Restraining Gulliver: American Exceptionalism and the International Criminal Court

Mediterranean Quarterly

Volumn 11, Issue 1, 2000, Pages

  Shepard, William S ^a  

^a NONE

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EID: 0346985882     PISSN: 10474552     EISSN: None     Source Type: Journal    
DOI: 10.1215/10474552-11-1-55     Document Type: Article

References (23)

1. The Rome Statute and ad hoc tribunal statutes are available at .
2. A helpful index to the proceedings at Nuremberg and the subsequent proceedings conducted under Control Council Law Number 10 is maintained by the Avalon Project at the Yale Law School, at . For those interested in pursuing the development of the offense of crimes against humanity, the text of the Control Council Law may be compared to Article 7 of the Rome Statute. See also Robert Barr Smith, "The Tokyo Trials and Subsequent Proceedings," World War II (September 1996).
3. The International Criminal Tribunal for Former Yugoslavia was created by Security Council Resolution 827 on 25 May 1993. It covers the period from 1 January 1991 forward. The International Criminal Tribunal for Rwanda was created by Security Council Resolution 955 on 8 November 1994. It covers only calendar year 1994.
4. The American Red Cross celebrated the fiftieth anniversary of the 1949 Geneva Conventions in May 1999 by issuing various fact sheets. See for the texts of the Geneva Conventions themselves and related commentary.
5. "The Security Council shall determine the existence of and threat to the peace, breach of the peace or act of aggression, and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to restore international peace and security." Chapter 7, Article 39, United Nations Charter.
6. See Eric Stover, "The Grave at Vukovar," Smithsonian Magazine, March 1997, 41-51.
7. In Article 5 of the ICTY statute, crimes against humanity arc defined as "when committed in armed conflict, whether international or internal in character." By contrast, Article 3 of the ICTR charter defines crimes against humanity as "when committed as part of a widespread or systematic attack." No armed conflict is necessary.
8. "Witnesses of Genocide Targeted," Washington Post, 20 January 1997, A24.
9. See Michael Scharf, "Trial and Error: An Assessment of the First Judgment of the Yugoslavia War Crimes Tribunal," Journal of International Law and Politics 30, nos. 1-2 (fall 1997-winter 1998).
10. Recognizing this fuel, the draft Rome Statute enables the Security Council to postpone a prosecution by the ICC for a year if in the political judgment of its members the interests of peace would be served by waiting.
11. See Human Rights Watch, "Summary of the Key Provisions of the ICC Statute," at , for a general discussion of crimes under the Rome Statute.
12. Professor Theodor Meron of New York University and a member of the U.S. delegation at Rome emphasized this point at the Duke Conference on the ICC (henceforth Duke Conference), sponsored by the Duke University Center on Law, Ethics, and National Security, Durham, N.C., 8-9 April 1999. It should be noted that this offense applies both for an international conflict, per Article 8(2)(b)(xxvi), and for a conflict not of an international character, per Article 8(2)(e)(vii).
13. Rome Statute, Article 8(2)(b)(viii).
14. Charles Trueheart, "U.N. War Crimes Tribunal Limping Along," Washington Post, 8 August 1998.
15. The Vienna Convention, signed at Vienna on 23 May 1969, entered into force 27 January 1980. The text can be found at . Scheffer's argument would have more persuasive force if the United States were itself a party to the Vienna Convention. I am persuaded by the contrary argument, that war crimes offenses are, like slavery and piracy of old, crimes subject to universal jurisdiction even in the absence of treaty. See contra Madeleine Morris, "Exercise of ICC Jurisdiction over Nationals of Non-Party States" presented at the Duke Conference.
16. Aryeh Neier, president of the Open Society Institute, presented this argument at the Duke Conference. He gave the example of Iraq's alleged murder of Iranian citizens during their war and said that Human Rights Watch had evidence and eyewitnesses. Despite this, he said, fear of retaliation and terrorism, "which are not negligible matters," made other states back down when requested to bring Iraq to account.
17. Rome Statute, Article 8(b)(iv) and (v).
18. "The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council." Article 53, United Nations Charter.
19. It has been said that U.S. policy makers were aware of this problem but that they proposed to go ahead with the NATO campaign in any event, counting on bringing in Russia after the campaign was over and winning its adherence to a settlement. Thus the matter of a probable veto by Russia in the Security Council of military action against her traditional ally was papered over. See Elaine Sciolino and Ethan Bronner. "How a President, Distracted by Scandal, Entered Balkan War," New York Times, 18 April 1999, A1. Reportedly, the precedent set of not seeking the required Security Council approval for NATO military action was a topic of concern at the NATO fiftieth anniversary summit in Washington in April 1999, with President Jacques Chirac of France leading the ultimately successful movement for a reaffirmation of Security Council authority in the NATO communiqué.
20. The initial oral pleadings before Vice-President Christopher Weeramartry were held 10-12 May 1999 and may be found at . Since the basis for jurisdiction alleged is the Genocide Convention, and since the United States has registered an objection to compulsory jurisdiction of the International Court of Justice under Article 9 of the Genocide Convention and has not accepted it in this case, the underlying issue of the legality of NATO's use of force against Yugoslavia without Security Council authorization was not directly reached as regards the United States.
21. The other indicted persons are President of Serbia Milan Milutinović, Deputy Prime Minister of Yugoslavia Nikola Sainović, Yugoslav Chief of Staff General Dragoljub Ojdanić, and Serbian Interior Minister Vlajko Stojiljković. Further indictments and charges are expected.
22. William Brannigan, "U.S. Classified Data Placed Milošević in Chain of Command," Washington Post, 28 May 1999, A30.
23. Louise Arbour, statement, UN press release JL/PIU/403-E, 27 May 1909. See also Roger Cohen, "Warrant Served for Serb Leader and Four Assistants," New York Times, 28 May 1999.