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classical Greece, the river of justice traversed a norms cascade at the Rome
Statute Conference in 1998. States accepted the Nuremberg principles that
individuals are culpable for international crimes, that an individual is
responsible whether or not domestic law criminalizes the international crime,
that superiors are responsible for the acts of subordinates and subordinates
are not relieved of responsibility due to superior orders, and that suspects
have rights to fair trials. States granted that genocide, crimes against
humanity, and war crimes are international crimes worthy of prosecution.
They inscribed both retributive and restorative justice objectives into the
Statute. Victims gained status as subjects, not mere objects, of justice. Gender
crimes were recognized as among humanity™s most heinous acts.
Debate over international crimes and individuals™ potential culpability for
them is over. International criminal law is a set of ideas whose time has come,
and the International Criminal Court is the organizational manifestation of
this consensus. Just because the norms command considerable agreement,
however, does not mean that agreement exists over how to implement them,
or that they are simple to put into operation. The ICC™s mandate and
structure as outlined in the Statute are fundamental to the organization,
representing its cognitive architecture. Its operational characteristics combine
that architecture with the practical limitations of a real organization.


The Statute is a compromise document. Complementarity protected sover-
eignty, and jurisdiction was limited to just three crimes and two jurisdiction


principles. Pre-Trial Chambers check the independence of the Prosecutor, and
the Security Council was given the ability to refer cases to the Court and to
suspend its activities. States that join are obliged to bring their domestic legal
systems into congruence with the Statute and to cooperate with the Court, but
no sanctions or enforcement capacity were created to ensure either of these.
The Statute formally recognizes the objectives of both retributive and
restorative justice paradigms, presenting the Court with a broad and chal-
lenging mandate. Because the retributive model dominated the tribunals
and the Statute drafting process, that part of the ICC™s operation is spelled
out much more explicitly than were the restorative side™s institutional
innovations. Restorative justice in the ICC is still evolving, largely under the
tutelage of the Pre-Trial Chambers and the Registry.
Since construction of the Statute was ultimately a diplomatic-political
activity, not an exercise of rational design, the Court™s objectives may not
be mutually compatible. Priorities among objectives must be developed in
operation, by Court of¬cials functioning within the structure devised by the
Statute negotiators.


The ICC™s organizational structure evolved in negotiations based on the
1994 International Law Commission draft, informed by the experiences of
the ICTY and ICTR. The tribunals™ tripartite structure of Chambers,
Prosecutor, and Registry, with the distant oversight of the UN Security
Council, shared its heritage with the ICC Statute, having emerged from
experts™ long contemplation of an international criminal court and from the
ICC designs drafted by the International Law Commission.
The tribunals showed that they could function but also exposed serious
structural and operational problems. The Rome Statute negotiators
tweaked the model, subordinating the Registry to the Chambers, separating
the Court from the UN, and establishing the Assembly of States Parties, but
the skeleton remained visible. Tensions between the Chambers and the OTP
persisted, and the Registry, even though subordinated to the Presidency,
remained vigorous but with a somewhat ambiguous role. The ASP provides
membership input to the Court but has so far been reticent to supervise the
ICC™s development closely. In the Court itself, there is either an excess or a
de¬cit of leadership: The President, Chief Prosecutor, and Registrar all lead
aspects of the Court™s operations and external relations, but deference to the
organs™ independence, dif¬culty in devising a division of labor, and personal
differences mean that despite the slogan of the ˜˜one-court principle,™™
250 Building the International Criminal Court

interlocutors often experience more than one Court, and ¬nal decisions in
the Court are hard to reach. Efforts continue to improve administration and
coordinate the organs without compromising their requisite independence.
The tribunals were crafted largely around common-law legal patterns, but
they evolved to include civil-law expediencies and greater judicial activism.
The ICC began where the tribunals had arrived (as of 1998), combining a
common-law-style independent prosecutor (capable of undertaking cases
proprio motu) with embryonic civil-law judicial constraints (in the form of
the Pre-Trial Chambers), a compromise devised to protect states from feared
˜˜frivolous™™ prosecutions.
The tribunals™ judges wrote their own rules as they went along, since the
Security Council™s statutes for them focused on establishment rather than
operation. With more time available and seeking to divide the legislative
responsibility from operations, the Statute negotiators wrote a much more
ornate statute and reserved for the Preparatory Commission and the
Assembly of States Parties the right to compose and approve rules for the
Court, creating a surrogate international form of separation of powers that
the tribunals didn™t have.
The ICC Statute negotiators brought as many of the tribunals™ experi-
ences into their considerations as possible; however, their negotiations
ended before the full lessons of the tribunals had been grasped. Full
responses to the tribunals™ lessons fell to the Preparatory Commission as it
hammered out the Court™s rules, and to the organs of the Court as it
undertook operations.


For the ad hoc tribunals, learning how to operate was an adventure, forcing
the judges to develop their rules on the ¬‚y and successive prosecutors to
turn their of¬cial responsibilities into workable routines. Faced with mon-
umental challenges, they were investigating crimes while being obstructed
by local governments and neglected by the major states that had spurred
their creation in the ¬rst place. The kind of international prosecution that
they were mandated to carry out had not been undertaken since Nuremberg.
Nonetheless, they developed institutional momentum and legitimacy more
credibly than their detractors had imagined possible, eventually mounting
serious and precedent-setting court cases. The tribunals eroded the traditional
international law distinction between internal and international con¬‚ict,
raised the pro¬le of sexual crimes, and demonstrated the dif¬culties of
prosecuting genocide.

They revealed important pitfalls that their ICC successors strove to
avoid. Overly broad charges created prosecution problems, motivating the
ICC Prosecutor to de¬ne charges narrowly. In the tribunals, separation of
investigation from prosecution activities produced case information inef-
¬ciently, and it was often unusable for the prosecution. So the ICC OTP
integrated prosecution personnel into its investigation teams from the
start. The ICC learned from the tribunals™ inadequate attention to out-
reach and witness protection and early created victims™ units and outreach
Selection of judges for the Court disappointed observers who had hoped
for a less political selection process than occurred for the tribunals.
Recruiting a Chief Prosecutor proved to be much more dif¬cult than
expected. The ¬rst Chief Prosecutor has many quali¬cations for the position
from the standpoint of the ASP, but as with the political selection process
for the judges, questions remain about his expertise in the areas most
needed by an international criminal court.
When the Chief Prosecutor arrived, he overrode civil-law-oriented
experts™ proposals for the review structure for the Court™s intake work.
Detractors charge that the resulting Jurisdiction, Complementarity and
Cooperation Division is more political-diplomatic than legal in its orien-
tation; supporters argue that the legalistic alternatives would not ade-
quately have taken into account political realities and, in any case, once
the Chief Prosecutor was selected, it was his job to determine the best
structure for his own operation. The Prosecutor has been under tremen-
dous pressure from inside the Court, from enthusiastic governments, and
from NGOs to move cases rapidly into court. The Pre-Trial Chambers
have been aggravated about what they see as the slow pace of investiga-
tions and, in the Democratic Republic of the Congo and Sudan cases,
the choice of suspects and narrow range of alleged crimes. The PTCs
and OTP have struggled with each other to delineate their roles, with
the OTP believing that Chambers are intruding on prosecutorial pre-
rogatives, and Chambers concerned over the OTP™s investigations and
protection of victims and witnesses. The Appeals Chamber has mostly sided
with the PTCs.
The Prosecution and Registry have come into con¬‚ict over evidence dis-
closure and control of communication with situation states. Both issues
required judicial decisions to establish operational precedents; in the case of
disclosure, defense and prosecution successfully argued to minimize the
Registry™s role. In communications with the situation states, the PTCs upheld
statutory language establishing the Registry™s leading role, constraining the
252 Building the International Criminal Court

Prosecutor™s ability to time announcements and to negotiate arrangements
with the states.
Pre-Trial Chambers, NGOs, bureaus of the Registry, and the board of
the Victims™ Trust Fund have been working to implement restorative justice
objectives, and some actions have already borne fruit. NGOs helped
organize victims™ requests for participation in the DRC (Lubanga) case™s
pretrial phase, and resultant litigation among the OTP, Pre-Trial Chambers,
defense, and Appeals Chambers has begun to provide the de¬nitions and
criteria under which victims will participate. The Victims™ Trust Fund is
beginning to operate with a small secretariat. Case-by-case board decisions
about when and how to aid victims will have to be made, with Pre-Trial
Chambers having an oversight responsibility. The fund depends on volun-
tary donations, so donors will govern the magnitude of reparative measures;
it can be expected to remain small in comparison with the humanitarian
needs of the victims of the kinds of mass crimes that the Court is empow-
ered to prosecute. Thus, while operational balance between retributive and
restorative justice is not yet settled, the emphasis appears to remain heavily
on the retributive side.
Convinced by the tribunals™ experience that outreach should be an
important function of the Court, both the Registry and the OTP developed
external relations capabilities that were largely uncoordinated at the start.
Particularly with pressures from NGOs to bring information about the
Court to the situation states, the Court™s of¬cials established a coordination
committee and a strategic plan for outreach. While the coordinating
council, ˜˜one-court principle,™™ and outreach plan show important organi-
zational innovations to reduce internal con¬‚ict and smooth the Court™s
operations, they are also testaments to the problems of achieving these
So far, the Court has had an easy time acquiring ¬nancial resources from
the Assembly of States Parties. From 2002 to 2007, its budget expanded
rapidly. The ASP Committee on Budget and Finance has worked with the
Registry to improve ¬nancial reporting and control. The CBF exerts pres-
sure on the Court in the form of recommendations to the ASP for budgetary
limitations in response to the Court™s draft budget; however, with the rapid
growth of the Court and relatively generous annual budget, the Court has
not run up against serious reactions to redundancy and inef¬ciency. The
Court has also bene¬ted from pressures brought to bear on the ASP by
nongovernmental organizations that press for budgetary expansion in areas
of their concern (such as outreach and victim reparations) but do not call
for retrenchment in other parts of the budget.


Nongovernmental organizations played a larger role at the ICC Statute
negotiations than at any previous international conference. They used
electronic technologies to great effect at the conference, provided infor-
mation and reacted to unfolding events rapidly through their umbrella
coalition, the CICC, and kept pressure on national delegations. Combined
with the compelling quality of the norms they were championing, their
involvement at Rome is generally credited with helping to create the ¬nal
agreement. Continuing on a path established in their relations with the
tribunals, NGOs pressed successfully for raising consciousness about gender
crimes and inscribing them in the Statute, along with an emphasis on
restorative justice. Once the Statute was complete, they pursued campaigns
for accession to the Treaty and are actively involved with the ASP, pressing
their agendas.
At operational levels of the Court, NGOs have also been crucial. They
participated vigorously in the Prosecutor™s hearings about how to set up
his of¬ce, and they continued to comment on the actions of the Court as its
operations got under way. The Prosecutor regularized NGO contacts with
semiyearly consultations on policy. Much of the information ¬‚owing into
the OTP regarding alleged crimes has come from NGO sources. On the
ground in the situation states, NGOs have played such vital roles in
providing information about the Court and helping Court of¬cials to set
up local contacts that they can be seen almost as extensions of the Court
NGOs™ objectives vary, however. Particularly as the Court has become
involved in the situation states, humanitarian and human rights objectives
of NGOs have been in some tension with each other. In Uganda, for
example, NGOs focused on humanitarianism have suggested that the ICC
¬nd some way out of the impasse over the warrants it issued to LRA leaders
so that peace agreements could move forward. In contrast, human rights
organizations have stressed the importance of carrying out the Court™s
judicial processes, in order to clearly establish the message that impunity
cannot be tolerated even (or perhaps especially) when suspected trans-
gressors hold potential victim populations at risk. NGOs have been reluc-
tant to criticize the Court, although they have expressed discomfort when
the OTP has appeared to identify too closely with governments (as in
Uganda and the DRC), has narrowed charges against suspects too much
(Lubanga), or has aimed too low (in Sudan).
254 Building the International Criminal Court


Accession to the Statute is most easily explained by states™ desires to
demonstrate opposition to impunity and to create a mechanism at the
international level to counter it. Most of the states that join would expect not
to be the scenes of international criminal law violations or the home states of
international criminal law transgressors, and they would expect that, should
such crimes occur, their domestic legal institutions would deal with them.
Thus, the impulse to join must, for most countries, either be to support
antiimpunity in other states or to demonstrate adherence to the norms for
some other reason, such as the compulsions of identity or a quest for prestige.
These motives ¬t the constructivist proposition that states can pursue quests
for nonmaterial and absolute gains. The positions of states opposed to the
Court can also be explained by constructivists. Dedication to absolute sov-
ereignty is just as much based on ideas as is dedication to alternative norms,
as would be decision makers™ belief in their own exceptional right to carry
out the kinds of acts criminalized by the Statute.
U.S. motives in opposing the ICC appear mixed. Some U.S. opponents of
the Court apparently fear that the Court might constrain the use of U.S.
military force and thus undermine national or international security. Others
are ideologically opposed to the idea of subjecting the United States to an
organization it does not control. Regardless of the reason for U.S. enmity
toward the ICC, as it began to experience the foreign policy costs of its
opposition (in Europe, Latin America, and with regard to Sudan), it mod-


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( 54 .)