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( 54 .)


involved with the Court were not subject to the same rotational forces.
Still heading the CICC in 2006, Bill Pace counted that overall, from 2003 to
the 2005 Assembly of States Parties, around 85 percent of the national

International Criminal Bar Web site.
NGOs “ Advocates, Assets, Critics, and Goads

delegates were new and had not been part of the Rome process, the
Preparatory Committee, or participants in the development of the Rules of
Procedure and Evidence.39
The turnover in personnel meant that until the ICC settled into paths
established by a more stable personnel roster that had accumulated expe-
rience through a whole cycle of a ˜˜situation,™™ from referral to conviction,
the long-involved NGO personnel would have greater institutional
knowledge “ and thus be better potential agents of socialization for new
members of the ICC community “ than many ICC staff. Some of the NGO
people worried that new ICC personnel didn™t share the values of the old
community and, with many new of¬cials coming from other international
organizations, believed that the Court threatened to become another
bureaucratized, politicized, UN-like organization.
Both sides generally refrain from criticizing each other publicly or very
strongly, although NGOs have occasionally issued advisory and cautionary
messages concerning the Court. ICC of¬cials are publicly grateful for NGO
support in its activities, and NGO representatives, while concerned about
some aspects of the Court that they see developing ineffectively or too
slowly, avoid taking positions that would give the Court™s adversaries “
particularly the United States “ ammunition to support attacks on the new
organization. Interactions between the Court and NGOs are frequent, some
are formalized, and they take place at many organizational levels. Bill Pace,
convener of the CICC, is a frequent visitor and interlocutor with the top
leadership. The Prosecutor has regularized semiyearly brie¬ngs with NGO
representatives. In ¬eld operations, in headquarters consultations, and
during the annual ASP meetings, the NGOs are vigorously represented and
generally welcomed by Court of¬cials. Like of¬cials of the states party to
the Statute, the NGOs are willing to give the Court running room before
evaluating it too stringently in public.
This does not mean that the NGOs are uniform in their praise of the
Court or that ICC people are uncritical of some NGO statements and
positions. NGO of¬cials, for example, view Prosecutor Moreno Ocampo™s
handling of the announcement of the Uganda referral, where he appeared in
a joint news conference with President Museveni, to have been a major
mistake40 (see Chapter 7). Some NGO of¬cials believe that the Court takes
for granted NGO assistance to contact local populations and to promote
the Court in areas where investigations are being carried out, without

162 Building the International Criminal Court

appreciating the dif¬culties that the NGOs face or the limits of their
resources.41 NGO of¬cials question whether the President has managed to
exert enough management control over the Registrar. They argue that the
antipathies between the Of¬ce of the Prosecutor, the Registry, and the Pre-
Trial Chambers show more than just the need for a shakeout period of
running the Court but that they are instead manifestations of personal
rivalries that could damage the Court. Some NGOs worry that the new
justice objectives of the Court “ particularly victim participation (see
Chapter 7), outreach, and operation of the Victims™ Trust Fund “ are
underemphasized by the Court in favor of old justice objectives.42 Other
NGO personnel are concerned that, in pursuit of the old justice objectives,
the OTP has been inef¬cient and too slow. Some NGOs have criticized the
Prosecutor for being ˜˜too political™™ in his timing of investigations and
publicizing of warrants, but others have criticized him and the Court for
being insensitive to the Court™s potentially disruptive effect upon peace
NGOs criticized the Report on Prosecutorial Strategy (Chapter 4) for
lacking analysis of the effects of OTP policies and strategies.43 Human
Rights Watch applauded the Strategic Plan but called for greater emphasis
on victim participation and reparations, outreach and communications with
local populations, and promotion of positive complementarity objectives.44
Some ICC of¬cials, generally after expressing appreciation for all the
NGOs have done for the ICC, gently explain that, by 2006, the NGOs
possessed exaggerated senses of their ˜˜ownership™™ of the organization and,
having been vital to and successful in promoting the Court, were not man-
aging to rede¬ne their roles to permit the Court its necessary independence.
The differences between human rights organizations and peace-oriented
organizations, moreover, meant that ICC of¬cials understood that it would
be impossible to keep all of their NGO interlocutors satis¬ed simulta-
neously.45 ICC of¬cials recognize that the NGOs pursue their own agendas,
and that they will seek to pressure the ICC in the direction of their own
priorities rather than necessarily understanding or being fully sympathetic to
the myriad constraints and pressures under which the Court operates.

Human Rights Watch, ˜˜Memorandum on the Strategic Plan of the International Criminal
Court™™ (2006).
NGO CICC, ˜˜The Of¬ce of the Prosecutor: Taking Stock Three Years On,™™ Monitor,
No. 33 (2006), 3.
Human Rights Watch, op cit.
NGOs “ Advocates, Assets, Critics, and Goads


From the Statute to the budget, from referral to defense, NGOs have been
crucial to the ICC. They helped create the normative climate that pressed
states to take seriously creation of the Court. Their legal experts helped
shape the Statute, while their lobbying efforts built support for it. They
advocate Statute rati¬cation around the world and work at expert and
political levels within member states for passage of necessary domestic
legislation. They are strongly represented at the meetings of the Assembly of
States Parties and, continuing the pattern of their interaction at the Statute
Conference, use the ASP meetings to press for decisions promoting their
priorities in the budget discussions and provide their views whenever pos-
sible to policy discussions in the Court. They have good access to high
of¬cials at the ICC, having worked with the veterans of the Statute process
since the beginning and being a prime constituency for the Prosecutor from
the time of his selection through to current operations. Local and interna-
tional NGOs are closely engaged in monitoring, commenting upon, and
assisting in the ICC™s activities in the situation countries.
The NGOs are at once assets for the organization and sources of criti-
cism, exhortation, and pressure upon it. Perhaps more than for any other
international organization, the ICC depends upon NGOs for its operations.
Although NGOs and states can™t directly affect the judicial core of the
organization, they provide information about crimes, help locate victims
and witnesses, promote and organize victim participation, and so play an
important role in shaping the context for trials. NGOs comment publicly on
the Court™s actions, push for expansion of its activities especially in the new
justice areas of outreach in con¬‚ict areas, in victims™ participation and
reparations, and in upholding due-process standards and defense ˜˜equality
of arms™™ and so implicitly set an agenda for the future evolution of the ICC.
The continuity of NGO involvement with the ICC and the different
career patterns of NGO personnel (which can leave individuals within
organizations for long periods of time or may entail their moving between
organizations or even into the ICC itself) and those of national diplomats
means that the NGOs have become repositories of more institutional his-
torical knowledge about the ICC than have national representatives to it
and have greater expertise than some of the organization™s employees
themselves. As NGOs seek to shape the ICC to conform to the interests and
priorities that they have pursued since the early 1990s, they inevitably press
against the limits imposed upon the ICC by the states that are members of
164 Building the International Criminal Court

the organization. The NGOs have the luxury of pursuing their own clearly
identi¬ed mandates “ which may not be fully compatible with those of other
NGOs “ whereas the ICC must seek to respond to the complexities of its
own mandate and the welter of demands from states and NGOs.
The constructivist vision of ˜˜norm entrepreneurs™™ is upheld quite con-
cretely by the efforts of NGOs to promote Statute accession. Perhaps less
obviously, and relevant more to a neoliberal institutionalist™s concerns
about NGO“IGO relations, the NGOs are serving as operational extensions
of the ICC in some of their work, especially in the areas where the Court is
carrying out investigations. In the ICC™s dependence upon NGOs to help
navigate among local organizations and to spread the word about the
Court, the boundaries between the of¬cial organizational structures of the
Court and the NGOs are blurring.

ICC“State Relations

So far, states that are party to the Statute have willingly supported the ICC,
but the Court™s most vigorous supporters fret that the states are not dedi-
cated enough to its effectiveness. States™ views differ on how interventionist
they should be in the operations of the Court, recognizing that its judicial
operations must appear free from political in¬‚uence. But given the leader-
ship problems inherent in the tripartite structure of the Court and statutory
ambiguity about the role of the Assembly of States Parties, ICC proponents
argue that the states could condemn the Court to irrelevance if they don™t
more vigorously promote further accessions to the Statute, more actively
engage in charting the Court™s future, and much more energetically provide
cooperation in the investigation and arrests of suspects.
Acutely aware the states are watching them, Court of¬cials strive to
convey images of judicial seriousness, procedural excellence, and adminis-
trative ef¬ciency. But a sneaking fear persists that without much greater
state involvement, the ICC™s ability to bring suspects to the Court and try
them will prove inadequate to the task of retaining states™ ¬nancial and
political support. This realization may be what motivated the Prosecutor
initially to point out that the Court™s success will be found partly in broader
undertakings than just trials, for instance in a decline of impunity due to
domestic prosecutions promoted by the ICC. The OTP is, however, under
great pressure from states, NGOs, and Chambers to accelerate the pace of
investigations, requests for warrants, and moves toward trials. Because
much of what the OTP does is shrouded in appropriate secrecy, it is very
dif¬cult to evaluate the extent of state cooperation.
U.S. opposition to the Court has raised the price of Statute rati¬cation to
states that accept assistance from the United States. U.S. legislation

166 Building the International Criminal Court

confronts ICC member states with the dif¬cult decision of whether to
accede to U.S. demands to accept bilateral agreements that immunize U.S.
citizens from ICC jurisdiction or to stand on principle and pay an economic
price. Paradoxically, however, U.S. opposition may also have helped build
the Court™s credibility. The early opposition by the United States undermined
the image of the ICC as an extension of Neocolonial in¬‚uence or a tool of
Western domination. Meanwhile, the U.S. antipathy appears to be softening.
This chapter is divided into three substantive sections and a conclusion.
The ¬rst section discusses the intricacies of support for, and opposition to,
the Court. I argue that the normative basis of the Court™s appeal is what
made negotiation of the Statute possible in the ¬rst place, and that con-
verging international normative commitments against impunity continue to
be the ICC™s primary basis of support. The con¬‚ict between the universal
nature of the Statute™s normative claims and the particularistic nature of
national sovereignty is at the root of opposition to the Court, as shown by
the U.S.“ICC relationship. Realist calculations, institutional inertia, and the
untenableness of the United States inde¬nitely swimming against the norma-
tive tide all imply that U.S. policy will continue to change.
The chapter™s second section describes how states that have joined the
Rome Statute Treaty relate to the Court. As members of the Assembly of
States Parties, they have a quasi-legislative role, although they have viewed
this role as quite limited. Because member states differ in their preferred
image of the Court, consensus has not emerged on policy directions for the
Court, and because the Court was created as an independent organization,
they are anyway reluctant to assert policy primacy. On important issues
they have tended to return leadership to the Court, rather than to make
constraining policy decisions in areas such as the balance between civil and
common law, the Trust Fund for Victims, the ICC™s budget, Strategic Plan,
and Court Capacity Model. Under its current mandate, the ICC has a lot of
running room, which is also to say that there is something of a leadership
vacuum at the level of the Assembly of States Parties. Addition of aggression
as a prosecutable crime to the Court™s purview would strengthen the ICC™s
normative basis but would create a reaction from states most concerned
about maximizing sovereign prerogatives, particularly the members of the
UN Security Council.
The third section explains the consequences of states™ obligations under
the Statute to cooperate with the Court. Most countries need to revise their
legal codes so that they are able to cooperate with the Court. States™
adherence to the Statute thus has the effect of aligning their legal codes with
an international set of norms and standards “ a progressive development of
ICC“State Relations

international law. The requirements for cooperation with the Court, rather
than the Court™s operations themselves, may be the aspect of the Rome
Statute that contributes most to changing the international environment of
criminal impunity.

T H E C O U R T ™S S U P P O R T E R S A N D O P P O N E N T (S)

Previous chapters argued that the Rome Statute creates a broad mandate
lacking clear priorities for the Court, in pursuit of both traditional and new
justice paradigms. The mandate responded to a broad range of states™
normative commitments, from countering impunity for criminal acts to
transitional justice victims™ orientations to the outlawing of aggression, and
the overall package made it possible for a range of states to sign on. States
acceding to the Statute doubtless vary in their commitment to its various
objectives, but they agree over the basic idea of creating a standing court to
pursue perpetrators of the most heinous crimes. States remaining outside
the Statute ¬nd it excessively challenging to state sovereignty.
Even when states accede to the Statute, they still face choices about the
level of support they will extend to the Court. Statute principles may rank
highly among normative commitments of state decision makers without
necessarily commanding signi¬cant resources: The objectives of the Court
may be subordinated to alternative political objectives and alternative
demands upon limited ¬nancial resources.
The Court™s activities remain mostly within the ambit of states™ foreign
affairs and justice ministries (with ¬nance ministries holding the purse
strings). ICC relations with individual states are relatively simple because
the range of interests connecting states to the Court is small. Given the
Court™s limited jurisdiction, once a state decides that countering impunity is
a worthy international function, and that the ICC is an important instru-
ment to express and pursue this objective, contestation and clashes of
interest between governmental institutions (for instance, between foreign
and defense ministries) ends. Extensions of jurisdiction could raise the


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