An Introduction to the International Criminal Court. (Book Reviews)

By W. McShane, Colonel Thomas | Parameters, Summer 2003 | Go to article overview

An Introduction to the International Criminal Court. (Book Reviews)


W. McShane, Colonel Thomas, Parameters


An Introduction to the International Criminal Court. By William A. Schabas. Cambridge, U.K.: Cambridge University Press. 2001. 406 pages. $90.00.

The International Criminal Court (ICC) is an important idea whose time has come after almost 80 years of false starts. The concept of an international forum to try individuals accused of war crimes or other international offenses dates to the end of World War I and the Treaty of Versailles. The book of Ecclesiastes expressed the same idea even earlier: "The oppressed were crying, and no one would help them. . . because their oppressors had power on their side."

The international agreement underlying the ICC, known as the Rome Statute (or treaty), was negotiated and signed in Rome by 120 nations in July 1998. President Clinton signed the treaty on behalf of the United States on 31 December 2000, but the controversy surrounding the treaty doomed prospects for ratification. On 6 May 2002, President Bush formally notified the United Nations of our intent to withdraw from the treaty. The court commenced operations at The Hague in the Netherlands on 1 July 2002, three months after the 60th signatory state ratified the treaty.

The United States recently sought and obtained concessions from the United Nations and individual states exempting US forces involved in international peacekeeping operations from the jurisdiction of the court. These events, and the United States' failure to join the 138 states that have signed the treaty and the 81 states that have ratified it and become parties as of this writing, makes this a timely and important subject. It has ramifications for the global war on terrorism and American national security policy.

Author William A. Schabas, an international law professor at the Irish Centre for Human Rights of the University of Ireland, Galway, and an observer at Rome, provides a straightforward, generally helpful analysis of the Rome Statute and the ICC. Some members of the US government, Congress, and media critical of the ICC, including members of the military, have not read the Rome Statute, and their opposition is a matter of faith rather than educated opinion. A brief summary of Schabas's book may shed some needed light on this subject and encourage further study.

Chapter One outlines the formation of the treaty. Drawing upon the experiences of the Nuremberg and Tokyo tribunals following World War II and modern tribunals convened for Yugoslavia and Rwanda, the United Nations in 1995 established a preparatory committee to draft language for a permanent criminal court. In July 1998, representatives of some 160 states and numerous nongovernmental organizations (NGOs) met in Rome to negotiate an international agreement that would become the Rome Statute. The remarkably short period of time in which this transpired reflected the strong sense of the international community for a standing court.

Heavily involved in early discussions, US negotiators were soon outmaneuvered by a group of states known as the "like minded," including US allies Australia, Belgium, Canada, Germany, Norway, the Republic of Korea, and the United Kingdom. This group provided the nucleus of support for critical elements of the treaty, in particular universal jurisdiction, the "core crimes" of genocide, war crimes, and crimes against humanity, the lack of Security Council veto over prosecution, and prohibition of reservations.

Article 120 required the treaty be accepted "in toto," contrary to customary practice that states may sign treaties with "reservations" limiting application of specific provisions of the treaty against the reserving state. As the state most heavily involved in international operations, the United States wanted a limitation on prosecutorial discretion to preclude politically motivated prosecutions of Americans. US negotiators advocated this position on behalf of the Department of Defense, but the "like minded" states rejected it and established a single standard applicable to all. …

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