The international criminal court: Jurisdictional and related issues

Criminal Law Forum

Volumn 10, Issue 1, 1999, Pages 87-120

  Ntanda Nsereko, Daniel D ^a  

^a UNIVERSITY OF BOTSWANA   (Botswana)

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EID: 27244440836     PISSN: 10468374     EISSN: 15729850     Source Type: Journal    
DOI: 10.1023/a:1009426921535     Document Type: Article

References (113)

1. Rome Statute of the International Criminal Court, U.M. Doc. A/CONF. 183/9 (1998) 37 I.L.M. 999 (1998), 〈http://www.un.org/icc〉 [hereinafter ICC Statute or Statute].
2. ICC Statute, art. 126.
3. Id., an. 112.
4. Id., art. 51.
5. Id., art. 52.
6. ROBERT K. WOETZEL, THE NUREMBERG TRIALS IN INTERNATIONAL LAW 19-20 (1962).
7. Treaty of Peace between the Allied and Associated Powers and Germany ("Treaty of Versailles"), 1919 T.S. 4, entered into force June 28, 1919.
8. See Vahakn N. Dadrian, Genocide as a Problem of National and International Law: The World War I Armenian Case and Its Contemporary Legal Ramifications, 14 YALE J. INT'L L. 211 (1989).
9. Convention for the Creation of an International Criminal Court, League of Nations O.J. Spec. No. 156 (1936), L.N. Doc. C. 547(I).M384(I). 1937. V (1938).
10. Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, London, 8 August 1945, 8 U.N.T.S. 279, Annex, Charter of the International Military Tribunal; International Military Tribunal for the Far Last, Proclaimed at Tokyo, 19 January 1946 and amended 26 April 1946, TIAS No. 1589, Annex, Charter of the International Military Tribunal for the Far East.
11. Convention for the Prevention and Punishment of the Crime of Genocide, adopted Dec. 9, 1948, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951), article VI.
12. For example, see International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted Nov. 30, 1973, O.A. Res. 3068 (XXVIII); Convention for the Prevention and Punishment of the Crime of Genocide, ibid. ; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, 1465 U.N.T.S. 85; Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, adopted Dec. 2, 1949, O.A. Res. 317(IV); Hague Convention forme Suppression of Unlawful Seizure of Aircraft, 1970, 860 U.N.T.S. 105; Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 10 I.L.M. 1151 (1971); Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomats, 1035 U.N.T.S. 167.
13. For example see article 5 of the International Convention on the Suppression and Punishment of the Crime of Apartheid, ibid., and article 4 of the Convention for the Prevention and Punishment of the Crime of Genocide, ibid., article VI.
14. This point is well illustrated by the conflicting claims of the United Kingdom, the United States, and Libya to try the persons responsible for downing the Pan-American aircraft over Lockerbie in Scotland.
15. John Dugard, Obstacles in the Way of an International Criminal Court, 56 CAMBRIDGE L.J. 337(1997).
16. U.N. Doc. S/RES/827 (1993).
17. U.N. Doc. S/RES/955 (1994).
18. See "Report of the International Law Commission on the work of its forty-sixth session, 2 May-22 July 1994," GAOR forty-ninth session, Supplement No. 10 (A/49/10).
19. "Report of the Ad Hoc Committee on the Establishment of an International Criminal Court," GAOR, fiftieth session, Supplement No. 22 (A/50/22).
20. "Report of the Preparatory Committee on the Establishment of an International Criminal Court," U.M. Doc. A/CONE 183/2Add.l Apr. 14, 1998). There were a number of interim reports on sessions of the PrepCom: "Report of the Preparatory Committee on the Establishment of an International Criminal Court," GAOR fifty-first session, Supplement No. 10 (A/51/10); "Decision Taken by the Preparatory Committee at its Session held from 11 to 21 February 1997," U.M. Doc. A/AC.249/1997/E.5; "Decisions Taken by the Preparatory Committee at its Sesion held from 1 to 14 August 1997," U.N. Doc. A/AC.249/1997/L.8; "Decisions Taken by the Preparatory Committee at its Sesion held from 1 to 12 December 1997," U.N. Doc. A/AC.249/1997/E.9/Rev.1.
21. Charter of the United Nations, June 26, 1945, 59 Stat. 1031, T.S. No. 933, 3 Bevans 1153, art. 108.
22. According to article 25 of the Charter of the United Nations, "[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter." Article 49 similarly provides that "The Members of the United Nations shall join in affording mutual assistance in carrying out the measures decided upon by the Security Council."
23. See articles 39 and 40 of the Charter of the United Nations. For a further discussion on this point see Roman A. Kolodkin, An Ad Hoc International Tribunal for the Prosecution of Serious Violations of International Humanitarian Law in the former Yugoslavia, 5 CRIM. L. FORUM 382 (1994).
24. See, for example, Security Council Resolutions 827 of 1993 establishing the International Criminal Tribunal for the former Yugoslavia, and 955 of 1994 establishing the International Criminal Tribunal for Rwanda.
25. Press Conference by President Robinson on October 9, 1997.
26. ICC Statute, art. 1 (emphasis added).
27. Id., art. 5.
28. See Daniel D. Ntanda Nsereko, Genocide: A Crime Against Mankind, in THE LAW AND ENFORCEMENT OF INTERNATIONAL OFFENSES - THE EXPERIENCE OF INTERNATIONAL AND NATIONAL COURTS (Gabrielle Kirk McDonald & Olivia SwaakGoldman, eds. 1999).
29. Comments by Benjamin B. Ferencz, U.M. Press Release, E/2876, June 16, 1998.
30. Pleading for the inclusion of drug trafficking among the crimes within the Court's mandate, Trinidad-and-Tobago Attorney General Ramesh Eawrence Maharaj said, "[d]rug traffickers have adversely affected the fabric of Caribbean societies. They poison our children; and the transboundary activities of drug traffickers and that of their armed supporters pose a grave threat to humanity. Their actions ought to be regarded as a most serious crime of international concern." On the Record, Jun. 16, 1998.
31. ICC Statute, art. 5(2).
32. Ibid.
33. This was the view of the International Law Commission. Article 23(2) of its draft statute, supra note 18, provided that: "A complaint of or directly related to an act of aggression may not be brought under this Statute unless the Security Council has first determined that a state has committed the act of aggression which is the subject of the complaint."
34. Certain Expenses of the United Nations, [1962] I.CJ. Reports 151.
35. O.A. Res. 495(V).
36. O.A. Res. lOOO(ES-l). See: JOHN MURPHY, THE UNITED NATIONS AND THE CONTROL OF INTERNATIONAL VIOLENCE 36, 79 (1983).
37. The Assembly was also unable to take a definitive decision. Generally see AHMED M. RIFAAT, INTERNATIONAL AGGRESSION 208-217 (1979).
38. Because of the Soviet veto the Council could not adopt a resolution designating any country as aggressor during the Korean War in 1950. Britain and France vetoed the Council's resolutions that would have condemned them as aggressors following their invasion of the Suez Canal in 1956. In 1960 the Congo called upon the Security Council "to protect the national territory of the Congo against the present external aggression" by Belgium. Acting under chapter VII of the Charter the Council passed three resolutions calling upon Belgium to withdraw from the territory of the Congo, but in none of them did it condemn Belgium as an aggressor. See Rifaat, ibid. More recently, following a Tutsi-led armed rebellion against her government in August 1998, the Congo urged the Security Council "to strongly condemn the invasion of Congolese territory by Rwandan and Ugandan troops" and "to demand that Rwanda and Uganda withdraw their troops immediately from Congolese territory." (See U.N. Doc. S/1998/758). The Council did not adopt any resolution to that effect. The Council again failed to adopt any resolution condemning Israel as aggressor following her invasion of Egypt, Syria, and Jordan in 1967. Its ultimate resolution 242 of November 22, 1967 merely required the "[withdrawal of Israeli armed forces from territories occupied in the recent conflict" without naming her as an aggressor. Following the United States invasion of Grenada on October 25, 1983 the Council considered a resolution that "deeply deplores the armed intervention in Grenada, which constitutes a flagrant violation of international law and of the independence, sovereignty and territorial integrity of that State." The United States vetoed the resolution which, when tabled before the General Assembly, was adopted in its entirety. Generally, see Ved P. Nanda, The United States Armed Intervention in Grenada - Impact on World Order, 14 CALIFORNIA WESTERN INT'LL.J. 395 (1984).
39. Examples of this include the Council's first resolution on Korea (S.C. Res. 82 (1950), U.N. Doc. S/1501) by which it noted "with grave concern the armed attack upon the Republic of Korea by forces from North Korea" and concluded that such action constituted "a breach of the peace." Following Israel's attack on Eebanon's Beirut International Airport on December 28, 1968 the Security Council adopted a resolution that "condemns Israel for its premeditated military action in violation of its obligations under the Charter ..." and "Considers that such premeditated acts of violence endanger the maintenance of the peace" (S.C. Res. 262 (1968), U.N. Doc. S/PV.1462 (1968)). Following the invasion of the Falkland Islands by Argentina on April 2, 1982, the Security Council adopted a resolution "determining that there exists a breach of the peace in the region of the Falkland Islands (Malvinas)" and "demanding an immediate withdrawal of all Argentinian forces from the Islands" (S.C. Res. 502 (1982), U.N. Doc. S./PV.2346 (1982)). When Iraq invaded Kuwait on August 2, 1990, the Council again adopted a resolution "determining that there exists a breach of the peace and security as regards the Iraqi invasion of Kuwait," condemned the invasion and demanded that "Iraq withdraws immediately and unconditionally all its forces ..."(S.C. Res. 660 (1990)).
40. Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits, [1986] I.C.J. Reports 14, at 290.
41. France et al. v. Goering et al, (1946) 23 I.M.T. 1, [1946] Ann. Dig. 202.
42. ICC Statute, art. 25(2).
43. Draft article 23(5) proposed by the PrepCom read as follows: "The Court shall also have jurisdiction over legal persons, with the exception of States, when the crimes committed were committed on behalf of such legal persons or by their agencies or representatives."
44. ICC Statute, art. 25(1).
45. United States v. Eisentrager et al, (1948) 15 L.R.T.W.C. 8 (United States Military Commission), at 15.
46. A.C. Israel v. Eichmann, (1968) 36 I.L.R. 18 (District Court, Jerusalem), at 50.
47. For example: [Geneva] Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, including Annex I, adopted Aug. 12, 1949, 75 U.N.T.S. 31, art. 49; [Geneva] Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, adopted Aug. 12, 1949, 75 U.N.T.S. 85, art. 50; [Geneva] Convention (III) Relative to the Treatment of Prisoners of War, including Annexes I-V, adopted Aug. 12, 1949, 75 U.N.T.S. 135, art. 129; [Geneva] Convention (IV) Relative to the Protection of Civilian Persons in Time of War, including Annexes I-III, adopted Aug. 12, 1949, 75 U.N.T.S. 287, article 146; International Convention on the Suppression and Punishment of the Crime of Apartheid, supra note 12, art. V; Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, supra note 12, art. 5; Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomats, supra note 12, art. 3; Hague Convention for the Suppression of Unlawful Seizure of Aircraft, supra note 12, art. 4; Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, supra note 12, art. 5(2); International Convention against the Taking of Hostages, [1979] I.L.M. 1456, art. 5; United Nations Convention on the Law of the Sea, adopted Oct. 7, 1982, U.N. Doc. A/CONF. 62/122, arts. 105, 110.
48. States with legislation providing for universal jurisdiction for the core crimes include Australia, Austria, Canada and the United Kingdom. Regarding the paucity of national legislation providing for universal jurisdiction over war crimes, Professor Theodor Meron says that "[m]ost states do not have the necessary resources or interest to prosecute offenders when the state itself is not in the situation in question. Many states also do not have national laws in place that allow them to prosecute offenders. The United States appears to be among these states. It does, however, have ample authority under both the U.S. Constitution and international law to adopt the necessary legislation. Whether or not the United States, in concrete situations that may arise, prosecutes offenders involved in foreign conflicts, it should, as a world leader, have such legislation." Theodor Meron, International Criminalization of Internal Conflicts, 89 AM. J. INT'L L. 554, 573-574 (1995).
49. A.C. Israel v. Eichmann, supra note 46, at 304 (emphasis added).
50. 776 R2d 571, 582 (6th Cir. 1985) (emphasis added). As for what happened to Demjanjuk after his extradition to Israel, see Mordechai Kremitzer, The Demjanjuk Case, in WAR CRIMES IN INTERNATIONAL LAW 321-349 (Yoram Dinstein & Mala Tabory, eds., 1996). For a similar view see the views of the Hungarian Constitutional Court when it stated that "[t]hus, a state prosecuting and punishing war crimes or crimes against humanity acts on the mandate of the community of nations under conditions specified by international law." Cited by Peter Mohacsi and Peter Polt, Estimation of War Crimes and Crimes against Humanity According to the Decision of the Constitutional Court of Hungary, 67 INT'L REV. PENAL L. 334-339 (1996).
51. France et al. v. Goering et al, supra note 46, at 461.
52. Ibid. Chief Judge Lively in the Demjanjuk case, supra note 50, also underscored this point when he wrote (at p. 582): "[t]he wartime allies created the International Military Tribunal which tried major Nazi officials at Nuremburg and courts within the four occupation zones of post-war Germany which tried lesser Nazis. All were tried for committing war crimes, and it is generally agreed that the establishment of these tribunals and their proceedings were based on universal jurisdiction." Elsewhere Judge Lively pointed out that the tribunals "claimed and exercised a much broader jurisdiction which necessarily derived from the universality principle."
53. supra note 46, at 554. With a wealth of supporting authorities, Meron further asserts that: "[I]t is now widely accepted that crimes against humanity ... are subject to universal jurisdiction. And it is increasingly recognized by leading commentators that the crime of genocide (despite the absence of a provision on universal jurisdiction in the Genocide Convention) may also be cause for prosecution by any state ..."
54. Prosecutor v. Tactic (Case no. IT-94-1-AR72), Decision on the defence motion for interlocutory appeal on jurisdiction, Oct. 2, 1995 (emphasis added).
55. During the debate on a Discussion Paper tabled by the Chairman over twenty-three States expressed dismay that the option of universal jurisdiction was not reflected in the Paper. Sixty-five States (representing 65% of those who spoke) supported a Korean proposal that approximated universal jurisdiction (U.N. Doc. A/CONE 183/C.l/L.6). This would have included among the States required for the Court's jurisdiction, the State where the crime was committed, the State where the suspect was residing, the State of the suspect's nationality, and the State of the victim's nationality. Consent of any one of these States would be enough to vest the Court with jurisdiction. See: Philippe Kirsch, The Rome Conference on the International Criminal Court, ASIL NEWSLETTER (Nov.-Dec. 1998) 〈http://www.asil.org/newsletter/novdec98/home.htm〉.
56. For example, Ambassador David Scheffer, head of the United States delegation, threatened that the United States "would have to actively oppose this court if the principle of universal jurisdiction or some variant of it were embodied in the jurisdiction of the court. As theoretically attractive as the principle of universal jurisdiction may be for the cause of international justice, it is not a principle accepted in the practice of most governments of the world ..." United States Delegation, Intervention on the Bureau's Discussion Paper (A/CONK 18 3/C.1/L.53), July 9, 1998.
57. Theodor Meron, supra note 48, at 555 noted that: "because conferences often make decisions by consensus and try to fashion generally acceptable texts, even a few recalcitrant governments may prevent the adoption of more enlightened provisions."
58. The editorial opinion of THE AUGUSTA [Georgia] CHRONICLE (July 27, 1998), at p. A4, echoing the position of the United States government, is a good example. It stated: "[ajbout 170 countries agreed in Rome to establish a permanent international criminal court to prosecute those accused of terrorism, genocide and 'crimes against humanity.' There are just three things dangerous about this: It's permanent, international, and a criminal court. Temporary international tribunals have their place. But the Rome court would have judges from United Nations members who hate us. Imagine the fate of U.S. soldiers who are later dragged before a tribunal with judges from North Korea, Iraq or Cuba. The charge? 'Crimes against humanity.' (The U.S. soldiers who killed Manuel Noriega's thugs when President Bush liberated Panama could be tried on that charge!) Such a court could also foster broader goals such as global taxation or a world constitution. The worst aspect of this world court, though, is that charges could be brought against Americans in secret supported by secret witnesses. The judicial safeguards of our Constitution would be superseded, and that's why the Senate must never ratify U.S. participation."
59. Generally see article 36 of the Statute of the International Court of Justice.
60. ICC Statute, art. 12(1).
61. See THE NEW YORK TIMES, Aug. 13, 1997, p. A10. Ambassador Scheffer followed up this point by tabling before the Diplomatic Conference a propposal that would have required the State of nationality of the accused to consent to the Court's jurisdiction if the acts of which the defendant was accused were committed "in the course of official duties" (U.M. Doc. A/CONE 183/C.1/L.90 (July. 16, 1998). The Conference rejected the proposal.
62. ICC Statute, art. 12(3). The declaration must be lodged with the Registrar of the Court.
63. Article 11(1) of the ICC Statute provides that "[t]he Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute." Paragraph 2 provides that "[i]f a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3."
64. See note 56, supra.
65. See J.L. BRIERLY, THE LAW OF NATIONS 278 (6th ed. 1963); I OPPENHEIM'S INTERNATIONAL LAW 904-910 (9th ed., R. Jennings & A. Watts, 1992).
66. In some States, treaties automatically become part of the national laws on ratification. In others they may need to enact special statutes incorporating the treaties into the national legal system.
67. Supra note 41, at 42.
68. See draft article 7, option 2, proposed by the South Korean delegation (U.N. Doc. A/CONE 183/C.1/L.6).
69. Supra note 56.
70. Supra note 18, art. 25.
71. Id., art. 21.
72. See, for example, the editorial comment of the DETROIT NEWS, July 28, 1998, p. A6, asserting that "the international tribunal is an extremely bad idea that would work only to the extent that it is able to breach national sovereignty."
73. See, for example, Fred Hiatt, The Trouble with the War-Crimes Court, THE WASHINGTON POST, July 26, 1998, p. C07, castigating supporters of the Court for "cheering the creation of not just a court but a powerful prosecutor's office that will be accountable to almost no one, subject to none of the checks and balances that restrain law enforcement in a democracy and empowered to punish people who have virtually no say over its operation."
74. International Covenant on Civil and Political Rights, adopted Dec. 19, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976), art. 41.
75. American Convention on Human Rights, adopted Nov. 22, 1969, 1144 U.N.T.S. 123 (entered into force July 18, 1979), art. 45.
76. African Charter of Human and People's Rights, adopted June 17, 1981, O.A.U. Doc. CAB/LEG/67/3 rev. 5 (entered into force Oct. 21, 1986), art. 47.
77. Supra note 12, art. 21.
78. Convention for the Protection of Human Rights and Fundamental Freedoms, adopted Nov. 4, 1950, 213 U.N.T.S. 221 (entered into force Sept. 3, 1953), arts. 24, 46.
79. See UN Hit for Inaction on Congo, TERRAVIVA, July 16, 1998, No. 24, at 7.
80. Supra note 25.
81. Prosecutor v. Tactic, supra note 54.
82. Statement by Justice Louise Arbour to the Preparatory Committee on the Establishment of an International Criminal Court, Dec. 8, 1997.
83. ICC Statute, art. 13.
84. Ibid.
85. Supra note 24.
86. See Kai Ambos, The Role of the Prosecutor of an International Criminal Court from a Comparative Perspective, [1997] REV. INT'L COMM'N JURISTS 45.
87. A proposal by the Belgian delegation that would have provided for the preservation of the evidence and protection of witnesses was omitted from the final text of the Statute.
88. See Military and Paramilitary activities in and Against Nicaragua (Nicaragua v. United States), Merits, supra note 40.
89. See also United States Diplomatic and Consular Staff in Iran Case U.S.A. v. Iran), [1980] I.C.J. Reports 3.
90. Generally see R. St. J. Macdonald, Changing Relations between the International Court of Justice and the Security Council of the United Nations, 31 CDN Y.B. INT'L L.3 (1993).
91. Thanks to the Singaporean delegation, this is a great improvement on the original International Law Commission draft article 23(3), which stated that "[n]o prosecution may be commenced under this Statute arising from a situation which is being dealt with by the Security Council as a threat to or breach of the peace or an act of aggression under Chapter VII of the Charter, unless the Security Council otherwise decides."
92. ICC Statute, art. 15.
93. Ibid.
94. ICC Statute, art. 18. This article was inserted at the insistence of the United States of America. See: Statement of the United States Delegation on "Article 1 Ibis - Preliminary rulings regarding admissibility," U.N. Doc. A/AC.249/1998/WG.3/DP.2 (Apr. 3, 1998).
95. Ibid.
96. Ibid.
97. The intention of the architects of these procedures was to enable States to stop the Court's involvement "before the prosecutor of the international criminal court initiated an investigation because even initiation of an investigation might interfere with the exercise of national jurisdiction." See: "Report of the Ad Hoc Committee on the Establishment of an International Criminal Court," supra note 19, at 10.
98. For a more detailed discussion of the subject, see: "Report of the Ad Hoc Committee on the Establishment of an International Criminal Court," supra note 19, at 6.
99. Supra note 48, p. 569. Note also that in Resolution 2712 (XXV) of December 9, 1970 the United Nations General Assembly, after expressing concern that war crimes and crimes against humanity were being committed in various parts of the world, [drew] attention to the fact that many war criminals and persons who have committed crimes against humanity are continuing to take refuge in the territories of certain States and are enjoying protection."
100. For a general discussion on the issue see Jeffrey L. Bleich, Complementarity, 13 NOUVELLES eTUDES PeNALES 230 (1997).
101. ICC Statute, art. 18.
102. Ibid.
103. Id., art. 17(2). Article 14 of the International Covenant on Civil and Political Rights, supra note 74, relating to the elements of a fair trial, will be applicable here.
104. One may in this respect question the wisdom of the Security Council asking the Tutsidominated government of Rwanda and the Congo government under Laurent Kabila to investigate and prosecute the atrocities allegedly perpetrated by their troops against Hutu refugees in the Democratic Republic of the Congo in the course of the war that brought Kabila to power. See Scott Campbell, What Kabila is Hiding, THE WASHINGTON POST, Sept. 22, 1997, p. A19.
105. ICC Statute, art. 17(3).
106. In connection with the national trials within Rwanda of the perpetrators of the 1994 genocide see AMNESTY INTERNATIONAL, RWANDA: UNFAIR TRIALS: JUSTICE DENIED (1997), and LAWYERS' COMMITTEE FOR HUMAN RIGHTS, PROSECUTING GENOCIDE IN RWANDA: THE ICTR AND NATIONAL TRIALS (1997). See also William A. Schabas, Justice, Democracy, and Impunity in Post-genocide Rwanda: Searching for Solutions to Impossible Problems, 1 CRIM. L. FORUM 523 (1996).
107. See Quintanilla Claim (Mexico v. United States), (1926) 4 R.I.A.A. 101; Janes Claim (United States v. Mexico), (1926) 4 R.I.A.A. 82; Roberts Claim (United States v. Mexico), (1926) 4 R.I.A.A. 77.
108. Supra note 102.
109. See HUMAN RIGHTS WATCH, JUSTICE IN THE BALANCE: RECOMMENDATIONS FOR AN EFFECTIVE AND INDEPENDENT CRIMINAL COURT 69-84 (1998); Jeffrey L Bleich, supra note 98.
110. See the editorial opinion of the DETROIT NEWS, July 28, 1998, p. A6), arguing that "if the tribunal is able to invalidate national trials by deciding what constitutes an 'effective' trial, the tribunal will be able to exercised a kind of extra-territorial judicial review power over national courts, seriously undermining the principle of national democracies. The Clinton administration's decision to withhold the United States' signature from the Rome folly will significantly weaken the tribunal. Given how glowingly the administration had talked about such a tribunal until recently, this is a welcome - though belated - show of sanity."
111. The International Criminal Tribunal for the former Yugoslavia advocated an ICC with primacy over national courts. It said: "[ijndeed, when an international tribunal such as the present one is created, it must be endowed with primacy over national courts. Otherwise, human nature being what it is, there would be perennial danger of international crimes being characterized as 'ordinary crimes ...,' or proceedings being 'designed to shield the accused,' or cases not being diligently prosecuted .... If not effectively countered by the principle of primacy, any one of those stratagems might be used to defeat the very purpose of the creation of an international criminal jurisdiction, to the benefit of the very people whom it has been designed to prosecute." See Prosecutor v. Tadic, supra note 54.
112. Genocide Convention, note 12, supra, art. 1.
113. O.A. Res. 47/133, art. 18.