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ACABQ (UN) Advisory Committee on Administrative and
Budgetary Questions
AI Amnesty International
ASF Advocats sans Front±ers
`
ASP (ICC) Assembly of States Parties
ASPA American Servicemen™s Protection Act or American
Service Members Protection Act
BIA bilateral immunity agreement
CAR Central African Republic
CBF (ICC ASP) Committee on Budget and Finance
CIA U.S. Central Intelligence Agency
CICC NGO Coalition for the International Criminal Court
Coco coordinating committee
CPA Comprehensive Peace Agreement (Sudan)
DRC Democratic Republic of the Congo
ECOSOC (UN) Economic and Social Council
EU European Union
FIDH International Federation of Human Rights Leagues
FPLC Patriotic Front for the Liberation of the Congo
FRPI Force de Resistance Patriotique en Ituri
´
GA (UN) General Assembly
HRW Human Rights Watch
HSM Holy Spirit Movement (Uganda)
ICB International Criminal Bar
ICC International Criminal Court
ICJ International Court of Justice

xi
xii Acronyms

ICL International Criminal Law
ICRC International Committees of the Red Cross
ICTJ International Center for Transitional Justice
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the Former
Yugoslavia
IDP internally displaced persons
IFOR International Force (in the Former Yugoslavia)
IHL International Humanitarian Law
ILC International Law Commission
IMET (U.S.) International Military Education and Training
IMT International Military Tribunal (Nuremberg)
JCCD (ICC OTP) Jurisdiction, Complementarity, and
Cooperation Division
JEM Justice and Equality Movement (Sudan)
LMS like-minded states
LRA Lord™s Resistance Army (Uganda)
MERCOSUR South American Common Market
MINURCA UN Mission in the Central African Republic
MLC Movement for the Liberation of the Congo
MONUC UN Mission in the Democratic Republic of the Congo
NATO North Atlantic Treaty Organization
NGO non-governmental organization
NPWJ No Peace Without Justice
NRM/A National Resistance Movement/Army (Uganda)
OIOS (UN) Of¬ce of Internal Oversight Services
ONUB UN Operation in Burundi
OTP Of¬ce of the Prosecutor
PIU Public Information Unit
PrepCom Preparatory Committee
PTC (ICC) Pre-Trial Chamber
RENAMO Mozambique National Resistance
RPE Rules of Procedure and Evidence
RPF Rwandan Patriotic Front
SATRC South Africa™s Truth and Reconciliation Commission
SFOR Stabilization Force (in the Former Yugoslavia)
SLM/A Sudan Liberation Movement/Army
SOAT Sudan Organization Against Torture
SPLA Sudan People™s Liberation Army
SWGCA Special Working Group on the Crime of Aggression
Acronyms xiii

U.K. United Kingdom
U.S. United States
UDHR Universal Declaration of Human Rights
UN United Nations
UNESCO United Nations Educational, Scienti¬c, and Cultural
Organization
UNHCHR United Nations High Commissioner for Human
Rights
UNSC United Nations Security Council
UPC Union of Congolese Patriots
UPDF Ugandan People™s Defense Forces
VPRS (ICC Registry) Victims Participation and
Reparations Section
VTF (ICC) Victims™ Trust Fund
VWU (ICC Registry) Victims and Witnesses Unit
WFM World Federalists Movement
Building the International Criminal Court
Introduction




The International Criminal Court (ICC) soars with the loftiest of ideals as it
grapples with the basest of human acts. This ¬rst and only permanent
international criminal court intends to counter impunity by prosecuting
perpetrators of genocide, crimes against humanity, and war crimes. It seeks
to deter depredations against citizens in violent con¬‚icts and to contribute
to justice, peace, political transition, and reconstruction.
Ideally, domestic societies use legitimate political processes to devise
and promulgate their laws. Then the laws are fairly implemented by legal
systems that remove the politics from justice. This ideal is often com-
promised by extralegal in¬‚uences, by biased legal structures, and by
maladministration; nonetheless, the ideal is a widely accepted model of an
objective, dispassionate, truth-based mechanism for upholding society™s
rules.
If this model represents a goal toward which societies strive with only
partial success, international law is even more tenuous. International law
is based on an ephemeral society that lacks a legislative structure, and it
seeks to constrain sovereign states that recognize no consolidated
authority for enforcement. International organizations operate at the
sufferance of states, subject to their desires, dependent upon their gener-
osity, and victims of their ploys. Moreover, international organizations
are subject to the same weaknesses as domestic ones “ outside in¬‚uences,
bias, and maladministration. Nonetheless, since the beginnings of the
modern state system, advocates of law have tried to extend to the inter-
national level the logic and structures familiar in the domestic context.
International law has proliferated. This quest for the ˜˜legalization™™ of
international politics has added arbitration and judicial decision making

1
2 Building the International Criminal Court

to diplomacy and the naked exercise of power as means of settling con¬‚ict
between sovereign states.1 Legalization has arrived as well at the doorstep
of individual responsibility.
Since all human action is in the end individual, crimes committed on
behalf of states have perpetrators just as do domestic crimes. For approxi-
mately 150 years, from at least the origins of the International Red Cross
movement in the mid-nineteenth century, international lawyers, diplomats,
and advocates contemplated the creation of an international criminal court
to hold individuals responsible for criminal acts carried out in the name of
the state. Finally, in Rome in July 1998, the Statute for the International
Criminal Court opened for signature and rati¬cation. The Court emerged
on July 1, 2002, much sooner than most observers had believed possible.
The Court began with a ¬ve-member transition team in 2002, and
mushroomed past 700 employees in 2007. It is built upon a range of
national legal systems and incorporates structural elements common to
other international organizations. Its structure, rules, and operations re¬‚ect
experiences of the ad hoc international criminal tribunals for Yugoslavia
and Rwanda but differ signi¬cantly from them. The ICC™s objectives
include the prosecution of transgressors and rehabilitation of victims, its
mechanisms combine traditions of civil law with common-law precepts,
and it seeks to incorporate lessons from the tribunals in order to improve
the effectiveness and ef¬ciency of international criminal trials.
The Court™s most profound effects may be invisible and tangential to the
cases it pursues directly. If it deters criminality or leads states to tighten
their domestic laws and enforce international humanitarian norms, it could
be considered successful. On the other hand, it may be deemed irrelevant if
potential perpetrators don™t recognize it as a threat, if its efforts are
thwarted by noncooperation or lack of resources, or if victims regard it as
useless in their search for justice. The Court could become an unprece-
dented, sterling achievement, or it may be a great idea whose time has not
arrived. This book is intended to explain where the Court comes from and
what it™s for, what its challenges are, and how it is managing them in its ¬rst
years of operation.

1
Goldstein et al., ˜˜Introduction: Legalization and World Politics™™ (2000), evaluate the degree
of legalization implemented in interstate arrangements along three dimensions: the nature of
the obligation that states accept, from nonlegal at one end of a spectrum to binding rules of
behavior at the other; the precision of the rules under adjudication, from vague principles to
highly elaborated rules; and the degree of delegation of decision-making authority to the
forum, from an arena of discussion or diplomacy to a de¬nitive judicial process and/or
incorporation into domestic law.
3
Introduction


THE COURT

The Court consists of three ˜˜organs™™ “ the Presidency and Chambers (the
judges),2 the Of¬ce of the Prosecutor, and the Registry. The Rome Statute
details the legal framework for Court operations, empowering the Court to
investigate cases, issue warrants, take custody of arrested suspects, and
carry out trials, and enjoins it to protect witnesses and victims involved with
its proceedings and to aid the victims of the crimes under its jurisdiction.
The Statute establishes the Assembly of States Parties (ASP) to the Treaty
as the legislative organ responsible to elect (and remove) ICC judges and chief
and deputy prosecutors, approve and allocate the organization™s budget,
approve of¬cial cooperative arrangements with other organizations (such as
the United Nations), and adopt the Court™s Rules of Procedure and Evidence,
its Elements of Crimes, and the rules of the separate organs. The ASP can also
create subsidiary bodies and establish their rules for implementing the Statute
(for instance, the Trust Fund for Victims), and it can amend the Statute.
The ICC and especially its founding document, the Rome Statute, are the
subjects of an enormous literature. A relentlessly expanding list of books
and a torrent of legal journal articles examine the sources, structure,
intricacies, ambiguities, and implications of the Statute. The Court itself has
so far been rather less analyzed because it has only recently begun opera-
ting, but there are useful introductions to its structure and law, and some
books illuminate particular aspects of its founding, implications, early
operation and possible effects.
The Court is a work-in-progress, an amalgam of normative commit-
ments,3 legal understandings, political interests, diplomatic bargains, and
organization dynamics. It embodies idealistic, largely legalistic conceptions of
international norms that were pursued doggedly by international legal
experts from the end of World War II onward, shaped by diplomatic bargains
and pushed by nongovernmental organizations. Embarked on a course
fraught with contradictions stemming from its broad set of objectives, the

2
Sometimes the Presidency and the Chambers are cited in Court documents as separate
˜˜organs,™™ so that the ICC is said to be composed of four organs; sometimes it is described as
tripartite. The President and Vice Presidents are elected from among the judges, which
appears to make the combination of Presidency and Chambers a reasonable classi¬cation.
However, the Presidency has administrative duties disconnected from its members™ roles as
judges, so in that sense they are two separate organs that share some personnel.
3
By ˜˜normative commitment,™™ I mean dedication to behavior bounded by a conception of
appropriate behavior based on some nonmaterial value, such as the value of human dignity
or fairness.
4 Building the International Criminal Court

Court faces the requirements of all organizations “ leadership, internal
coordination, resource acquisition and deployment, ef¬ciency, seeking to
demonstrate success and relevance to major interlocutors. The decisions it
makes in its early years about its role, focus, and operations will be crucial
to how it survives, thrives, or withers.


THEORETICAL PERSPECTIVE

My choice of topics and the language I use come from the study of inter-
national organizations, international relations, and theories about both. This
is not primarily a theoretical book; however, international relations and
international organization theories help elucidate my topic and so I think it is
useful here to present the general theoretical context in which I am working.
Especially since the end of the Cold War, international relations texts and
journals have been contrasting the analytical perspectives of realists, neo-
liberal institutionalists, and constructivists. Rather than apply these as fully
deployed theories or complete rivals, I use them to explain different aspects of
an extremely complicated world.4 Their alternative emphases sometimes
place them and their enthusiasts at odds with one another, but I am by nature
a synthesizer, so I prefer to use them together, the best to explain what I seek
to understand. I introduce the three kinds of theory here in the order that they
developed in post“World War II American political science.5

Realist Theorists
Realist theorists assume that humans are self-seeking, rational beings.
Sovereign states are the international system™s primary actors. Because there
is no global government, realists assert that anarchy is the condition (or
structure) of the existing international system.6 Real sovereignty “ the state™s

4
For an explanation of the virtues of analytical eclecticism, see Sil, ˜˜Problems Chasing
Methods or Methods Chasing Problems? Research Communities, Constrained Pluralism,
and the Role of Eclecticism™™ (2004), and Sil, ˜˜Analytic Eclecticism and Research Traditions
in International Relations™™ (2007).
5
There are many and interesting variations of the three general theoretical approaches
amongst which vigorous debates continue. I present and apply here the general thrust of the
three viewpoints without delving into these variations.
6
I use the idea of system simply as a mechanistic or organic metaphor to denote the
collectivity of states as they interact with each other. Kenneth Waltz, in Theory of
International Politics (1979), is the foremost expositor of (mechanistic) realist system theory.
For Waltz, states act according to rules prescribed by the condition of anarchy. Hedley Bull,
in The Anarchical Society, 3rd ed. (2003), distinguishes between the idea of a mechanistic
international system and a value-imbued society of states (both under anarchy), and I use his
distinction further in Chapter 1.
5
Introduction

capacity to maintain domestic order and to protect itself from other states “

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