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of violence or other acts of a similar nature. It applies to armed
con¬‚icts that take place in the territory of a State when there is
protracted armed con¬‚ict between governmental authorities and
organized armed groups or between such groups.
3. Nothing in paragraph 2 (c) and (e) shall affect the responsibility of a
Government to maintain or re-establish law and order in the State or
to defend the unity and territorial integrity of the State, by all
legitimate means.

Building the Court

Once the Statute was opened for signature on July 17, 1998, the ICC project
faced a nebulous interregnum. Pessimists thought the Statute might languish
without the requisite number of adherents for ¬ve or ten years, or even
perhaps inde¬nitely. Optimists pressed for preparations to be made to
establish the Court, believing that rati¬cations might snowball. The opti-
mists were prescient. The needed 60 rati¬cations were in hand in April
2002, less than four years after the Statute had been completed “ so quickly
(as compared with the pessimists™ vision) that practical preparations were
rushed. (development of the Court was leisurely compared to the ad hoc
tribunals™ rapid genesis. From the adoption of the Yugoslavia Tribunal™s
Statute in May 1993, 18 months elapsed until the ICTY issued its ¬rst
indictment.) For the ICC, the almost four-year hiatus between the Statute™s
being opened for signature and coming into force allowed negotiators to
complete the Rules of Procedure and Evidence, Elements of Crimes, and
other vital operational documents. Another year passed before the Court
had a Prosecutor in place, and he ¬rst requested arrest warrants for suspects
(in Uganda) in May 2005, almost seven years from the adoption of the
Statute, three years after it took effect, just short of two years after the
Prosecutor took of¬ce.
The Court that started operating on July 1, 2002, has less formal
power than the ad hoc tribunals, since its jurisdiction is constrained by
˜˜complementarity™™ while theirs had ˜˜primacy,™™ but it potentially has more
to do, since their territorial and temporal jurisdictions were limited, but the
ICC™s are open-ended. The Statute and Preparatory Commission negotiators
showed that they had learned much from the tribunals by, for example,
subordinating the Registry to the Presidency, but many problems similar to

Building the Court

those of the tribunals confront the Court. The tripartite structure is a
management nightmare; judicial neutrality, prosecutorial independence,
and organizational ef¬ciency are not easily compatible; due process values
clash with victims™ interests; and operational environments are dif¬cult.
State cooperation is vital, but it also threatens to undermine the appearance
(if not the reality) of Court neutrality.
This chapter is about how the ICC is hewing its operational path, a topic
that most directly responds to the neoliberal institutionalist logic that links
organizations™ effectiveness and ef¬ciency to the degree to which organi-
zations can develop some independence from states even while they serve
state interests. People who work for, or observe, the Court put it a different
way. They say that if the ICC can demonstrate to its members that it is
effective, ef¬cient, and legitimate, states™ support will continue and grow.
This chapter is long, and I hope, revelatory, incorporating information
from interviews with participants. I describe sample con¬‚icts within the
ICC in considerable detail, intending to show how complicated the start-up
has been, how tensions built into the organization™s mandate and structure
are manifested in internal organizational con¬‚ict and in organizational
innovation. Aside from the larger international signi¬cance of the Court, I
believe that its internal dynamics need to be understood in order for con-
clusions to be drawn about its likely future course, about where institu-
tional evolution needs to take place, and about its chances for survival and
The chapter™s ¬rst section describes the period preceding the Court™s
opening. It shows that the PrepCom resolved many uncertainties left by the
Statute, but even with this strong underpinning, substantial discretion
remained for the Court to develop its operations through practice. The
second section discusses the development of the Of¬ce of the Prosecutor,
often dubbed the ˜˜engine of the Court.™™ In the transition to operations, the
Prosecutor made controversial and high-stakes decisions that sought to
maximize prosecutorial discretion, including on grounds that some obser-
vers found to be overly political. Since the Prosecutor realized that effec-
tiveness de¬ned in terms of trials and convictions could be a trap for the
Court, he articulated alternative measures for success, while also seeking to
set up his of¬ce to avoid the most troublesome of the tribunals™ operational
problems. The third section describes internal tensions in the Court among
the OTP, Registry, and Chambers, produced by the amalgamation of civil-
and common-law traditions, by the dif¬cult tripartite structure of the
Court, and by personal clashes. The fourth section describes Court inno-
vations to implement its new (restorative) justice mandate and how the new
104 Building the International Criminal Court

justice mandate can clash with old (retributive) justice objectives. The
chapter™s ¬fth section discusses the Court™s planning efforts.


The Rome Conference passed a Final Act,1 along with the Statute, that
established a Preparatory Commission to elaborate the rules and regula-
tions that the ICC and its Assembly of States Parties would need for the
Court to operate. In ten of¬cial sessions (1998“2002), with additional
informal ˜˜intersessional™™ meetings, the PrepCom negotiated draft docu-
ments covering the Rules of Procedure and Evidence; Elements of Crimes;
an outline for de¬ning the crime of aggression; election procedures for the
Assembly of States Parties to select judges, the chief and deputy prosecutor;
agreements with the United Nations and with The Netherlands; a ¬rst-year
budget for the Court; personnel and accounting policies; and more. While
the PrepCom working groups toiled, signatures and rati¬cations of the
Statute accumulated more rapidly than even most optimists had hoped,
although the United States, Russia, China, Japan, India, and other states
The United States remained engaged with the PrepCom, and President
Clinton signed the Statute in the waning days of his term of of¬ce, on
December 31, 2000. When George Bush took of¬ce as President in January
2001, the of¬cial U.S. attitude ¬‚ipped from critically engaged to actively
hostile. During the year, the United States participated only in the PrepCom
working group on the crime of aggression, because, the United States said,
the issue was relevant to the UN Security Council.2 In 2002, the United
States abandoned the PrepCom meetings altogether, and in a May 2002
letter to UN Secretary-General Ko¬ Annan, the United States ˜˜unsigned™™
the Statute by informing him that it considered itself unbound by Clinton™s
States that had signed the Final Act and others invited to the Rome
Conference (effectively, all states) were invited to join the PrepCom. The
commission met its deadline of June 30, 2000, for the draft Rules of Pro-
cedure and Evidence and the Elements of Crimes, and continued work on
the long list of other topics for which the Final Act had not speci¬ed

United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an
International Criminal Court, ˜˜Final Act™™ (July 17, 1998), Section F.
Global Policy Forum, ˜˜Bush Administration Ponders Position Toward International Court™™
Building the Court

deadlines. The PrepCom would go out of business at the conclusion of the
¬rst meeting of the Assembly of States Parties, which could take place only
after the Statute had come into effect.

Preparing to Begin
By spring 2001, as states acceded to the Statute faster, PrepCom Chairman
Ambassador Philippe Kirsch of Canada pushed for a ˜˜road map™™ of
documents and actions necessary to bring the Court into being. Kirsch was
supported strongly by NGOs, particularly in the person of William R. Pace,
convener of the NGO coalition for the ICC. The PrepCom adopted the
˜˜Road Map Leading to the Early Establishment of the International
Criminal Court™™ in September.3 Moving the Court from Statute into
operation required procedures and an agenda for the ¬rst ASP and docu-
ments governing the internal rules of the Court for initial operations (until
¬nal documents could be adopted by a later ASP). A mechanism needed to
be developed so that the PrepCom could work with The Netherlands to ¬nd
temporary quarters for the Court and to work on logistical arrangements.
Despite public goading from Pace, the Dutch government moved
lethargically at ¬rst. The two Dutch Foreign Ministry of¬cials responsible
were convinced, on the basis of experience with prior treaties, that the ICC
wouldn™t materialize for at least ten years from 1998.4 In June 2001, in an
interview with a Dutch newspaper, Bill Pace predicted a ˜˜political catas-
trophe™™ when the Statute entered into force without proper preparations
having been made.5 In September, the government transferred then“Defense
Ministry Director-General Edmond Wellenstein to become head of an ICC
task force, and preparations intensi¬ed. As a result of Wellenstein™s initia-
tives, a building was found for the Court in spring 2002.
On April 11, 2002, ten states6 simultaneously deposited their Statute
rati¬cations with the UN Secretary-General in New York, starting the clock
ticking. On July 1, 2002, the ¬rst of the month following sixty days from
the sixtieth rati¬cation, after a gestation that could be measured back to the

UN Preparatory Commission for the International Criminal Court, ˜˜Road Map Leading to
the Early Establishment of the International Criminal Court™™ (2001); Martijn Groenleer,
˜˜Justice under Construction: The Birth and Early Development of the International Criminal
Court™™ (2003), 46.
Groenleer, ibid., 73.
Ibid., 74.
Bosnia and Herzegovina, Bulgaria, Cambodia, Democratic Republic of Congo, Ireland,
Jordan, Mongolia, Romania, Slovakia, and Niger.
106 Building the International Criminal Court

ILC draft of 1994, the Trinidad and Tobago proposal of 1989, the ILC
draft of 1953, the Nuremberg Court of 1945, the founding of the Red Cross
and the Lieber Code of the mid-nineteenth century, or perhaps the trial of
Peter von Hagenbach in 1474, the ¬rst permanent international criminal
court was born.

Filling the Empty Shell
The PrepCom created an advance team of ¬ve people to lay plans and make
contacts for the Court™s daily work. Initially housed in Dutch Foreign
Ministry of¬ces, next door to Dutch of¬cials who were the liaisons to the
new Court, the team soon switched to un¬nished of¬ces at ˜˜the Arc,™™ the
large of¬ce building on the outskirts of The Hague that Wellenstein had
procured for the Court. At a news conference on July 1 in the reception area
of the Arc, the team shielded press representatives from the unfurnished
of¬ces and incomplete wiring of the phone system. The Court was of¬cially
in business, housed in what one advance team member recalled was ˜˜an
empty shell.™™7
The advance team, with its Dutch interlocutors, produced outlines for
security measures, courtroom construction, and computer and commu-
nications requirements and initiated contacts with people and organizations
that would be important to the ICC, including states, the media, defense
counsel, NGOs, law enforcement, and other experts.8 Meanwhile, the
PrepCom completed arrangements for the ¬rst meeting of the Assembly of
States Parties.

First Assembly of States Parties
The ASP9 met in New York in September 2002 to adopt a budget and agree
upon nomination and election procedures for the Court™s judges and
Prosecutor, of¬cially adopting drafts from the PrepCom. The ASP
appointed Bruno Cathala, a French former jurist who was ICTY Deputy
Registrar, as the Court™s ¬rst of¬cial, the Director of Common Services. The
position was invented to carry out the functions of the Registrar after the
Court was up and running. Since the Registrar was to be elected by the

Interview, 2006.
Interviews, 2006.
The full term is ˜˜Assembly of States Party to the Rome Statute of the International Criminal
Court.™™ An individual state that has rati¬ed the Statute is called a state party. In normal
parlance, the plural can be states party, state parties, or states parties.
Building the Court

judges, and judges had not yet been selected, the Common Services post
served as a transitional device. When the advance team™s mandate ended on
October 31, most of the team continued in Common Services. The ASP
invited nominations for judges and Chief Prosecutor by December 8. States
proceeded to nominate candidates for judges, but in mid-December ASP
President Prince Zeid Riad Al Hussein of Jordan announced an extension of
the deadline for nominations for a Prosecutor because none had yet been

Electing Judges
The ASP reconvened February 3“7, 2003, and elected the Court™s eighteen
judges,11 which was as political an operation as it had been in the ad hoc
tribunals. Some states had suggested that a screening committee be estab-
lished to scrutinize and compare judge nominees™ quali¬cations prior to the
elections; however, in the end, the elections became a matter of campaigns
and vote trading among state representatives at the ASP meeting. A com-
plicated voting system had been devised for the ASP by the PrepCom in
which geographical representation, gender balance, and two categories of
quali¬cations12 served as the basis for the election of eighteen judges. After
holding several practice elections to familiarize delegates with the balloting
process, more than thirty rounds of voting were required to select the
judges. Some observers were disappointed that qualities they thought most
important for judges “ experience in court presiding over criminal trials “
were not apparently accorded the highest priority by the electors. Critics
(including some of the ICC™s judges themselves) argue that the elections as
conducted are ¬‚awed because delegations pursue national honor by seeking
to elect one of their nationals as a judge, rather than searching out the most
quali¬ed people. Election depends more on campaigning, bargaining, and
vote trading, than on the issue- or experience-based characteristics of the
The judges were sworn in at a ceremony at the Hague Peace Palace, seat
of the International Court of Arbitration and the International Court of

Human Rights First, press release, ˜˜Nominations for ICC Prosecutor Postponed™™ (2002).
CICC Web site, ˜˜Building the Court.™™ <http://www.iccnow.org/buildingthecourt.html>.
˜˜A: . . . competence in criminal law and procedures, and the necessary relevant experience,


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