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( 54 .)


in the discussions.
Negotiations moved slowly on central issues because of the complicated
interdependence of key provisions. Down to the last week of the Conference,
it wasn™t clear that a statute would be completed; however, Kirsch and his
committee chairs managed to preserve momentum by constantly developing
new drafts, avoiding stalemate by dropping unpopular proposals (even when
strongly held), and pressing for compromise language. In general, the
negotiations were most dif¬cult when they sought to deal with the tension
between the prerogatives of the Court and protection of state sovereignty.
How would Court jurisdiction be established, when and how would its

Schabas, op cit., 16“17.
72 Building the International Criminal Court

action be triggered, and what (if any) role would the UN Security Council
play in the process? Over what crimes and individuals would the Court have
jurisdiction? How broad would the range of crimes be? Would crimes
committed in the context of internal con¬‚icts be treated the same as those in
international con¬‚icts? How independent would the Prosecutor be? Except
for Part 2 of the Statute, which dealt with these most dif¬cult issues, the
document was largely settled by July 15, with a planned end of the Con-
ference on July 17.7 In the last two days, crucial breakthroughs accumulated,
and a document emerged that commanded the support of the vast majority
of participating states. An effort to delay ¬nal adoption was defeated
with 120 votes against, 7 in favor, and 21 abstentions, two hours past
midnight on July 17, and the Statute was adopted without a further vote.
The United States, China, Israel, Iraq, Libya, Yemen, and Qatar had voted
to delay.8
Advocates of an independent court with broad jurisdiction were disap-
pointed by compromises that limited the Court to proceeding against
individuals who were either citizens of a state that had joined the Statute or
had committed crimes on the territory of a such a state. They criticized the
Statute for giving the Security Council a potential role in both assigning
cases to the Court and suspending its activities. Arms control advocates
complained that it made little sense to include war crimes provisions against
acts de¬ned at The Hague in 1907 but not to criminalize the use of weapons
of mass destruction. In contrast, defenders of state sovereignty argued that
the Statute left too much independence to the Court and its Prosecutor, that
jurisdiction should require approval by the state of a suspect™s nationality in
all cases, and that there was insuf¬cient oversight and political control of
the Court. Enthusiasts for the Court pointed to the long history of attempts
to establish such an international jurisdiction, viewed the Statute as a major
accomplishment, and awaited the actual operation of the Court to see
whether the compromises were workable and the organization could
acquire credibility through its actions.


International organizations operate in an environment shaped both by
state power and by the power of ideas. The preamble captures the idealism

Bassiouni, op cit., 31.
Human Rights Watch, ˜˜The United States and the International Criminal Court™™ (2006);
Kaul, op cit., 57.
The Statute “ Justice versus Sovereignty

of the ICC project and mirrors the tensions between a universalistic image
of humanity and a global society riven by national loyalties. The preamble
(see Appendix 3A) asserts the universalistic idea that ˜˜all peoples are united
by common bonds, their cultures pieced together in a shared heritage.™™
Asserting that the cultures together constitute a collective heritage, it cau-
tions that this ˜˜mosaic™™ of shared heritage is ˜˜delicate™™ and ˜˜can be
shattered at any time.™™ The violent history of the twentieth century shows
the mosaic™s vulnerability, including ˜˜unimaginable atrocities that deeply
shock the conscience of humanity.™™
The portrayal of humanity in general as a global society, not a system of
states, is compatible with religious or natural law, independent of positive
law and antithetical to a narrowly based, national interest view of the
world. The preamble adopts a social, normative, and universalistic outlook.
The Court should be created, however, for practical reasons, too: An end to
impunity would contribute to the prevention of atrocious crimes; therefore,
the most serious crimes must ˜˜not go unpunished.™™ And since ˜˜grave crimes
threaten the peace, security and well-being of the world,™™ action against
these crimes should lead to a more peaceful, secure, and happy world. In
calling for states to create an organization to improve the world, the pre-
amble launches the Statute as a document of liberal, universalistic institu-
tionalism. Humanity will pursue its perfectibility by creating this legal
institution to step in when states fail to respond to threats against its fragile
The preamble af¬rms state sovereignty, declaring that the ICC™s juris-
diction will be complementary to that of national courts. If national courts
don™t prosecute when they should, the ICC will be enabled to do so, but
national responsibility comes ¬rst. Thus, while the preamble asserts the
existence of a collective human identity shocked by international crimes and
endorses a neoliberal institutionalist project to create an organization to
improve general welfare, it still pays respect to the power and formal
independence of states, cornerstones of the realist vision and balance-of-
power system. Paying further respect to sovereignty, the preamble adds the
caveats that its objectives do not justify the use of force against states,
interference in their internal affairs, or other acts inconsistent with the UN
The conception behind the ICC Statute, inherited ultimately from
the Nuremberg precedents, is that the rule of law is violated by criminals
acting individually when they carry out their most heinous crimes. No one
can have an excuse for carrying out such a crime, and a system of laws
cannot be complete without the capacity to prosecute such criminality. The
74 Building the International Criminal Court

Statute negotiation was a neoliberal institutionalist moment in a post“Cold
War environment motivated by cascading international (antiimpunity)
norms and asserting a cause-and-effect relationship between the ability to
adjudicate international crimes and the deterrence of those crimes.


The Statute limits ICC jurisdiction to the international crimes that nego-
tiators agreed are the most heinous and massive that can be attributed to
individuals “ genocide, crimes against humanity, war crimes, and aggres-
sion.9 The ¬rst three of these are de¬ned at length10 in the Statute (see
Appendix 3B). Security Council member states were extremely reluctant to
include a crime of aggression11 under the Court™s jurisdiction, while many
other (especially formerly colonized) states were equally adamant that it be
included. Proponents of aggression™s criminalization were assuaged by its
inclusion as a crime under the Court™s jurisdiction; opponents were satis¬ed
by a provision indicating that jurisdiction could be exercised only after
additional provisions de¬ned the crime and the conditions under which it
could be prosecuted.12 The soonest this could take place would be at
a review conference scheduled to take place seven years following the
opening of the Court.13
Already in the ILC draft ICC Statute (1994) and Code of Crimes Against
Peace and Security (1996), attention was focused on these four ˜˜core™™
crimes, with the broader list of separate international crimes, including
those de¬ned in international conventions, such as apartheid and torture,
relegated to an annex (see footnote 2 in this chapter). In the ¬nal Statute,
many of these ˜˜convention™™ crimes reappeared as subcategories of crimes
against humanity and war crimes, but others that had been central to early
negotiations (such as drug traf¬cking) did not.14

Statute Article 5.1(a“d).
Statute Articles 6, 7, 8.
UN General Assembly Resolution 3314(XXIX) of 1974 de¬nes aggression as a state act, but
for ICC jurisdiction, the acts of an individual (probably including, for instance, planning or
conspiring to cause a state to commit the state crime) that would constitute a crime of
aggression will need to be speci¬ed.
Statute Article 5.2.
Statute Article 123.
The ˜˜convention™™ crimes not included in the ICC™s purview are unlawful seizure of aircraft,
crimes against civil aviation, crimes against the safety of maritime navigation and the safety
of ¬xed platforms located on the continental shelf, and crimes involving illicit traf¬c in
narcotic drugs and psychotropic substances.
The Statute “ Justice versus Sovereignty

The Statute breaks new ground in de¬ning international criminal acts.
Although the ad hoc tribunals prosecuted crimes against humanity, and the
concept was nearly 100 years old, no international treaty de¬ned the crime™s
until the ICC Statute did so. Similarly, following from the ICTR™s convic-
tion of defendants for gender crimes (rape, sexual slavery, enforced pros-
titution, forced pregnancy, enforced sterilization, or any other form of
sexual violence of comparable gravity), these crimes were included in the
Statute as both crimes against humanity and war crimes.15 Negotiations
over the ˜˜gender crimes™™ were contentious because some states and reli-
giously based NGOs feared that including them in the Statute would
impinge on domestic laws about abortion and gender relations.16 The
problem was overcome by including provisions stating that the Statute
doesn™t supersede national laws ˜˜affecting pregnancy™™17 and that in the
Statute ˜˜gender™™ means only male and female.18 Another newly de¬ned
crime stemmed from human rights violations particularly in Latin America:
NGOs and successor states™ representatives led successful efforts to crimi-
nalize ˜˜enforced disappearance of persons.™™19
Unlike ˜˜crimes against humanity,™™ war crimes were long inscribed in
international law, going back at least to the Hague Conventions of 1899.
The judges of the ICTY helped speed the convergence of the laws pertinent
to internal and international con¬‚ict. The Statute™s war crimes de¬nitions20
include three general categories: (a) grave breaches of the Geneva Con-
ventions of 1949, (b) the list of ˜˜violations of the laws and customs
applicable in international armed con¬‚ict,™™ and (c) those that pertain ˜˜in
the case of an armed con¬‚ict not of an international character.™™ All of the
part (c) crimes can be found in some form under parts (a) and (b), although
the reverse is not the case.21 Large areas of commonality in the Statute

Statute Article 7(g), 8.2(b)(xxii), 8.2(e)(vi).
Glasius, The International Criminal Court (2005).
Statute Article 7.2(f).
Statute Article 7.3
Statute Article 7.2(i)
Statute Article 8.
Crimes enumerated in Statute Article 8, War Crimes, as applicable in international con¬‚icts
that do not show up explicitly in the noninternational context were precluded from the
noninternational list of crimes because they refer to nationality, citizenship, or occupation
or were established earlier as positive treaty law between states and refer to signature of
speci¬c international instruments. They are: ˜˜2b(ii). Intentionally directing attacks against
civilian objects, that is, objects which are not military objectives;™™ ˜˜2b(iv). Intentionally
launching an attack in the knowledge that such an attack will cause incidental loss of life or
injury to civilians or damage to civilian objects or widespread, long-term and severe damage
to the natural environment which would be clearly excessive in relation to the concrete and
76 Building the International Criminal Court

between internal and international con¬‚ict show how the distinction is
being abolished.
Negotiators updated the war crimes list by including recent treaty crimes
such as the Environment Convention;22 crimes committed against the per-
sonnel, installations, or equipment involved in humanitarian assistance or
peacekeeping under UN authority;23 crimes against cultural institutions;24
the crime of conscripting children under the age of 15;25 and the crime of
using hostages to protect military forces or installations.26
Some NGOs and states urged that the Statute should add the use of
nuclear or other weapons of mass destruction to existing weapons pro-
scriptions from The Hague and other conventions. They argued that such
weapons are inherently indiscriminate and their use would constitute
humanitarian crimes at least as heinous as other de¬ned war crimes and
crimes against humanity. It was clear, however, that outlawing, for
example, the use of nuclear weapons would be a deal breaker for the
nuclear weapon states, and outlawing chemical and biological weapons
(and not nuclear weapons) would be viewed as discriminatory by some
nonnuclear states. Thus, including such measures would have jeopardized
the Statute as a whole.27 The problem was ¬nessed by providing that if
such crimes were de¬ned in the future in separate international conven-
tions, their terms could be annexed to the Statute under its amendment
The Statute drew together what might be considered the ˜˜state of the
art™™ international criminal law. This major step forward would provide an

direct overall military advantage anticipated;™™ ˜˜2b(viii). The transfer, directly or indirectly,
by the Occupying Power of parts of its own civilian population into the territory it occupies
. . . ;™™ ˜˜2b(xv). Compelling the nationals of the hostile party to take part in the operations of
war directed against their own country, even if they were in the belligerent™s service before
the commencement of the war;™™ 2b(xvii)“(ix). The Hague and later proscriptions against
(2b(xvii)) poisoned weapons, (2b(xviii)) asphyxiating poisonous or other gases, (2b(xix))
expanding bullets; 2b(xx). Weapons that cause ˜˜super¬‚uous injury or unnecessary suffering
or which are inherently indiscriminate in violation of the international law of armed
con¬‚ict, provided that such weapons, projectiles and material and methods of warfare are
the subject of a comprehensive prohibition and are included in an annex to this Statute, by
an amendment in accordance with the relevant provisions set forth in articles 121 and 123.™™
Statute Article 8.2(b)iv.
Statute Article 8.2(b)iii.
Statute Article 8.2(b)ix.
Statute Article 8.2(b)xxvi.
Statute Article 8.2.(b)xxiii.
Burroughs and Cabasso, ˜˜Confronting the Nuclear-Armed States in International
Negotiating Forums: Lessons for NGOs™™ (1999), 457“80.
Statute Article 8.2.(b)xx.
The Statute “ Justice versus Sovereignty

international jurisdiction that could prosecute genocide, that for the ¬rst
time codi¬ed in treaty form a de¬nition of crimes against humanity, that
would also incorporate important crimes (most prominently gender-related
crimes) not before explicitly included in war crimes or crimes against
humanity, and that make prosecutable transgressions such as apartheid,
torture, disappearance, hostage taking, environmental warfare, and attacks
against humanitarian and peacekeeping forces. The Statute does not push
forward the legal frontiers “ for more crimes could have been included “ but
does de¬ne the perimeter of consensus, with some respect paid to the crimes


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( 54 .)