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The Politics of Constructing the International Criminal Court.

The Politics of Constructing the International Criminal Court, by Michael J. Struett

Publisher: Palgrave Macmillan

Price: $79.95

Reviewed by: Yuan Ji

On January 26, 2009, the International Criminal Court (ICC) commenced the trial of Thomas Lubanga, a Congolese militia leader whose followers have been accused of gross human rights violations including rape, ethnic massacre, torture, and conscription of child soldiers. This was a noteworthy day in the history of international criminal justice, as the Lubanga trial was the first trial held at the ICC since the Court came into existence almost seven years ago. This year is also significant because the Rome Statute grants the ICC jurisdiction over aggression, a term to be defined no earlier than seven years after the Statute goes into effect, and July 2009 will mark the Statute's seven-year anniversary. In this context, the recent publication of Michael Struett's The Politics of Constructing the International Criminal Court comes as a timely analysis of and tribute to the Rome Statute, whose ratification on July 1, 2002 activated the ICC's existence in international law and global governance.

The most interesting question that the book seeks to answer is this: why were so many nation-states willing to reduce their own sovereignties by granting significant authority to a strong, independent international tribunal? In answering this question, Struett places unique emphasis on the discourse by various non-governmental organization (NGO) advocates during the ratification process. Struett makes a valuable contribution to existing scholarship in the field (1) by explaining the discursive role that NGOs can play in forming international policy consensus between sovereign nations, and by highlighting the results of the NGOs' dialogue. While this focus on NGOs is a unique contribution to existing analyses of the ICC, the broad membership of the NGO community makes it difficult to account in detail the motives, roles, and actions of specific nongovernmental entities that were involved in the ICC negotiations. Understanding the reasons behind individual NGOs' involvements at different phases of the ICC construction is important and informative, since there can be significant disparities in their interests and sources of financial support. Even though Struett may not wish to focus on these reasons, their absence is a potential weakness of Struett's work. Additionally, Struett's narrative pays particular attention to the United States' involvement throughout the negotiation process which, as this review will discuss later, is not an entirely unjustified bias.

The ICC is the first international tribunal vested with permanent authority to try criminal cases against individual perpetrators of genocide, war crimes, and crimes against humanity. In that context, the formation of the ICC may mark the end of a history in which individuals responsible for the most heinous crimes of mass violence could act with impunity and without fear of legal consequences. Struett's book offers an insightful analysis of the key features of the ICC, the events leading up to its ratification, and the strategies of pro-ICC organizations that proved effective during negotiations. Struett's central claim is that NGOs played a crucial role in developing the Rome Statute and in securing enough signatures to effect its ratification less than four years after the Statute first opened for signatures. His account outlines how NGOs used rational arguments and common-ground norms effectively to persuade an international audience.

Struett acknowledges the notion of state sovereignty as the key reason why earlier discussions of establishing an international criminal tribunal failed to lead to a permanent court like the ICC. In the late 1940s and early 1950s, NGOs presented arguments advocating the establishment of an international criminal court; although these arguments were considered by the United Nations General Assembly's Sixth Committee in the late 1950s, at the time they were not fruitful. This raises a possible critique of Struett's central thesis: if NGOs did play a pivotal role in the establishment of the ICC in the 1990s, why were they not able to accomplish the same goal four decades earlier? Struett anticipates this question and responds by pointing to the polarized political atmosphere during the Cold War era. As the two ideological camps developed and diverged during this period, the notion of a neutral tribunal adjudicating in complete freedom from the influence of either superpower became less credible. (2) Furthermore, Struett suggests that the prevailing understanding during the 1950s of the mutually exclusive sovereignties of states was incompatible with the intrusion of an independent institution's enforcement of international criminal law. Of course, later efforts to create an international criminal tribunal in the 1990s faced this same problem, but Struett posits that it was much more difficult to make a normative argument favoring a neutral third-party body of adjudication in a world divided into two ideological camps, each of which viewed the other as a constant source of threat and distrust. Although the United States and the Soviet Union cooperated to establish tribunals during the post-World War II period and could have cooperated to establish a permanent court, (3) Struett observes that the two countries limited their cooperation to examining the Axis powers' culpability instead of their own. (4) Because most participants in the dialogue in the 1950s concerning the establishment of an ICC were state representatives or state-appointed members of the International Law Commission, (5) the dialogue was also limited to formal authority figures who did not necessarily have decision-making powers within their respective countries. Vulnerable populations who would later become victims of war crimes, genocides, and crimes against humanity did not have "sufficient voice within civil society to bring their views to bear on the decision-makers in national government." (6) All of these factors contributed to the failure among states to establish an international criminal tribunal in the 1950s.

The post-Cold War years presented the NGO community with an opportunity to garner support for an international tribunal. Pro-ICC NGOs successfully formed a coalition and expanded membership through outreach to other NGOs. As an illustration of the coalition's success, about 1,500 NGOs were present at the 1993 World Conference on Human Rights in Vienna, which provided a forum for networking among NGOs committed to the promotion of an ICC. A year later, these NGOs participated in a conference call and established the Coalition for an International Criminal Court. (7) They agreed to coordinate efforts during the upcoming consideration of a draft ICC statute by the United Nations General Assembly's Sixth Committee. The NGO coalition effectively increased its claim to legitimacy by publishing objective opinions detailing reasons to advocate both for and against the formation of an ICC. (8) Additionally, the coalition of NGOs was also willing to consider different blueprints for the court's design. Struett makes the revealing observation that unlike state representatives, whose legitimacy lies in their selection by their respective states, NGOs can only maintain their legitimacy by making arguments that appeal to reason rather than to power. The net result was that instead of allowing representatives from a few states to focus only on elements of the Rome Statute that were of interest to them, the NGOs shaped the discussion into one involving state and non-state representatives interested in a variety of issues.

In Struett's terminology, the NGOs' persuasive legitimacy was just as influential as the states' representational legitimacy, and the negotiations became communicative and rational rather than strategic as a result. Struett illustrates the difference between communicative and strategic arguments during the Rome negotiations by examining the dialogue generated by the United States' contention that the ICC should not exercise jurisdiction over states without their consent. (9) Stating the accepted principle of international treaty law that treaties cannot create new obligations for non-participating parties is an example of a communicatively rational argument. A strategic argument, on the other hand, might reason that U.S. citizens should be exempt from unwanted ICC jurisdiction since the United States plays a unique role in maintaining international peace and security. According to Struett, the United States made both kinds of arguments during the ICC debate. The communicatively rational argument was widely accepted by participants in the debate, but the strategic one was not.

Struett convincingly argues that the foundation of the NGOs' persuasive legitimacy lies in their discursive practice of establishing topoi, or common premises shared by nation-states, and that making arguments based on these mutual standards was instrumental in the early stages of ICC negotiations. The four topoi that emerged from the ICC debate are encapsulated by Struett as follows:

1. The need to end a history of immunity for individual leaders who commit crimes in the name of their states,

2. The importance of providing equal justice for individuals who have committed similar criminal violations of international law, regardless of the time and place of perpetration,

3. The grounding of the ICC in existing international statutes so that it does not create new international law but can claim jurisdiction over the most odious crimes already recognized by existing law, and

4. The existence of procedures that protect the rights of the accused with a presumption of innocence.

With a focus on the first two in particular, Struett analyzes and provides specific examples of NGOs' efforts in establishing these four common premises. Once the topoi gained mainstream acceptance in the international community, they created a common starting point in the dialogue among nation-states so that arguments based on these topoi were given greater consideration in the negotiation process. An illustration of NGOs' efforts to establish topoi can be found in a 1996 Human Rights Watch paper (10) that emphasized the urgent need to end impunity for the most egregious human rights crimes such as genocide, war crimes, and crimes against humanity. Struett claims that the NGO strategy in this paper was to create a sense of urgency by reminding state delegates that contrary to the first topos in the outline above, the "atrocious crimes under consideration were recurring problems in the contemporary world." As this invocation of urgency gained wider acceptance through later negotiations, the need to end impunity for the crimes listed above eventually became the foundation for subsequent negotiations among nation-states. (11) As evidence for this acceptance, Struett observes that policy recommendations made by the 1996 Human Rights Watch paper regarding subject matter jurisdiction, the complementarity regime, and the mechanisms for the ICC to exercise jurisdiction were all incorporated into the final policy choices made in the Rome Statute.

As negotiations progressed, NGOs' continued appeal to topoi played a crucial role in four important issues that Struett thoughtfully explicates in his book: the list and definition of crimes to be included in the ICC's jurisdiction, the complementary structure of jurisdiction between ICC and domestic tribunals within individual nation-states, the trigger mechanism for activating ICC jurisdiction, and the pace of progress in the negotiations. At the Rome Conference, from which the Rome Statute was to emerge, NGOs demonstrated remarkable dexterity in modifying their positions in response to new issues that emerged in the course of discussion and offering counterproposals after quick analyses of the new issues. One of their initiatives sought to identify students and faculty from law schools in the United States and Western Europe who would be willing to serve as legal counsel for less developed nations (12) in order to ensure that their voices would be heard in the ICC negotiations. NGOs took assertive but persuasive stances on the definition of key terms such as "genocide" and, at the same time, kept in mind the compromises necessary to ensure the passage of the Statute. As a result, consensus began to form that the ICC should be granted inherent jurisdiction over three categories of crimes: genocide, war crimes, and crimes against humanity. In this way, NGOs' efforts had a direct impact on the final wording of the Rome Statute and consequently, on the scope of the ICC's jurisdiction.

In the ratification process of the Rome Statute, the NGOs acted strategically by focusing on getting signatures rather than ratifications from the nation-states. (13) A state's signature, although not binding, expresses its intent to ratify later and to not act contrary to the terms of the treaty in the interim. Because ratifications from 60 states were required to enact the ICC, the NGOs focused on obtaining signatures first, which were much easier to grant within the political structures of individual nationstates. As more signatures were collected, the general pattern established was then used to convince nation-states that the ICC was likely to be ratified and that its jurisdiction would not be geographically limited to the few states that chose to ratify early on in the process. (14)

Struett also proposes that by actively advocating complementary jurisdiction as a mechanism to curtail the Court's power, the NGO community played a crucial role in persuading states to agree to constraints upon their sovereignty in support of an international court such as the ICC. The Rome Statute provides that any case already subject to a genuine investigation and prosecution in a national court cannot be heard by the ICC, with the caveat that ICC can make the final determination of the prosecution's genuineness. States' willingness to reduce their own sovereignty in deference to the ICC is not only grounded in the complementary nature of its jurisdiction but also in its permanence. Because ad hoc tribunals relied on external military backing to control regions crucial to gathering witness testimony and evidentiary documentation, they had to be established quickly before political support for providing the necessary troops waned. (15) Local cooperation was often unavailable or half-hearted, especially if the accused still enjoyed political or military power in the country. Struett suggests that as a permanent court with wide support from the global community and therefore less need for support from particular power(s), the ICC effectively avoids problems that ad hoc war crime tribunals had encountered in the past and therefore is more persuasive in soliciting nation-states' willingness to reduce their own sovereignties to a legitimate international court.

One bias in Struett's perspective is his particular emphasis on the United States' attitudes and incentives throughout the negotiation and ratification process of the ICC. In the early 1990s, for example, Struett suggests that because the U.S. government was involved in military conflicts with states when it would have likely preferred to prosecute individual leaders, (16) the idea of a permanent international criminal tribunal was an appealing one. However, Struett offers justification for his focus on the United States' political atmosphere by explaining that if the U.S. had shown outright opposition in the beginning stages of the negotiations, the other states would have been much less inclined to pursue the establishment of an international criminal court. In addition, Struett observes that the United States had historically been an advocate of the rule of law in the international community. Its concern that its sovereignty might be compromised was shared by other states, and any hesitation that the United States had shown in endorsing the ICC probably would have been a fair barometer of the general sentiments shared by other states involved in the negotiations. In this sense, Struett's emphasis on the United States is justified and gives a pre-ICC context to the Bush administration's withdrawal of the United States' signature in May 2002. This decision not only runs counter to the United States' tradition of leadership in international justice but, more alarmingly, undermines the ICC's efficacy in providing equal justice by decreasing the tribunal's legitimacy in the eyes of the other countries in the world.

By presenting the motives and arguments advanced by the U.S. and other major state players throughout the negotiations, and by examining NGOs' discursive interactions with them in the process, The Politics of Constructing the International Criminal Court offers an insightful analysis of the process of compromise leading up to the birth of the ICC and NGOs' persuasive role in this process. The success of these NGOs is especially impressive given the significant disagreement during negotiations on a wide array of issues. One of the most controversial questions was whether the Statute should grant the ICC jurisdiction over the crime of aggression; despite the best efforts of NGOs, ultimately the decision of this issue was postponed to prevent negotiations from stalling. Article Five of the Rome Statute grants the ICC jurisdiction over aggression, but the term "aggression" still awaits a definition via the amendment process and must be accepted by seven-eighths of ICC members no earlier than seven years after the launch of the Statute. With the seven-year anniversary of the establishment of the Rome Statute fast approaching, it will be interesting to watch what kind of role the NGOs will play in the negotiations concerning aggression and, consequently, in the potential expansion of the ICC's jurisdiction.

(1.) Although previous scholars have not shared Struett's focus on the NGOs' role during the Rome negotiations, existing scholarship discusses various nation-states' concerns about potential compromises of their own sovereignties and the crucial role that the ICC's complementary jurisdiction plays in their willingness to ratify the Rome Statute. See, e.g., COMPLEMENTARY VIEWS ON COMPLEMENTARITY : PROCEEDINGS OF THE INTERNATIONAL ROUNDTABLE ON THE COMPLEMENTARY NATURE OF THE INTERNATIONAL CRIMINAL COURT, AMSTERDAM 25/26 JUNE 2004 (Jann K. Kleffner & Gerben Kor eds., 2006); STATES' RESPONSES TO ISSUES ARISING FROM THE ICC STATUTE: CONSTITUTIONAL, SOVEREIGNTY, JUDICIAL COOPERATION AND CRIMINAL LAW (Roy S. Lee, ed., 2005).


(3.) The United States and the Soviet Union agreed on a charter for the Nuremberg court on August 8, 1945, and later cooperated to operate the International Military Tribunal for the Far East in 1946.

(4.) STRUETF, supra note 2, at 53.

(5.) The International Law Commission was established by the United Nations General Assembly in 1948 to promote the development and codification of international law. Instead of serving as representatives with decision-making powers within their respective states, "It]he members of the ILC are elected in their individual capacities to provide their own unique expert judgments on the evolution of international law. However, they are nominated by governments, and their own views on international law historically have reflected the views of their government." STRUETY, supra note 2, at 56-57.

(6.) Id. at 65.

(7.) The use of conference call technology is important, since Struett identifies technical complexity as another obstacle to coordinating dissenting voices and to reaching compromises during the 1950s discussions of forming a permanent international tribunal.


(9.) Id. at 125.


(11.) STRUETT, supra note 7, at 89.

(12.) These countries included Sierra Leone and Bosnia, which had recently witnessed crimes covered under the ICC's jurisdiction.

(13.) STRUETT, supra note 7, at 134-35.

(14.) Under the terms of the Rome Statute, such geographical limitations no longer apply once the Statute is activated by reaching a minimum of 60 state ratifications. After activation, the Statute extends jurisdiction to all states that have signed onto the treaty.

(15.) STRUETF, supra note 7, at 161.

(16.) Examples of such individuals include Libya's Quaddafi, Panama's Noriega, and Iraq's Hussein.
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Author:Ji, Yuan
Publication:Yale Human Rights and Development Law Journal
Article Type:Book review
Date:Jan 1, 2009
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