Sudan, Resolution 1593, and International Criminal Justice

Leiden Journal of International Law

Volumn 19, Issue 1, 2006, Pages 195-222

  Cryer, Robert ^a  

^a UNIVERSITY OF NOTTINGHAM   (United Kingdom)

Author keywords

International Criminal Court; rule of law; Security Council; Sudan

Indexed keywords

EID: 85010161550     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156505003237     Document Type: Article

References (138)

1. On which see S. Chesterman, ‘Never Again… And Again” Law, Order and the Gender of War Crimes in Bosnia’, (1997) 22 Yale Journal of International Law 299.
2. See, e.g., M. C. Bassiouni, ‘The Permanent International Criminal Court’, in P. Sands and M. Lattimer (eds.), Justice for Crimes Against Humanity (2003), 173, at 211. Bassiouni also notes, however, that ‘the ICC will not be a panacea for all ills’ (Yale Journal of International Law.).
3. M. Koskenniemi, The Gentle Civilizer of Nations” The Rise and Fall of International Law 1878-1960 (2001), 177 (emphasis in original).
4. The United States, for example, remains highly equivocal; see, e.g., D. Forsythe, ‘The United States and International Criminal Justice’, (2002) 24 Human Rights Quarterly 974. China and a number of states, particularly in theMiddle East and Asia, remain similarly unconvinced of the desirability of the ICC.
5. As PayamAkhavan noted in relation to the creation of the ICTR, if the crimes in Rwanda had been committed prior to those in Yugoslavia, it is not clear that a tribunal would have been set up. P. Akhavan, ‘The International Criminal Tribunal for Rwanda” The Politics and Pragmatics of Punishment’, (1996) 90 AJIL 501, at 501.
6. A useful primer on Sudan and the conflict in Darfur may be found in the Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General Pursuant to Security Council Resolution 1564 of 18 September 2004, 25 January 2005 (hereafter Report of the International Commission), paras. 40-72. The classic study of the area is A. deWaal, Famine that Kills” Darfur, Sudan (2005).
7. ICC Press Release, 7 Jan. 2005.
8. The real situation is somewhat more complex, as personnel from the north fight for the south, and vice versa. The conflict could also be considered one between the centre and periphery in Sudan; see, e.g., A. deWaal, War in Sudan” An Analysis of Conflict (1990). Since, however, the conflict in Darfur could also be described as a centre-periphery one, in order to distinguish the two conflicts, the conflict that began in 1983 and ended in 2005 will be described, admittedly not entirely accurately, as the north-south conflict.
9. The Secretary-General has issued a large number of reports that deal with the situation in Darfur; see, e.g., Report of the Secretary-General on the Sudan Pursuant to Paragraph 15 of Security Council Resolution 1564 (2004) and paragraphs 6, 13, and 16 of Security Council Resolution 1556 (2004), 4 October 2004, UN Doc. S/2004/787; Report of the Secretary-General on the Sudan Pursuant to Paragraph 15 of Security Council Resolution 1564 (2004) and paragraphs 6, 13, and 16 of Security Council Resolution 1556 (2004), 2November 2004,UNDoc. S/2004/881; Report of the Secretary-General on the Sudan Pursuant to Paragraph 15 of Security Council Resolution 1564 (2004) and paragraphs 6, 13, and 16 of Security Council Resolution 1556 (2004) and paragraph 17 of Security Council Resolution 1574 (2004), 3 December 2004, UN Doc. S/2004/947; Report of the Secretary-General on the Sudan Pursuant to Paragraph 15 of Security Council Resolution 1564 (2004) and paragraphs 6, 13, and 16 of Security Council Resolution 1556 (2004) and Paragraph 17 of Security Council Resolution 1574 (2004), 7 January 2005, UN Doc. S/2005/10; Report of the Secretary-General on the Sudan Pursuant to Paragraph 15 of Security Council Resolution 1564 (2004) and paragraphs 6, 13, and 16 of Security Council Resolution 1556 (2004) and Paragraph 17 of Security Council Resolution 1574 (2004), 4 February 2005, UN Doc. S/2005/68; Report of the Secretary-General on the Sudan Pursuant to Paragraph 15 of Security Council Resolution 1564 (2004) and paragraphs 6, 13, and 16 of Security Council Resolution 1556 (2004) and Paragraph 17 of Security Council Resolution 1574 (2004), 4 March 2005, UN Doc. S/2005/140; Report of the Secretary-General on the Sudan Pursuant to Paragraph 15 of Security Council Resolution 1564 (2004) and paragraphs 6, 13, and 16 of Security Council Resolution 1556 (2004) and Paragraph 17 of Security Council Resolution 1574 (2004) 12 April 2005, UN Doc. S/2005/240.
10. Report of theUnitedNations High Commissioner forHuman Rights and Follow-Up to theWorld Conference on Human Rights” Situation of Human Rights in the Darfur Region of the Sudan, 7 May 2004, UN Doc. E/CN.4/2005/3, para. 6.
11. See, e.g., Report of the Independent Expert on the Situation of Human Rights in the Sudan” Emmanuel Akwei Addo, 28 February 2005, E/CN.4/2005/11, paras. 33-35; Human RightsWatch, Darfur Destroyed” Ethnic Cleansing by Government and Militia Forces inWestern Sudan (2004), 42-9; International Crisis Group, ‘Darfur” The Failure to Protect’, Africa Report No. 89, 2March 2005, at 7.
12. Report of the High Commissioner, Yale Journal of International Law note 12, para. 46.
13. Report of the International Commission, Report of the High Commissioner, Yale Journal of International Law note 12, para. 46. note 7, para. 226.
14. Report of the International Commission, Report of the International Commission, Report of the High Commissioner, Yale Journal of International Law note 12, para. 46. note 7, para. 226. note 7, para. 226., paras. 73-488.
15. Human Rights Watch, Report of the International Commission, Report of the International Commission, Report of the High Commissioner, Yale Journal of International Law note 12, para. 46. note 7, para. 226. note 7, para. 226., paras. 73-488. note 13, at 39-42; Human Rights Watch, ‘If We Return, We Will be Killed'” Consolidation of Ethnic Cleansing in Darfur, Sudan (2004).
16. House Concurrent Resolution 467, Senate Concurrent Resolution 133, 22 July 2004.
17. Report of the International Commission, Report of the International Commission, Report of the International Commission, Report of the High Commissioner, Yale Journal of International Law note 12, para. 46. note 7, para. 226. note 7, para. 226., paras. 73-488. note 7, paras. 73-564. For comment on the report see C. Byron, ‘Commentary on the International Commission of Inquiry on Darfur to the United Nations Secretary-General’, (2005) 6 Human Rights Law Review 35; de Waal, Report of the International Commission, Report of the International Commission, Report of the High Commissioner, Yale Journal of International Law note 12, para. 46. note 7, para. 226. note 7, para. 226., paras. 73-488. note 7, at xviii-xix, thinks that ‘genocidal intent can be shown’.
18. See J.C.O'Brien, ‘The International Tribunal forViolations of InternationalHumanitarian Law in the Former Yugoslavia’, (1993) 87 AJIL 639, at 639-42.
19. UN Press Release SC/8050, 2 April 2004. On the difference see S. Talmon, ‘The Statements by the President of the Security Council’, (2003) 2 Chinese Journal of International Law 419, at 427-30.
20. Human RightsWatch, Report of the International Commission, Report of the International Commission, Report of the High Commissioner, Yale Journal of International Law note 12, para. 46. note 7, para. 226. note 7, para. 226., paras. 73-488. note 13, at 53.
21. June 2004, UN Doc. S/RES/1547.
22. July 2004, UN Doc. S/RES/1556.
23. On Yugoslavia see SC Resolution 780, UN Doc. S/RES/780. On Rwanda see SC Resolution 935, UN Doc. S/RES/935.
24. UN Doc. S/RES/1564.
25. This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25.
26. This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522.
27. This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603).
28. This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603). note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603). note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603)., para. 572.
29. See, e.g., BBC News, ‘UN Sets Darfur Trials in Motion’, 5 April 2005, available at http//news.bbc.co.uk/ 1/hi/world/africa/4411497.stm.
30. SeeM. Arsanjani, ‘The Rome Statute for an International Criminal Court’, (1999) 93 AJIL 22, 24-5.
31. Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603). note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603). note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603)., para. 572. note 7, para. 568.
32. Report of the International Commission, Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603). note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603). note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603)., para. 572. note 7, para. 568. note 7, para. 568., para. 574. For earlier comments on the prohibitive costs of new international criminal tribunals seeD. J. Scheffer, ‘International Judicial Intervention’, (1996) 102 Foreign Policy 34, at 49. Michael Scharf took the view that one of the underlying causes of ‘tribunal fatigue’ is the cost” M. P. Scharf, ‘The Politics of Establishing an International Criminal Court’, (1995) 6 Duke Journal of Comparative and International Law. 167, 170. The Commission took a similar view (Report of the International Commission, Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603). note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603). note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603)., para. 572. note 7, para. 568. note 7, para. 568.).
33. Report of the International Commission, Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603). note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603). note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603)., para. 572. note 7, para. 568. note 7, para. 575.
34. Report of the International Commission, Report of the International Commission, Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603). note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603). note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603)., para. 572. note 7, para. 568. note 7, para. 575. note 7, para. 575.
35. Security Council Resolution 1503 UN Doc. S/RES/1503, 28 Aug. 2003.
36. On which see C. Romano, A. Nollkaemper, and J. K. Kleffner (eds.), Internationalized Criminal Courts (2004).
37. Report of the International Commission, Report of the International Commission, Report of the International Commission, Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603). note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603). note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603)., para. 572. note 7, para. 568. note 7, para. 575. note 7, para. 575. note 7, para. 578.
38. See R. Cryer, ‘A Special Court for Sierra Leone?’, (2001) 50 International and Comparative Law Quarterly 435, at 438-9.
39. Report of the International Commission, Report of the International Commission, Report of the International Commission, Report of the International Commission, Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603). note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603). note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603)., para. 572. note 7, para. 568. note 7, para. 575. note 7, para. 575. note 7, para. 578. note 7, para. 578. Although the commission is diplomatic enough not to be explicit about this, it is almost certain that it had in mind the possibility of bad faith on the part of the government of Sudan, recalling the interminable political problems that bedevilled negotiations between the UN and Cambodia for mixed tribunals. See D. K. Donovan, ‘Joint UN-Cambodia Efforts to Establish a Khmer Rouge Tribunal’, (2003) 44 Harvard International Law Journal 551.
40. SeeR.Cryer, ‘Post-Conflict Justice,AMatter of Judgment, Practice or Principle?’, inN. D. White and D. Klaasen (eds.), The UN, Human Rights and Post-Conflict Situations (2005), 267, at 288.
41. See S. Linton, ‘Cambodia, East Timor, Sierra Leone” Experiments in International Criminal Justice’, (2001) 12 Criminal Law Forum 185.
42. Koskenniemi, Report of the International Commission, Report of the International Commission, Report of the International Commission, Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603). note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603). note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603)., para. 572. note 7, para. 568. note 7, para. 575. note 7, para. 575. note 7, para. 578. note 4, at 178.
43. 31March 2005, UN Doc. S/RES/1593. The Resolution thus passed 10-0-4.
44. See, e.g., B. Broomhall, International Justice and the International Criminal Court” Between Sovereignty and the Rule of Law (2003), 79.
45. UN Doc. S/PV.5158, at 3 (Mrs Patterson). Those fearing politicization might note, from the other end, that Patterson declared her satisfaction that ‘we expect that, by having the Security Council refer the situation on Darfur to the ICC, firm political oversight of the process will be exercised’ (Koskenniemi, Koskenniemi, Report of the International Commission, Report of the International Commission, Report of the International Commission, Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603). note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603). note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603)., para. 572. note 7, para. 568. note 7, para. 575. note 7, para. 575. note 7, para. 578. note 4, at 178. note 4, at 178.).
46. SeeD. Forsythe, ‘TheUnited States and International Criminal Justice’, (2002) 24 Human RightsQuarterly 974, at 974.
47. Canada Foreign Affairs, ‘Canada Contributes $500000 to International Criminal Court for Darfur Investigations’, Press Release, 4 April 2005, No. 58. Voluntary Contributions are permitted under Art. 116 of the Rome Statute. At a general level such contributions do raise spectres of possible political influence. See, e.g., Prosecutor v. Norman, Decision on the Preliminary Motion Based on Lack of Jurisdiction (Judicial Independence) SCSL-2004-14-AR72(E) 13 March 2004. As the Special Court for Sierra Leone noted, however, the provision of funding does not, per se, equate to partiality; UN Doc. S/PV.5158, at 3 (Mrs Patterson). Those fearing politicization might note, from the other end, that Patterson declared her satisfaction that ‘we expect that, by having the Security Council refer the situation on Darfur to the ICC, firm political oversight of the process will be exercised’ (Koskenniemi, UN Doc. S/PV.5158, at 3 (Mrs Patterson). Those fearing politicization might note, from the other end, that Patterson declared her satisfaction that ‘we expect that, by having the Security Council refer the situation on Darfur to the ICC, firm political oversight of the process will be exercised’ (Koskenniemi, Koskenniemi, Report of the International Commission, Report of the International Commission, Report of the International Commission, Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603). note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 569-572. The Commission also suggested setting up a compensation commission (This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, This summary is based on Report of the International Commission, UN Doc. S/RES/1564. note 7, paras. 12-25. note 7, paras. 12-25., paras. 489-522. note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603). note 7, paras. 12-25., paras. 489-522., paras. 570, 591-603)., para. 572. note 7, para. 568. note 7, para. 575. note 7, para. 575. note 7, para. 578. note 4, at 178. note 4, at 178.). note 4, at 178.)., paras 24-43. In this particular instance, the Canadian donation appears to have been on idealistic grounds. No Canadian nationals have been even remotely connected to the crimes in Darfur that have been referred to the ICC.
48. On which see R. Cryer, Prosecuting International Crimes” Selectivity and the International Criminal Law Regime (2005), 154-5.
49. UN Doc. S/PV.5158, at 4 (Mrs Patterson).
50. UN Doc. S/PV.5158, at 4 (Mrs Patterson)., at 11 (Mr Sanderberg).
51. For anexcellent critique of claims that activity is ‘illegalbut legitimate’ seeB.Roth, ‘Bending theLaw, Breaking It, or Developing It? The United States and the Humanitarian Use of Force in the Post-Cold-War Era’, in G. Nolte and M. Byers (eds.), United States Hegemony and the Foundations of International Law (2003), 232, at 250-6.
52. In the not underwritten world of international criminal law, there is still considerable room for studies of the impact of economic considerations on decision-making in the area. Two particular areas that spring to mind are how trading partners of states whose officials are suspected of international crimes and voluntary contributors to the coffers of international criminal tribunals influence decisions on whether to prosecute.
53. SeeM.HalffandD.Tolbert, ‘Article 115’, inO.Triffterer (ed.),Commentaryon theRomeStatute for the International Criminal Court (1999), 1221, at 1227-8.
54. W. A. Schabas, An Introduction to the International Criminal Court (2001), 159. See similarly L. Condorelli and S. Villalpando, ‘Referral and Deferral by the Security Council’, in A. Cassese, P. Gaeta, and J. R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court” A Commentary (2002), 627, at 643-4.
55. On which seeW. Koschorrek, ‘Article 17’, in B. Simma (ed.), The Charter of the United Nations” A Commentary (2003), 332. OnUNfundingmore generally see E. J. Ca’ rdenas, ‘UNFunding” Some Reflections’, (2000) 11 EJIL 67.
56. Art. 13 of theAgreement reads, ‘TheUnitedNations and theCourt agree that the conditions under which any funds may be provided to the Court by a decision of the General Assembly of the United Nations pursuant to Article 115 shall be subject of separate arrangements’. Negotiated Relationship Agreement Between the International Criminal Court and the United Nations. The point is not the separate agreements (which do not yet exist), but the agreement that financing is the Assembly's business.
57. 25May 1993, UN Doc. S/RES/827.
58. On this see V.Morris and M. P. Scharf, The International Criminal Tribunal for Rwanda (1998), 677-8.
59. It is a matter of speculation whether Canada had made its willingness to contribute to the cost of the investigations known prior to the passage of Resolution 1593.
60. Certain Expenses of the United Nations Opinion, [1962] ICJ Rep. 151.
61. UN Doc. S/PV.5158, at 4 (Mrs Patterson).
62. On which see J. F.Murphy, The United States and the Rule of Law in International Affairs (2004), ch. 3.
63. Its legitimacy is dealt with below, at note 104 et seq. and accompanying text.
64. Letter from the President of the Security Council to the Secretary-General, 22 December 2000, UN Doc. S/2000/1234. The requirement was adopted in Statute of the Special Court of Sierra Leone, Art. 1(b).
65. Statute of the Special Court of Sierra Leone, Art. 1(c).
66. August 2003, UN Doc. S/RES/1497.
67. UN Doc. S/PV.4803, 4 (Mr Plueger). France may have agreed, noting alongside its concerns about the Rome Statute that it did not believe that operative paragraph 7 was compatible with ‘principles of international law’ without further explanation, UN Doc. S/PV.4803, at 7 (Mr Duclos).
68. UN Doc. S/PV.4803, 4 (Mr Plueger). France may have agreed, noting alongside its concerns about the Rome Statute that it did not believe that operative paragraph 7 was compatible with ‘principles of international law’ without further explanation, UN Doc. S/PV.4803, at 7 (Mr Duclos).
69. UN Doc. S/PV.4803, 4 (Mr Plueger). France may have agreed, noting alongside its concerns about the Rome Statute that it did not believe that operative paragraph 7 was compatible with ‘principles of international law’ without further explanation, UN Doc. S/PV.4803, at 7 (Mr Duclos)., at 7 (Mr Duclos).
70. See generally L. Yee, ‘The International Criminal Court and the Security Council” Articles 13(b) and 16’, in R. S. Lee (ed.), The International Criminal Court” The Making of the Rome Statute (1999), 149; M. Bergsmo and J. Pejic’, ‘Article 16’, in Triffterer, UN Doc. S/PV.4803, 4 (Mr Plueger). France may have agreed, noting alongside its concerns about the Rome Statute that it did not believe that operative paragraph 7 was compatible with ‘principles of international law’ without further explanation, UN Doc. S/PV.4803, at 7 (Mr Duclos)., at 7 (Mr Duclos). note 61, at 373.
71. See infra notes 95-9 and accompanying text. See also Cryer and White, UN Doc. S/PV.4803, 4 (Mr Plueger). France may have agreed, noting alongside its concerns about the Rome Statute that it did not believe that operative paragraph 7 was compatible with ‘principles of international law’ without further explanation, UN Doc. S/PV.4803, at 7 (Mr Duclos)., at 7 (Mr Duclos). note 58, at 153-4. There is a possible hint that it might have such authority in F. Berman, ‘The Relationship between the International Criminal Court and the Security Council’, inH.A.M. vonHebel, J. Lammers, and J. Schukking (eds.), Reflections on the International Criminal Court (1999), 173, at 176-8.
72. Agreements between states parties to not surrender may not be acceptable under the Rome Statute, and anyway, the ICC could order the surrender of the person from his or her home jurisdiction in such a situation.
73. Art. 27 of theRomeStatute makes it very clear that the question of personal or State immunities are irrelevant when a person is before the ICC. The somewhat Delphic, and controversial, judgment in the Yerodia case was prepared to accept that immunities do not apply before international courts. Case Concerning the Arrest Warrant of 11April 2000 (Democratic Republic of Congo v. Belgium), ICJ General List 121, para. 60.Onthe decision see S.Wirth, ‘Immunity for Core Crimes? The ICJ's Judgment in the Congo v. Belgium Case’, (2002) 13 EJIL 877; C.Wickremasinghe, ‘ArrestWarrant of 11April 2000 (Democratic Republic of the Congo v. Belgium), Preliminary Objections andMerits, Judgment of 14 February 2002’, (2003) 52 International and Comparative Law Quarterly 775.
74. See, e.g., Bergsmo and Pejic’, Agreements between states parties to not surrender may not be acceptable under the Rome Statute, and anyway, the ICC could order the surrender of the person from his or her home jurisdiction in such a situation. note 79, at 378-9; Condorelli and Villalpando, Agreements between states parties to not surrender may not be acceptable under the Rome Statute, and anyway, the ICC could order the surrender of the person from his or her home jurisdiction in such a situation. note 62, at 647.
75. A resolution that requested the Prosecutor to defer investigations in a particular situation, but not expressly invoking Art. 16, should not, for that reason alone, be considered not to be valid. Equally, when important issues are at stake, it is not acceptable to infer a great deal from ambiguous passages in such resolutions; see V. Lowe, ‘The Iraq Crisis” WhatNow?’, (2003) 52 International and Comparative Law Quarterly 859, at 866. This ought not to be taken as claiming that the issue of immunity of peacekeepers is as important as going towar. It is not.
76. On the question of the intention of the Security Council see N. D. White, ‘The Will and Authority of the United Nations after Iraq’, (2004) 17 Leiden Journal of International Law 645.
77. Condorelli andVallalpando, Bergsmo and Pejic’, Agreements between states parties to not surrender may not be acceptable under the Rome Statute, and anyway, the ICC could order the surrender of the person from his or her home jurisdiction in such a situation. note 79, at 378-9; Condorelli and Villalpando, Agreements between states parties to not surrender may not be acceptable under the Rome Statute, and anyway, the ICC could order the surrender of the person from his or her home jurisdiction in such a situation. note 62, at 647. note 62, at 646-7; see similarly (on the first point at least)Cryer and White, Bergsmo and Pejic’, Agreements between states parties to not surrender may not be acceptable under the Rome Statute, and anyway, the ICC could order the surrender of the person from his or her home jurisdiction in such a situation. note 79, at 378-9; Condorelli and Villalpando, Agreements between states parties to not surrender may not be acceptable under the Rome Statute, and anyway, the ICC could order the surrender of the person from his or her home jurisdiction in such a situation. note 62, at 647. note 58, at 155-8.
78. See, e.g., Security Council Resolutions 1556 and 1564, referred to above.
79. D. J. Scheffer, ‘Staying the CourseWith the International Criminal Court’, (2001-2) 35 Cornell International Law Journal 47, at 90.
80. See alsoDan Sarooshi, ‘The Peace and Justice Paradox” The International Criminal Court and theUNSecurity Council’, inMcGoldrick et al., Security Council Resolutions 1556 and 1564, referred to above. note 58, 95-8.
81. Draft Statute of the International Criminal Court, in Report of the International Law Commission on the Work of itsForty-Sixth Session,UNDoc.A/49/10), Art. 23. SeeV.Gowlland-Debbas, ‘TheRelationshipbetween the Security Council and the Projected International Criminal Court’, (1998) 3 Journal of Armed Conflict Law 97, at 102-3.
82. See S. A.Williams, ‘Article 13’, in Triffterer, Security Council Resolutions 1556 and 1564, referred to above. note 61, at 343, 349. The drafting history thus confounds the suggestion that the Council could refer a specific case by Condorelli and Villalpando, Security Council Resolutions 1556 and 1564, referred to above. note 62, at 632-3. The Council could refer the situation, but not the case per se.
83. Although the Council is also entitled to intervenemore broadly into an ‘investigation’, the point remains.
84. ICC Press Release, 29 January 2004.
85. ICC Press Release, 29 July 2004.
86. Art. 103 of the Charter reads, ‘In the event of a conflict between the obligations of theMembers of theUnited Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’ The Court, not amember of the UN, however, is obliged by Art. 21 of the Rome Statute to apply ‘in the first place, the Statute, Elements of Crimes and its Rules of Procedure and Evidence’, and ‘applicable treaties’ only ‘in the second place… [and]… where appropriate’. Considerable doubt may be expressed about whether the UN Charter could be said to be an ‘applicable treaty’.
87. A somewhat controversial proposition that was accepted, without real discussion by the Appeals Chamber of the Special Court for Sierra Leone in Prosecutor v. Fofana, Decision on Preliminary Motion on Lack of JurisdictionMateriae” IllegalDelegation of Powers by theUN, CaseNo. SCSL 2004-14-AR72(E), 25May 2004, paras. 55-6; see also the Separate Opinion of Judge Robertson, para. 6.
88. Statements that the Security Council could not rewrite the Rome Statute were also characteristic of the debate on Security Council Resolution 1422; see Cryer and White, Art. 103 of the Charter reads, ‘In the event of a conflict between the obligations of theMembers of theUnited Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’ The Court, not amember of the UN, however, is obliged by Art. 21 of the Rome Statute to apply ‘in the first place, the Statute, Elements of Crimes and its Rules of Procedure and Evidence’, and ‘applicable treaties’ only ‘in the second place… [and]… where appropriate’. Considerable doubt may be expressed about whether the UN Charter could be said to be an ‘applicable treaty’. note 58, at 151, 153-4. See also Sarooshi, ‘Peace and Justice’, Art. 103 of the Charter reads, ‘In the event of a conflict between the obligations of theMembers of theUnited Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.’ The Court, not amember of the UN, however, is obliged by Art. 21 of the Rome Statute to apply ‘in the first place, the Statute, Elements of Crimes and its Rules of Procedure and Evidence’, and ‘applicable treaties’ only ‘in the second place… [and]… where appropriate’. Considerable doubt may be expressed about whether the UN Charter could be said to be an ‘applicable treaty’. note 89, at 95-8.
89. The Special Court for Sierra Leone, in Prosecutor v. Fofana, Decision on Preliminary Motion on Lack of JurisdictionMateriae” IllegalDelegation of Powers by theUN, CaseNo. SCSL 2004-14-AR72(E), 25May 2004, para. 28, took the view that the Security Council could alter a treaty entered into with a state, owing to Art. 103 of the UN Charter. Irrespective of whether or not this is correct, it cannot apply with respect to an independent international person which is not bound by Art. 103 of the Charter, as it is not a party to the Charter. The samewould apply to any possible issues of compatibility of Resolution 1593 with Art. 19 of the same agreement.
90. The position with respect to perhaps the closest analogue, declarations under Art. 36(2) of the ICJ Statute containing invalid reservations, is not clear; see, e.g., J. Collier and V. Lowe, The Settlement of Disputes in International Law” Institutions and Procedures (1997), 143-5.
91. See Letter from the Secretary-General to the Prosecutor of the International Criminal Court, 1 April 2005, and Situation in Darfur, Decision Assigning the Situation in Darfur, Sudan, to Pre-Trial Chamber I, ICC-2/05, 21 April 2005.
92. The same might be said in relation to Resolution 1422; see R. Lavalle, ‘A Vicious Storm in a Teacup” The Action by the United Nations Security Council to Narrow the Jurisdiction of the International Criminal Court’, (2003) 14 Criminal Law Forum 195.
93. UN Doc. S/PV.5158, at 3 (Mrs Patterson).
94. This section builds on themes originally considered in Cryer, UN Doc. S/PV.5158, at 3 (Mrs Patterson). note 54, ch. 4,which was completed prior to the Security Council action on Darfur.
95. On the rule of law generally see B. Z. Tamanaha, On the Rule of Law” History, Politics, Theory (2004).
96. Trial ofMajorWar Criminals, Nuremberg, at 81.
97. See Expert Seminar on Democracy and the Rule of Law, Geneva, 28 February-2 March 2005, Conclusions and Recommendations, paras. 20-4, available at http//www.ohchr.org/english/issues/democracy/ docs/newconclusions1.pdf
98. See, e.g., C.Mié ville, Between Equal Rights” AMarxist Theory of International Law (2005), 314-18.
99. See, e.g., Broomhall, Trial ofMajorWar Criminals, Nuremberg, at 81. note 49, ch. 4.
100. See, e.g., L. L. Fuller, TheMorality of Law (1969), ch. 3; H. L. A. Hart, The Concept of Law (1994), 160. Tamanaha, Broomhall, Trial ofMajorWar Criminals, Nuremberg, at 81. note 49, ch. 4. note 105, at 66, 93-4, 119-22.
101. See, e.g., E. P. Thompson, Whigs and Hunters” The Origins of the Black Act (1975), 262-3; Tamanaha, Broomhall, Trial ofMajorWar Criminals, Nuremberg, at 81. note 49, ch. 4. note 105, at 75.
102. Koskenniemi, Broomhall, Trial ofMajorWar Criminals, Nuremberg, at 81. note 49, ch. 4. note 4.
103. As much would appear to flow from Koskenniemi, Koskenniemi, Broomhall, Trial ofMajorWar Criminals, Nuremberg, at 81. note 49, ch. 4. note 4. note 4., at 496-509. This includes some of themost vituperative critics of international criminal law from the left; see M. Mandel, How America Gets Away with Murder” IllegalWars, Collateral Damage and Crimes Against Humanity (2004), 207-53.
104. Tamanaha, Koskenniemi, Broomhall, Trial ofMajorWar Criminals, Nuremberg, at 81. note 49, ch. 4. note 4. note 105, at 85.
105. See Cryer, Tamanaha, Koskenniemi, Broomhall, Trial ofMajorWar Criminals, Nuremberg, at 81. note 49, ch. 4. note 4. note 105, at 85. note 54, at 197-8.
106. See, e.g.,Williams, Cryer, Tamanaha, Koskenniemi, Broomhall, Trial ofMajorWar Criminals, Nuremberg, at 81. note 49, ch. 4. note 4. note 105, at 85. note 54, at 197-8. note 91, at 345.
107. See J. E. Alvarez, ‘Crimes ofHate/Crimes of State” Lessons From Rwanda’, (1999) 24 Yale Journal of International Law 365, at 452-6.
108. See, e.g., D. Harris, ‘Problems and Progress in Establishing an International Criminal Court’, (1998) 3 Journal of Armed Conflict Law 1, at 3.
109. SeeWilliams, Williams, Cryer, Tamanaha, Koskenniemi, Broomhall, Trial ofMajorWar Criminals, Nuremberg, at 81. note 49, ch. 4. note 4. note 105, at 85. note 54, at 197-8. note 91, at 345. note 91, at 349. As, indeed, it has been, see infra note 134 and accompanying text.
110. S/PV.5158, p.12 (Mr Erwa).
111. See, e.g., A. Bianchi, ‘Ad-hocism and the Rule of Law’, (2002) 13 EJIL 263.
112. Pursuant to Arts. 13(c) and 15 of the Rome Statute, see generally P. Kirsch and D. Robinson, ‘Initiation of Proceedings by the Prosecutor’, in Cassese, Gaeta, and Jones, S/PV.5158, p.12 (Mr Erwa). note 62, at 657.
113. SeeH.-P. Kaul and C. Kress, ‘Jurisdiction and Cooperation in the Statute of the International Criminal Court’, (1999) 2 Yearbook of International Humanitarian Law 143.
114. 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331, Art. 34. See O. Bekou and R. Cryer, ‘Introduction’, in O. Bekou and R. Cryer (eds.), The International Criminal Court (2004), xi, at xvi. Operative paragraph 2 of Resolution 1593 notes that non-parties do not have duties under the Statute.
115. It ought to be noted inmitigation that the formal imposition of a duty is only one of the factors that has led to co-operation in relation to the ad hoc tribunals; see, e.g., R. Kerr, The International Criminal Tribunal for the Former Yugoslavia” An Exercise in Law, Politics and Diplomacy (2004), 128.
116. See Broomhall, Pursuant to Arts. 13(c) and 15 of the Rome Statute, see generally P. Kirsch and D. Robinson, ‘Initiation of Proceedings by the Prosecutor’, in Cassese, Gaeta, and Jones, S/PV.5158, p.12 (Mr Erwa). note 62, at 657. note 49, at 54.
117. Un Doc. S/PV.5158, at 5 (Mr Baali); see also Argentina, 7-8 (Mr Mayoral); Benin, 10 (Mr Adechi); Brazil, 11 (Mr Sardenberg).
118. Un Doc. S/PV.5158, at 5 (Mr Baali); see also Argentina, 7-8 (Mr Mayoral); Benin, 10 (Mr Adechi); Brazil, 11 (Mr Sardenberg)., at 12 (Mr Erwa).
119. Un Doc. S/PV.5158, at 5 (Mr Baali); see also Argentina, 7-8 (Mr Mayoral); Benin, 10 (Mr Adechi); Brazil, 11 (Mr Sardenberg)., at 12 (Mr Erwa)., at 6 (Mr Baja).
120. Forarecentworkasserting thatinternationallawisdefinedbythecolonialencounterseeA.Angie,Sovereignty, ImperialismandtheMaking of InternationalLaw(2005); for aworkraising these issues in respectof international criminal law see P. J. C. Schimmelpennick van der Oije, ‘A Surinam Crime Before a Dutch Court” Universal Jurisdiction or a Post-Colonial Injustice?’, (2001) 14 Leiden Journal of International Law 455.
121. See H. von Hebel and D. Robinson, ‘CrimesWithin the Jurisdiction of the Court’, in R. S. Lee, Un Doc. S/PV.5158, at 5 (Mr Baali); see also Argentina, 7-8 (Mr Mayoral); Benin, 10 (Mr Adechi); Brazil, 11 (Mr Sardenberg)., at 12 (Mr Erwa)., at 6 (Mr Baja). note 79, at 79, 113-16, esp. 116.
122. Yerodia, H. von Hebel and D. Robinson, ‘CrimesWithin the Jurisdiction of the Court’, in R. S. Lee, Un Doc. S/PV.5158, at 5 (Mr Baali); see also Argentina, 7-8 (Mr Mayoral); Benin, 10 (Mr Adechi); Brazil, 11 (Mr Sardenberg)., at 12 (Mr Erwa)., at 6 (Mr Baja). note 79, at 79, 113-16, esp. 116. note 82, Separate Opinion of Judge ad hoc Bula-Bula, paras. 9-14; H. von Hebel and D. Robinson, ‘CrimesWithin the Jurisdiction of the Court’, in R. S. Lee, H. von Hebel and D. Robinson, ‘CrimesWithin the Jurisdiction of the Court’, in R. S. Lee, Un Doc. S/PV.5158, at 5 (Mr Baali); see also Argentina, 7-8 (Mr Mayoral); Benin, 10 (Mr Adechi); Brazil, 11 (Mr Sardenberg)., at 12 (Mr Erwa)., at 6 (Mr Baja). note 79, at 79, 113-16, esp. 116. note 79, at 79, 113-16, esp. 116., Separate Opinion of President Guillaume, para. 15. See Cryer, H. von Hebel and D. Robinson, ‘CrimesWithin the Jurisdiction of the Court’, in R. S. Lee, Un Doc. S/PV.5158, at 5 (Mr Baali); see also Argentina, 7-8 (Mr Mayoral); Benin, 10 (Mr Adechi); Brazil, 11 (Mr Sardenberg)., at 12 (Mr Erwa)., at 6 (Mr Baja). note 79, at 79, 113-16, esp. 116. note 54, 95-6.
123. UN Doc. S/PV.5158, at 12 (Mr Erwa).
124. I. Brownlie, Principles of Public International Law (2003), 488-9; L.N. Sadat, The International Criminal Court and the Transformation of International Law” Justice for the New Millennium (2002), at 108; M. C. Bassiouni, Crimes Against Humanity In International Criminal Law (1999), 210-17; L.May, Crimes Against Humanity” A Normative Account (2005), ch. 2.
125. Vienna Convention on the Law of Treaties, Art. 53. Many, although not all, war crimes can be so described; see B. S. Brown, ‘The Evolving Concept of Universal Jurisdiction’ (2001) 35 New England Law Review 383, at 393.
126. UN Doc. S/PV.5158, 5 (MrWang).
127. See J. T. Holmes, ‘Complementarity” National Courts versus the ICC’, in Cassese, Gaeta and Jones, UN Doc. S/PV.5158, 5 (MrWang). note 62, at 667.
128. SeeR.B.Phillips,'TheInternationalCriminalCourtStatute” JurisdictionandAdmissibility’, (1999)10Criminal Law Forum 61, at 64-6, 84-5.
129. See, e.g., Informal Expert Paper” The Principle of Complementarity in Practice, prepared for the ICC Office of the Prosecutor, available at http//www.icc-cpi.int/, 21.
130. Report of the Prosecutor of the International Criminal Court, Mr Luis Moreno Ocampo, to the Security Council Pursuant to UNSCR 1593 (2005) (hereafter Ocampo Report), available at http//www.icc-cpi.int, 3-4.
131. UN Doc. S/PV.5158, 5 (MrWang)., at 4.
132. Pursuant to Art. 18.
133. For positive, albeit not hagiographic, assessments, see E. Keppler and Y. J. Revilla, ‘Council Makes Historic Referral on Darfur to ICC’, [April 2005] 29 International Criminal CourtMonitor 1; S. Ford, ‘Does the US Really Want Justice for Darfur?’, [April 2005] 29 International Criminal CourtMonitor 5.
134. See, e.g., J. R. Bolton, ‘The Risks and Weaknesses of the International Criminal Court From an American Perspective’, (2000-1) 41 Virginia Journal of International Law 186. Vituperative comment is not limited to members of the Bush administration, however; see J. Rabkin, ‘Worlds Apart on International Justice’, (2002) 15 Leiden Journal of International Law 835.
135. Although there have been exploratory meetings between the Office of the Prosecutor and officials of the Sudanese government; Ocampo Report, Pursuant to Art. 18. note 142, at 5.
136. D. Forsythe, Human Rights in International Relations (2000), 221, although one of the participants in the debates at the time denies this; see D. J. Scheffer, ‘Three Memories of the Year of Origin, 1993’, (2004) 2 Journal of International Criminal Justice 353, 353-7.
137. See, e.g., Security Council Resolution 1591, preambular paragraph 14.
138. See E.MacAskill, ‘NATO on Alert to Provide Help in Darfur’, Guardian, 19May 2005.