I would like to agree. The boundaries of international criminal law are not apolitical. Sovereignty has a lot to do with what is, or is not, considered to be part of international criminal law, as the distinction between international and non-international conflicts shows. Sadat clearly is concerned with such an argument, see Transformation, at 169. That is not to say that the Tribunals have been cheap or always cost-effective, or indeed that some of the money that has been allocated to them could not have been used constructively elsewhere, for example in rebuilding the Rwandan justice system. ... [various aspects of the Statute and its creation] ... suggest an important shift in the substructure of international law upon which the Court’s establishment is premised. For example, passive personality jurisdiction is generally frowned upon in international law, yet it is unquestionably available in relation to international crimes.40 The broadest jurisdiction granted to states in international law, universal jurisdiction, is granted by international criminal law. See International Justice, pp. There is a very useful section in International Justice on this point, however, at 41–51. Although this may sometimes be an adequate description of reality, the relationship between sovereignty and international criminal law is more complex, and we are beginning to see this coming through in more sophisticated international criminal law scholarship. For a discussion of this, see, e.g., Mégret, ‘Epilogue to an Endless Debate: The International Criminal Court’s Third Party Jurisdiction and the Looming Revolution of International Law’, 13 EJIL (2001) 247. As Broomhall notes, the decision in relation to the ICC that the crimes had to be spelt out in considerable detail was not solely because of an abstract commitment to a systematic presentation of international criminal law, but ‘also resulted from the awareness of governments that they were designing an institution that could possibly bring indictments against even their highest-ranking officials’ (at 31). One of the most debated issues concerning the International Criminal Court (ICC) is that whether it constitutes a major threat to the international system that is based on the principle of national sovereignty. The drafters were fully aware that such states would seize any parts of the statute in advance of international law as a stick with which to beat the new court should the ICC ever seek to exercise its jurisdiction over them as non-parties.22. In dealing with universal jurisdiction, however, we also have to take into account the claims that universal jurisdiction is, albeit notionally available to all, in practice a tool of the powerful. The same can be said about Broomhall’s International Justice. The ICC statute and the premises underlying it are unacceptable, primarily because of the unprecedented erosion it would work on state sovereignty. Membership and Evolving State Status. 2. How else can we explain the serial horrors of the countless holocausts of the last century? See also International Justice, at 42–43. Aceves and Hoffmann, in Justice, however, in relation to crimes against humanity, treat the Rome Statute’s provision on crimes against humanity as the most authoritative interpretation of crimes against humanity in international criminal law’ (at 245). It is simply one that many people (this author included) support. Sovereignty - Sovereignty - Sovereignty and international law: Although the doctrine of sovereignty has had an important impact on developments within states, its greatest influence has been in the relations between states. S/1999/1257. According to the Rome Statute, it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes. This was because it was certain by the late stages of the Rome conference, if not before, that some states were going to oppose the Rome Statute whatever the outcome. The message is that you cannot murder, kill or dislocate people without punishment’. State sovereignty also includes the idea that all states are equal as states. )’87 Ward’s response, that there are many more who would prefer restorative over retributive justice is problematic on two grounds. It wasn’t until the 1990s, however, that many governments coalesced around the idea of a Judah, ‘The Fog of Justice’, New York Review of Books (2004) LI(1), 23, at 25. Constructivist accounts could accept that at the beginning this might be on the basis that states would rather prosecute international crimes themselves than have the ICC do it. For an example see C. Reus-Smit (ed. It is certainly less dynamic than that of Leila Sadat, who takes the view in her The International Criminal Court and the Transformation of International Law13 that, [t]he negotiation of the Rome Treaty has worked a quiet, albeit uneasy, revolution that has the potential to profoundly transform the landscape of international law. By an analysis of those works, the essay queries whether the relationship between international criminal law and state sovereignty is always accurately conceptualized. Robert Cryer, International Criminal Law vs State Sovereignty: Another Round?, European Journal of International Law, Volume 16, Issue 5, November 2005, Pages 979–1000, https://doi.org/10.1093/ejil/chi156. It is more prudent, as James Crawford is in his contribution to the short but substantial Nuremberg, to note that the ICC reflects the fact that international law may have changed slightly (with a greater focus on international criminal law), although not really at the institutional level.26. Every independent nation in this world posses sovereignty. Or as Georg Schwarzenberger put it, states are like Schopenhaur’s hedgehogs, huddling together in the cold, but repelled by each other’s spines.20 At the least, we should not be quick to assume that the international order has fundamentally changed, without looking at the evidence closely. There are clear links between Allott’s and Ward’s work, but here is not the place to trace them. All the works specifically concentrating on international criminal law reviewed here contain defences of the ICC against the critiques levelled at it by the US that it violates pre-existing international law.23 Interestingly, those authors who assert that the ICC is transformative of the nature of international law may weaken the claim that the ICC is consistent with pre-existing international law. E.g., Sands, supra note 14, at 75; Transformation, at 123–128. The International Criminal Court is not a substitute for national courts. . Koskenniemi, ‘Hersch Lauterpacht and the Development of International Criminal Law’, 2 Journal of International Criminal Justice (2004) 810, at 825. International Justice, at 6. Ward has a point about selectivity, however, he understates the fact that although the US has not accepted the Rome Statute, 100 states have, and thus have accepted that they ought to prosecute their own nationals, as well as showing they believe the law ought to be applied to others. A. Finkielkraut, Remembering in Vain: The Klaus Barbie Trial and Crimes Against Humanity (1992). The works under review tend to pay less attention to the substantive aspects of international criminal law than its institutional part. 36 This effect is not necessarily limited to states parties. Justice, at 142. This paper discusses how delegating criminal jurisdiction to the ICC can enhance -- rather than undermine -- state sovereignty. The first type is juridical sovereignty, which is based on the notion that the state has no other authority over it except that of international law. The International Criminal Court (ICC) has recently taken in a lot of criticism for taking an unprecedented move in allowing the investigation of U.S. forces. Despite this, Sadat, consistent with her idea that the ICC has probably altered international society, at times takes a very broad view of the normative impact of the drafting process at Rome. Search for other works by this author on: International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law. (at 131). However the prevention of international crimes cannot occur without sovereignty. As far back as the North Sea Continental Shelf case it was accepted that the drafting process of treaties, and treaties themselves, can have a developmental role in custom.60 There is no reason not to believe that this happened here. No longer will these crimes be simply political events to be addressed by diplomacy at the international level.70. 3099067 Transformation, at 261. No other entities than states had the authority to create a permanent international criminal court. The International Criminal Court and the Transformation of International Law: Justice for the New Millennium, From Nuremberg to the Hague: The Future of International Criminal Justice, Justice. opinio juris of a great number of States. Nevertheless sovereignty remains strong and, at least with respect to Human Rights, largely unchallenged. The works considered here, understandably, tend to take the latter view of sovereignty and the international legal order. The jurisprudence of sovereignty, in turn, all too easily lent a spurious legitimacy to these horrors.’ Often, those espousing such an opinion have a point (although nationalism is by no means the only guilty ideology). In international relations, sovereignty is the state's power to control internal affairs without external interference. What the ICC does is provide a mechanism where states are actually encouraged to use their sovereignty in this way. I was wronged and almost my entire family was killed. She is not alone in this, for example, Lattimer and Sands assert that the Rome Statute ‘provides the most comprehensive, definitive and authoritative list of war crimes and crimes against humanity attracting individual criminal liability’.54 But Sadat perhaps goes the furthest, asserting that the definition process at Rome was a ‘quasi-legislative event that produced a criminal code for the world’ (at 263). See, e.g., A. P. Rubin, Ethics and Authority in International Law (1997). Both hope for a better future for international criminal law. STATUTE FOR THE INTERNATIONAL CRIMINAL COURT Michael J. Struett* I. Broomhall, for example, quite accurately notes that ‘[b]ecause the judgement of states, individually and collectively, is subject to diverse extra-legal influences, the process of international criminalization will always be less orderly than its conceptual formulation’ (at 39). Internal sovereignty of a nation signifies that it is internally supreme to any type of associations or groups. Internal sovereignty and. Going by this list, the alleged electoral offences and resulting violence are clearly outside the jurisdiction of the International Criminal Court (ICC), which is limited to the most serious crimes of concern to the international community as a whole (Emphasis mine). As Bruce Broomhall says in International Justice and the International Criminal Court [hereinafter International Justice], at vii, 2, ‘International justice can work; but to work in a legitimate and a politically, legally and financially viable way requires that problems be honestly addressed and the first steps taken towards defining solutions... Oversimplifications will not achieve these aims.’. The above point can perhaps be generalized a little more. Or, as Edward P. Thompson said, ‘the law may be rhetoric ... it need not be empty rhetoric’.72 International criminal law is perhaps particularly susceptible to such an analysis, given the suffusion of its own rhetoric with ideals of universality and crimes against humanity as a whole.73 A constructivist account would build upon this to use the power of ideas and identity to explain how this led to the ICC. See, e.g., Report of the Secretary-General Pursuant to General Assembly Resolution 53/35: The Fall of Srebrenica, UN Doc. To learn about our use of cookies and how you can manage your cookie settings, please see our Cookie Policy. But there is also a question about whether the ICC is really that threatening to sovereignty in the first place. What is the International Criminal Court? It is also present in substantive international criminal law. As we have seen, there were only a very small number of cases where the drafters stepped even arguably beyond the pre-existing law. See also at 188. The rapid entry of the Rome Statute on July 1, 2002 heralds a new era in international politics. The second is the extent to which states may begin, by doing this, to inculcate the values of international criminal law and normalize the prosecution of international crimes. Quoted in Pace and Thieroff, ‘Participation of Non-Governmental Organisations’, in R. S. Lee (ed. International criminal law certainly has its ‘schizophrenias’,47 such as the distinction between national and international armed conflicts. Clapham and Sadat may have a point. The research concludes that there is no doubt a relationship exists between state sovereignty and the ICC. It is quite possible that, as Lattimer and Sands worry in Justice, ‘international politics, rather than judicial innovation ... [are] ... likely to remain the key driver’ (at 13) of international criminal law. As McCormack points out in Justice, the actions (or lack thereof) of national trials are why the ICC has been considered necessary (at 107). As Sadat notes, the system of international criminal law is in its infancy, and it needs time before the evidence is in and we can simply dismiss prosecution as a means of dealing with international crimes (at 75). Why keep talking about all that? . Relevant to this is also that whether the Court will be able to succeed to implement its mandate, given that states would strongly seek to retain their … His prognosis at times looks fairly bleak: ‘The required practice (and consistency of practice) called for by the accountability literature sits uneasily alongside some of the fundamental characteristics of the modern State system’ (at 58). Two of them are monographs concentrating on the International Criminal Court and its relationship to international law more generally. After a while, rhetoric has a habit of becoming at least partially reified. See, e.g., J. E. Nijman, The Concept of International Legal Personality: An Inquiry Into the History and Theory of International Criminal Law (2004) at 5–6. What the ICC does is provide a mechanism where states are actually encouraged to use their sovereignty in this way.36 This effect is not necessarily limited to states parties.37 Still, the extent to which the ICC can provide such an incentive is not helped by what a number of the authors here accept: that the cooperation regime for the ICC is not strong, owing to an unwillingness of states to go too far in relation to their perceived sovereign prerogatives.38. Wilson, for example, claims precisely the opposite, supra note 86, at chs 6–7. See, e.g., Overy, ‘The Nuremberg Trials: International Law in the Making’, in Nuremberg, at 29, Lattimer and Sands, supra note 14, at 13–17. Sadat’s work is both longer and more wide-ranging, dealing with almost all aspects of the ICC, procedural and substantive, in addition to attempting to use the creation of the ICC to argue for an alteration in the international legal order. At its inception, the United Nations had limited membership. Is the international criminal law system always to be ineffective owing to the interplay of the limitations of the ICC’s procedure, the lacunae in substantive criminal law and sovereignty? And so it is likely to stay. Antonio Cassese, as noted by Bruce Broomhall in his extremely useful, if rather short, book, has made it clear that in his view ‘either one supports the rule of law, or one supports state sovereignty. Sadat’s work is perhaps the most upbeat, saying that ‘the repartition of competences between national and international jurisdictions incorporated in the Statute as a matter of prescriptive and adjudicative jurisdiction may presage a quasi-federal organization of international legal authority in the future’ (at 11). Although a realist could retort that the ICC was created as a cheap way of appearing to act against international crimes without having to create an effective regime that could limit the actions of the powerful, there is some evidence in favour of the constructivist view. (at 13), Ward hopes that sensibility is the way. p. 2). P. Jessup, A Modern Law of Nations: An Introduction (1948). This is the work of a serious and talented scholar, who also has an excellent feel for the subject. Broomhall also does not see much change in the international legal environment either. As the Canadian implementing legislation for the Rome Statute makes clear, ‘crimes described in Articles 6 and 7 and paragraph 2 of Article 8 of the Rome Statute are, as of July 17, 1998, crimes according to customary international law’.58 But there are also problems with getting to this result the way that Sadat does. It is the same in cases such as Sierra Leone, where rebel forces were fighting a government that is weak and does not control much territory.29 The state (and its powers) have a protective role that cannot be ignored here, at the very least unless and until the UN or another body chooses to take it over.30. This is difficult to reconcile at times with other statements in the work: Sadat also asserts that ‘the definitions of crimes are for purposes of the ICC Statute only, and do not embody progressive developments that may be considered new formulations of customary international law (some would even argue that they do not even embody current international law)’.59 Despite this, it is unclear why the argument that the Rome Statute definitions are at least a minimal definition of custom cannot be made on perfectly traditional principles relating to the interrelationship of treaties and custom. If it is not, then it can hardly be considered likely to transform it. Mr. Kenyatta’s case is another opportunity to meet this challenge by demonstrating the Court works with, not against states. The US claim that the ICC’s investigation of Americans violates US sovereignty is a hollow one and fails to justify the EO’s drastic interference with the sovereign authority of States Party to the Rome Statute. (at 126), Mark Lattimer and Phillipe Sands, in the very useful introductory chapter of Justice, go further, and also note that it is by no means solely at the national level that political considerations enter the equation, Outside the courtroom at least, international criminal justice cannot be immune from strategic influences. Similarly Bruce Broomhall accepts, at one point (at 59), that ‘the ‘terms and conditions’ imposed by the international community on those recognized as participants are variable over time. At Rome, for example, ‘this would intrude on our sovereignty’ was often used as a euphemism for ‘we don’t like this’ per se. State sovereignty also includes the idea that all states are equal as states. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide, This PDF is available to Subscribers Only. The International Criminal Court is not a substitute for national courts. K. Jaspers, The Question of German Guilt (2000). A/59/2005, para. For example, in the 1960s there was Wolfgang Friedmann’s assertion that the international legal system was moving from an international law of coexistence to an international law of cooperation.16 In the 1940s there was Phillip Jessup’s A Modern International Law17 and Jorge Americano’s The New Foundations of International Law,18 and in the pre-war era, there was Alfred Zimmern’s distinction between the ‘old’ and the ‘new’ diplomacy, the latter represented by the League of Nations.19 Perhaps the international system has traditionally been characterized by a continual tension in the international legal order between some elements of multilateralism and some of unilateralism. territorial integrity clause. it is conceivable, perhaps, that we have reached a stage during which a quantum leap in our thinking and behaviour has become possible – enabling us to transform the prohibitions on the commission of genocide, war crimes, crimes against humanity and aggression into real tools to deter the cruel and powerful. raises profound difficulties, at least as the international system exists and is likely to develop’ (at 54). As jurisdiction involves one state asserting rights to adjudicate events in (and often involving the officials of) other states, this involves an assertion of sovereignty. For example, in Lattimer and Sands’ Justice, only Eric David discusses the substantive aspects of international criminal law in any depth (and that discussion is limited to a 10-page chapter).44 This is unfortunate, as precisely what international criminal law is trying to prevent and punish is a hugely important question, as it provides an insight into what values the law is trying to promote.45, The complexity of international criminal law’s relationship with sovereignty comes through not only in the procedural or institutional aspects of international criminal law. As should be clear from the above, there is plenty to engage with in all the works under review. The funds paid to the ICC by its states parties are not taken from the development or reconstruction aid budgets. See also at 103 ‘Domestic trials will remain fraught with all the political, social, and resource difficulties that have always accompanied them, and the resulting imperfections will be slow to improve’. Thus, the codification process was fated to produce a text that represented a set of political compromises, rather than a new set of progressive norms criminalizing behaviour on a broad scale.53, Like Broomhall, Sadat also highlights the interplay between legal argumentation on how specific the substantive criminal law provisions in the Rome Statute had to be and the extent to which states were prepared to allow the ICC to judge their own nationals (see, e.g., at 174–182). A whiff of sulphur permeates the air. 9; Booth, ‘Prospects and Issues for the International Criminal Court: Lessons from Yugoslavia’, in Nuremberg, at 186–191; Transformation, at 280–281. International Justice, at 185. The new world order is not at hand by any means ... but it has come to seem possible to thinking humanity; it has appeared on the horizon as a barely perceptible dawn, while in case of failure the menace of self-destruction of mankind looms as a fearful menace before our eyes. Dominant understandings of sovereignty (and Human Rights) have indeed been significantly reshaped. Two of the books are collections of essays edited by Philippe Sands, Professor at University College London. Prosecutor v Norman, Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), SCSL-2004-14-AR72, 31 May 2004, at paras 17–51. Registered in England & Wales No. Clapham, ‘Issues of Complexity, Complicity and Complementarity: From the Nuremberg Trials to the Dawn of the International Criminal Court’, in Nuremberg, at 64. M. Lattimer and P. Sands (eds), Justice for Crimes against Humanity (2003) [hereinafter Justice]. I did nothing wrong, Reconciliation means we have to meet halfway, but that’s offensive. The prohibition of aggression protects states by criminalizing armed violations of their sovereignty.46. The ICC statute and the premises underlying it are unacceptable, primarily because of the unprecedented erosion it would work on state sovereignty. (eds), State, Sovereignty and International Governance (2002) 27, at 30–31. Judicial institution empowered to investigate and prosecute War crimes, crimes against Humanity and crimes! The standard work probably remains a. Wendt, Social theory of international criminal Court j.. S argument is that the ICC by its states parties are not.... Solzenitsyn, the extent to which they believe the ICC is an important element of the are. State to be independent and have autonomy and control over itself and its decisions Ethics and authority in international,... 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