As McCormack points out in Justice, the actions (or lack thereof) of national trials are why the ICC has been considered necessary (at 107). This is because of the fact that it is a moral duty and right to intervene when human rights are violated (however human rights also challenge state sovereignty which will be further explained in the essay) because the rights of the people are the protections that are provided by international law but these are not rights of protection from other states in practice, in fact … Humanity deserves no less. It is simply that the existence of those Tribunals has probably released more money from contributing states than otherwise would have been given in aid to the countries currently under their consideration. 1. All have much to say in their favour. As is Philip Allott, see his The Health of Nations: Law and Society Beyond the State (2002), at 64–66. ), The Politics of International Law (2004). This is consistent with the approach taken in establishing international criminal tribunals since Nuremberg’. It is interesting to compare the visions of Sadat and Broomhall, which are in some ways similar. According to the Rome Statute, it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes. G. Schwarzenberger, Power Politics: A Study of World Society (3rd edn, 1964), at 12. Dominant understandings of sovereignty (and Human Rights) have indeed been significantly reshaped. Before moving on to this, however, it is interesting to note the similarities and differences in the approach to sovereignty taken in the more traditionally doctrinal/legal works under review here. One of the main reasons for the court to come into existence after the end of the Cold War is that many crimes committed against humanity have been ignored by states either due to ‘military necessity’ or under the national sovereignty and territorial integrity clause. To learn about our use of cookies and how you can manage your cookie settings, please see our Cookie Policy. The US has used international legal arguments to claim that the ICC is flawed, see, e.g., Bolton, ‘The Risks and Weaknesses of the International Criminal Court from America’s Perspective’, 41 Virginia Journal of International Law (2000–2001) 186. As Sadat notes, the system of international criminal law is in its infancy, and it needs time before the evidence is in and we can simply dismiss prosecution as a means of dealing with international crimes (at 75). How else can we explain the serial horrors of the countless holocausts of the last century? It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide, This PDF is available to Subscribers Only. The research concludes that there is no doubt a relationship exists between state sovereignty and the ICC. The second is the extent to which states may begin, by doing this, to inculcate the values of international criminal law and normalize the prosecution of international crimes. Second, on its own terms, the assertion needs empirical support, but none is given.88, The reason for Ward’s support is that he has hope for humanity, and in the transformative power of empathy. State sovereignty is the ability of the state to be independent and have autonomy and control over itself and its decisions. A whiff of sulphur permeates the air. As far back as the North Sea Continental Shelf case it was accepted that the drafting process of treaties, and treaties themselves, can have a developmental role in custom.60 There is no reason not to believe that this happened here. An excess of sovereignty and state power can lead to international crimes, as in the Holocaust, but so can a lack of sovereign authority, as in Somalia or Sierra Leone. Justice, at 142. Broomhall, for example, quite accurately notes that ‘[b]ecause the judgement of states, individually and collectively, is subject to diverse extra-legal influences, the process of international criminalization will always be less orderly than its conceptual formulation’ (at 39). This is the work of a serious and talented scholar, who also has an excellent feel for the subject. However, it is unfortunate that although he seems prepared to concede that states are beginning to take such a view (see, e.g., at 106), Broomhall does not engage in any extended way with the most relevant international relations scholarship, particularly in the area of constructivism.71 To be fair to Broomhall, IR theorists, including constructivists, have not dealt with international criminal law in any detail. Even if Ward has the better of the argument on human nature, international criminal law and prosecutions of international crimes may help inculcate the values that Ward seeks to foster. Judah, ‘The Fog of Justice’, New York Review of Books (2004) LI(1), 23, at 25. As has already been noted, the relationship between international criminal law and state sovereignty is complex, and perhaps often misunderstood.27 We must accept that international criminal law does affect state sovereignty (the law on crimes against humanity and genocide in particular) by prohibiting behaviour perhaps previously outside of the purview of international law. This approach to sovereignty, although not absent in some of the debates in Rome, for example on the definitions of crimes, does not reflect how most states and scholars see sovereignty. Clapham and Sadat may have a point. Relevant to this is also that whether the Court will be able to succeed to implement its mandate, given that states would strongly seek to retain their … (at 8). I was wronged and almost my entire family was killed. See, e.g., J. E. Nijman, The Concept of International Legal Personality: An Inquiry Into the History and Theory of International Criminal Law (2004) at 5–6. See also at 188. However, such an engagement by Broomhall could have made for a richer finale to what is already an excellent work. This is not surprising, for if State sovereignty ... is often blamed for the violent condition of world affairs, international governance is not necessarily looked upon as a superior alternative. Ward is far more sanguine about the South African Truth and Reconciliation Commission (TRC) than about the ICTY. (at p. 181). Broomhall is not the only one to note the interplay of substantive norms and state interests at Rome. But, as he notes (ibid.) This is a work that attempts to show how jurisprudence, and law more generally, took a long turn when it moved away from emotion and empathy. According to Broomhall, ‘it is in this context that the impact of the ICC and international criminal law are most likely to be felt’.67, Although Broomhall’s views here are unquestionably sensible and thoughtful, there is an extent to which two issues could have been further separated out, and the second elaborated on more in the work. The funds paid to the ICC by its states parties are not taken from the development or reconstruction aid budgets. She is not alone in this, for example, Lattimer and Sands assert that the Rome Statute ‘provides the most comprehensive, definitive and authoritative list of war crimes and crimes against humanity attracting individual criminal liability’.54 But Sadat perhaps goes the furthest, asserting that the definition process at Rome was a ‘quasi-legislative event that produced a criminal code for the world’ (at 263). Why keep talking about all that? The drafters at Rome were for the most part very careful to stay within the bounds of established custom. State sovereignty is the concept that states are in complete and exclusive control of all the people and property within their territory. With the exception of Sadat’s Transformation, there is a tendency in the works under review here to downgrade detailed discussion of issues of substantive international criminal law to a secondary level. Although a realist could retort that the ICC was created as a cheap way of appearing to act against international crimes without having to create an effective regime that could limit the actions of the powerful, there is some evidence in favour of the constructivist view. For example, in Lattimer and Sands’ Justice, only Eric David discusses the substantive aspects of international criminal law in any depth (and that discussion is limited to a 10-page chapter).44 This is unfortunate, as precisely what international criminal law is trying to prevent and punish is a hugely important question, as it provides an insight into what values the law is trying to promote.45, The complexity of international criminal law’s relationship with sovereignty comes through not only in the procedural or institutional aspects of international criminal law. This paper argues that the ICC challenges the exclusivity of sovereign states. It is not the threat of military force that persuaded many of the states in former Yugoslavia to cooperate with the ICTY, but economic incentives. In South Africa, this discourse has manifested in the government publicising its intent to leave the International Criminal Court (ICC). The International Criminal Court can only intervene where a State is unable or unwilling However, he also noted ‘I am against reconciliation as seen from the Hague perspective. But, as Frédéric Mégret has implied, the debate on the transformation of international law has been going on for a long time.15 In the 20th century, there was a procession of claims that international law and society is undergoing fundamental changes. The reason for this is that to be effective, international law needs developed domestic structures like courts and police services.34 Although Jennings’ comments were not written with the ICC expressly in mind, it is an excellent explanation of complementarity.35 States have decided that international crimes ought to be repressed, and have determined that the most effective way of doing this is by encouraging national efforts at prosecution, i.e., using state sovereignty. People also read lists articles that other readers of this article have read. See also International Justice, at 18 and 131. The International Criminal Court can only intervene where a State … All the works specifically concentrating on international criminal law reviewed here contain defences of the ICC against the critiques levelled at it by the US that it violates pre-existing international law.23 Interestingly, those authors who assert that the ICC is transformative of the nature of international law may weaken the claim that the ICC is consistent with pre-existing international law. Here see also Lattimer and Sands, ‘Introduction’, in Justice at 3; Sands, ‘After Pinochet: The Role of Domestic Courts’, in P. Sands (ed. In other words, despite their different land masses, population sizes, or financial capabilities, all states, ranging from tiny islands of Micronesia to vast expanse of Russia, have an equal right to function as a state and make decisions about what occurs within their own borders. A/54/549; Report of the Independent Inquiry into The Actions of the United Nations During the 1994 Genocide in Rwanda, UN Doc. (A caveat: this analysis is descriptive only. Depending on the matter at issue, the Rome Statute may be taken to restate, reflect or clarify customary rules or crystallise them, whereas in some areas it creates new law or modifies existing law. Ward’s suggestion that local courts ought to have prosecuted offences has been partially taken up by the ICTY, with the recent passing of cases to the Bosnian war crimes chamber under ICTY Rules of Procedure and Evidence 11bis.85 But this procedure has involved the Bosnian chamber proving that it is capable of fair, impartial trials. 37 Still, the extent to which the ICC can provide such an incentive is not helped by … However, the South African TRC is more complex than this. A. de Waal, Famine that Kills: Darfur, Sudan (rev. The decision to establish a permanent court has been Without sovereignty there are no courts, and without courts there are no prosecutions. It is true that the crimes are said, in Articles 6(1), 7(1) and 8(2) to be defined ‘for the purpose of this Statute’, but Article 10 of the Rome Statute provides that ‘nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute’. 3). The Court's founding treaty, called the Rome Statute, grants the ICC jurisdiction over four main crimes. A/59/2005, para. Diplomats from over 150 countries began negotiations in Rome on June 15 to finalize the language and adopt a convention to establish an International Criminal Court (ICC). 10 (1927). Aceves and Hoffmann, in Justice, however, in relation to crimes against humanity, treat the Rome Statute’s provision on crimes against humanity as the most authoritative interpretation of crimes against humanity in international criminal law’ (at 245). Ibid., Dissenting Opinion of Judge Robertson. To begin with issues of theory, as a number of the works here accept, there are two views of sovereignty. Generally speaking sovereignty is broadly divided into: 1. We use cookies to improve your website experience. One of the most debated issues concerning the International Criminal Court (ICC) is that whether it constitutes a major threat to the international system that is based on the principle of national sovereignty. Membership and Evolving State Status. Haris Silajadzic, the Bosnian foreign minister during the war, told Tim Judah that the Tribunal ‘helps a cathartic process in societies on all sides. SS Wimbledon (France, Italy, Japan and UK v Germany) PCIJ Rep. Series A No. Mr. Kenyatta’s case is another opportunity to meet this challenge by demonstrating the Court works with, not against states. See Cryer, ‘Human Rights and the Question of International Courts and Tribunals’, in M. C. Davis, W. Dietrich, B. Scholdan and D. Sepp (eds), International Intervention in the Post-Cold War World (2003) 60, at 65–66. The fact that international criminal law is not a body of law that has fallen from on high fully formed, but is the outcome of political contestation seems to have been recognized by a number of the works under consideration. The International Criminal Court (ICC) has recently taken in a lot of criticism for taking an unprecedented move in allowing the investigation of U.S. forces. This may be true, but it is also the case that the money (and there is a lot of it) that has gone into the ICTY would not have been given to reconstruction. IV. Were this trend to extend widely, the resulting enhancement of the capacity of national law to prosecute international crimes, with any additional incentive provided by the jurisprudence of the ICC, could lay the foundations for a significant increase in the number and credibility of national proceedings against international crimes.69. . The first of these is the criminalization of the recruitment of child soldiers, the second being the inclusion of gender (and perhaps culture) as prohibited grounds of discrimination in crimes against humanity.57 It would be difficult to argue now that these are not established in international criminal law. This is difficult to reconcile at times with other statements in the work: Sadat also asserts that ‘the definitions of crimes are for purposes of the ICC Statute only, and do not embody progressive developments that may be considered new formulations of customary international law (some would even argue that they do not even embody current international law)’.59 Despite this, it is unclear why the argument that the Rome Statute definitions are at least a minimal definition of custom cannot be made on perfectly traditional principles relating to the interrelationship of treaties and custom. See R. Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (2005), Chs 5–6. The above point can perhaps be generalized a little more. The ICC does involve a certain sacrifice of sovereignty because it envisages asserting itself when a state refuses or fails to use its national criminal justice apparatus to deal with the perpetrator of crimes against humanity. The decision to establish a permanent court has been The ICC does involve a certain sacrifice of sovereignty because it envisages asserting itself when a state refuses or fails to use its national criminal justice apparatus to deal with the perpetrator of crimes against humanity. raises profound difficulties, at least as the international system exists and is likely to develop’ (at 54). Indeed, in the two cases where international criminal tribunals have been set up (Yugoslavia and Rwanda), the conflicts have remained in the public eye, and this has led to at times agonised reflection on what states, through the UN, ought to have done to prevent those offences.81 It is arguable that the swing to accepting the emerging responsibility to intervene82 (which also has interesting links to the concept of metaphysical guilt) has been assisted, if not catalysed, by the movement towards criminal repression of criminal guilt.83 It is unfortunate that Ward does not engage with Jaspers directly, given that both have an affinity for Kant, and Jasper’s conceptual framework remains of the most nuanced accounts of what we mean when we refer to guilt. Which are in some ways empowers, that sovereignty too these instruments are also open critique. Charter. prevent their reoccurrence Statute ’, in her words the League of and... 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