International society, the international criminal court and American foreign policy

Review of International Studies

Volumn 31, Issue 1, 2005, Pages 27-44

  Ralph, Jason ^a  

^a NONE

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EID: 13144264125     PISSN: 02602105     EISSN: None     Source Type: Journal    
DOI: 10.1017/S0260210505006285     Document Type: Article

References (126)

1. For example, see Roy Lee (ed.), The International Criminal Court. The Making of the Rome Statute: Issues, Negotiations, Results, (The Hague: Kluwer Law International, 1999); Antonio Cassesse, Paolo Gaeta and John R.W.D.Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, Vols. I and II (Oxford: Oxford University Press, 2002); Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millennium (Ardsley NY: Transnational Publishers, 2002).
2. For example, see Roy Lee (ed.), The International Criminal Court. The Making of the Rome Statute: Issues, Negotiations, Results, (The Hague: Kluwer Law International, 1999); Antonio Cassesse, Paolo Gaeta and John R.W.D.Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, Vols. I and II (Oxford: Oxford University Press, 2002); Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millennium (Ardsley NY: Transnational Publishers, 2002).
3. For example, see Roy Lee (ed.), The International Criminal Court. The Making of the Rome Statute: Issues, Negotiations, Results, (The Hague: Kluwer Law International, 1999); Antonio Cassesse, Paolo Gaeta and John R.W.D.Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary, Vols. I and II (Oxford: Oxford University Press, 2002); Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millennium (Ardsley NY: Transnational Publishers, 2002).
4. For exceptions, see V. Popovski, 'International Criminal Court: A Necessary Step Towards Global Justice', Security Dialogue, 31 (2000), pp. 405-419; Spyros Economides, 'The International Criminal Court', in Karen E. Smith and Margot Light (eds.), Ethics and Foreign Policy (Cambridge: Cambridge University Press, 2001), pp. 112-128; Bertram S. Brown, 'Unilateralism, Multilateralism, and The International Criminal Court', in Stewart Patrick and Shepard Forman (eds.), Multilateralism and US Foreign Policy: Ambivalent Engagement (Boulder, CO and London; Lynne Reinner, 2002), pp. 323-344; D. P. Forsythe, 'The United States and International Criminal Justice', Human Rights Quarterly, 24 (2002), pp. 974-991.
5. For exceptions, see V. Popovski, 'International Criminal Court: A Necessary Step Towards Global Justice', Security Dialogue, 31 (2000), pp. 405-419; Spyros Economides, 'The International Criminal Court', in Karen E. Smith and Margot Light (eds.), Ethics and Foreign Policy (Cambridge: Cambridge University Press, 2001), pp. 112-128; Bertram S. Brown, 'Unilateralism, Multilateralism, and The International Criminal Court', in Stewart Patrick and Shepard Forman (eds.), Multilateralism and US Foreign Policy: Ambivalent Engagement (Boulder, CO and London; Lynne Reinner, 2002), pp. 323-344; D. P. Forsythe, 'The United States and International Criminal Justice', Human Rights Quarterly, 24 (2002), pp. 974-991.
6. For exceptions, see V. Popovski, 'International Criminal Court: A Necessary Step Towards Global Justice', Security Dialogue, 31 (2000), pp. 405-419; Spyros Economides, 'The International Criminal Court', in Karen E. Smith and Margot Light (eds.), Ethics and Foreign Policy (Cambridge: Cambridge University Press, 2001), pp. 112-128; Bertram S. Brown, 'Unilateralism, Multilateralism, and The International Criminal Court', in Stewart Patrick and Shepard Forman (eds.), Multilateralism and US Foreign Policy: Ambivalent Engagement (Boulder, CO and London; Lynne Reinner, 2002), pp. 323-344; D. P. Forsythe, 'The United States and International Criminal Justice', Human Rights Quarterly, 24 (2002), pp. 974-991.
7. For exceptions, see V. Popovski, 'International Criminal Court: A Necessary Step Towards Global Justice', Security Dialogue, 31 (2000), pp. 405-419; Spyros Economides, 'The International Criminal Court', in Karen E. Smith and Margot Light (eds.), Ethics and Foreign Policy (Cambridge: Cambridge University Press, 2001), pp. 112-128; Bertram S. Brown, 'Unilateralism, Multilateralism, and The International Criminal Court', in Stewart Patrick and Shepard Forman (eds.), Multilateralism and US Foreign Policy: Ambivalent Engagement (Boulder, CO and London; Lynne Reinner, 2002), pp. 323-344; D. P. Forsythe, 'The United States and International Criminal Justice', Human Rights Quarterly, 24 (2002), pp. 974-991.
8. Sadat, The International Criminal Court, p. 109. Rome Statute of the International Criminal Court, UN Doc. A/Conf. 183/9* (1998), available at: 〈http://www.un.org/law/icc/statute/romefra.htm〉. Hereafter, Rome Statute.
9. Barry Buzan, 'The English School: An Underexploited Resource in IR', Review of International Studies, 27 (2001), pp. 471-488.
10. On the use of 'International Society' rather than 'English School', see S.M. Makinda, 'International Society and Eclecticism in International Relations Theory', Cooperation and Conflict: Nordic Journal of International Studies 35 (2000), pp. 205-16.
11. Richard Little, 'International System, International Society and World Society: A Re-evaluation of the English School', in B.A.Roberson (ed.), International Society and the Development of International Relations Theory (London, Pinter,1998), pp. 59-79.
12. The Rome Statute also reaffirms the illegality of aggression but specifies in Article 5 that the Court may not exercise jurisdiction until the Assembly of State Parties is able to define it and not within seven years of the Statute entering into force. This political compromise allowed some commentators to claim that the Court exercises 'dormant jurisdiction' over the crime of aggression. Kirsch and Robinson, 'Reaching Agreement at the Rome Conference', in Cassese et al. The Rome Statute, p. 78.
13. Article 16 of the Rome Statute allows the UN Security Council to defer the pursuit of justice for 12 months if nine of its members pass a Chapter VII resolution identifying an investigation or prosecution to be a threat to international peace and security.
14. Sadat, Leila Nadya and S.Riehard Garden, 'The New International Criminal Court: An Uneasy Revolution', Georgetown Law Journal, 88 (2000), pp. 381-474.
15. India and China, for instance, have withheld their consent from the Treaty of Rome; while Russia signed the Treaty in September 2000, it has yet to ratify it. All have expressed concerns that the Court violates state sovereignty. This argument also received much attention in the Australian ratification debate, although it was not strong enough to stop Australia becoming a state party on 1 July 2002. See Michelle Grattan, 'Government Split Over War Crimes Court', Sydney Morning Herald, 5 June 2002.
16. Buzan, 'The English School', p. 474; Martin Wight, International Theory: The Three Tradition, edited by Gabriele Wight and Brian Porter (Leicester and London: RIIA, 1991).
17. Buzan, 'The English School', p. 474; Martin Wight, International Theory: The Three Tradition, edited by Gabriele Wight and Brian Porter (Leicester and London: RIIA, 1991).
18. James Mayall, 'Introduction', in James Mayall (ed.), The Community of States (London: Allen and Unwin, 1982), p. 6.
19. H. Lauterpacht, 'The Grotian Tradition in International Law", The British Yearbook of International Law, 23 (1946), p. 35.
20. O.W.Holmes cited by M. Cherif Bassiouni and Edward M.Wise, Aut Dedere, Aut Judicare: The Duty to Extradite or Prosecute in International Law (Dordrecht, Boston and London: Martinus Nihoff Publishers, 1995), p. 31.
21. Mayall, 'Introduction', pp. 10-11.
22. Wight, International Theory, p. 234.
23. Ibid., p. 39.
24. Ken Booth, 'Military Intervention: Duty and Prudence', in Lawrence Freedman (ed.), Military Intervention in European conflicts (Oxford: Blackwell, 1994), pp. 56-75.
25. On the early influence, see D.G. Lang, Foreign Policy in the Early Republic: The Law of Nations and the Balance of Power (Baton Rouge and London: Louisiana University Press. 1985); Peter Onuf and Nicholas Onuf, Federal Union, Modern World: The Law of Nations in an Age of Revolution, 1776-1814 (Madison House Publishers, 1993); Paul A. Varg, Foreign Policies of the Founding Fathers (Michigan State University Press, 1963).
26. On the early influence, see D.G. Lang, Foreign Policy in the Early Republic: The Law of Nations and the Balance of Power (Baton Rouge and London: Louisiana University Press. 1985); Peter Onuf and Nicholas Onuf, Federal Union, Modern World: The Law of Nations in an Age of Revolution, 1776-1814 (Madison House Publishers, 1993); Paul A. Varg, Foreign Policies of the Founding Fathers (Michigan State University Press, 1963).
27. On the early influence, see D.G. Lang, Foreign Policy in the Early Republic: The Law of Nations and the Balance of Power (Baton Rouge and London: Louisiana University Press. 1985); Peter Onuf and Nicholas Onuf, Federal Union, Modern World: The Law of Nations in an Age of Revolution, 1776-1814 (Madison House Publishers, 1993); Paul A. Varg, Foreign Policies of the Founding Fathers (Michigan State University Press, 1963).
28. Emer de Vattel, The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns (Washington, Carnegie Institution of Washington, 1916 [1758]), p. 15.
29. Vattel, The Law of Nations, p. 5.
30. Ibid., p. 6.
31. Ibid., p. 6.
32. Ibid., p. 116, 119.
33. Ibid., p. 11a.
34. Ibid., p. 11a, see also p. 192. Contemporary analysts note how practice on its own is not enough to create a rule of customary law. The key element in transforming State practice into rules of customary international law is evidence of opinio juris. This is said to represent 'a diffuse consensus' among states as to the legal relevance of different kinds of behaviour in different situations, See Michael Byers, Custom, Power and the Power of Rules: International Relations and Customary International Law (Cambridge: Cambridge University Press, 1998), p. 18, See also M.Akehurst, 'Custom as a Source of Law', British Yearbook of International Law, 47 (1974-75), pp. 1-53. The significance of legal opinion relative to actual practice is strongly contested, not least by the American courts, See Anthony Clark Arend, 'International Law, Terrorism and US Courts', paper presented at the ISA 45th Annual Convention, Montreal, March 2004.
35. Ibid., p. 11a, see also p. 192. Contemporary analysts note how practice on its own is not enough to create a rule of customary law. The key element in transforming State practice into rules of customary international law is evidence of opinio juris. This is said to represent 'a diffuse consensus' among states as to the legal relevance of different kinds of behaviour in different situations, See Michael Byers, Custom, Power and the Power of Rules: International Relations and Customary International Law (Cambridge: Cambridge University Press, 1998), p. 18, See also M.Akehurst, 'Custom as a Source of Law', British Yearbook of International Law, 47 (1974-75), pp. 1-53. The significance of legal opinion relative to actual practice is strongly contested, not least by the American courts, See Anthony Clark Arend, 'International Law, Terrorism and US Courts', paper presented at the ISA 45th Annual Convention, Montreal, March 2004.
36. Ibid., p. 11a, see also p. 192. Contemporary analysts note how practice on its own is not enough to create a rule of customary law. The key element in transforming State practice into rules of customary international law is evidence of opinio juris. This is said to represent 'a diffuse consensus' among states as to the legal relevance of different kinds of behaviour in different situations, See Michael Byers, Custom, Power and the Power of Rules: International Relations and Customary International Law (Cambridge: Cambridge University Press, 1998), p. 18, See also M.Akehurst, 'Custom as a Source of Law', British Yearbook of International Law, 47 (1974-75), pp. 1-53. The significance of legal opinion relative to actual practice is strongly contested, not least by the American courts, See Anthony Clark Arend, 'International Law, Terrorism and US Courts', paper presented at the ISA 45th Annual Convention, Montreal, March 2004.
37. Ibid., p. 11a, see also p. 192. Contemporary analysts note how practice on its own is not enough to create a rule of customary law. The key element in transforming State practice into rules of customary international law is evidence of opinio juris. This is said to represent 'a diffuse consensus' among states as to the legal relevance of different kinds of behaviour in different situations, See Michael Byers, Custom, Power and the Power of Rules: International Relations and Customary International Law (Cambridge: Cambridge University Press, 1998), p. 18, See also M.Akehurst, 'Custom as a Source of Law', British Yearbook of International Law, 47 (1974-75), pp. 1-53. The significance of legal opinion relative to actual practice is strongly contested, not least by the American courts, See Anthony Clark Arend, 'International Law, Terrorism and US Courts', paper presented at the ISA 45th Annual Convention, Montreal, March 2004.
38. Vattel. The Law of Nations, p. 9. Emphasis added.
39. Stephen Toope, 'Powerful but Unpersuasive? The Role of the United States in the Evolution of Customary International Law', in Michael Byers and Georg Nolte, United States Hegemony and the Foundation of International Law (Cambridge: Cambridge University Press, 2003), p. 308.
40. Hedley Bull, 'The Grotian Conception of International Society', in Martin Wight and Herbert Butterfield (eds.), Diplomatic Investigations: Essays in the Theory of International Politics (London: Allen and Unwin, 1966), p. 56.
41. Vattel, The Law of Nations, p. 116.
42. Lauterpacht, 'The Grotian Tradition' p. 56.
43. Vattel, The Law of Nations, p. 93. Emphasis added.
44. Hugo Grotius [translated by Francis W. Kelsey et al.], De Jure Belli Ac Pacis Libri Tres (Oxford: Clarendon Press, 1925 [1646]), pp. 526-7. Emphasis added.
45. Remec claims that unlike Grotius, Vattel 'did not recognise any general right to punish crimes for the sake of human society in general'. Extradition of a criminal was merely a means of avoiding state responsibility for the acts of private individuals. The Position of the Individual in International Law according to Grotius and Vattel (The Hague: Martinus Nijhoff, 1960), pp. 231-2.
46. Grotius's principle, write Bassiouni and Wise, 'really should have read aut dedere aut judicare (either extradite or prosecute), since it is not right to require a state to punish everyone whose extradition is refused; it is sufficient to require prosecution. Punishment should only be imposed on those found guilty. Yet Grotius knew that. He was talking about alternative ways in dealing with fugitives who have been found guilty after a full inquiry ... He cannot be taken to imply that there is an obligation to punish those who may not be guilty... . He rather insists, contrary to modern practice, that there is no obligation to extradite without such a finding.' Bassiouni and Wise, Aut Dedere, Aut Judicare, p. 40.
47. Grotius's principle, write Bassiouni and Wise, 'really should have read aut dedere aut judicare (either extradite or prosecute), since it is not right to require a state to punish everyone whose extradition is refused; it is sufficient to require prosecution. Punishment should only be imposed on those found guilty. Yet Grotius knew that. He was talking about alternative ways in dealing with fugitives who have been found guilty after a full inquiry ... He cannot be taken to imply that there is an obligation to punish those who may not be guilty... . He rather insists, contrary to modern practice, that there is no obligation to extradite without such a finding.' Bassiouni and Wise, Aut Dedere, Aut Judicare, p. 40.
48. Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949, Article 49 states that 'High Contacting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article. Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contacting Party concerned, provided such High Contracting party has made out a prima facie case. ...' Available at: 〈http://www.icrc.org/eng/party_gc〉. See generally, Steven R. Ratner and Jason S. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (Oxford: Oxford University Press, 2001).
49. For discussion see Toope, 'Powerful but Unpersuasive'. See also Achilles Skordas, 'Hegemonic Custom?' in Byers and Nolte (eds.). United States Hegemony, pp. 317-347.
50. For discussion see Toope, 'Powerful but Unpersuasive'. See also Achilles Skordas, 'Hegemonic Custom?' in Byers and Nolte (eds.). United States Hegemony, pp. 317-347.
51. Buzan, 'The English School', p. 475. Again this is contested, see Ken Booth and H. Williams (1996), 'Kant: Theorist beyond Limits', in Ian Clark and Iver B. Neumann (eds.), Classical Theories of International Relations (London: Macmillan, 1998), pp. 71-98.
52. Buzan, 'The English School', p. 475. Again this is contested, see Ken Booth and H. Williams (1996), 'Kant: Theorist beyond Limits', in Ian Clark and Iver B. Neumann (eds.), Classical Theories of International Relations (London: Macmillan, 1998), pp. 71-98.
53. Clark, Traditions of Thought', p. 6; see also A. Hurrell, 'Kant and the Kantian Paradigm in International Relations', Review of International Studies, 16 (1990), pp. 183-206.
54. Clark, Traditions of Thought', p. 6; see also A. Hurrell, 'Kant and the Kantian Paradigm in International Relations', Review of International Studies, 16 (1990), pp. 183-206.
55. Wight, International Theory, pp. 41-2; for an example see Michael Doyle 'Kant, Liberal Legacies and Foreign Affairs', Philosophy and Public Affairs, 12 (1983), pp. 205-235.
56. Wight, International Theory, pp. 41-2; for an example see Michael Doyle 'Kant, Liberal Legacies and Foreign Affairs', Philosophy and Public Affairs, 12 (1983), pp. 205-235.
57. Hurrell, 'Kant and the Kantian Paradigm', p. 200.
58. Buzan, 'The English School', p. 478. Andrew Linklater makes a similar point when he notes that the pluralist and solidarist conceptions of international society within the rationalist or Grotian tradition differ from the post-sovereign arrangements that characterise Europe. 'Collective action to despatch many of the powers of the sovereign state to stronger local and transnational authorities which can protect citizen rights distinguishes neo-medieval international society from the other two types'. In K. Hutchings and R.Dannreuther (eds.), Cosmopolitan Citizenship (Basingstoke: Macmillan, 1999), p. 52.
59. Buzan, 'The English School', p. 478. Andrew Linklater makes a similar point when he notes that the pluralist and solidarist conceptions of international society within the rationalist or Grotian tradition differ from the post-sovereign arrangements that characterise Europe. 'Collective action to despatch many of the powers of the sovereign state to stronger local and transnational authorities which can protect citizen rights distinguishes neo-medieval international society from the other two types'. In K. Hutchings and R.Dannreuther (eds.), Cosmopolitan Citizenship (Basingstoke: Macmillan, 1999), p. 52.
60. Andrew Hurrell, 'Conclusion: International Law and the Changing Constitution of International Society', in Michael Byers (ed.), The Role of Law in International Politics: Essays in International Relations and International Law (Oxford: Oxford University Press, 2000), p. 337.
61. Daniele Archibugi, 'Immanuel Kant, Cosmopolitan Law and Peace', European Journal of International Relations. 1 (1995), p. 430.
62. Archibuigi, 'Immanuel Kant', p. 448.
63. Immanuel Kant (translated by M.Campbell Smith), Perpetual Peace: A Philosophical Essay (London: George Allen and Unwin, 1903 [1795]), pp. 113-4.
64. Kant, Perpetual Peace, pp. 137-142.
65. Kant. Perpetual Peace, p. 142. Emphasis added.
66. Hurrell, 'Kant and the Kantian Paradigm', p. 202; Booth and Williams, 'Kant', p. 88.
67. Hurrell, 'Kant and the Kantian Paradigm', p. 202; Booth and Williams, 'Kant', p. 88.
68. Archibuigi, 'Immanuel Kant', pp. 451-2; see also Onora O'Neill, 'Bounded and Cosmopolitan Justice', Review of International Studies, 26 (2002), pp. 45-60.
69. Archibuigi, 'Immanuel Kant', pp. 451-2; see also Onora O'Neill, 'Bounded and Cosmopolitan Justice', Review of International Studies, 26 (2002), pp. 45-60.
70. Daniele Archibugi, 'Demos and Cosmopolis', New Left Review, 13 (2002), pp. 24-38; Daniele Archibugi, 'Cosmopolitical Democracy', New Left Review, 4 (2000), pp. 137-150; Daniele Archibugi, 'From the United Nations to Cosmopolitan Democracy', in D. Archibugi and D. Held (eds.), Cosmopolitan Democracy. An Agenda for a New World Order (Cambridge: Polity Press, 1995), pp. 121-62; see also Frédéric Mégret, 'Epilogue to an Endless Debate: The International Criminal Court's Third Party Jurisdiction and the Looming Revolution in International Law'. European Journal of International Law. 12 (2001), p. 258.
71. Daniele Archibugi, 'Demos and Cosmopolis', New Left Review, 13 (2002), pp. 24-38; Daniele Archibugi, 'Cosmopolitical Democracy', New Left Review, 4 (2000), pp. 137-150; Daniele Archibugi, 'From the United Nations to Cosmopolitan Democracy', in D. Archibugi and D. Held (eds.), Cosmopolitan Democracy. An Agenda for a New World Order (Cambridge: Polity Press, 1995), pp. 121-62; see also Frédéric Mégret, 'Epilogue to an Endless Debate: The International Criminal Court's Third Party Jurisdiction and the Looming Revolution in International Law'. European Journal of International Law. 12 (2001), p. 258.
72. Daniele Archibugi, 'Demos and Cosmopolis', New Left Review, 13 (2002), pp. 24-38; Daniele Archibugi, 'Cosmopolitical Democracy', New Left Review, 4 (2000), pp. 137-150; Daniele Archibugi, 'From the United Nations to Cosmopolitan Democracy', in D. Archibugi and D. Held (eds.), Cosmopolitan Democracy. An Agenda for a New World Order (Cambridge: Polity Press, 1995), pp. 121-62; see also Frédéric Mégret, 'Epilogue to an Endless Debate: The International Criminal Court's Third Party Jurisdiction and the Looming Revolution in International Law'. European Journal of International Law. 12 (2001), p. 258.
73. Daniele Archibugi, 'Demos and Cosmopolis', New Left Review, 13 (2002), pp. 24-38; Daniele Archibugi, 'Cosmopolitical Democracy', New Left Review, 4 (2000), pp. 137-150; Daniele Archibugi, 'From the United Nations to Cosmopolitan Democracy', in D. Archibugi and D. Held (eds.), Cosmopolitan Democracy. An Agenda for a New World Order (Cambridge: Polity Press, 1995), pp. 121-62; see also Frédéric Mégret, 'Epilogue to an Endless Debate: The International Criminal Court's Third Party Jurisdiction and the Looming Revolution in International Law'. European Journal of International Law. 12 (2001), p. 258.
74. C.Cutler, 'The "Grotian Tradition" in International Relations', Review of International Studies, 17, (1991), pp. 41-56.
75. Bull, 'The Grotian Conception', p. 73.
76. The July 17th 1998 vote to adopt the Statute included 120 states in favour, 7 against and 21 abstentions. In addition 137 NGOs had official credentials for the Rome Conference. Sadat, however, claims 250 were present. She argues the success of the Conference 'can be credited, at least in part, to the enormous lobbying and informational efforts of NGOs, which conducted a tireless campaign in support of the Court and came together in a new example of global civil society. ... The NGO movement was able to amass its strength through the formation of a coalition, the Coalition for an International Criminal Court (CICC), that originated under the auspices of the World Federalist Movement and ultimately grew from 30 to 800 NGOs from all over the world'. Sadat, The International Criminal Court, pp. 5-6. Pace and Schense echo this. They add that the NGOs, the UN Secretariat and the Like-Minded Group of States, which supported the creation of a strong independent Court, shared the same end. They sought to encourage 'universal participation in the ICC process and undertook serious efforts to ensure that smaller countries would be not only present but active in the PrepCom and Rome Conference.' William R. Pace and Jennifer Schense. 'The Role of Non-Governmental Organization' in Antonio Cassese et al. (eds.), The Rome Statute, pp. 116-7.
77. The July 17th 1998 vote to adopt the Statute included 120 states in favour, 7 against and 21 abstentions. In addition 137 NGOs had official credentials for the Rome Conference. Sadat, however, claims 250 were present. She argues the success of the Conference 'can be credited, at least in part, to the enormous lobbying and informational efforts of NGOs, which conducted a tireless campaign in support of the Court and came together in a new example of global civil society. ... The NGO movement was able to amass its strength through the formation of a coalition, the Coalition for an International Criminal Court (CICC), that originated under the auspices of the World Federalist Movement and ultimately grew from 30 to 800 NGOs from all over the world'. Sadat, The International Criminal Court, pp. 5-6. Pace and Schense echo this. They add that the NGOs, the UN Secretariat and the Like-Minded Group of States, which supported the creation of a strong independent Court, shared the same end. They sought to encourage 'universal participation in the ICC process and undertook serious efforts to ensure that smaller countries would be not only present but active in the PrepCom and Rome Conference.' William R. Pace and Jennifer Schense. 'The Role of Non-Governmental Organization' in Antonio Cassese et al. (eds.), The Rome Statute, pp. 116-7.
78. Marc Weller, 'Undoing the Global Constitution: UN Security Council Action on the International Criminal Court', International Affairs, 78 (2002), p. 700.
79. Sadat, The International Criminal Court, pp. 11-12.
80. The Clinton administration subsequently signed the Rome Treaty on December 31, 2000. For details see D.J. Scheffer, 'Staying the Course with the International Criminal Court,' Cornell International Law Journal, 47 (2002), pp. 47-100. In May 2002, however, the Bush administration 'unsigned' the treaty. See Under Secretary of State, Marc Grossman, 'American Foreign Policy and the International Criminal Court', Remarks to the Center for Strategic and International Studies. Washington, DC, 6 May 2002. available at: 〈http://www.state.gov/p/9949.htm〉.
81. The Clinton administration subsequently signed the Rome Treaty on December 31, 2000. For details see D.J. Scheffer, 'Staying the Course with the International Criminal Court,' Cornell International Law Journal, 47 (2002), pp. 47-100. In May 2002, however, the Bush administration 'unsigned' the treaty. See Under Secretary of State, Marc Grossman, 'American Foreign Policy and the International Criminal Court', Remarks to the Center for Strategic and International Studies. Washington, DC, 6 May 2002. available at: 〈http://www.state.gov/p/9949.htm〉.
82. Article 15, Rome Statute. This, of course, assumes that the Prosecutor will take up their case. For an argument that the Prosecutor is 'likely to follow the political determinations made by the Security Council' see Matthew R.Brubacher, 'Prosecutorial Discretion within the International Criminal Court', Journal of International Criminal Justice, 2 (2004), p. 83.
83. S.A.Fernandez de Gurmandi, 'The Role of the International Prosecutor', in Roy Lee (ed.), The International Criminal Court, pp. 175-188; see also P. Kirsch, QC and D. Robinson, 'Initiation of Proceedings by the Prosecutor', in Cassese et al., The Rome Statute, p. 662.
84. S.A.Fernandez de Gurmandi, 'The Role of the International Prosecutor', in Roy Lee (ed.), The International Criminal Court, pp. 175-188; see also P. Kirsch, QC and D. Robinson, 'Initiation of Proceedings by the Prosecutor', in Cassese et al., The Rome Statute, p. 662.
85. Luis Moreno Ocampo, an Argentinian lawyer who helped bring the leaders of his country's former military dictatorship to justice was elected as Prosecutor in March 2003. On pre-trial procedures see Olivier Fourmy, 'Powers of the Pre-Trial Chambers' in Cassese et al. (eds.), The Rome Statute, pp. 1207-1230.
86. Article 17, Rome Statute.
87. Bruce Broomhall, International Criminal Justice and the international Criminal Court: Between State Consent and the Rule of Law (Oxford: Oxford University Press, 2003), pp. 114-117. See also Darryl Robinson. 'The Rome Statute and its Impact on National Law', in Cassese et al. (eds.), The Rome Statute, pp. 1849-1850; Anne-Marie Slaughter, 'Editorial: Not a Court of First Resort', Washington Post, 31 December 2003. The Independent Prosecutor has also indicated his hope that the Statute will prompt states to take their obligations seriously. See his inaugural address 22 April 2003 available at: 〈http://www.iccnow.org/documents/statements/MorenoOcampo22Apr03eng. pdf〉. As examples of such practice Broomhall cites the 'Crimes Against Humanity and War Crimes Act' passed by the Canadian parliament in 2000. For further examples including legislation in the Netherlands, Australia, Belgium and New Zealand, see Journal of International Criminal Justice, 2:1 (2004).
88. Bruce Broomhall, International Criminal Justice and the international Criminal Court: Between State Consent and the Rule of Law (Oxford: Oxford University Press, 2003), pp. 114-117. See also Darryl Robinson. 'The Rome Statute and its Impact on National Law', in Cassese et al. (eds.), The Rome Statute, pp. 1849-1850; Anne-Marie Slaughter, 'Editorial: Not a Court of First Resort', Washington Post, 31 December 2003. The Independent Prosecutor has also indicated his hope that the Statute will prompt states to take their obligations seriously. See his inaugural address 22 April 2003 available at: 〈http://www.iccnow.org/documents/statements/MorenoOcampo22Apr03eng. pdf〉. As examples of such practice Broomhall cites the 'Crimes Against Humanity and War Crimes Act' passed by the Canadian parliament in 2000. For further examples including legislation in the Netherlands, Australia, Belgium and New Zealand, see Journal of International Criminal Justice, 2:1 (2004).
89. Bruce Broomhall, International Criminal Justice and the international Criminal Court: Between State Consent and the Rule of Law (Oxford: Oxford University Press, 2003), pp. 114-117. See also Darryl Robinson. 'The Rome Statute and its Impact on National Law', in Cassese et al. (eds.), The Rome Statute, pp. 1849-1850; Anne-Marie Slaughter, 'Editorial: Not a Court of First Resort', Washington Post, 31 December 2003. The Independent Prosecutor has also indicated his hope that the Statute will prompt states to take their obligations seriously. See his inaugural address 22 April 2003 available at: 〈http://www.iccnow.org/documents/statements/MorenoOcampo22Apr03eng. pdf〉. As examples of such practice Broomhall cites the 'Crimes Against Humanity and War Crimes Act' passed by the Canadian parliament in 2000. For further examples including legislation in the Netherlands, Australia, Belgium and New Zealand, see Journal of International Criminal Justice, 2:1 (2004).
90. Bruce Broomhall, International Criminal Justice and the international Criminal Court: Between State Consent and the Rule of Law (Oxford: Oxford University Press, 2003), pp. 114-117. See also Darryl Robinson. 'The Rome Statute and its Impact on National Law', in Cassese et al. (eds.), The Rome Statute, pp. 1849-1850; Anne-Marie Slaughter, 'Editorial: Not a Court of First Resort', Washington Post, 31 December 2003. The Independent Prosecutor has also indicated his hope that the Statute will prompt states to take their obligations seriously. See his inaugural address 22 April 2003 available at: 〈http://www.iccnow.org/documents/statements/MorenoOcampo22Apr03eng. pdf〉. As examples of such practice Broomhall cites the 'Crimes Against Humanity and War Crimes Act' passed by the Canadian parliament in 2000. For further examples including legislation in the Netherlands, Australia, Belgium and New Zealand, see Journal of International Criminal Justice, 2:1 (2004).
91. Buzan, 'The English School', p. 505.
92. See David Miller, 'Bounded Citizenship', in K. Hutchings and R. Dannreuther (eds.), Cosmopolitan Citizenship (Basingstoke: Macmillan, 1999), pp. 74-5.
93. This achievement is further highlighted when one considers that the initial Draft Statute, which was produced in 1994 by the United Nations International Law Commission, did not allow the Prosecutor to independently pursue justice. James Crawford, 'The work of the International Law Commission in Cassese et al. (eds.), The Rome Statute, pp. 23-34.
94. Sadat, The International Criminal Court, p. 9.
95. Quoted in Lawrence Weschler, 'Exceptional Cases in Rome: The United States and the Struggle for an ICC', in Sarah B. Sewall and Carl Kaysen (eds.), The United States and the International Criminal Court (London: Rowman and Littlefield, 2000), p. 101.
96. Hans-Peter Kaul, 'Preconditions to the Exercise of Jurisdiction', in Cassese et al. (eds.), The Rome Statute, p. 613.
97. Sadat, The International Criminal Court, p. 118.
98. Article 72, Rome Statute. According to William Schabas this Article 'provides the Defence with a very intriguing strategic weapon' which will mean that 'some of the guilty will go free'. It will be in its interest to allege the existence of exculpatory evidence in the possession of a State. Where the State refuses to disclose the relevant information on the grounds of national security the Defence may request that the Court draw the appropriate evidentiary inference as to the existence of an exculpatory fact. The Prosecution may, of course, argue the opposite, but without the ability to contest the credibility and validity of that evidence an inference that incriminating evidence exists is incompatible with the presumption of innocence provided for by Article 66 of the Rome Statute. An individual could not be convicted on the basis of an unproven allegation. Yet the inference that exculpatory evidence exists is likely to introduce reasonable doubt in a way that is sufficient to clear the defendant. As Schabas puts it, Article 72 read in conjunction with Article 66, 'must work to benefit the accused and not the prosecution' as the accused 'should be able to plead an inference of reasonable doubt'. So long as the State refuses to disclose information on the grounds that its national security interests will be prejudiced, the impression of 'complicity between the accused and the State concerned', will be hard to avoid. William Schabas, 'National Security Interests and the Rights of the Accused', in Herwig Roggemann and Petar Šarčević (eds.), National Security and International Criminal Justice (The Hague, London and New York: Kluwer Law International, 2002), pp. 107-113.
99. William L. Nash, 'The ICC and the Deployment of U.S. Armed Forces', in Sewall and Kaysen (eds.) The United States, pp. 153-164.
100. D.J.Scheffer, 'The United States and the International Criminal Court', American Journal of International Law, 93 (1999), pp. 18; see also Madeline Morris, 'High Crimes and Misconceptions: The ICC and Non-Party States, Law and Contemporary Problems, 64 (2001). pp. 13-66.
101. D.J.Scheffer, 'The United States and the International Criminal Court', American Journal of International Law, 93 (1999), pp. 18; see also Madeline Morris, 'High Crimes and Misconceptions: The ICC and Non-Party States, Law and Contemporary Problems, 64 (2001). pp. 13-66.
102. Vienna Convention on the Law of Treaties, May 23, 1969, UN Doc. A/Conf. 39/27, available at 〈http://www.un.org/law/ilc/texts/treaties.htm〉. While the US has never ratified the Vienna Convention it has clearly conducted a foreign policy that is consistent with its content. So as not to violate Article 18 of the Convention, which obliges signatories not to pursue a course of action that would work against the purpose of the Treaty even before ratification, John Bolton, then at the American Enterprise Institute, argued the new Bush Administration should 'unsign' the Rome Treaty. He suggested that President Clinton's 'midnight decision' to sign the Treaty (he signed on his last day in office) was 'a thinly disguised effort to block passage of the American Servicemembers' Protection Act (ASPA)'. J. R. Bolton, 'Unsign That Treaty', The Washington Post, 4 January 2001. As Under Secretary of State for Arms Control and International Security, Bolton's editorial became policy and the Bush administration 'unsigned' the Treaty on 6 May 2002 and signed ASPA the following August. Amongst other things this legislation prohibits cooperation with the ICC, places restrictions on military assistance and authorises the President to use all necessary and appropriate means to bring about the release of US citizens detained on behalf of the ICC. For further details see J.Elsea, US Policy Regarding the International Criminal Court, Congressional Research Service Report RL31495, (2002).
103. Vienna Convention on the Law of Treaties, May 23, 1969, UN Doc. A/Conf. 39/27, available at 〈http://www.un.org/law/ilc/texts/treaties.htm〉. While the US has never ratified the Vienna Convention it has clearly conducted a foreign policy that is consistent with its content. So as not to violate Article 18 of the Convention, which obliges signatories not to pursue a course of action that would work against the purpose of the Treaty even before ratification, John Bolton, then at the American Enterprise Institute, argued the new Bush Administration should 'unsign' the Rome Treaty. He suggested that President Clinton's 'midnight decision' to sign the Treaty (he signed on his last day in office) was 'a thinly disguised effort to block passage of the American Servicemembers' Protection Act (ASPA)'. J. R. Bolton, 'Unsign That Treaty', The Washington Post, 4 January 2001. As Under Secretary of State for Arms Control and International Security, Bolton's editorial became policy and the Bush administration 'unsigned' the Treaty on 6 May 2002 and signed ASPA the following August. Amongst other things this legislation prohibits cooperation with the ICC, places restrictions on military assistance and authorises the President to use all necessary and appropriate means to bring about the release of US citizens detained on behalf of the ICC. For further details see J.Elsea, US Policy Regarding the International Criminal Court, Congressional Research Service Report RL31495, (2002).
104. Kaul, 'Preconditions', pp. 608-9; see also A. Pellet, 'Entry into Force and Amendment of the Statute', in Cassese et al. (eds.), The Rome Statute, pp. 163-4.
105. Kaul, 'Preconditions', pp. 608-9; see also A. Pellet, 'Entry into Force and Amendment of the Statute', in Cassese et al. (eds.), The Rome Statute, pp. 163-4.
106. It is argued, however, that the difference between asserting jurisdiction over individuals and over the state itself is less clear for individuals charged with carrying out official policy. 'Official acts' cannot be considered a credible defence in international humanitarian law. It has, however, been suggested that it could be grounds for third-party exemption from the Court's jurisdiction. Ruth Wedgewood, 'The International Criminal Court: An American View', European Journal of International Law, 10 (1999), p. 102.
107. Michael Scharf, 'The ICC's Jurisdiction over the Nationals of Non-Party States', in Sewall and Kaysen (eds.), The United States and the International Criminal Court, p. 220.
108. D.J.Scheffer, 'Staying the Course with the International Criminal Court', Cornell International Law Journal. 47 (2002), p. 65; see also Wedgewood. The International Criminal Court: An American View', pp. 99-102
109. D.J.Scheffer, 'Staying the Course with the International Criminal Court', Cornell International Law Journal. 47 (2002), p. 65; see also Wedgewood. The International Criminal Court: An American View', pp. 99-102
110. Grossman, 'American foreign policy and the International Criminal Court'.
111. M. David, 'Grotius Repudiated: The American Objections to the International Criminal Court and the Commitment to International Law', Michigan International Law Review, 20 (1999), pp. 337-412.
112. Mégret, 'Epilogue to an Endless Debate', p. 257.
113. In addition US officials argue that America, as the only superpower on the Security Council, has a unique responsibility to balance the demands of international justice with a responsibility to maintain 'international peace and security'. An overzealous prosecutor cannot be allowed to threaten international peace and security by deterring America from contributing to UN peacekeeping and peace enforcement missions. An exemption from the Court's jurisdiction for its service personnel is, therefore, painted as a matter on international peace and security. See comments by Ambassador Scheffer in Lawrence Weschler, 'Exceptional Cases in Rome: The United States and the Struggle for an ICC', in Sarah B. Sewall and Carl Kaysen (eds.), The United States and the International Criminal Court (London: Rowman and Littlefield, 2000), pp. 102-3. This line of argument was mobilised in the summer of 2002 when the Security Council passed a Chapter VII resolution (1422) exempting the citizens of non-party states that contributed to UN missions from the Court's jurisdiction. Failure to do so could have ended the UN mission in Bosnia thereby threatening international peace and security. See C. Stahn, 'The Ambiguities of Security Council Resolution 1422 (2002)', European Journal of International Law, 14 (2003), pp. 85-104; Bryan MacPherson, 'Authority of the Security Council to Exempt Peacekeepers form International Criminal Court Proceedings', ASIL Insights, July 2002 available at 〈http://www.asil.org/insights.htm〉; Salvatore Zappalà, 'The Reaction of the US to the Entry into Force of the ICC Statute; Comments on UN Security Council Resolution 1422 (2002) and Article 98 Agreements', Journal of International Criminal Justice, 1 (2003), pp. 114-134. Following the Abu Ghraib prisoner abuse scandal the US did not seek a renewal of the exemption. See Warren Hoge, 'US drops efforts to gain immunity for its troops', New York Times, 23 June 2004.
114. In addition US officials argue that America, as the only superpower on the Security Council, has a unique responsibility to balance the demands of international justice with a responsibility to maintain 'international peace and security'. An overzealous prosecutor cannot be allowed to threaten international peace and security by deterring America from contributing to UN peacekeeping and peace enforcement missions. An exemption from the Court's jurisdiction for its service personnel is, therefore, painted as a matter on international peace and security. See comments by Ambassador Scheffer in Lawrence Weschler, 'Exceptional Cases in Rome: The United States and the Struggle for an ICC', in Sarah B. Sewall and Carl Kaysen (eds.), The United States and the International Criminal Court (London: Rowman and Littlefield, 2000), pp. 102-3. This line of argument was mobilised in the summer of 2002 when the Security Council passed a Chapter VII resolution (1422) exempting the citizens of non-party states that contributed to UN missions from the Court's jurisdiction. Failure to do so could have ended the UN mission in Bosnia thereby threatening international peace and security. See C. Stahn, 'The Ambiguities of Security Council Resolution 1422 (2002)', European Journal of International Law, 14 (2003), pp. 85-104; Bryan MacPherson, 'Authority of the Security Council to Exempt Peacekeepers form International Criminal Court Proceedings', ASIL Insights, July 2002 available at 〈http://www.asil.org/insights.htm〉; Salvatore Zappalà, 'The Reaction of the US to the Entry into Force of the ICC Statute; Comments on UN Security Council Resolution 1422 (2002) and Article 98 Agreements', Journal of International Criminal Justice, 1 (2003), pp. 114-134. Following the Abu Ghraib prisoner abuse scandal the US did not seek a renewal of the exemption. See Warren Hoge, 'US drops efforts to gain immunity for its troops', New York Times, 23 June 2004.
115. In addition US officials argue that America, as the only superpower on the Security Council, has a unique responsibility to balance the demands of international justice with a responsibility to maintain 'international peace and security'. An overzealous prosecutor cannot be allowed to threaten international peace and security by deterring America from contributing to UN peacekeeping and peace enforcement missions. An exemption from the Court's jurisdiction for its service personnel is, therefore, painted as a matter on international peace and security. See comments by Ambassador Scheffer in Lawrence Weschler, 'Exceptional Cases in Rome: The United States and the Struggle for an ICC', in Sarah B. Sewall and Carl Kaysen (eds.), The United States and the International Criminal Court (London: Rowman and Littlefield, 2000), pp. 102-3. This line of argument was mobilised in the summer of 2002 when the Security Council passed a Chapter VII resolution (1422) exempting the citizens of non-party states that contributed to UN missions from the Court's jurisdiction. Failure to do so could have ended the UN mission in Bosnia thereby threatening international peace and security. See C. Stahn, 'The Ambiguities of Security Council Resolution 1422 (2002)', European Journal of International Law, 14 (2003), pp. 85-104; Bryan MacPherson, 'Authority of the Security Council to Exempt Peacekeepers form International Criminal Court Proceedings', ASIL Insights, July 2002 available at 〈http://www.asil.org/insights.htm〉; Salvatore Zappalà, 'The Reaction of the US to the Entry into Force of the ICC Statute; Comments on UN Security Council Resolution 1422 (2002) and Article 98 Agreements', Journal of International Criminal Justice, 1 (2003), pp. 114-134. Following the Abu Ghraib prisoner abuse scandal the US did not seek a renewal of the exemption. See Warren Hoge, 'US drops efforts to gain immunity for its troops', New York Times, 23 June 2004.
116. In addition US officials argue that America, as the only superpower on the Security Council, has a unique responsibility to balance the demands of international justice with a responsibility to maintain 'international peace and security'. An overzealous prosecutor cannot be allowed to threaten international peace and security by deterring America from contributing to UN peacekeeping and peace enforcement missions. An exemption from the Court's jurisdiction for its service personnel is, therefore, painted as a matter on international peace and security. See comments by Ambassador Scheffer in Lawrence Weschler, 'Exceptional Cases in Rome: The United States and the Struggle for an ICC', in Sarah B. Sewall and Carl Kaysen (eds.), The United States and the International Criminal Court (London: Rowman and Littlefield, 2000), pp. 102-3. This line of argument was mobilised in the summer of 2002 when the Security Council passed a Chapter VII resolution (1422) exempting the citizens of non-party states that contributed to UN missions from the Court's jurisdiction. Failure to do so could have ended the UN mission in Bosnia thereby threatening international peace and security. See C. Stahn, 'The Ambiguities of Security Council Resolution 1422 (2002)', European Journal of International Law, 14 (2003), pp. 85-104; Bryan MacPherson, 'Authority of the Security Council to Exempt Peacekeepers form International Criminal Court Proceedings', ASIL Insights, July 2002 available at 〈http://www.asil.org/insights.htm〉; Salvatore Zappalà, 'The Reaction of the US to the Entry into Force of the ICC Statute; Comments on UN Security Council Resolution 1422 (2002) and Article 98 Agreements', Journal of International Criminal Justice, 1 (2003), pp. 114-134. Following the Abu Ghraib prisoner abuse scandal the US did not seek a renewal of the exemption. See Warren Hoge, 'US drops efforts to gain immunity for its troops', New York Times, 23 June 2004.
117. In addition US officials argue that America, as the only superpower on the Security Council, has a unique responsibility to balance the demands of international justice with a responsibility to maintain 'international peace and security'. An overzealous prosecutor cannot be allowed to threaten international peace and security by deterring America from contributing to UN peacekeeping and peace enforcement missions. An exemption from the Court's jurisdiction for its service personnel is, therefore, painted as a matter on international peace and security. See comments by Ambassador Scheffer in Lawrence Weschler, 'Exceptional Cases in Rome: The United States and the Struggle for an ICC', in Sarah B. Sewall and Carl Kaysen (eds.), The United States and the International Criminal Court (London: Rowman and Littlefield, 2000), pp. 102-3. This line of argument was mobilised in the summer of 2002 when the Security Council passed a Chapter VII resolution (1422) exempting the citizens of non-party states that contributed to UN missions from the Court's jurisdiction. Failure to do so could have ended the UN mission in Bosnia thereby threatening international peace and security. See C. Stahn, 'The Ambiguities of Security Council Resolution 1422 (2002)', European Journal of International Law, 14 (2003), pp. 85-104; Bryan MacPherson, 'Authority of the Security Council to Exempt Peacekeepers form International Criminal Court Proceedings', ASIL Insights, July 2002 available at 〈http://www.asil.org/insights.htm〉; Salvatore Zappalà, 'The Reaction of the US to the Entry into Force of the ICC Statute; Comments on UN Security Council Resolution 1422 (2002) and Article 98 Agreements', Journal of International Criminal Justice, 1 (2003), pp. 114-134. Following the Abu Ghraib prisoner abuse scandal the US did not seek a renewal of the exemption. See Warren Hoge, 'US drops efforts to gain immunity for its troops', New York Times, 23 June 2004.
118. Grossman, 'American foreign policy and the International Criminal Court'.
119. C.S. Smith, 'Rumsfeld says Belgian law could prompt alliance to leave', International Herald Tribune, 13 June 2003' and 'Belgian's are incensed by American pressure on war crimes law', International Herald Tribune, 14 June 2003; Luc Reydams, 'Belgium Reneges on Universality: The 5 August 2003 Act on Grave Breaches of International Humanitarian Law', Journal of International Criminal Justice, 1:3, pp. 679-689.
120. C.S. Smith, 'Rumsfeld says Belgian law could prompt alliance to leave', International Herald Tribune, 13 June 2003' and 'Belgian's are incensed by American pressure on war crimes law', International Herald Tribune, 14 June 2003; Luc Reydams, 'Belgium Reneges on Universality: The 5 August 2003 Act on Grave Breaches of International Humanitarian Law', Journal of International Criminal Justice, 1:3, pp. 679-689.
121. C.S. Smith, 'Rumsfeld says Belgian law could prompt alliance to leave',
122. Explanation of Vote and Remarks by Ambassador John D. Negroponte, United States Permanent Representative to the United Nations, 12 July 2002. Available at: 〈http://www.un.int/usa/02_098.htm〉.
123. Peter J. Spiro, 'The New Sovereigntists. American Exceptionalism and Its False Prophets'. Foreign Affairs, 79 (2000), pp. 9-15.
124. Mégret, 'Epilogue to an Endless Debate', p. 258.
125. Lee Casey, The Case Against the International Criminal Court', Fordham International Law Review, 25 (2002), pp. 844-5.
126. Benjamin R. Barber, 'Constitutional Faith', in Martha C. Nussbaum, For Love of Country? (Boston, MA: Beacon Press, 2002), pp. 30-37.