the future. The non-governmental organizations (NGOs) made substantive contributions to efforts to create the ICC even before the establishment of the 39

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Coalition for an ICC in February 1995. These contributions were fostered by a working envirorunerit at the United Nations that suddenly "evolved from one of obstruction to one of growing consensus and momentum. "66 The Coalition for an ICC built upon this envirorunent by creating effective networks at the regional and national levels to promote awareness campaigns on the future ICC. The Coalition also provided in-depth analysis of ongoing issues, producing papers and information bulletins for the goverrunent and media representatives. Indeed, the contributions of civil society in the ICC efforts are innumerable. The goverrunents are now confronted with the policy choices, whether to become a party to this treaty-based international institution, or not. By being among the first sixty States to ratify, States will be entitled to become members of the Assembly of State Parties which controls the initial election of judges and the Prosecutor, and will be vested with important powers and responsibilities for the oversight of the operation of the Court. By ratifying, the heads of states also lose immunity from criminw responsibility, an important privilege still retained for many most states. Many challenges for the establishment and success of the ICC still remain. The goverrunent delegates, regional alliances, civil society and academics roles each have to play in concluding outstanding issues of the Court. 40

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The Status ofWorldwide Ratification The pace of ratification of the treaty has exceeded expectations of many. As of October 22, 2001, forty-three States, of requisite sixty, have accepted the jurisdiction of the ICC. Reports indicate that about fifty countries are advanced in their process of ratification. These States represent all regions and represent legal systems of the world. Many States have continued to advocate for the Court in the face ofUS opposition. Yet, at the current stage, nearly half of the ratifications come from European Union members (seventeen EU members have ratified? and all except for Turkey signed the Statute). Recent conflicts in the former Yugoslavia are one factor accounting for this support. Also, most members of the EU are also members of the like-minded group, created in 1994 and committed to the effective establishment of the Court. Although some states remain concerned with the.proposed institution, in order for the Court to be a truly universal body, strong support and representation of all regions is necessary. Sovereignty Versus International Justice: The US Dilemma "Foreign. policy is the face a nation wears to the world," wrote Schlesinger. The United States was initially a principal supporter of the creation of the ICC, and had significantly contributed to the elaboration of the Rome Statute. However, the US position reversed in the course of preparatory negotiations and now the U.S. 41

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openly opposes the ICC. The delegation which participated in the ICC process, even first prior to Rome negotiations, clearly stated that it would "oppose any treaty that claimed jurisdiction over non-party nationals," claiming that it is "unacceptably flawed" in this respect. 67 Second, it argued that a broad jurisdiction of the Court may be overwhelming, and that absence of accountability would lead to political manipulation. Third, the United States has claimed an opposition to the establishment of an independent Prosecutor. Fourth, the possible inclusion of aggression in the Court's jurisdiction disappointed US delegates, who feared that the Court might be empowered to address the crime without a prior Security Council determination. Fifth, the US delegation therefore argued that the institutional safeguards envisaged in the ICC Statute were not sufficient to satisfy their due process concerns. Sixth, in accordance to above concern for safeguards, it claimed that certain substantive principles of criminal law, in particular, should be altered to allow an exemption from jurisdiction for official acts. This latter was a serious concern as the agreed-upon Statute would render a soldier acting under superior orders or the superior giving orders It should be noted that any military order commanding genocide and crimes against humanity are already considered unlawful under customary internationallaw.68 However, in case the US military operation on the territory of State Party, if referred to the ICC appears to 42

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fall under its jurisdiction, the US would need to prove the validity of such command order. In August 1997, prior to Rome conference, the US delegation circulated a "non-paper" suggesting that the proposed Court, in the interest of international peace and national reconciliation, should take amnesties into account when deciding whether to exercise jurisdiction over a situation or to prosecute a particular offender. The expert's analysis provide that the Rome Treaty does not overrule against amnesties, neither it is explicit about it. Finally, the United States has claimed an opposition to the "no reservation clause" and other statutory provisions. While many of the US concerns were accommodated during this negotiations, David Scheffer, US for War Crimes Issues and a head of the US delegation in Rome, concluded in his statement before the Senate Foreign Relations Committee, "I regret to report that certain [US] objectives were not achieved and therefore we could not support the draft that emerged." He further stated during the Preparatory committee session, that The Rome Treaty will become the single most effective break on the international and regional peacekeeping in the 21st century. [The] fundamental flaws in the Rome Treaty mean that the United States will not sign the present text of the treaty, nor is there any prospect of signing the existing text in the future. 43

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However, in the eleventh hour, David Scheffer signed the treaty after the President's last-minute approval. Former President Clinton did not recommend the treaty to the Senate for ratification, and noted that he remained concerned about its "flaws." The current Bush administration is conducting an internal review on the Court to determine its position, but is more hostile towards the ICC. Critics diverge on whether the lack of US support will undermine the effective entry into force of the Statute. However, the successful adoption of the treaty and the current progress of ratification suggest that it will not. The current US administration has recently indicated support for the "American Servicemembers' Protection Act" (ASPA) which was reintroduced to the Senate by Jesse Helms (R-NC) on September 26,2001 as an amendment to the Department ofDefense Authorization bill. On October 2, 2001, a "cloture" motion succeeded in closing the debate on the amendment and thereby preventing its passage. It is expected to be introduced again as an amendment to other bills. Previously, House Representative Tom Delay (R-ID) submitted the ASPA as an amendment to the Foreign Relations Authorization act and the act passed in the House by a vote of282-137, on May 10, 2001. At the time of the September 11th attacks the ongoing policy review included several option, including "unsigning" the treaty and a global "anti44

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ratification" campaign. The current status of the internal policy review to detennine the approach to the ICC, especially in light of the recent US efforts to build coalition to fight against international terrorism, is unknown. However, international and US commentators increasingly stress the importance of fighting the "declared war" by legal means, in particular use of an international tribunal to prosecute alleged terrorist Osama Bin Laden, which would have benefits of rendering a judicial and impartial verdict, as opposed to often counter-productive military strikes. 69 45

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CHAPTER6 CONCLUSIONS The purpose of this research was to demonstrate that the proposed International Criminal Court as adopted in the Rome Statute contributes to the international justice system by creating an enforcement mechanism. This effort was necessitated due to the lack of enforcement of international law, especially where internal conflicts have taken the highest toll in the history of mankind. The ICC is a potential key mechanism of enforcement and, in effect, an international human rights and hwnanitarian law enforcement regime. The current absence of a global judiCial institution to prosecute leaders responsible for human rights atrocities is thought to encourage future violations resulting in suffering and death of more innocent civilians. The failure of national systems to enforce international law has continued to impede an effective transition to a system of international criminal justice. The ICC as a permanent global institution will facilitate the transition to accountability and stability of international justice. Although the Rome Statute is a result of compromises and national sovereign interests, it is an achievement in the field of international law. The definitions of crimes contained in the Statute reflect existing practices under 46

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international customary law and affirm current development in international law. Clear articulation and introduction of sexual and gender crimes are considered to enrich the content and specificity of international humanitarian law. The development of the Rome Statute reflects the increasing centrality of individuality in.internationallaw, and in particular an international consensus about the accountability of individuals as perpetrators and the need to address suffering of individual victims. It marks a significant point in the way international community views peace, transition, and the protection of human rights and enforcement of victims' rights to justice and reparation. Incorporation of jurisdictional powers at both the. national and international levels is envisaged to enhance the universal application of international criminal law and enforcement thereof The complementary nature of the ICC is likely to contribute to national criminal justice systems by encouraging them to fulfill their existing obligations to prosecute crimes of international concern. The Statute is revolutionary in that it is the first instrument to lay out the general principles of criminal law found in most national legal systems, also including the most extensive due process and fair trial provisions. It is likely to mark the beginning of a permanent system of international criminal justice, with the potential to contribute to the legal order of international peace and security. 47

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The ramifications of the ICC treaty is also relevant to the efforts in the universal criminal jurisdiction, which will significantly contribute to the development and enforcement of international law. The ICC can be used as an extension of the Chapter Vll of the United Nations Charter in the efforts for maintaining peace and security. The effective collaboration and distribution of powers between the ICC's Prosecutor and the UN Security Council are crucial aspects of preservation of peace and security. Without a police force and given its limited jurisdiction, the cooperation of States of Parties is important in the enforcement of the ICC's decisions. The potential benefit of the United States' support and collaboration in this regard cannot be understated. The wide range of ratifications by States from around the world, accompanied with strong implementing legislation that will allow effective judicial cooperation with and assistance to the Court are equally important. Finally, the accomplishment of the creation of the ICC marks a potential milestone for more openness in international diplomacy by which various international actors establish partnerships to advance the development of law. The result is a balance between democratic accountability and preservation of sovereign rights. 48

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NOTES 1 CherifBassiouni, "Searching for Peace and Achieving Justice: The Need for Accountability," Law and Contemporary Problem 9 (1996): 59. Professor Cherif Bassiouni is a founding member of the International Law Commission (ILC), which was mandated by the General Assembly to prepare a Draft Code of Offences Against the Peace and Security of Mankinda basis for the Draft Statute for an ICC. 2 Christopher Keith Hall, The International Criininal Court Monitor N. 6 (November 1997). The ICC Monitor is a regular publication prepared by the Secretariat of the Coalition for International Criminal Court, http://www.iccnow.org/html/monitor. 3 CherifBassiouni, An International Criminal Code and Draft Statute for an International Criminal Tribunal (1987), Benjamin Ferencz, An International Criminal Court (2 vols. 1980). Professor Ferencz is a former Prosecutor at an International Criminal Tribunal sitting at Nuremberg. 4 Cherif Bassiouni, "Cour Penale Intemationale: Ratification et mise en oevre dans les legislations nationales," Revue International De Droit Penal Winter (2000): 71; Nouvelles Etudes Penales, Association Internationale De Droit Penal (1999). 5 See Guiliano Vassali, La Giustizia Intemazionale Penale (1995); International Courts for the Twentv-First Centuzy (Mark W. Janis ed. 1992); Farbad Malekian, International Criminal Law: The Legal and Critical Analyses of International Crimes (1991). 6 See 1899 and 1907 Hague Conventions and Declarations, 1948 Convention on the Prevention and Punishment ofthe Crime of Genocide (1948), 1949 Geneva Convention on the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva Convention Relative to the Treatment of Prisoners of War, Geneva Convention Relative to the Protection of Civilian Person in Times of War, and 1977 Protocols Additional to the Geneva Conventions. 7 International Parliamentary Union, World Federalist Movement, and other civil society advocated for a pennanent international justice system via creation of international criminal court. 8 M. CherifBassiouni, The Normative Framework oflntemational Humanitarian Law: Overlaps. Gaps and Ambiguities (1998). 9 W. Michael Reisman, "Legal Responses to Genocide and Other Massive Violations of Human Rights," Law and Contemporary Problem (1996): 75. 10 Niccol Machiavelli, The Prince. (Written circa 1515, translated by W. K. Marriott). See "Machiavelli Online" is available at: http://www.sas. upenn.edu/-pgrose/machlindex1.htm 11 In recent years, many conventions and treaties were adopted proposing for methods to fight against transnational crimes. In the wake of the September 11th tragedy, the United Nations called for a special measures to fight against 49

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international terrorism at its 56th session. All states emphasize the importance of strong legal measures to fight against these crimes. For country statements, please refer to: http://www.un.org/terrorism. 12 According to neofunctionalist school, creating institutions that serVe interests of given states are proven to be a more effective method than dominance of one or more resourceful coWitries. See Jeffrey C. Alexander, Neofunctionalism & After : Collected Readings, 1997 13 See 1899 and 1907 Hague Conventions and Declarations, the Genocide Convention, and the Geneva Convention and Additional Protocols. 14 See 1948 Genocide Convention; Michael Scharf, "The ICC and Its Jurisdictions Over the Nationals ofNon-Party States: A Critique of the US Opposition," Law and Contemporary Problem (2000): 63. Also, available online at: http://www.law.duke.edu/journal/63LCPScharf. 15 Robert Jackson, "Quasi-states: Sovereignty, International Relations and the Tirird World," Cambridge Studies in International Relations: 12, p. 105. 16 Leila Nadya Sadat & S. Richard Carden, "The New International Criminal Court: An Uneasy Revolution," Georgetown Law Journal (2000): 88. 17 Robert Jackson, Quasi-states: Sovereignty, International Relations and the Third World, Cambridge Studies in International Relations 12. 18 Bruce Broomhall, ICC Ratification and Implementing Legislation. Association International de Droit Penal, pp.114-115, 1999. 19 Benjamin Ferencz, An International Criminal Court (2 vols. 1980). 20UN Secretaiy-General Kofi Annan, "Millennium Report," March 2000 21 Michael Scharf"Justiceversus Peace," The United States and the International Criminal Court. (2000) edited by Sarah Sewall and Carl Kaysen, pp. 181-183. 22 CherifBassiouni, Statute of the :iCC: A Documentary History (1998). 23 Hitler's notion provides for the creation of a "new world order'' requiring mass murder for which Hitler cited the example of [Chi]nghis Khaan who "sent millions of women and children to death knowingly and cheerfully." See David Irving, Hitler's War. 1999; "Who Still Talks Nowadays of the Extermination of the Annenians?", New York Tiines, November 24, 1945: Vol. LCV No. 32,081. 24 Supra 25 UN Annual Report, International Crimes. Peace. and Human Rights (2000) 26 "Memorandum of Reservations Presented by the Representatives of the United States to the Report of the Commission ofResponsibilities," April1919, Annex II, cited in American Journal of International Law: 127 (1920). The United States reversed its position 30 years later when it advocated the establishment of Nuremberg tribunal to prosecute Nazi war criminals. See Telford Taylor, The Anatomy ofNuremberg Trials. 1992. 27 Ibid 28 GA Res.95 (1), 11 December 1946 as cited in New Legal Foundations for: Global Survival. by Benjamin Ferencz, 1993, p.10. 50

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29 CherifBassiowti, Nouvelles Etudes Penales, pp.14-15 (1999); See Roy S. Lee, The International Criminal Court: The Making of the Rome Statute. Issues. Negotiations. Results (1999) 30 Cherif Bassiouni, The Statute of the International Criminal Court: A Documental)' Histozy (1998). 31 Supra 32 UN Legal Order, American_ Society oflnternational I;..aw (1997) 33 Rolf Fife, "The Evolution of International Criminal Law," Strategic Policy Issues, London, 2000 34 Amnesty International, "The International Crimiiial Court: Making the Right Choices-Part L" Janwuy 1997, p.5 (citing John Quigley, "Perestroica and International Law," American Journal International (1998): p. 788. 35 Supra 36 Douglas c3ssesse, International Criminal Court and Its Jurisdictions (1999). 37 Speech by UN Secretmy General Kofi Annan, at CICC reception, on 27 September 2001; available at: http://www.iccnow.org. 38 See Statement ofKofi Annan, UN Secretmy-General, on the adoption of the Rome Treaty at the Rome Diplomatic Conference of Plenipotentiaries, Rome, Italy, 17 July 1998. See CICC website: http://www.iccnow.org. 39 Bruce Broomhall, ICC Ratification and Implementation Manu3I (1999): pp.46-47 40 Amnesty International 2000, annual report, visit http://www.amnesty.org. 41 Michael Scharf"Justice versus Peace," The United States and the International Criminal Court. (2000) edited by Sarah Sewall and Carl Kaysen, pp. 181-183. 42 Roy Lee, The International Criminal Court: The Making of the Rome Statute, 1998: p.89 43lbid. 44 See "Summary of the Key Provisions of the ICC Statute" by Human Rights Watch, September 1998. 45 See CherifBassiouni, "International Criminal Court," Revue Internationale de Droit Penal (Vol.71). 46 See "Summary of the Key Provisions of the ICC Statute" by Human Rights Watch, September 1998. 47 See Cherif Bassiouni, "International Criminal Court," Revue Intemationale de Droit Penal (Vo1.71), 2000. 48 Supra .. 49 Composition and functions of the PreTrial Chamber and other organs of the Court are given below. See Chapter 3 "Composition and Functions of the ICC." so Ibid 51 The principle of the primacy of national legal systems and ICC's "complementarity'' are evidently indicative in other provisions of the ICC, such as in Part 9, Article 15(4), and Article 15. 52 The Court will determine that a case is inadmissible if: a) the case is being investigated by a state with jurisdiction over it, unless the state is unwilling or unable to carry out these obligations [Article 17(1)(a)]; b) the case has been 51

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investigated by a state with jurisdiction and the state has decided not to prosecute, unless tlie decision resulted from the unwillingness or inability of the state to genuinely prosecute [Article 17( 1 )(b)]; c) the person has already been tried for conduct which fonned the basis of the subject of the complaint [Article 17(1)(c)]; and d) the case is not of sufficient gravity to justify further action by the Court [Article 17(1)(d). 53 Leila Nadya Sadat, ''Redefining Universal Jurisdiction," discussion paper for the Conference on Universal Jurisdiction, November 3, 2000, New England School of Law. 54 Per Saland, "International Criminal Law Principles", pp.l90-191; edited by Roy S. Lee, Making of the Rome Statute: Issues. Negotiations. Results (1999). 55 The Preamble, Rome Statute of the ICC. 56 See, e.g., "U.N. Impunity Guidelines," supra note 3, at Definition B. It is relatively uncontroversial to assert that universal jurisdiction may be exercised by states as a matter of customary international law with respect to these offenses. A question remains, however, as to whether the offenses must rise to a certain level of gravity or seriousness before universal jurisdiction is triggered. 57 Christopher C. Joyner, "Arresting Impunity: The Case for Universal Jurisdiction in Bringing War Criminals to Accountability," Law and Contemporary. Problems 59 (1996): pp.153, 165. 58 See Kenneth C. Randall, "Universal Jurisdiction Under International Law," Texas Law Review 66 (1988): pp. 785-786. 59 See Roy S. Lee, Making of the Rome Statute: Issues. Negotiations. Results (1999): pp. 32-33, also Chapters 5-9. The eleven general principles of criminal law principles cover essential components and functioning ofthe Court. The provisions of the Statute were further supplemented by adoption of the Elements of Crimes and Rules and Procedure and Evidence by the Preparatory Commission sessions in June 2000, in elaborating the interpretative clauses. 60 Ibid 61 Ibid, Article 66; Article 67(1)(b),(d)); Article 67(l)(g)); Article 54 (l)(a), Article 67(1)(g)); Article 20. 62 Supra, Bruce Broomhall 63 Manuscript by William Pace and Jennifer Schense in Chapter X edited by Antonio Cassese. 64 Supra Bruce Broomhall, ICC Ratification and Implementation Manual (1999). 65 See Roy S. Lee, The International Criminal Court: The Making of the Rome Statute, Issues. Negotiations. Results (1999). 66 Supra 67 William Lietzau, "International Criminal Law After Rome: Concerns from a U.S. Military Perspective", Law and Contemporary Problems 64 (2001). Also See "One Road Away from Rome: Concerns Regarding International Criminal Court," Journal of Legal Studies, 9 United States Air Force Academy Journal of Legal Studies 33 (1999). 52

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BffiLIOGRAPHY Ambos, Kai Establishing an International Criminal Court and International Criminal Code: Observations from an International Criminal Law Viewpoint," European Journal of International Law 7 (1996). Ambos, Kai "General Principles of Criminal Law in the Rome Statute," Criminal Law Forum 10 (1999). Armstead, Holmes Jr., "The International Criminal Court: History, Development and Status," Santa Clara Law Review 38 (Summer 1998). Bassiouni, Cherif A Draft International Criminal Code and Draft Statute for an International Criminal Tribunal, (Dordrecht; Boston: M. Nijhoff, 1987). Bassiouni, CherifDraft Statute. International Tribunal/ Projet de statut du Tribunal Penal International/ Proyecto de estatuto del Tribunal Penal Internacional (Nouvelles Etudes Penales; 10) (First published in 1992 under title: "Draft Statute, International Criminal Tribunal" English text called 2nd ed., Nouvelles Etudes Penates; 9). Bassiouni, CherifThe International Criminal Court: Observations and Issues before the 1997-98 Preparatory Committee. and Administrative and Financial Implications (Toulouse: Chicago: Eres; International Human Rights Institute, DePaul University, 1997)(Nouvelles Etudes Penates; 13). Bedont, Barbara" Gendet:-Specific Provisions in the Statute of the International Criminal Court," Essays on the Rome Statute of the International Criminal Court (Flavia Lattanzi & William A. Schabas eds., Editrice il Sirente, 2000). Bolton, John R "Courting Danger: What's Wrong with the International Court." The National Interest, No. 54, Wmter 1998. Bos, Adriaan "Dedicated to the Adoption of the Rome Statute of the International Criminal Court 1948-1998: The Universal Declaration of Human Rights and the 53

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Statute of the International Criminal Court", Fordham International Law Journal 22 (December I998). Brown, Bartram S. "Primacy or Complementarity: Reconciling the Jurisdiction of National Courts arid International Criminal Tribunals", Yale Journal of International Law 23 (Summer I998). Brown, Daniel J. "The International Criminal Court and Trial in Absentia", Brooklyn Journal ofinternational Law 24 (I999r Cassese, Antonio "The Statute of the International Criminal Court: Some Preliminary Reflections", European Journal oflnternational Law IO (No. I, I999). Cogan, Jacob Katz" The Problem of Obtaining Evidence for the Iritemational Criminal Court," Human Rights Quarterly 22 (No, 2, 2000). Curabba, Nicholas S. The Rome Statute of the International Criminal Court: Selected Legal and Constitutional Issues (Washington, D.C.: American Law Division, Congressional Research Service, Februrary 22, I999). Benjamin B. Ferencz, "International Criminal Courts: The Legacy ofNuremberg", Pace International Law Review IO (Summer I998). Gaeta, Paola "The Defence of Superior Orders: The Statute of the International Criminal Court Versus Customary International Law", IO European Journal of International Law (I999). Graefrath, Bernhard Universal Criminal Jurisdiction and an International Criminal Court," I European Journal of International Law 67-88 (I990). Hall, Christopher Keith "The Sixth Session of the UN Preparatory Committee on the Establishment of an International Criminal Court", 92 American Journal of International Law 548-556 (July I998). La Haye, Eve "The Jurisdiction of the International Criminal Court: Controversies over the Preconditions for Exercising Its Jurisdiction", 46 Netherlands International Law Review I-25 (No. I, I999). 54

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Hebel, Herman von "Putting an End to Impunity: From the Hague to Rome", 1998-1999 Hague Yearbook oflntemational Law 83-90. Howard, Robert J. "An Economic Paradigm for the Debate Concerning the Jurisdictional Extent of the International Criminal Court", 8 Touro International Law Review 117-128 (Spring 1998). Lattanzi, Flavia "Competence de Ia Cour penale internationale et consentement des etats", 103 Revue generale de droit international public 425-444 (No.2, 1999). Marquardt, Paul D. "Law Without Borders: The Constitutionality of an International Criminal Court," 33 Columbia Journal of Transnational Law 73 (1995). :Miskowiak, Kristina The International Criminal Court: Consent. Complementarity and Cooperation (Copenhagen: DJOF Publishing, 2000). Oosterveld, Valerie L. "The Making of a Gender Sensitive International Criminal Court, 1 International Law FORUM du droit international 38 (1999). Oosthuizen, Grabriel H. "Some Preliminary Remarks on the Relationship Between the Envisaged International Criminal Court and the UN Security Council", 46 Netherlands International Law Review 313-342 (1999)(no.3). Roberge, Marie-Claude "The New International Criminal Court : a Preliminary Assessment", 38 International Review of the Red Cross 671-683 (no. 325, 1998). Robinson, Darryl "Defining 'Crimes against Humanity' at the Rome Conference", 93 American Journal oflnternational Law 43-57 (1999). Roht-Arriaza, Naomi "Institutions oflnternational Justice", 52 Journal of International Affairs 473-491 (No.2, Spring 1999). Ruegenberg, Guido "The Independence and Accountability of Prosecutor of a Permanent International Criminal Court", 1999 Zeitschrift fur Rechtspolitik (ZRP) 68 (1999). Sadat, Leila Nadya & Carden, S. Richard "The New International Crimi,nal Court: An Uneasy Revolution", '88 Georgetown Law Joumal381-474 (March 2000). 55

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Schabas, William A "Montreal Follow up to Rome: Preparing for Entry into Force of the International Criminal Court Statute", 20 Human Rights Law Journal No.4-. 6, 157-166 (October 29, 1999). Scharf, Michael P. "The Politics of Establishing an International Criminal Court", 6 Duke Journal oflnternational and Comparative Law 167-173 (1995). Scheffer, David J. "Challenges Confronting International Justice Issues", 4 New England International and Comparative Law Annual (1998). Note that this is a PDF file. Silverman, Craig An Appeal to the United Nations: Terrorism Must Come within the Jurisdiction of an International Criminal Court," 4 New England International and Comparative Law Annual (1998). Triffierer, Otto Commentary on the Rome Statute of the International Criminal Court Observers' Notes. Article by Article (Baden-Baden: Nomos. 1999). Wippman, David "Can an International Criminal Court Prevent and Punish Genocide?", Protection Against Genocide: Mission Impossible? 85-104 (Neal Riemer ed., Westport, CT: Praeger Publishers, 2000). 56