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which is needed in order to operate in the country at all.
Building on the lessons of the tribunals, the ICC Statute incorporates ˜˜new
justice™™ objectives extensively in its treatment of victims and witnesses, as is
discussed in the next chapter. Perhaps since the outreach failures of the tri-
bunals were becoming clear only after the Rome Statute negotiations were
completed, that document does not mention outreach or public information;

57
Peskin, ˜˜Courting Rwanda: The Promises and Pitfalls of the ICTR Outreach Program™™
(2005).
58
ICTR Web site, as quoted by Peskin, ibid., 952.
65
Learning from the Yugoslavia and Rwanda Tribunals

however, the public information and outreach functions of the ICC are
a main area of concern to the new Court™s Registry, Assembly of States
Parties, and particularly the NGOs that monitor and seek to in¬‚uence the
Court.


CONSTRUCTIVISM, REALISM, NEOLIBERAL INSTITUTIONALISM

The tribunals™ creation is commonly explained in two ways. One is that the
Security Council created them so that it could claim something useful had
been done, having abysmally failed to act when action could have helped
avert the disasters to which the tribunals were legalistic responses. Second,
the international community converged on the idea that impunity for the
crimes committed in former Yugoslavia and Rwanda was unacceptable, and
the tribunals were a collective response.
The tribunals™ creation was thus a response to perceived domestic pres-
sure. Public opinion on which perception was based depended upon peo-
ple™s conviction that mass crimes elsewhere in the world concern them, and
thus should concern their governments. Regarding both former Yugoslavia
and Rwanda, exposure of the scale of the crimes (through media coverage)
and the dilatory and feeble reactions of the major powers led governments
to perceive inaction as politically risky domestically. This is easily explained
only in a constructivist framework, in which values may affect leaders™
identities directly or are channeled by electoral systems (that is, they seek to
be popular to get elected, and their constituents do identify with interna-
tional justice values) into the calculations of foreign policy makers who
would otherwise not include these nonmaterial commitments in their
national interest de¬nitions.
Neither of the explanations ¬ts easily into a realist paradigm, although
realism does explain states™ reluctance to intervene forcefully. No powerful
nation™s vital interests were at stake in the Yugoslav con¬‚icts of the early
1990s. The interested powerful actors such as European states, the United
States, Great Britain, and Russia sought, moreover, to avoid clashing with
each other. In the Rwanda case, there was no clear threat to major powers™
international security or national interest at stake; therefore, there was no
willingness to sacri¬ce resources or lives in reaction.
The form of the response, creation of ad hoc tribunals by the UN Security
Council, can be explained with a neoliberal institutionalist view. The
International Law Commission™s spadework carried out by (constructivist-
explained) international legal experts who were also advocates, ¬rst of
a fact-¬nding mission in Yugoslavia and then of an ad hoc tribunal,
66 Building the International Criminal Court

provided an institutional answer to the question of what could be done
through the Security Council in response to the political pressures explained
earlier. The ILC draft work had created a path, and the hurried drafters
of the ICTY Statute followed the path hewn by the ILC and mapped by the
U.S. State Department™s Of¬ce of the Ambassador at Large for War Crimes
Issues to create an institution that then gradually took on an independent
institutional existence.
By 2002, the ICTY and ICTR had developed signi¬cantly beyond what
was envisioned in 1993. Surmounting some of the problems of their earlier
years “ even though they appeared to critics to be very expensive for what
they were producing in terms of convictions “ the two tribunals were suc-
cessfully prosecuting high-level perpetrators of international crimes. The
ICC Statute negotiators incorporated their understandings of lessons from
and reactions to the tribunals, up to that time, into the ¬nal Statute of July
1998. Later tribunal lessons in¬‚uenced some aspects of the Court™s opera-
tions through its personnel after it came into existence in 2002. From
a neoliberal institutionalist perspective, as explained in the next chapter, an
epistemic community was growing up around the tribunals and in¬‚uenced
the drafting process of the ICC Statute.
Recognizing problems with judicial processes, the tribunals evolved
an increasingly hybrid legal system combining civil- and common-law
procedures, and the ICC Statute explicitly combines the two traditions.
Discovering that their credibility and legitimacy were being undermined
by strenuous efforts of their opponents locally in the areas where they
were carrying out investigations, the tribunals (belatedly) developed out-
reach programs and geared up their public information efforts. By 2006,
the ICC had generated a ˜˜strategic plan for outreach,™™ responding to
NGO and ASP pressure. The tribunals™ isolation within the UN system
early on resulted in substandard ¬nancial and administrative control
especially in the ICTR, but the bureaucracy of the parent organization
eventually asserted itself, and operations improved. For the ICC, the ASP
was created to provide supervision and support for the organization.
Funding would be provided by assessed contributions. The inherent
weaknesses of the tribunals™ tripartite structure moved the ICC negotiators
to subordinate the Registry to the Presidency. The long trials, appeals, and
evidentiary challenges produced by diffuse and multiple charges against
suspects in the tribunals resulted in the ICC Statute limiting the grounds
for appeals and led the Prosecutor to seek concise charges and better
coordination between investigation and prosecution activities. The tribu-
nals™ demonstration of the indispensability of witness protection produced
67
Learning from the Yugoslavia and Rwanda Tribunals

much greater attention in the ICC, giving all three organs of the Court
some relevant responsibilities. New (restorative) justice objectives were
institutionalized by the Statute™s establishment of a trust fund for victims.
Chapter 3 explains the development, major features, and theoretical
implications of the ICC Statute.
3

The Statute “ Justice versus Sovereignty




The Rome Statute of the ICC re¬‚ects states™ agreement over how to
institutionalize a broad range of international criminal justice norms while
still protecting national sovereignty. In some areas, most prominently the
issue of jurisdiction, the Statute™s ¬nal provisions can be characterized as
a lowest common denominator outcome, keeping on board all but the states
most concerned about a potential erosion of sovereignty. On other topics,
such as reparations and victims™ rights, the Statute represents the cutting
edge of normative development. From the Court™s standpoint, the Statute is
broadly permissive, even quite demanding, because of the range of objec-
tives it outlines. But the Court faces the conundrum that while charged with
an immense task, it must rely upon states to support and enforce its actions.
As this chapter will show, the Court™s leverage is weak.
A large literature skillfully describes the negotiations and the legal ¬ne
points of the Rome Statute process.1 Starting with a brief chronology,


1
Bassiouni, ˜˜Historical Survey: 1919“1998™™ (1999); Benedetti and Washburn, ˜˜Drafting
the International Criminal Court Treaty: Two Years to Rome and an Afterword on the
Rome Diplomatic Conference conference™™ (1999), 1“38; Cassese et al., The Rome Statute
of the International Criminal Court “ A Commentary (2002); Glasius, The International
Criminal Court: A Global Civil Society Achievement (2005); Kaul, ˜˜Special Note: The
Struggle for the International Criminal Court™s Jurisdiction™™ (1998), 48“60; Kirsch and
Holmes, ˜˜The Birth of the International Criminal Court: The 1998 Rome Conference™™
(2004), 3“39; Lee, The International Criminal Court: The Making of the Rome Statute:
Issues, Negotiations and Results (1999); McGoldrick et al., The Permanent International
Criminal Court: Legal and Policy Issues (2004); Politi and Nesi, The Rome Statute of the
International Criminal Court: A Challenge to Impunity (2001); Sadat, The International
Criminal Court and the Transformation of International Law (2002); Schabas, An
Introduction to the International Criminal Court, 2nd ed. (2004); Triffterer, Commentary

68
69
The Statute “ Justice versus Sovereignty

then discussing the Statute™s major features, this chapter uses theoretical
standpoints of realist interests, the neoliberal institutionalist dynamic, and
the constructivist logic to explain the outcome of the negotiations and
states™ attitudes toward the Court. Realist assumptions show why states
might be reluctant to sign; institutionalism helps elucidate the structure of
the Court and pinpoints major organizational challenges. Constructivism
clari¬es why states protective of their sovereignty nonetheless join the ICC.
The ICC teeters between values of sovereignty and internationalism.
Mechanisms devised to maintain the balance shape the Court™s operational
dynamics. Under the principle of ˜˜complementarity,™™ states established the
ICC as a backup justice system in the event that national mechanisms
fail. They gave the Court wide purview to look into three sets of crimes
(genocide, crimes against humanity, war crimes) that were carefully de¬ned
to include some new areas of international concern; however, negotiators
left out crimes that, had they been included in the Statute, would likely have
driven important states out of the consensus. Since some states adamantly
sought and others equally strongly resisted the inclusions of the crime of
aggression in the Court™s jurisdiction, the term was included in the Statute
but the de¬nitions and mechanisms necessary for the Court to exert such
jurisdiction were left to future negotiations and amendment of the Statute.
To soothe worried states, the negotiators established hurdles that must
be surmounted before the ICC can bring suspects before judges. For
example, the Prosecutor has considerable discretion to launch preliminary
investigations, but continuing the process requires judicial approval that the
seriousness of the case justi¬es ICC involvement and that no appropriate
domestic proceedings are under way. The Court™s potential jurisdiction is
broad, but its operations are tightly constrained by the sovereign indepen-
dence of states.


BRIEF NEGOTIATING HISTORY

The International Law Commission™s 1994 draft ICC Statute proposed juris-
diction over genocide, aggression, violations of laws and customs applicable in
armed con¬‚ict (war crimes), crimes against humanity, and a set of crimes from
previous conventions that were listed in an annex to the draft.2 The report was

on the Rome Statute of the International Criminal Court: Observers™ Notes Article by
Article (1999).
2
Namely, grave breaches of the Geneva Conventions, unlawful seizure of aircraft (Hague
Convention, 1970), crimes against the safety of civil aviation (Montreal Convention, 1971),
Apartheid (1973), Convention on the Prevention and Punishment of Crimes against
70 Building the International Criminal Court

submitted to the General Assembly, which set up an ad hoc committee to
discuss it in anticipation of a General Assembly discussion at its 1995 session.
In 1995, the General Assembly decided to convene a Preparatory
Committee (PrepCom) to further develop the draft Statute, with the idea
that there would follow a plenipotentiary conference.3 The PrepCom
met twice in 1996 and three times in 1997, with additional, unof¬cial
˜˜intercessional™™ meetings to help prepare the PrepCom meetings. The last
intercessional meeting, in January 1998 in Zutphen, The Netherlands, was
key in consolidating proposals for a draft that was considered at the ¬nal
PrepCom meeting in April, whose product was then submitted to the
Statute Conference.
From 1995 to 1998, the original 43-page 1994 ILC draft Statute
expanded into a draft Statute of 173 pages replete with bracketed options,
alternative phrasing, and footnotes for consideration at the Rome Confer-
ence.4 According to participants, the preparatory process ended with ela-
tion over what had been accomplished and foreboding that the upcoming
negotiators at Rome might not be able to complete the job.5
The Conference on the Statute convened on June 15, 1998, at the
headquarters of the Food and Agriculture Organization. More than 160
states sent delegates. Hundreds of NGO representatives attended and par-
ticipated directly and through the Coalition for the International Criminal
Court (CICC), and a range of international organizations were represented
too. Most delegates were enthusiastic, strongly hoping the conference
would succeed in completing a statute.
A large group, called the ˜˜like-minded states™™ (LMS), dominated the
structure of the Conference, supplying most of the chairs of the working
groups and most of the members of the Bureau, the executive body that
directed the daily agenda. LMS members generally sought a court highly
independent of the United Nations and with broad jurisdiction. There were
other in¬‚uential groups: ˜˜Non-aligned movement™™ states joined together to


Internationally Protected Persons, including Diplomatic Agents (1973), International
Convention against the Taking of Hostages (1979), Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), crimes de¬ned in the
Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation
(1988) and against the Safety of Fixed Platforms Located on the Continental Shelf (1988),
and crimes identi¬ed in the UN Convention against Illicit Traf¬c in Narcotic Drugs and
Psychotropic Substances (1988).
3
That is, a conference of of¬cial delegates that would produce a ¬nal treaty available for
signature by states.
4
Bassiouni, op cit., 26.
5
Schabas, op cit., 14“15; Benedetti and Washburn, op cit., 2.
71
The Statute “ Justice versus Sovereignty

urge that the crime of aggression be included within the Court™s jurisdiction,
the Southern African Development Community pressed for expanded
human rights de¬nitions, and a group of Arab and Islamic states sought to
inscribe a prohibition of nuclear weapons and a death penalty provision in
the Statute. Shortly before the conference, the Labour Party came to power
in Britain, following which the United Kingdom broke from the UN Secu-
rity Council members (the United States, Russia, and China) and others
that sought a tightly constrained court under Security Council control.
The United Kingdom joined with the LMS group that included France,
Germany, and most European Union members.6
The United States, which eventually became the Court™s most vigorous
opponent, played an extremely important and in many ways constructive
role throughout the negotiations. The delegation from the United States was
the largest at the Conference. Its legal experts contributed key elements
to the Statute and, subsequently, to the Court™s Rules of Procedure and
Evidence. Many of the compromises negotiated during the Conference were
aimed at bringing the United States into the fold; however, in retrospect, it
is doubtful that any statute that met the objectives of the LMS and other
states that sought an independent court would have been acceptable to the
United States.
During the June 15“July 18 Conference, the much-bracketed PrepCom
draft was turned into a ¬nal statute for the ICC. Observers credit the
chairman of the Committee of the Whole, Canadian Ambassador Philippe
Kirsch, Drafting Committee Chair M. Cherif Bassiouni, working group
chairs, and some individual state delegates with driving the negotiations to
completion. NGOs provided an important avenue for information
exchange throughout the Conference, urged the delegates on, and in some
cases provided position statements and research and analysis used directly

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