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Building the International Criminal Court


The International Criminal Court (ICC) is the ¬rst 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, con¬‚ict, 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 ¬ghter for justice;

and in memory of Hendrik (H. W.) van der Merwe,
for his sel¬‚ess, iron-willed pursuit of justice and peace.
Contents




Preface page ix
Acronyms xi

1 1
Introduction
3
The Court
4
Theoretical Perspective
9
Conundrums
1 14
River of Justice
15
Law: Divine, Natural, and Positive
19
International Humanitarian and Criminal Law
29
Swelling Streams of Justice
37
End of the Cold War and Resurfacing of Interest in an ICC
39
Explaining the Gathering Tide
2 42
Learning from the Yugoslavia and Rwanda Tribunals
43
The Tribunals™ Mandates
45
Organization and Leadership
48
Tribunal Tribulations
58
Operational and Legal Innovations
65
Constructivism, Realism, Neoliberal Institutionalism
3 68
The Statute “ Justice versus Sovereignty
69
Brief Negotiating History
72
The Preamble: Sovereignty, Perfectibility, and Identity
74
The Crimes
77
Taking Sovereignty Seriously
85
Old and New Justice Paradigms in the Statute
89
Why Do States Join?
92
Conclusions

vii
viii Contents

Appendix 3A: Preamble of the Rome Statute
92
of the International Criminal Court
Appendix 3B: Rome Statute Crimes 93
4 102
Building the Court
104
From Statute to Court
109
Cranking Up the Engine
120
Internal Frictions
128
New Justice Innovations
134
Coordination and Planning
141
Conclusions
5 144
NGOs “ Advocates, Assets, Critics, and Goads
145
International Relations Theory and NGOs
146
Growth of NGO Involvement
147
NGOs and the Statute
151
Advocacy, Advice, and Outreach
155
The NGOs and ICC Operations
160
The Evolving NGO“ICC Relationship
163
Conclusions
6 165
ICC“State Relations
167
The Court™s Supporters and Opponent(s)
181
States™ Policy Oversight
189
Stateside Complementarity: Cooperating with the Court
192
Conclusions
7 194
The First Situations
195
Uganda
210
Congo
226
Sudan
242
The Central African Republic
244
Other Possible Situations
245
Conclusions
8 Conclusions: The Politics of the International
248
Criminal Court
248
Mandate
249
Structure
250
Operations
253
NGOs
254
States
255
The Situations
257
Building Justice

261
Web Sites for Further and Ongoing Information
263
Bibliography and Sources
293
Index
Preface




I spent a year in The Netherlands conducting the research upon which this
book is based. I commuted frequently from my home in Leiden to The
Hague to interview of¬cials of the International Criminal Court and the
International Criminal Tribunal for the Former Yugoslavia, nongovern-
mental organization personnel, embassy of¬cials, journalists, and aca-
demics.
I was honored and much assisted by an appointment as visiting professor
at Leiden University™s Grotius Centre for International Legal Studies and by
the hospitality of the T. M. C. Asser Institute, both in The Hague. At the
Grotius Centre, I especially thank John Dugard, Roelof Haveman,
Machteld Boot, and Christine Tremblay. At the Asser Institute, I am
grateful to Olivier Ribbelink, Avril McDonald, and Paula Kersbergen. For
his general enthusiasm, help in making various arrangements, and for his
wonderful family™s kind hospitality, I thank Sam Muller. Susan Somers
warmly included me and my family into her circle of friends, for which we
are very grateful.
Isebill V. Gruhn of the University of California, Santa Cruz, provided me
with invaluable comments while I was writing this book. Mistakes of fact
or judgment herein, I™m sorry to say, are entirely my own.
In The Hague at the International Criminal Court, in embassies, and
while visiting nongovernmental organizations, journalists, and academics,
I was very fortunate to receive candid commentary on the monumental
tasks facing the Court. With very few exceptions, because of the sensitivity
of their comments and/or positions, my interlocutors did not want to be
quoted or cited. I don™t want to outweigh their views by citing the few
people willing to go on record, so I do not cite my interviewees directly; and

ix
x Preface

to preserve their anonymity, I cannot thank them here. But I deeply
appreciate their willingness to speak with me.
I am most grateful for the sabbatical leave and support I received from
Oberlin College that made this project possible. I appreciate as well the
kind encouragement I™ve received from my colleagues in the Department of
Politics, particularly Ron Kahn™s reading of the manuscript underway.
I believe that important human endeavors “ such as the pursuit of
international justice “ deserve serious evaluation and analysis, not to
demonstrate their futility, but to better understand their challenges and to
assist in achieving their objectives. I hope that this book will help explain
the International Criminal Court and bring wider support to it, and that my
comments will be taken as those of a constructive ally in the ¬ght against
impunity.

Ben Schiff
Oberlin, Ohio
June 29, 2007
Acronyms


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