This page intentionally left blank Building the International Criminal Court The International Criminal Court (ICC) is the first and only standing international court capable of prosecuting humanity’s worst crimes: genocide, war crimes, and crimes against humanity It faces huge obstacles It has no police force; it pursues investigations in areas of tremendous turmoil, conflict, and death; it is charged both with trying suspects and with aiding their victims; and it seeks to combine divergent legal traditions in an entirely new international legal mechanism International law advocates sought to establish a standing international criminal court for more than 150 years Other temporary single-purpose criminal tribunals, truth commissions, and special courts have come and gone, but the ICC is the only permanent inheritor of the Nuremberg legacy In Building the International Criminal Court, Oberlin College Professor of Politics Benjamin N Schiff analyzes the International Criminal Court, melding historical perspective, international relations theories, and observers’ insights to explain the Court’s origins, creation, innovations, dynamics, and operational challenges Benjamin N Schiff received his Ph.D in political science from the University of California, Berkeley He has been teaching at Oberlin College since 1979 and has authored three major works on international politics, including Refugees unto the Third Generation: U.N Aid to Palestinians (1995) In 2005–6, Schiff was a visiting professor at Leiden University’s Grotius Centre for International Legal Studies in The Hague, and he has published journal articles, newspaper op-ed pieces, and book reviews on international relations, foreign policy, and military topics Building the International Criminal Court BENJAMIN N SCHIFF Oberlin College CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521873123 © Benjamin N Schiff 2008 This publication is in copyright Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press First published in print format 2008 ISBN-13 978-0-511-39676-2 eBook (NetLibrary) ISBN-13 978-0-521-87312-3 hardback ISBN-13 978-0-521-69472-8 paperback Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate For June Goodwin, who taught me about truth; and Naomi Schiff, a tireless fighter for justice; and in memory of Hendrik (H W.) van der Merwe, for his selfless, iron-willed pursuit of justice and peace Contents Preface Acronyms Introduction The Court Theoretical Perspective Conundrums page ix xi River of Justice Law: Divine, Natural, and Positive International Humanitarian and Criminal Law Swelling Streams of Justice End of the Cold War and Resurfacing of Interest in an ICC Explaining the Gathering Tide 14 15 19 29 37 39 Learning from the Yugoslavia and Rwanda Tribunals The Tribunals’ Mandates Organization and Leadership Tribunal Tribulations Operational and Legal Innovations Constructivism, Realism, Neoliberal Institutionalism 42 43 45 48 58 65 The Statute – Justice versus Sovereignty Brief Negotiating History The Preamble: Sovereignty, Perfectibility, and Identity The Crimes Taking Sovereignty Seriously Old and New Justice Paradigms in the Statute Why Do States Join? Conclusions 68 69 72 74 77 85 89 92 vii viii Contents Appendix 3A: Preamble of the Rome Statute of the International Criminal Court Appendix 3B: Rome Statute Crimes 92 93 102 104 109 120 128 134 141 Building the Court From Statute to Court Cranking Up the Engine Internal Frictions New Justice Innovations Coordination and Planning Conclusions NGOs – Advocates, Assets, Critics, and Goads International Relations Theory and NGOs Growth of NGO Involvement NGOs and the Statute Advocacy, Advice, and Outreach The NGOs and ICC Operations The Evolving NGO–ICC Relationship Conclusions 144 145 146 147 151 155 160 163 ICC–State Relations The Court’s Supporters and Opponent(s) States’ Policy Oversight Stateside Complementarity: Cooperating with the Court Conclusions 165 167 181 189 192 The First Situations Uganda Congo Sudan The Central African Republic Other Possible Situations Conclusions 194 195 210 226 242 244 245 Conclusions: The Politics of the International Criminal Court Mandate Structure Operations NGOs States The Situations Building Justice 248 248 249 250 253 254 255 257 Web Sites for Further and Ongoing Information 261 Bibliography and Sources Index 263 293 ...This page intentionally left blank Building the International Criminal Court The International Criminal Court (ICC) is the first and only standing international court capable of prosecuting humanity’s... 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. .. Federalists Movement Building the International Criminal Court Introduction The International Criminal Court (ICC) soars with the loftiest of ideals as it grapples with the basest of human acts