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67
Statute Article 64.6(e).
68
Effective protection of witnesses is also crucial for the success of investigations and
prosecution because (as was painfully and repeatedly discovered by the ad hoc tribunals) if
victims and witnesses are too fearful of revenge to provide information to investigators or to
testify, prosecutions falter.
69
Statute Article 68.3: ˜˜Where the personal interests of the victims are affected, the Court
shall permit their views and concerns to be presented and considered at stages of the
proceedings determined to be appropriate by the court and in a manner which is not
prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.
Such views and concerns may be presented by the legal representatives of the victims where
the Court considers it appropriate, in accordance with the Rules of Procedure and
Evidence.™™
70
Statute Article 75.
89
The Statute “ Justice versus Sovereignty

States Parties is to establish a trust fund for ˜˜victims of crimes within
the jurisdiction of the Court, and of the families of such victims™™71 (see
Chapter 4). The restorative justice objective is clear. The mechanisms for
how it is to be pursued awaited implementation, and the dilemmas of
upholding general principles of law and due process, while also incorpo-
rating victim interests, would have to be managed.
Incorporating traditional and new justice objectives, protecting sover-
eignty but mandating a wide range of responsibilities, seeking to end
impunity and thus criminality, the Statute Conference successfully produced
a treaty on which to construct the International Criminal Court. Elation
swept the vast majority of participants in the Conference as it ended suc-
cessfully two hours past its deadline, early in the morning of July 18, 1998.
It remained to be seen whether adequate numbers of states would join and
thus bring the treaty into effect. What would states gain by joining the
Statute?


WHY DO STATES JOIN?

From the constructivist viewpoint, norm convergence drove a change in
states™ identities. Under pressure from domestic, transnational, and inter-
national advocates of countering impunity, domestic citizenries™ concern
over human rights converged with state decision makers™ changing ideas
about the proper realm of activities of the state, leading to a consensus on
the creation of the ICC. New justice norms were incorporated into the
Statute because state decision makers, informed by civil society, came to
believe that a modern justice system had to take greater cognizance of
victims™ interests and social reconstruction following massive crimes than
did traditional justice. Some of the Statute™s provisions remained highly
controversial even at the end of negotiations, most notably leading to active
U.S. opposition to the Court, because the shift to new identities (incorpo-
rating the new norms of international criminal law) was not universal. Old
understandings of the international system and appropriate behavior within
it coexist, although uncomfortably, with newer ones.
Realist explanations for the creation of a new international organization
tend to be circular. If states get together to sign a treaty creating a new
organization, by de¬nition it must be in their interests to do so. The harder
question is what interests the organization serves. Since in the realist con-
struct, gaining relative advantage (over other states) is the primary motive for

71
Statute Article 79.
90 Building the International Criminal Court

state behavior, a state would need to bene¬t relative to others by joining the
ICC. It is conceivable a state concerned about its citizens being subject to
international crimes, or convinced that genocide, crimes against humanity,
and war crimes contribute to potentially costly regional threats, would join
efforts to prosecute international criminals to deter future criminal behavior.
A state might join the ICC succumbing to pressures exerted by other state
supporters of the Court. Or a state might believe that it could manipulate the
ICC™s resources to contribute to its individual advantage. But these are weak
explanations because the Court™s resources are very small, relative to those of
most countries, and relative gain is not clear.
Although realists would have dif¬culty explaining imperatives to join the
ICC, their perspective could be useful to explain states™ demurral from
accession. Just as states pursue relative advantage, they should avoid rela-
tive disadvantage. States concerned that the ICC might constrain their
independent behavior might oppose the Court more than states lacking such
concerns. States worried that they would wind up disproportionately
¬nancing the Court might also be reluctant, unless there was some com-
pensating advantage to joining. The United States has most vigorously
opposed the ICC, mustering a series of arguments against the Court based
both on power considerations and (ostensibly) on principle.
The United States asserts that the Court lacks oversight (so it could
become overly politicized), and its operations could undermine U.S. con-
stitutional protections for its citizens (by subjecting them to legal processes
violating constitutional guarantees of due process). The United States
objects to the Court™s jurisdictional claim on the basis of territorial or
suspect nationality, having sought suspect nationality to be an absolute
requirement, charging that without suspect state acceptance of jurisdiction,
were the Court to act against the national of a nonsignatory of the Statute,
it would be applying a treaty to a state that hadn™t accepted it (which
contravenes international law standards).
U.S. objections generally boil down to concerns over maintaining state
sovereignty, and echos of these concerns can be found in Chinese and Indian
reticence to join the Statute. The Russian position has been less negative,
and parliamentary consideration of joining seems to have moved further
than among the other opposed UN Security Council members.
Neoliberal institutionalism doesn™t require relative gain as a state inter-
est: Absolute gain can suf¬ce. If a general problem among states is more
amenable to solution by collective action, neoliberal institutionalists would
predict cooperative behavior, such as has taken place in the areas of
international trade and ¬nance, environmental protection, and human
91
The Statute “ Justice versus Sovereignty

rights. Were states to believe that impunity is a threat to common welfare,
cooperative efforts to counter it could be in the nations™ interests. If an
international court came to be a mechanism states viewed to be needed to
counter impunity, just as, for instance, an international treaty and funding
organization were deemed necessary to counter ozone depletion, states
might join to create a court.
In neoliberal institutionalist terms, the Statute can be seen as evidence of
an epistemic community in the overlapping areas of transitional and
international criminal justice.72 This community became convinced that
impunity impedes international peace, security, and justice. For impunity
most effectively and ef¬ciently to be countered, an international organiza-
tion needed to be created that would be more stable than would ad hoc
tribunals established case-by-case by the UN Security Council. Serious
controversies remained within the epistemic community about the degree of
independence that the organization should have, and the crimes and people
over which it would have jurisdiction. Particularly during the post“Cold
War ˜˜institution-building™™ moment, however, conditions were ripe for
creation of the ICC.
In the United States, some experts “ particularly in the State Department “
were members of the transitional justice/international criminal justice epi-
stemic community and believed that joining the new institution would
redound to collective and U.S. bene¬t. Others “ particularly associated with
civilian authorities in the Pentagon “ were more concerned about U.S. vul-
nerabilities to the new Court; thus, they did not accept the beliefs of the
epistemic community and hence vigorously opposed joining the Court. In the
end, the interests of sovereignty outweighed the advantages of cooperation.
The Clinton administration sought to keep the United States in a position to
in¬‚uence the shape of the new Court. The Bush administration withdrew


72
The epistemic community literature mostly refers to cooperation in areas where scienti¬c
and/or technological knowledge is key to decision making. Haas ˜˜Introduction,™™ (1992), 3,
de¬nes epistemic community as ˜˜a network of professionals with recognized expertise and
competence in a particular domain and an authoritative claim to policy-relevant knowledge
within that domain or issue-area.™™ I use the term more loosely, as suggested by Sebenius,
˜˜Challenging Conventional Explanations of International Cooperation: Negotiation
Analysis and the Case of Epistemic Communities™™ in the same volume: ˜˜an epistemic
community can be understood as a special kind of de facto natural coalition of ˜believers™
whose main interest lies not in the material sphere but instead in fostering the adoption of
the community™s policy project. Initially, an epistemic community faces the problem of how
to expand from a typically small, de facto natural coalition into a meaningful ˜winning
coalition.™ Its actions can often be understood as changing the perceived zone of possible
agreement in well-understood ways that are favorable to its objectives™™ (325).
92 Building the International Criminal Court

completely, supported anti-ICC legislation, and viewed the Court as a threat
to U.S. sovereignty.


CONCLUSIONS

Because the Court was conceived as a permanent institution to which any
state™s citizens might in theory become subject, states were very concerned
about the ICC™s challenge to sovereignty. The solution to the sovereignty
problem was the principle of complementarity. Crimes that were too
controversial (aggression, the use of weapons of mass destruction) were
left for future negotiations. Jurisdiction (requiring a Security Council
resolution or acceptance of the Court by the territorial or suspect state)
and admissibility (proving that appropriate government authorities were
unwilling or unable genuinely to prosecute crimes) criteria further de¬ned
the limits of the Court™s reach, which is additionally constrained by its
need for states™ cooperation in order for it to carry out its activities
and internally checked by the Prosecutor™s need to receive approval from
Pre-Trial Chambers before commencing of¬cial investigations and moving
on to trials.
The consequence of wide participation in the Statute negotiations was
inclusion of a broad range of objectives that ¬‚ow from old and new justice
norms. A carefully constrained Court is mandated to pursue an extremely
broad range of goals. In that combination, of narrow constraint and broad
mission, lurk the organizational and legal challenges that the ICC now faces
in operation. As soon as it began operating, the Court began to confront the
problems produced by its sometimes contradictory objectives and its
inherently challenging tasks.


3A:
APPENDIX PREAMBLE OF THE ROME STATUTE
OF THE INTERNATIONAL CRIMINAL COURT

The States Parties to this Statute,
Conscious that all peoples are united by common bonds, their cultures
pieced together in a shared heritage, and concerned that this delicate mosaic
may be shattered at any time,
Mindful that during this century millions of children, women and men
have been victims of unimaginable atrocities that deeply shock the con-
science of humanity,
Recognizing that such grave crimes threaten the peace, security and well-
being of the world,
93
The Statute “ Justice versus Sovereignty

Af¬rming that the most serious crimes of concern to the international
community as a whole must not go unpunished and that their effective
prosecution must be ensured by taking measures at the national level and by
enhancing international cooperation,
Determined to put an end to impunity for the perpetrators of these
crimes and thus to contribute to the prevention of such crimes,
Recalling that it is the duty of every State to exercise its criminal juris-
diction over those responsible for international crimes,
Reaf¬rming the Purposes and Principles of the Charter of the United
Nations, and in particular that all States shall refrain from the threat or use
of force against the territorial integrity or political independence of any
State, or in any other manner inconsistent with the Purposes of the United
Nations,
Emphasizing in this connection that nothing in this Statute shall be taken
as authorizing any State Party to intervene in an armed con¬‚ict or the
internal affairs of any State,
Determined to these ends and for the sake of present and future gen-
erations, to establish an independent permanent International Criminal
Court in relationship with the United Nations system, with jurisdiction over
the most serious crimes of concern to the international community as
a whole,
Emphasizing that the International Criminal Court established under this
Statute shall be complementary to national criminal jurisdictions,
Resolved to guarantee lasting respect for and the enforcement of
international justice,
Have agreed as follows: . . .


3B:
APPENDIX ROME STATUTE CRIMES


Article 5
Crimes within the Jurisdiction of the Court
1. The jurisdiction of the Court shall be limited to the most serious
crimes of concern to the international community as a whole. The
Court has jurisdiction in accordance with this Statute with respect to
the following crimes:
(a) The crime of genocide;
(b) Crimes against humanity;
(c) War crimes;
(d) The crime of aggression.
94 Building the International Criminal Court

2. The Court shall exercise jurisdiction over the crime of aggression once
a provision is adopted in accordance with articles 121 and 123
de¬ning the crime and setting out the conditions under which the
court shall exercise jurisdiction with respect to this crime. Such a
provision shall be consistent with the relevant provisions of the
Charter of the United Nations.
Article 6
Genocide
For the Purposes of this Statute, ˜˜genocide™™ means any of the following
acts, committed with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately in¬‚icting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Article 7
Crimes against Humanity
1. For the purpose of this Statute, ˜˜crime against humanity™™ means any of
the following acts when committed as part of a widespread or systematic
attack directed against any civilian population, with knowledge of the
attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;

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