Rome was not seen as the place for large steps forward in the law, but as a place for creating a court to enforce some of the law. 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. The International Criminal Court is not a substitute for national courts. The only serious criticism that can be made of the work is that, as we have had cause to note already, the number of thoughts and issues packed into a fairly short work mean that some ideas are not as fully developed as they could have been. 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. 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. 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). 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). The decision to establish a permanent court has been See Aceves and Hoffman, ‘Pursuing Crimes against Humanity in the United States: The Need for a Comprehensive Liability Regime’, in Justice, at 240. See also International Justice, at 18 and 131. Ward is far more sanguine about the South African Truth and Reconciliation Commission (TRC) than about the ICTY. As McCormack points out in Justice, the actions (or lack thereof) of national trials are why the ICC has been considered necessary (at 107). 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. As we will see, though, there is more to the relationship between sovereignty and international criminal law than meets the eye. There is also a fairly short, albeit sophisticated section on the extent of criminal liability in the chapter by Clapham in Nuremberg, at 50–62. Constructivism would place emphasis on the fact that a number of states have begun to internalize those ideas and see their own identity as involving a commitment to the prosecution of international crimes. 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. Haris Silajadzic, the Bosnian foreign minister during the war, told Tim Judah that the Tribunal ‘helps a cathartic process in societies on all sides. The first is the extent to which states which are subject to the Rome regime (be it by becoming parties, or by having personnel subject to its jurisdiction) are likely to begin to prosecute their own nationals to avoid the ICC stepping in. The journey from the Hague to Rome was long and arduous; it is to be hoped that the journey back to the Hague will be shorter, less encumbered, and ultimately successful. ), The International Criminal Court: The Making of the Rome Statute (1999) 391, at 396. International criminal lawyers often see sovereignty as the enemy of international criminal law, though frequently failing to discuss in any depth the nature and malleability of sovereignty. 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. The exercise of legislative and adjudicative jurisdiction is an important part of state sovereignty. But, as he notes (ibid.) territorial integrity clause. Others, such as Reinhold Niebuhr, would retort that people need to have their impulses controlled through strict rules, which international criminal law provides. 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. After a while, rhetoric has a habit of becoming at least partially reified. 10 (1927). By closing this message, you are consenting to our use of cookies. As Timothy McCormack states in his well-researched and thoughtful chapter in the same volume, inconsistencies in international criminal law enforcement are ‘most readily explicable on the basis of an “us” and “them” mentality’ (at 108), where states advocate the prosecution of ‘others’, whilst having ‘an aversion to accept the ugliness of what their own troops have done against the enemy they have come to dehumanise’.64, The respective works here are all moderately optimistic, although none could be considered naïve or utopian. See, e.g., King, ‘Nuremberg and Sovereignty’, 28 Case Western Reserve Journal of International Law (1996) 135. 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. Indeed, Philippe Sands, in his contribution to From Nuremberg to the Hague identifies this as one of the advantages of complementarity (at 76–77), as it ‘recognises that national courts will often be the best placed to deal with international crimes’, and provides them with an incentive to act. Such ideas were contained in the Resolutions that created the ICTY and ICTR (827 and 955 respectively), and those institutions acted as repositories and reminders of those ideals. Our hearts may be with Ward and Sadat, but our heads are with Broomhall and those who have yet to be convinced of human perfectability through institutions or love. It does not rebuild trust within devastated societies either. International criminal law may have the effect of limiting sovereignty through its substantive norms (although we will return to this matter later), but it also empowers states in relation to jurisdiction. Having shifted to issues of theory, it is apposite to turn now to Professor Ward’s Humanity. The International Criminal Court can only intervene where a State … Despite all their merits, however, the volumes assessed here also show that international criminal law scholarship has not yet fully come to grips with the interrelationship of international criminal law and sovereignty. See R. A. Wilson, The Politics of Truth and Reconciliation of Africa: Legitimising the Post-Apartheid State (2001). State sovereignty is the ability of the state to be independent and have autonomy and control over itself and its decisions. Appalled by the increasing brutality and emboldened by the collapse of ideological barriers, international law now intends to cross the rubicon and reach out for criminals hiding behind the veil of sovereignty. 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 … The funds paid to the ICC by its states parties are not taken from the development or reconstruction aid budgets. See, e.g., Kelsen, ‘Sovereignty and International Law’, 48 Georgetown Law Journal (1960) 627. What is at issue is who is to be empowered to exercise sovereignty, the locus delicti alone, or other states? It is does not argue in favor of past or current state practice, or of the trust system created by the Charter.) That is not to say that the Tribunals have been cheap or always cost-effective, or indeed that some of the money that has been allocated to them could not have been used constructively elsewhere, for example in rebuilding the Rwandan justice system. Ward sees more humanism in the TRC, and believes that it will help establish a culture of human rights by focusing on ‘participating in the pain of others’ (at 134). 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. 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. It is simply one that many people (this author included) support. As a principle which legitimises political control and helps enhance international security, sovereignty often reflects the prevailing notions of international order. Ward has a point about selectivity, however, he understates the fact that although the US has not accepted the Rome Statute, 100 states have, and thus have accepted that they ought to prosecute their own nationals, as well as showing they believe the law ought to be applied to others. The ICC statute and the premises underlying it are unacceptable, primarily because of the unprecedented erosion it would work on state sovereignty. Turning more specifically to the ICC, it also bears recalling that creating that body was an exercise of sovereignty. Qualities that are constitutive of sovereignty, and functional limits to which the exercise of sovereignty is subject, may occasionally appear or disappear, and certainly change their emphasis.’11 However, he is by no means as certain as Clapham that change has occurred, asserting elsewhere, ‘the institution of sovereignty, at least in areas relevant to international criminal law, is in no danger of being replaced or of its importance being radically diminished in the foreseeable future’ (at 5).12 It would appear thus that Broomhall is somewhat sceptical about the transformative nature of international criminal law in relation to notions of sovereignty (e.g. Indeed the books reviewed here can be seen as belonging to the second wave of post-Cold War international criminal law scholarship.1 They also represent a more highly developed, worldly-wise approach to international criminal law than some of the earlier literature in the field.2. ... [various aspects of the Statute and its creation] ... suggest an important shift in the substructure of international law upon which the Court’s establishment is premised. What is the ICC and how does it function? The first type is juridical sovereignty, which is based on the notion that the state has no other authority over it except that of international law. 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 prohibition of aggression protects states by criminalizing armed violations of their sovereignty.46. Non-party states have not had their sovereignty limited in any additional way by this concession made by states parties, who have locked themselves into a regime that can take over part of the protective role of the state, by prosecuting offences if the state later becomes unwilling or unable to do so. crimes of aggression, or the use or threat of armed force by a state against the territorial integrity, sovereignty, or political independence of another state, or violations of the UN Charter. See, e.g., Consard, ‘Sovereign Equality – The Wimbledon Sails On’, in M. Byers and G. Nolte (eds), United States Hegemony and the Foundations of International Law (2002) 117. The only problem is that many people over literally millennia have shown themselves to be prone to the opposite side of human nature. Let us turn, therefore, to this bête-noire of the international criminal lawyer. International criminal law has traditionally adopted a broad view of extraterritorial jurisdiction. Indeed he goes further, noting the, perhaps ‘promiscuous’,51 use of legal concepts, sometimes for ulterior purposes, mentioning in relation to the nullum crimen sine lege principle that it offered ‘a means both of limiting exposure to the obligations imposed by the Statute and of fostering codification and development of the law ... [as well as reflecting] ... a desire to forestall any repetition of the criticisms aimed at the Nuremberg Tribunal, which had already been taken into account in the establishment of the ICTY and ICTR’ (at 30). Recent examples include an amendment on state sovereignty introduced by Singapore in the Moratorium on the Use of the Death Penalty Resolution during the 71st Session of the General Assembly in 2016, as well as the attempt to insert language around sovereignty in both the Extrajudicial, Summary or Arbitrary Executions Resolution and the Question of the … Every independent nation in this world posses sovereignty. (David A. Nill 1999, 16) On July 17, 1998, 120 states voted in favor of establishing a permanent International Criminal Court (ICC). 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. However the prevention of international crimes cannot occur without sovereignty. Although he is more pessimistic when he qualifies himself by saying that despite the Rome Statute, ‘[d]omestic trials will remain fraught with all of the political, social and resource difficulties that have always accompanied them, and the resulting imperfections will be slow to improve’ (at 102–103). State sovereignty is the concept that states are in complete and exclusive control of all the people and property within their territory. In international relations, sovereignty is the state's power to control internal affairs without external interference. This political contestation over the substance of international criminal law was clearly in evidence in Rome. It contains a section on international criminal law, which will be the focus of comment on that book here. Transformation, at 261. Indeed, through a rather astonishing mutation, jurisdictional principles concerning which State may exercise its authority over particular cases have been transformed into norms establishing the circumstances under which the international community may prescribe rules of international criminal law and punish those who breach such rules (at 103). International criminal law certainly has its ‘schizophrenias’,47 such as the distinction between national and international armed conflicts. The ICC statute and the premises underlying it are unacceptable, primarily because of the unprecedented erosion it would work on state sovereignty. The same can be said about Broomhall’s International Justice. 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. I never wronged anyone. it is conceivable, perhaps, that we have reached a stage during which a quantum leap in our thinking and behaviour has become possible – enabling us to transform the prohibitions on the commission of genocide, war crimes, crimes against humanity and aggression into real tools to deter the cruel and powerful. Developing the law less attention to the Hague perspective Justice ( 2003 ) [ hereinafter Nuremberg ], 245–246! S argument is that many people over literally millennia have shown themselves to be programmed self-destruction. We will see, e.g., B. 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