before a jury of nonexperts. The defendant is usually represented by a defense counsel who
responds to the prosecutorā™s case in court with cross-examination of prosecution witnesses,
presentation of defense witnesses, and challenges to evidence and procedure. The judge
serves as an impartial referee between the prosecution and defense, instructing the jury on
the precedent of the tribunals for the former Yugoslavia and for Rwanda. In
contrast to the tribunalsā™ structures, however, and in part as a consequence
of their experiences, the ICC Statute negotiators tilted the Court back to
a more even balance between the two traditions. In practice, a common-
law-oriented Ofļ¬ce of the Prosecutor is contending with civil-law-oriented
Pre-Trial Chamber judges to establish operational and legal precedents for
the Courtā™s operations. The structure of the situation, the orientation of the
personnel involved, and the many areas in which precedents can be estab-
lished only by operating the machinery are causing clashes between the
judges and prosecution.
Peace versus Justice
Because the Statute gives the Court jurisdiction over speciļ¬ed crimes from
the inception of the Court, the ICC can pursue investigations and trials of
the admissibility of evidence and explaining the standards of guilt and innocence for the
jury. Evidence must generally be presented in court orally. Exhibits must be identiļ¬ed and
explained to the jury in court.
Rules of evidence in common-law systems are explicit and binding, and the decisions of
prior court cases serve as precedent for the interpretation of laws and procedure that
counsel and judges may use to justify their own arguments.
In common-law systems, with the exception sometimes of sentencing procedures, victims
are involved in cases as witnesses only, subject to cross-examination. Once convicted,
criminals generally ā˜ā˜pay their debt to societyā™ā™ in the form of incarceration or ļ¬nes, not in
direct response to victims or their needs.
In civil-law systems, identiļ¬ed with Roman law, continental European systems, and the
legal systems of their former colonial possessions, cases are initiated by magistrates or
judges who assign to prosecutors the task of assembling information about the crime and
suspect. The prosecutor is expected to develop exculpatory as well as inculpatory
information. The information is assembled in consultation with an accusedā™s counsel, into a
ā˜ā˜dossier,ā™ā™ a complete case ļ¬le, that is forwarded to a judge. The judge then decides whether
the case should go forward to trial. The judge may instruct the prosecutor to collect more
information of a speciļ¬ed nature. Trial consists of consideration of the dossier and
additional material from the prosecutor and defense counsel before a separate judge or
judicial panel. Because the judge or judicial panel is considered expert in the evaluation of
evidence, the rules of evidence are less stringent than in common-law systems. Under civil-
law systems, the trial judges may take into account hearsay, document and summary
written statements, and evidence not exposed in court to direct cross-examination or
In civil-law systems, particularly the French system from the 1990s onward, victims are
more closely involved in the justice process than are victims in common-law systems.
Victims may demand initiation of procedures against an accused, they may present to the
trial judge their views on the nature of the crime and appropriate punishment, and the
Court may respond to their demands with orders of compensation or other action by a
Generally, precedent plays a much smaller role in civil law than in common law, the civil
code exhaustively recording the relevant rules.
12 Building the International Criminal Court
suspects involved in crimes that are part of ongoing conļ¬‚icts, internal or
international. This sets up a potential conļ¬‚ict of objectives, between
bringing criminal perpetrators to justice and achieving peace between
The following chapters describe these dilemmas and dissect the Courtā™s
internal dynamics, international signiļ¬cance, and likely future, from con-
structivist, realist, and neoliberal institutionalist perspectives. Chapter 1
argues that the ICC is the product of a gathering stream of norms that
extend from divine law to postā“Cold War revulsion against individual
responsibilities for mass civilian killings.
Chapter 2 explains how the genesis, commitments, and precedents of the
Yugoslavia and Rwanda tribunals contributed to construction of the ICCā™s
Statute and argues that although some of their lessons were incorporated into
the Courtā™s founding documents, other insights were recognized too late to be
initially built into the Court. Court personnel must still incorporate conclu-
sions from the tribunalsā™ later experience into their operations.
Chapter 3 asserts that the ICC Statute represents the outer limits ā“ as of
1998 ā“ of an incomplete but very signiļ¬cant international consensus over
international criminal justice and procedural norms. As a negotiated treaty,
it incorporates a broad range of elements that are not fully compatible with
each other, and hence build frictions into the Courtā™s operations.
Chapter 4 contains considerable detail about the operations of the Court
in its early years. It is a long chapter because I think these details are
important evidence of the Courtā™s main internal problems, how difļ¬cult,
contentious, and complicated the start-up of this organization has been, and
how Court personnel are working to resolve their challenges.
Chapter 5 focuses on the role of nongovernmental organizations (NGOs)
in inļ¬‚uencing the establishment and operation of the ICC. It argues that
NGOs have been crucial to the Court, but that their inļ¬‚uences represent
organizational headaches as well as important support for it.
Chapter 6 similarly analyzes ICC relations with its member states,
dwelling in particular on the still somewhat underdeveloped role of the
Assembly of States Parties.
Chapter 7 describes the Courtā™s role in the situations in the Democratic
Republic of the Congo, Uganda, Sudan, and the Central African Republic
(CAR), the ļ¬rst to move beyond preliminary investigation stages. In each
situation, controversy has emerged ā“ over the charges (in the Congo), over
peace versus justice (in Uganda), in confrontation with an uncooperative
government (Sudan), and over what some observers felt was too delayed an
initiation of a formal investigation (in the CAR) ā“ illustrating pitfalls and
dilemmas facing the Court.
The Court is being shaped by challenges at international, organizational,
and personal levels. As constructivists would argue, the ICC is the product
of international normative shifts toward individual accountability and
restorative justice. Realists would point out that, normative convergence
notwithstanding, sovereignty and self-help still dominate statesā™ actions:
States seek to use the Court for their own purposes, and alternative prior-
ities mean that even its supportersā™ attention wanders. Liberal institu-
tionalist analysis shows that the unprecedented nature of the Courtā™s
activities, its broad mandate, tripartite structure, hybrid legal foundation,
lack of enforcement capacity, ofļ¬cialsā™ and interlocutorsā™ differences of
view over priorities within the mandate, and a lack of direction from states
thwart easy establishment of organizational independence and momentum.
Moreover, the Courtā™s early operations have been made ever more com-
plicated by its simultaneous construction and operation. Nonetheless, from
its small beginning in 2002, the Court is rapidly growing, developing
operational routines, learning to manage internal chaos and external chal-
lenges, elaborating plans, and working toward stability. Its trajectory is
promising but uncertain.
River of Justice
The International Criminal Court exists to implement a treaty, the Rome
Statute of 1998, which contains objectives, principles, and mechanisms over
which there was long debate, dispute, compromise, and ļ¬nally both elation
and disappointment. The Statute should be thought of more as a negotiated
cognitive and political map than an architectural plan because even though
it charts the territory and encompasses crucial compromises, there is no
guarantee that it is a coherent design for an organization. The Statuteā™s
negotiators ā“ diplomats, nongovernmental organization activists, lawyers,
and scholars from diverse countries ā“ shared many of the same ideas coming
into the negotiation. They came to agree on the general legal territory upon
which the Court would operate and on many of its features; however,
details of the organizationā™s structure and its overall trajectory remained to
be charted in further negotiation and in practice.
Like maps drawn through the ages on the basis of explorersā™ reports,
rumors, imagination, and creative draftsmanship, the Statute is a snapshot
of perceptions and compromises at a particular historical moment. A long
history precedes it, and developments in which it is a milestone continue. To
better understand the Statute and Court, metaphors even more dynamic
than ā˜ā˜mapā™ā™ might serve. The map reļ¬‚ects a moment, but the moment is
only a slice from a stream of events.
Constructivist international relations theorists Martha Finnemore and
Kathryn Sikkink discuss how new ideas develop at the international level1 and
use the term ā˜ā˜norm cascadeā™ā™ to describe the moment at which they become
irresistible. A cascade is an area of turbulence and transition in a longer
Finnemore and Sikkink, ā˜ā˜International Norms and Political Changeā™ā™ (1998).
River of Justice
riparian metaphor. Such a stage seems to have been reached in the area of
international justice in the 1990s. The river has had normative tributaries,
eddies, currents, and dams, as well as a cascade or two already, and it is
reasonable to imagine that more of these will be reached.
The river metaphor has its limits, too. Tributaries ļ¬‚owing into a river
arenā™t self-conscious. They merely arise at higher altitudes, ļ¬‚ow downhill
following paths of least resistance, and merge into the mainstream. In
contrast, international legal currents were shaped at least partly by con-
scious efforts of legal practitioners, scholars, politicians, decision makers,
and civil society advocates. Intention and self-consciousness need to be
added to gravity to explain the ļ¬‚ow and direction of the river of justice
because many of the normative changes and legal innovations reļ¬‚ected in
the Statute were thought out by people with purposes in mind. The inter-
national justice river arose in the mists of time from divine and natural law
sources.2 As it grew and its current accelerated, legal engineers shaped its
ļ¬‚ow, and advocates broadened its appeal. The Statute Conference was a
moment of grand engineering, bringing various streams together; the norm
cascade was tamed, channeling a wide range of objectives into an inter-
national organization. The broad range of objectives submerged in the
Statute, and the political challenges that lie in the path of orderly imple-
mentation may yet divert the ļ¬‚ow of justice or swamp efforts to keep its
This chapter describes the conļ¬‚uence of justice norms, historical condi-
tions, and activistsā™ efforts that led to the Statute. It argues that the norms
and compromises embedded in the Statute create huge demands on the
Court, potentially unresolvable dilemmas for it, and grounds for internal
conļ¬‚ict within it.
LAW: DIVINE, NATURAL, AND POSITIVE
The headwaters of the international justice river lie obscured in the distant
past, gradually gathering force from philosophies of divine and natural law.
International humanitarian law, that is, law related to the conduct of war,
Brague, The Law of God: The Philosophical History of an Idea (2007), distinguishes
between law that is divine because of its own qualities (as viewed by classical Greek
philosophy) as contrasted with law that is divine because of its godly origin (as found in
Jewish and Christian traditions) or its equation with religion itself. Hart, The Concept of
Law (1961), 182, deļ¬nes theories of natural law as those asserting ā˜ā˜that there are certain
principles of human conduct, awaiting discovery by human reason, with which manmade
law must conform if it is to be valid.ā™ā™
16 Building the International Criminal Court
has ancient roots.3 Traces of limits to what armies and soldiers are
permitted to do (justice in war, jus in bello) surface in the Old Testament
and in a wide variety of works from ancient cultures. Greek and Roman
philosophers considered when war itself could be justiļ¬ed (justice of war,
jus ad bello). A theory of ā˜ā˜just warā™ā™ is generally attributed to theologian
St. Augustine in the ļ¬fth century A . D . , who argued that if war is a lesser evil
than the evil against which it is fought, it can be justiļ¬ed. The distinction
between legitimate and illegitimate kinds of force can already be seen in the
chivalric codes of the Middle Ages,4 based on the relationship of divinely
ordained nobles to their more earth-bound vassals.
A more recent sign that norms of behavior have long existed even in the
context of violent conquest is the trial and conviction in 1474 of Peter von
Hagenbach by an ad hoc tribunal of local notables for crimes he committed
against civilians during his occupation of Breisach, Alsace, on behalf of
Charles, Duke of Burgundy.5 There is thus evidence that by the late ļ¬fteenth
century, both justice of war and justice in war attracted thought and even
led to action demonstrating commitment to norms of behavior in the
context of conļ¬‚ict.
Western medieval legal scholarship attributed to religion and God the
sources of law, with the Ten Commandments being a prime example. With
the turn to Enlightenment at the end of the ļ¬fteenth century, natural-law
theorists proposed that laws are genuine when they are common to all
civilized humans, deducible from the nature of human existence.6 Debate
followed over the content of natural law and, by the mid-seventeenth
century, whether states, as opposed to individuals, could themselves be
subject to law.
Dutch philosopher and lawyer Hugo Grotius, often described as the
ā˜ā˜fatherā™ā™ of international law, argued in 1605 that states have no property
rights to the open sea, but that they do share a common right for innocent
maritime passage. The important point for our purposes is that Grotius
asserted that states had rights. He said that, as a variety of natural law,
international law could be derived from the application of reason. His later
works justiļ¬ed war to protect a stateā™s inherent natural rights of survival
and property but contended that violence was justiļ¬ed only for defense. In
his 1625 work, De jure belli ac pacis libri tres (The Law of War and Peace
Green, Essays on the Modern Law of War, 2nd ed. (1999).
Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 3rd ed.
Schwarzenberger, International Law as Applied by Courts and Tribunals (1968), 462ā“6.
Clark, ā˜ā˜A Methodology for Determining an International Legal Ruleā™ā™ (2003), 24.
River of Justice
in Three Books), he argued, as Benjamin Ferencz paraphrased him, ā˜ā˜that
those who made war for gain or other wrongful intent deserved conviction;
those who commenced a war unlawfully were responsible for the foresee-
able consequences of their aggression; and even generals and soldiers who
could have prevented the harm would be held to account.ā™ā™7
The problem with natural law was that it left open to interpretation the
imperatives of the law, and was thus subject to abuse. In the eighteenth
century, utilitarian philosophers, contractarians that they were, responded
by proposing that law had to be enacted ā“ it wasnā™t something handed
down, discovered, or deduced but could be discovered with reference to
existing state practice. Such discovery required an inductive method.8
According to their views, this positively enacted law ā“ positive law ā“ was
real law; divine and natural law had no solid basis in society. Laws would
be truly legitimate only when enacted by legitimate authority. This created
a problem for international law because if legal positivism proposed that
law was created by legitimate authority, and states were sovereign, where
was the legitimate authority that could create international law, a law