upon multilateral organizations is not new. Depending upon how speciļ¬c
instruments are worded, at least on paper, primacy can be awarded to states
or to an international organization; in practice, of course, states (at least
ones with the military capabilities to make their positions stick) always have
the last word.44 So far, only the UN Security Council has routinely been
accorded primacy in the area of security, and there the requirement of
permanent member unanimity has reduced its scope for action under
Chapter VII to subjects and moments when the victors of World War II can
agree. For the two ad hoc tribunals, primacy was possible because they were
established under Chapter VII.
The United States and the other permanent members of the UN Security
Council sought an ICC Statute in which the Council would initiate ICC
action by referring cases to it. While the United States pressed for Court
jurisdiction to be triggered by a Security Council resolution (which
would have made it more closely analogous to a standing version of the
ad hoc tribunals), its negotiating interlocutors sought to ļ¬nd a compro-
mise formula that would keep the United States in the Court, but establish
greater independence. In the end, the Security Council could refer situations
to the ICC Prosecutor under Chapter VII of the Charter,45 but jurisdiction
could also be exercised if a state party referred a situation to the Prose-
cutor46 or if the prosecution initiated an investigation proprio motu.47
For the ICC, only in the event of a Security Council referral would it
be able to claim primacy over national jurisdiction (under the rationale
that it was operating under Chapter VII of the UN Charter, which requires
all states to cooperate with the Security Council), but even there, the
territorial state may resist intrusion upon sovereignty unless the Security
Council decides to undertake enforcement action as well as refer the sit-
uation to the Court. This problem is shown by recent events in Sudan (see
See Krasner, Sovereignty: Organized Hypocrisy (1999), 221ā“38.
Statute Article 13(b).
Statute Article 13(a).
Statute Article 13(c).
84 Building the International Criminal Court
The negotiations reversed the original proposal that the (UNSC) Security
Council be the source of referrals to the Court. Under Statute Article 16,
instead of UNSC agreement being required to trigger an investigation, the
Security Council can act to suspend an ongoing investigation for 12 months
(renewable) if the conļ¬‚ict situation is on the UNSC agenda and the Courtā™s
involvement is believed to threaten efforts to create peace. Even though the
UNSC referral process makes possible a positive Security Council role in
referrals, and the suspension provision makes it possible for the UNSC to
stop an investigation, these powers are much weaker than would have been
reliance on a Security Council trigger for Court involvement. The suspen-
sion provision responded to the objection that ICC activities could poten-
tially impair peacemaking efforts under Chapter VII of the UN Charter that
the Security Council might pursue, but preserved the Courtā™s independence.
Cooperation, Information Sharing, and National Security
States that accede to the ICC Statute obligate themselves to cooperate with the
Court48 and to have procedures in place in their domestic laws for the coop-
eration speciļ¬ed in the Statute. Parties to the Statute are obligated to arrest and
surrender persons sought by the Court, either as suspects or as witnesses, and
to have laws and procedures in place to do so.49 In addition, states pledge to
provide various kinds of information to the Court when so requested; take
evidence, testimony, and expert opinions for the Court; question people; serve
documents; carry out forensic investigations; provide records; protect wit-
nesses and victims; trace ļ¬nancial records and seize assets, among others. The
Statute provisions that oblige states to cooperate broadly with the Court also,
however, contain protections for states that were the subject of extensive
negotiation at the Statute Conference. If a state would have to violate ā˜ā˜an
existing fundamental legal principle of general applicationā™ā™ in order to comply
with a Court request, the state and Court are supposed to consult, and if no
solution can be found, the Court is to modify its request.
Perhaps more signiļ¬cantly, a state can withhold information or intervene
at any stage in Court proceedings to prevent disclosure of information that
it deems to be prejudicial to its national security.50 The Statute sets out
extensive procedures for consultation in such an event, but in the end itā™s the
Statute Article 86.
Statute Article 88.
Statute Article 72.
The Statute ā“ Justice versus Sovereignty
stateā™s decision. The most that the Court can do in response is report
noncooperation to the Assembly of States Parties or, in the event that the
case ļ¬‚ows from a Security Council referral, to the Security Council.51
OLD AND NEW JUSTICE PARADIGMS IN THE STATUTE
The Statute emerged as a bargained document in which ICC enthusiastsā™
objectives for a highly independent court were toned down in exchange for
the embrace of a broad range of objectives, including both old and new
justice norms. The states most worried about sovereignty could rest assured
that the new Courtā™s powers would be limited (not only by statute but also
by its need for statesā™ cooperation), while embracing the broad range of
norms or, in the most rejectionist cases, by embracing (or not) the norms
but declining to join the Statute.
In Chapter 1, I argued that traditional retributive justice ideas converged
with newer concepts of transitional reparative justice in the postā“Cold War
environment. They ļ¬‚owed together into the Statute. While the ļ¬rst and
strongest impetus for positive implementation of international criminal law
came from international lawyers, the new justice norms were championed
by nongovernmental organizations and posttransition governments, such as
South Africaā™s, that sought to emphasize victimsā™ rights and reparative
justice, along with civil-law states (such as France) that had, during the
recent past, elevated victimsā™ rights in their own systemsā™ priorities.52
Old Justice and General Principles
The Statute calls for creation of a judicial institution to investigate, try,
and punish perpetrators of international crimes. In this sense, it follows the
old, retributive justice model. Negotiators included in the Statute the gen-
eral principles of law that underpin traditional jurisprudence. Under the
principle of legality, the ICC can prosecute only crimes deļ¬ned in the
Statute (nullum crimen sine lege ā“ no crime without a law) that took place
within the jurisdiction of the Court, and punish such crimes only in accord
with the Statute (nulla poena sine lege ā“ no punishment without a law).53
The Court has no retroactive jurisdiction.54 As a criminal court, only
Statute Article 87.7.
Statute Articles 22, 23.
Statute Article 24.
86 Building the International Criminal Court
individual persons are culpable under the Statute. Persons can be culpable
for committing a crime alone, with others, or through others or if they
ordered, solicited, or induced commission of a crime (whether committed or
only attempted). Persons can be prosecuted for aiding, abetting, or other-
wise assisting or contributing to commission or attempted commission of
the crime by a group of persons working with a common purpose. For the
crime of genocide, incitement and initiating an attempt to carry out geno-
cide can be considered a crime, even if the crime ultimately didnā™t take
place.55 A person is culpable only if the material elements of the crime are
committed with intent and knowledge,56 and persons cannot be tried more
than once for a particular crime.57
Persons under 18 at the time of the crime are not under the Courtā™s
jurisdiction.58 Following from the Nuremberg principles, the Statute applies
to everyone regardless of ofļ¬cial capacity or domestic or international rules
of immunity.59 Commanders have responsibility for the actions of their
subordinates; subordinates are not excused from culpability by virtue of
having been ordered to commit a crime.60 Following the 1968 UN General
Assembly Resolution, the Statute declares that there is no statute of lim-
itations for prosecution of the crimes under ICC jurisdiction.61
Traditional rights are conferred upon the defendants: a presumption of
innocence; a standard of guilt ā˜ā˜beyond reasonable doubtā™ā™;62 the right to
a public hearing, to be promptly informed of the charge, to have adequate
time and facilities to prepare a defense and to communicate freely with
defense counsel; a right of non-self-incrimination; speedy trial; defense
counsel of the accusedā™s choosing; right to examine witnesses, to have
Statute Article 25.
Statute Article 30.
Statute Article 20.
Statute Article 26.
Statute Article 27.
Statute Article 28. The matter of responsibility is somewhat further reļ¬ned under Article 31
(grounds for excluding criminal responsibility may include mental disease, involuntary
intoxication, self-defense, duress caused by threat of imminent death), Article 32 (mistake
of fact or mistake of law, which precludes responsibility only if it negates either of the
mental elements), and Article 33 [superior order and prescription of law, under which a
person may be relieved of responsibility if (1) ā˜ā˜(a) The person was under a legal obligation
to obey orders; (b) The person did not know that the order was unlawful; and (c) The order
was not manifestly unlawful.ā™ā™ However, (2) ā˜ā˜For the purposes of this article, orders to
commit genocide or crimes against humanity are manifestly unlawful.ā™ā™]
Statute Article 29. UN General Assembly, Resolution 2391 (XXIII) of November 26, 1968,
ā˜ā˜Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes
Against Humanity,ā™ā™ entry into force November 11, 1970.
Statute Article 66.
The Statute ā“ Justice versus Sovereignty
documents and testimony translated into a language of choice, and to
receive exculpatory evidence from the Prosecutor.63 Trial rules and pro-
cesses are spelled out in additional detail in other Statute provisions and in
the Rules of Procedure and Evidence and the Elements of Crimes adopted
by the Assembly of States Parties.
New Justice Paradigm
While the Statute reļ¬‚ects old justice principles, it incorporates many elements
of the new justice paradigm as well. These are not necessarily mutually
exclusive, and many of the innovations rectify long-standing imbalances in
justice procedures, particularly insofar as they have inadequately responded
to gender inequalities. However, in going beyond improved implementation
of traditional justice measures to include new justice objectives, the Statuteā™s
broad mandate is institutionally very challenging.
Rectifying Judicial Process Blindnesses
The Statute explicitly deļ¬nes gender crimes under crimes against humanity
and war crimes. It exhorts the ASP to select judges who are representative of
the various major legal systems of the world, geographical areas, and male
and female judges and recognizes the need for judges with expertise espe-
cially in the area of violence against women and children. These provisions
demonstrate negotiatorsā™ heightened awareness of the problems of tradi-
tionally male- and Western-dominated courts in dealing with witness
populations that are largely women, children, and people from non-Western
countries. The Prosecutor, similarly, is instructed to ā˜ā˜appoint advisers with
legal expertise on speciļ¬c issues, including but not limited to, sexual and
gender violence and violence against children.ā™ā™64
Victims and Witnesses
In addition to mandating better balance in hiring Court staff, the Statute
requires that in pursuit of its investigations, the Ofļ¬ce of the Prosecutor
particularly take into account the ā˜ā˜interests and personal circumstances of
victims and witnesses, particularly in regard to health, age, and gender, and
to take into account the nature of the crime, particularly when involving
sexual or gender violence or victimization of children.ā™ā™65 These statutory
Statute Article 67.
Statute Article 42.9.
Statute Article 54.1(b).
88 Building the International Criminal Court
provisions reļ¬‚ect the victimsā™ orientation of the new justice; however, they
sit somewhat uncomfortably with some of the long-standing principles of
justice, such as the presumption of innocence and the right to a fair trial.
The Statute also instructs the Registrar to set up a ā˜ā˜Victims and
Witnesses Unitā™ā™ to ā˜ā˜provide, in consultation with the OTP, protective
measures and security arrangements, counseling and other appropriate
assistance for witnesses, victims who appear before the Court, and others
who are at risk on account of testimony given by such witnesses. The Unit
shall include staff with expertise in trauma, including trauma related to
crimes of sexual violence.ā™ā™66 In trials, the judges are to ā˜ā˜provide for the
protection of the accused, witnesses and victims.ā™ā™ 67 Thus, all three organs
of the Court ā“ the Ofļ¬ce of the Prosecutor, the Registry, and Chambers ā“
are responsible for protecting victims and witnesses, with particular atten-
tion to children and women, as well as providing protection and due process
to the accused.68
More than merely providing protection, however, and as part of the set
of restorative justice norms, the Court is enjoined to make possible the
participation of victims in Court processes.69 Victim participation is a more
difļ¬cult problem than witness protection from the standpoint of traditional
justice principles. Involving victims in Court proceedings before a convic-
tion has been obtained could jeopardize the presumption of innocence. The
Statute articulates the principles, but it is only in practice that the tensions
among the Courtā™s responsibilities will be worked out.
Victimsā™ Trust Fund
Beyond protecting and involving victims, the Statute also directs the
Court to ā˜ā˜establish principles relating to reparationsā™ā™ including restitution,
compensation, and rehabilitation.70 The Statute directs the Assembly of
Statute Article 43.6.