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Building the International Criminal Court


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Building the International Criminal Court
Cambridge University Press
9780521873123 - Building the International Criminal Court - By Benjamin N. Schiff


The International Criminal Court (ICC) soars with the loftiest of ideals as it grapples with the basest of human acts. This first and only permanent international criminal court intends to counter impunity by prosecuting perpetrators of genocide, crimes against humanity, and war crimes. It seeks to deter depredations against citizens in violent conflicts and to contribute to justice, peace, political transition, and reconstruction.

Ideally, domestic societies use legitimate political processes to devise and promulgate their laws. Then the laws are fairly implemented by legal systems that remove the politics from justice. This ideal is often compromised by extralegal influences, by biased legal structures, and by maladministration; nonetheless, the ideal is a widely accepted model of an objective, dispassionate, truth-based mechanism for upholding society’s rules.

If this model represents a goal toward which societies strive with only partial success, international law is even more tenuous. International law is based on an ephemeral society that lacks a legislative structure, and it seeks to constrain sovereign states that recognize no consolidated authority for enforcement. International organizations operate at the sufferance of states, subject to their desires, dependent upon their generosity, and victims of their ploys. Moreover, international organizations are subject to the same weaknesses as domestic ones – outside influences, bias, and maladministration. Nonetheless, since the beginnings of the modern state system, advocates of law have tried to extend to the international level the logic and structures familiar in the domestic context. International law has proliferated. This quest for the “legalization” of international politics has added arbitration and judicial decision making to diplomacy and the naked exercise of power as means of settling conflict between sovereign states.1 Legalization has arrived as well at the doorstep of individual responsibility.

Since all human action is in the end individual, crimes committed on behalf of states have perpetrators just as do domestic crimes. For approximately 150 years, from at least the origins of the International Red Cross movement in the mid-nineteenth century, international lawyers, diplomats, and advocates contemplated the creation of an international criminal court to hold individuals responsible for criminal acts carried out in the name of the state. Finally, in Rome in July 1998, the Statute for the International Criminal Court opened for signature and ratification. The Court emerged on July 1, 2002, much sooner than most observers had believed possible.

The Court began with a five-member transition team in 2002, and mushroomed past 700 employees in 2007. It is built upon a range of national legal systems and incorporates structural elements common to other international organizations. Its structure, rules, and operations reflect experiences of the ad hoc international criminal tribunals for Yugoslavia and Rwanda but differ significantly from them. The ICC’s objectives include the prosecution of transgressors and rehabilitation of victims, its mechanisms combine traditions of civil law with common-law precepts, and it seeks to incorporate lessons from the tribunals in order to improve the effectiveness and efficiency of international criminal trials.

The Court’s most profound effects may be invisible and tangential to the cases it pursues directly. If it deters criminality or leads states to tighten their domestic laws and enforce international humanitarian norms, it could be considered successful. On the other hand, it may be deemed irrelevant if potential perpetrators don’t recognize it as a threat, if its efforts are thwarted by noncooperation or lack of resources, or if victims regard it as useless in their search for justice. The Court could become an unprecedented, sterling achievement, or it may be a great idea whose time has not arrived. This book is intended to explain where the Court comes from and what it’s for, what its challenges are, and how it is managing them in its first years of operation.

The Court

The Court consists of three “organs” – the Presidency and Chambers (the judges),2 the Office of the Prosecutor, and the Registry. The Rome Statute details the legal framework for Court operations, empowering the Court to investigate cases, issue warrants, take custody of arrested suspects, and carry out trials, and enjoins it to protect witnesses and victims involved with its proceedings and to aid the victims of the crimes under its jurisdiction.

The Statute establishes the Assembly of States Parties (ASP) to the Treaty as the legislative organ responsible to elect (and remove) ICC judges and chief and deputy prosecutors, approve and allocate the organization’s budget, approve official cooperative arrangements with other organizations (such as the United Nations), and adopt the Court’s Rules of Procedure and Evidence, its Elements of Crimes, and the rules of the separate organs. The ASP can also create subsidiary bodies and establish their rules for implementing the Statute (for instance, the Trust Fund for Victims), and it can amend the Statute.

The ICC and especially its founding document, the Rome Statute, are the subjects of an enormous literature. A relentlessly expanding list of books and a torrent of legal journal articles examine the sources, structure, intricacies, ambiguities, and implications of the Statute. The Court itself has so far been rather less analyzed because it has only recently begun operating, but there are useful introductions to its structure and law, and some books illuminate particular aspects of its founding, implications, early operation and possible effects.

The Court is a work-in-progress, an amalgam of normative commitments,3 legal understandings, political interests, diplomatic bargains, and organization dynamics. It embodies idealistic, largely legalistic conceptions of international norms that were pursued doggedly by international legal experts from the end of World War II onward, shaped by diplomatic bargains and pushed by nongovernmental organizations. Embarked on a course fraught with contradictions stemming from its broad set of objectives, the Court faces the requirements of all organizations – leadership, internal coordination, resource acquisition and deployment, efficiency, seeking to demonstrate success and relevance to major interlocutors. The decisions it makes in its early years about its role, focus, and operations will be crucial to how it survives, thrives, or withers.

Theoretical Perspective

My choice of topics and the language I use come from the study of international organizations, international relations, and theories about both. This is not primarily a theoretical book; however, international relations and international organization theories help elucidate my topic and so I think it is useful here to present the general theoretical context in which I am working.

Especially since the end of the Cold War, international relations texts and journals have been contrasting the analytical perspectives of realists, neoliberal institutionalists, and constructivists. Rather than apply these as fully deployed theories or complete rivals, I use them to explain different aspects of an extremely complicated world.4 Their alternative emphases sometimes place them and their enthusiasts at odds with one another, but I am by nature a synthesizer, so I prefer to use them together, the best to explain what I seek to understand. I introduce the three kinds of theory here in the order that they developed in post–World War II American political science.5

Realist Theorists

Realist theorists assume that humans are self-seeking, rational beings. Sovereign states are the international system’s primary actors. Because there is no global government, realists assert that anarchy is the condition (or structure) of the existing international system.6 Real sovereignty – the state’s capacity to maintain domestic order and to protect itself from other states – resides in its military and economic capabilities. Formal sovereignty – the state’s right to a monopoly on the domestic use of force to maintain order and its freedom to use force externally to protect itself – is an institution7 of the (post-1648, European) international system. States affect each other by using, or threatening to use, coercive power defined in material (military and economic) terms. The relative power of any state as against others is the key measure of its capacities for action, and thus independence. Balances of power emerge from confrontations among states, and realist theorists generally regard the balance of power as the primary ordering institution of the anarchic system.

For realists, two kinds of change are possible. Change in the international system means that the relative power of particular states, or the power hierarchy, varies due to war, differential economic growth, technological innovation, and so on; however, anarchy persists, and the institutions of sovereignty and balance survive. Change of the system, on the other hand, would mean transforming the conditions under which international politics takes place. If some international authority were to arise and terminate international anarchy, if new actors of a different sort appeared that could powerfully constrain states, or if states were to base their actions on some principle other than self-help, then the system would be transformed and the balance of power would give way to other institutions.

For realists, international organizations fit into the system as tools of states in their competition with each other, but they are not instruments of an escape from anarchy. It would make little sense for states to sacrifice sovereignty to enforce international laws against genocide, crimes against humanity, and war crimes, unless to do so would confer some relative advantage or to oppose it would entail some relative costs. Realists might thus explain why states would seek to limit the Court’s powers (to retain their own freedoms) or go along with it once it was created by others, but they have no explanation for its creation in the first place. This is where additional theoretical perspectives can help.

Neoliberal Institutionalist Theorists

The theories of the neoliberal institutionalists overlap with the realists’ vision of international relations but differ in important ways. Liberals too believe in rationality. Classical liberals believed as well in the idea of progress, human goodwill, and the (rational) perfectibility of mankind through collective institutions.8 Neoliberal institutionalists combine liberalism with realism. They grant the realist premise that states are the primary international actors but argue that states can experience incentives to cooperate for improvements in their own welfare, seeking absolute gain, rather than exclusively relative gain.9 When states seeking absolute gains cooperate to reduce international transaction costs, to create new collective goods, and to prevent collective bads, they may establish organizations to implement these objectives.10 To the extent that these organizations’ mere existence and/or requirements of membership entail changes in domestic legislation and international behavior, organization participation may alter and constrain states’ behavior. A pervasive enough web of interdependence could create areas of international interaction in which behavior is limited by law or other orderly institutions, and in such areas anarchy could recede. The international system could thus incrementally change as states become increasingly enmeshed in a web of institutionalized interdependencies.11 Liberal institutionalists also accept that actors other than states – such as international organizations, nongovernmental (or civil society) organizations, transnational movements, and multinational corporations – can affect states, and that states’ objectives are defined, at least in part, by internal political dynamics such as interest groups and political parties, and not just deduced by realist calculations flowing from a structurally determined national interest.

Seeking to explain how organizations can affect states, and vice versa, neoliberal institutionalists argue that states will support cooperation if it produces absolute or relative gains. If they see cooperation damaging their interests, they will oppose, constrain, or defect from it. Thus, if the ICC assists in implementing states’ normative objective of countering impunity, it should receive continued or increasing support.

For liberal institutionalists, the more the Court can serve states’ interests, the greater its autonomy and legitimacy. Its ability to convince states that it is operating to enhance their objectives depends largely on what it does, compared to what it was designed to do, and how efficient it is in achieving these ends. Neoliberal institutionalism thus helps explain aspects of the organization’s form, operations, survival, momentum, and growth, but it doesn’t explain why the antiimpunity norm and international criminal law grew in the first place. For that purpose, a constructivist perspective is very useful.

Social Constructivists

Social constructivists observe that all visions of how the world works are based on ideas that people develop within a social, historical context. For constructivists, both realism and institutionalism assume that human motivation is primarily materialist, and that states’ actions are primarily dictated by anarchy.12 Constructivists argue, however, that not all motives are materialist and the vision of a world based in anarchy is a particular mental construction. Other motives and visions are possible. Nonmaterialist motives can include normative objectives.

Because the assumption of anarchy leads to certain conclusions (the importance of relative power, for instance), a different set of assumptions could lead to different conclusions. For example, under anarchy, relative material advantage is vital for self-preservation. Were people to conceptualize the world not as an anarchic, state-centric environment but as an ecologically and ethically shaped, human-centered environment, perhaps relative material advantage (power and money) would be less compelling to foreign policy decision makers than environmental preservation or uplifting human dignity. Constructivism expands the realm of apparent free will, as against realism’s determinism and neoliberal institutionalism’s tepid optimism. However, constructivism’s vulnerability lies in the difficulty of changing people’s conceptions of themselves (identities) on a scale massive enough to move away from the standard framework and the lack of any logic that would indicate what (if any) evolution in consciousness is most likely. Identity shifts can, after all, move in humane or inhumane directions.

Constructivists argue that international institutions embody normative commitments that denote personal, national, and global identities.13 Identities are malleable; thus, changing identities could be a source of system change (that is, of the system as well as within the system). In one historical example, people in many countries decided that basing a government on formal racial discrimination was inhumane and uncivilized. Their leaders found it either politically advantageous or morally compelling (or both) to adopt this stand domestically and in their foreign policies (although there was no apparent material advantage in doing so). The resulting global anti-apartheid movement ultimately helped force the minority South African government to negotiate transition to majority rule.14

Similarly, as government leaders became convinced in the late 1980s and during the 1990s that passivity in the face of genocide, crimes against humanity, and war crimes was incompatible with their identities (perhaps as compelled by civil society groups, international lawyers, and public pressures arising from ongoing conflicts), they sought action (or at least the appearance of action) against those crimes. The United Nations Security Council established the International Criminal Tribunals for the Former Yugoslavia and Rwanda (ICTY, ICTR), and a few years later negotiators considering a Statute for the ICC agreed on an organizational form for the institutionalized criminalization of these core international crimes. For constructivists, creation of the ICC could demonstrate a change of the system in the sense that collectively, without clear relative advantage and for apparently nonmaterial reasons, states committed themselves to cooperate within an international organization established to prosecute collectively proscribed acts whose prosecution had previously been considered (if at all) on an ad hoc, war-by-war basis. Although historically realism came first, then neoliberal institutionalism, and last, constructivism, they are useful in explaining the ICC in a different order. The constructivists explain development of the consensus on which the Court is based; the realists explain states’ compulsions to protect sovereignty and to seek relative advantage; the liberal institutionalists explore how the ICC embodies states’ cooperative efforts to improve absolute welfare. In the balance of the book, the theories will appear in this logical, rather than historical, order.


The ICC faces a set of challenges that flow from its nature as an international treaty-based judicial organization with a broad membership and wide mandate. These challenges were built into it in the process of negotiating its creation; they create dilemmas that its officials must manage.

Judicial–Political Dilemma

The ICC was created as a judicial institution to prosecute individuals accused of heinous international crimes. But these are crimes that occur in contexts of violent international and internal conflicts in which the political stakes drive people to extreme behavior. Thus, the ICC is a judicial organization operating in the most political of environments. Court officials insist that, as a judicial institution, the Court cannot gear its actions according to what will win it political favor (although they are happy for nongovernmental organizations to advocate it as a cause or for members of the ASP to encourage other countries to join), and they must make decisions on purely judicial grounds. The Court’s actions, however, have political ramifications for states and for actors within states, and will inevitably be interpreted politically,15 and the distinction between judicial and political grounds is not always clear. The Court seeks to build legitimacy, hence support, by acting transparently and on purely judicial grounds. However, much of its activity is necessarily confidential, and as in any organization, some amount of its decision making will be the product of negotiation and bureaucratic conflict. Given the charged environment in which the ICC operates, the limits of openness, the vague boundary between political and legal judgment, and the compulsions of organization behavior, it cannot be purely judicial, and it will be interpreted politically even as it strives so to appear.

Structural–Administrative Dilemma

The ICC’s organizational structure seeks to replicate in one organization the independent responsibilities and powers usually allocated to separate legislatures, ministries, and courts in domestic systems. An architecture designed to create judicial neutrality and prosecutorial independence, however, is not an optimal design for administrative efficiency and coordination. The Court’s objectives of administrative efficiency cut against its objectives of judicial insularity and prosectorial independence.

The Broad Mandate Dilemma: Retributive and Restorative Justice

The Statute creates mechanisms of traditional (retributive) and newer (restorative) justice,16 but the emphasis between the two remains in flux, and the mechanisms for the second are particularly sketchy. There is strong pressure on the Court to embrace the broadest range of both retributive and restorative justice activities, but the more broadly the mandate is pursued, the more difficult it will be to fulfill. The very innovative qualities that made the Statute achievable and attractive also constitute threats to the organization’s welfare.

Civil- and Common-Law Heritage

The Statute and rules combine common-law and civil-law traditions.17 The Court’s Prosecutor is patterned on a common-law model, following from the precedent of the tribunals for the former Yugoslavia and for Rwanda. In contrast to the tribunals’ structures, however, and in part as a consequence of their experiences, the ICC Statute negotiators tilted the Court back to a more even balance between the two traditions. In practice, a common-law-oriented Office of the Prosecutor is contending with civil-law-oriented Pre-Trial Chamber judges to establish operational and legal precedents for the Court’s operations. The structure of the situation, the orientation of the personnel involved, and the many areas in which precedents can be established only by operating the machinery are causing clashes between the judges and prosecution.

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