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Published online by Cambridge University Press: 28 March 2014
The International Criminal Court (ICC) came into effect on 1 July 2002. This article gives an account of the historical background to the ICC and an overview of the Court's Statute, remit and powers. It is argued that the ICC is a highly politicized legal institution which will only be effective through inter-state cooperation. Despite its lengthy historical antecedents and legal precedents, prudence suggests that — due to the nature of international politics — the establishment of the ICC should be viewed as the beginning of a cumulative process of reforming the politics of international justice rather than the end of a process of transformation in international law.
1 International Herald Tribune, 12 04 2002, p. 1 Google Scholar.
2 Article 1, Rome Statute of the International Criminal Court. The Rome Statute is the international treaty by which the ICC was created.
3 For an extension of this argument see Schabas, William A., An Introduction to the International Criminal Court, Cambridge, Cambridge University Press, 2001, pp. 21–2CrossRefGoogle Scholar.
4 Ibid., p. 1.
5 See Roberts, Adam and Guelff, Richard (eds), Documents on the Laws of War, Oxford, Oxford University Press, 2000 Google Scholar, especially ch. 5.
6 See generally Ratner, Steven R. and Abrams, Jason. S., Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy, Oxford, Oxford University Press, 2001 Google Scholar, ch. 1.
7 The 1929 Geneva Convention on the Wounded and Sick in Armies and a similar Geneva Convention on Prisoners of War added relatively little to the existing body of law yet must not be ignored. Ibid., p. 5.
8 For a key work regarding the development of the law of war since 1945 see, Best, Geoffrey, War and Law since 1945, Oxford, Clarendon Press, 1994 Google Scholar.
9 See Economides, Spyros, ‘The International Criminal Court’ in Smith, Karen E. and Light, Margot (eds), Ethics and Foreign Policy, Cambridge, Cambridge University Press, 2001, pp. 113–14Google Scholar.
10 For more detail on this see, Bianchi, Andrea, ‘Individual Accountability for Crimes Against Humanity”, SAIS Review 19:2 (Summer-Fall 1999), pp. 101–2CrossRefGoogle Scholar and Ratner, Steven R. and Abrams, Jason S., Accountability for Human Rights Atrocities, op. cit., pp. 6–7 Google Scholar.
11 Schabas, William A., An Introduction to the International Criminal Court, op. cit., pp. 8–9 Google Scholar.
12 Economides, Spyros, ‘The International Criminal Court’, op. cit., pp. 116–17Google Scholar.
13 This sequence is most lucidly set out in Schabas, William A., An Introduction to the International Criminal Court, op. cit., pp. 8–10 Google Scholar.
14 Bass, Gary Jonathan, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals, Princeton, NJ, Princeton University Press, 2000, p. 5 Google Scholar.
15 The seats of the Tribunals on former Yugoslavia and Rwanda respectively.
16 Gary Jonathan Bass, Stay the Hand of Vengeance.
17 Schabas, William A., An Introduction to the International Criminal Court, op. cit, p. 11 Google Scholar.
18 Beigbeder, Yves, Judging War Criminals: The Politics of International Justice, Basingstoke, Macmillan, 1999, p. 150 CrossRefGoogle Scholar.
19 See above, p. 33.
20 While the legal aspects of the Rome Statute and its negotiation are well documented and discussed, the political dimension of what actually happened in Rome is less well covered. See, for example, Economides, Spyros, ‘The International Criminal Court’, op. cit., pp. 117–26Google Scholar.
21 Schabas, William A, An Introduction to the International Criminal Court, op. cit., pp. 26–8Google Scholar.
22 See Economides, Spyros, ‘The International Criminal Court’, op. cit., p. 121 Google Scholar.
23 In this case the jurisdiction of the ICC is not restricted to nationals of states party to the Statute. Indeed, the Court has jurisdiction over nationals of states not party to the Statute who have allegedly committed crimes on the territory of a signatory. This is a key issue in the US objection to the Court; US nationals could be indicted and prosecuted despite the American refusal to participate in the ICC.
24 There is, nonetheless, an extensive legal debate relating to time restrictions which is slightly more complicated than this and which separates the rights and duties of states to proceed with retroactive prosecutions if the crimes were acknowledged when committed. They could also possibly be referred to universal jurisdiction. See Ratner, Steven R. and Abrams, Jason S., Accountability for Human Rights Atrocities in International Law, op. cit., pp. 21–4Google Scholar.
25 All form part of Article 17 of the Rome Statute.
26 Economides, Spyros, ‘The International Criminal Court’, op. cit. pp. 122–6Google Scholar.
27 Ibid., p. 123.
28 Ibid.
29 Sewall, Sarah B., Kaysen, Carl and Scharf, Michael P., ‘The United States and the International Criminal Court: An Overview’, in Sewall, Sarah B. and Kaysen, Karl (eds), The United States and the International Criminal Court: National Security and International Law, Oxford, Rowman & Littlefield Publishers for the American Academy of Arts and Sciences, 2000, pp. 2–3 Google Scholar. This theme is also taken up in Vesselin Popovski, ‘International Criminal Court: A Necessary Step Towards Global Justice’, Security Dialogue, 31:4, pp. 405–19CrossRefGoogle Scholar.
30 Bousian, Mark, ‘International Criminal Court: No Place to Hide’, The World Today, 56:8 (08/09 2000), p. 39 Google Scholar.
31 Ibid.
32 Goldstone, Richard J. and Bass, Gary Jonathan, ‘Lessons from the International Criminal Tribunals’ in Sewall, Sarah B. and Kaysen, Carl (eds), The United States and the International Criminal Court, op. cit., pp. 53–5Google Scholar.
33 Ibid.
34 See Economides, Spyros, ‘The International Criminal Court’, op. cit. pp. 118–20Google Scholar.
35 Of the ‘Western’ Permanent Security Council members, Great Britain swiftly moved closer to the like-minded caucus as the new Labour government, elected in 1997, adopted an ethical dimension to its foreign policy and became a strong supporter of a strong ICC.
36 The US did not sign the Statute at the Rome Conference. President Clinton did finally sign the Statute in the last days of his presidency, while also making clear that he would not promote its actual ratification. Not only was the Statute never ratified but in a move which caused some legal consternation, Clinton's successor, George Bush, has ‘unsigned’ the Statute.
37 Weschler, Lawrence, ‘Exceptional Cases in Rome: The United States and the Struggle for a ICC’ in Sewall, Sarah B. and Kaysen, Carl (eds), The United States and the International Criminal Court op. cit., pp. 102–3Google Scholar.
38 Bass, Gary Jonathan, Stay the Hand of Vengeance, op. cit., p. 7 Google Scholar.
39 Chaya, Abram and Slaughter, Anne-Marie, ‘The ICC and the Future of the Global Legal System’ in Sewall, Sarah B. and Kaysen, Carl (eds), The United States and the International Criminal Court, op. cit., p. 238 Google Scholar.
40 Tucker, Robert W., ‘The International Criminal Court Controversy’, World Policy Journal, 18:2 (Summer 2001), p. 80 CrossRefGoogle Scholar.
41 The Observer, 4 November 2001.
