{"id":244,"date":"2013-02-10T17:03:24","date_gmt":"2013-02-10T22:03:24","guid":{"rendered":"http:\/\/kapoktreediplomacy.com\/hp_wordpress\/?p=244"},"modified":"2023-11-10T14:40:47","modified_gmt":"2023-11-10T19:40:47","slug":"the-last-word-on-justice-the-impact-of-the-international-criminal-court-on-the-future-of-international-justice-and-its-rocky-road-to-legitimacy","status":"publish","type":"post","link":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/the-last-word-on-justice-the-impact-of-the-international-criminal-court-on-the-future-of-international-justice-and-its-rocky-road-to-legitimacy\/","title":{"rendered":"The Last Word on Justice: The Impact of the International Criminal Court On the Future of International Justice and its Rocky Road to Legitimacy"},"content":{"rendered":"

“The Last Word on Justice: The Impact of the International Criminal Court On the Future of International Justice and its Rocky Road to Legitimacy” by Kapok Tree Diplomacy<\/p>\n

PREVIEW\u00a0\u00a0\u00a0\u00a0\u00a0 <\/strong><\/em>Written in August 2010<\/span>
\n<\/strong><\/em><\/span><\/p>\n

Section One \u2013 History, Structure and Mandate of the ICC<\/b><\/p>\n

Background<\/i>.\u00a0 The United States has supported bringing human rights violators to justice for many decades. After World War I, the Allies charged Kaiser Wilhelm II of Germany in the Versailles Treaty with \u201ca supreme offense against international morality and the sanctity of treaties,\u201d a first in holding a head of state accountable for his actions (Feinstein & Lindberg 23). The Nuremberg and Far East tribunals affirmed \u201cindividual culpability for crimes against peace\u201d following World War II by indicting several senior officials in a multinational setting (Fletcher 235). \u00a0The UN General Assembly subsequently charged the International Law Commission (ILC) in 1948 with drafting a statute for an international criminal court (Murphy 4). <\/p>\n

In 1974, the UN General Assembly finally defined and codified aggression in G.A. 3314 as \u201cthe use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations\u201d (Fletcher 238). This definition includes a non-exhaustive list of aggressive acts and allows the UNSC to determine if an act does not have \u201csufficient gravity\u201d to meet the definition (United Nations G.A.). This definition, although deemed \u201ctoo political and legally imprecise\u201d for the ILC, would become the foundation for the ICC definition of the crime of aggression (Fletcher 239 and \u201cRC\/Res.6\u201d).<\/p>\n

Following a request from Trinidad and Tobago to consider an international criminal court for drug trafficking issues, the General Assembly convened a diplomatic conference in 1994 to draft the treaty that was finally adopted on July 17, 1998 (Dunoff, Ratner, & Wippman 658). The Rome Statute of the International Criminal Court<\/i>, hereinafter referred to as \u201cStatute,\u201d became law with 60 ratifications on July 1, 2002 and is now joined by 111 states (ICC \u201cAbout\u201d). The ICC negotiations were very contentious as states sparred over jurisdictional consent, the independence of the prosecutor, the role of the UNSC, and complementarity issues (Dunoff, Ratner, & Wippman 658-9). The chief U.S. negotiator, David J. Scheffer, acknowledged:<\/p>\n

\u201cIn Rome, we indicated our willingness to be flexible \u2026 Unfortunately, a small group of countries, meeting behind closed doors in the final days of the Rome conference, produced a seriously flawed take-it-or-leave-it text, one that provides a recipe for the politicization of the court and risks deterring responsible international action to promote peace and security\u201d (1998).<\/p>\n

The United States\u2019 opposition to the ICC would only intensify, with President Clinton signing the treaty on December 31, 2000, but noting its \u201csignificant flaws\u201d \u00a0and recommending his predecessor not submit the treaty to the senate for advice and consent until the flaws were addressed (Feinstein & Lindberg 148). The Bush Administration effectively \u201cunsigned\u201d the Rome Statute on May 6, 2002, and enacted the American Service-Member\u2019s Protection Act (ASPA), nicknamed the \u201cHague Invasion Act,\u201d which authorizes the U.S. to use \u201call means necessary\u201d to liberate U.S. citizens or officials from the Court\u2019s jurisdiction if necessary\u00a0 (Feinstein & Lindberg 51).\u00a0 The U.S. also signed over 100 bilateral Article 98 agreeements with other nations, mainly to protect U.S. military and other government officials from being transferred into ICC custody while serving or travelling overseas (Scheffer & Cox 1001).<\/p>\n

Although the U.S. has reassessed its hostility to the Court, taking part in the June 2010 ICC Review Conference in Kampala, Uganda, and removing some military financing and education training restrictions from ASPA that were costing some Latin American nations millions of dollars in military aid (Feinstein & Lindberg 51-53), the government remains concerned with the ICC\u2019s many perceived flaws (Rapp). \u00a0Much of this skepticism has to do with the Court\u2019s independence and broad level of authority and jurisdiction inherent in its structure.<\/p>\n

Table of Contents<\/p>\n

I.\u00a0\u00a0\u00a0 History, Structure and Mandate of the ICC<\/p>\n

A.\u00a0 Background<\/p>\n

B.\u00a0 ICC Structure<\/p>\n

C.\u00a0 ICC Jurisdiction<\/p>\n

II.\u00a0\u00a0 General Objections to the ICC<\/p>\n

A.\u00a0 No Checks and Balances<\/p>\n

B.\u00a0 Dangers to National Sovereignty<\/p>\n

C.\u00a0 Political Manipulation<\/p>\n

D.\u00a0 Lack of Judicial Neutrality<\/p>\n

E.\u00a0 Vulnerability of Military Personnel<\/p>\n

F.\u00a0 Inferiority to Local Institutions<\/p>\n

G.\u00a0 Delayed Justice<\/p>\n

H.\u00a0 Ineffectiveness<\/p>\n

III.\u00a0 Conceptual Challenges to the Court<\/p>\n

A.\u00a0 Legitimacy<\/p>\n

B.\u00a0 Consent<\/p>\n

C.\u00a0 Relevance<\/p>\n

D.\u00a0 Maintaining Neutrality and Impartiality<\/p>\n

E.\u00a0 Criminal Law as a Substitute for Self-Help<\/p>\n

F.\u00a0 Peace vs. Justice<\/p>\n

IV.\u00a0 Challenges to the UN Security Council<\/p>\n

V.\u00a0\u00a0 Jurisdictional Issues<\/p>\n

A.\u00a0 Delegated Jurisdiction<\/p>\n

B.\u00a0 Territorial Jurisdiction<\/p>\n

C.\u00a0 Universal Jurisdiction<\/p>\n

VI.\u00a0\u00a0 Prosecuting the Crime of Aggression<\/p>\n

A.\u00a0 Pursuing Clarity<\/p>\n

B.. Unanswered Questions<\/p>\n

VII.\u00a0\u00a0 Constructive Cooperation<\/p>\n

VIII.\u00a0 Conclusions<\/p>\n

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<\/span>The<\/span> <\/span>Last<\/span> <\/span>Word<\/span> <\/span>on<\/span> <\/span>Justice:<\/span> <\/span>The<\/span> <\/span>Impact<\/span> <\/span>of<\/span> <\/span>the<\/span> <\/span>International<\/span> <\/span>Criminal<\/span> <\/span>Court On the Future of International Justice and its Rocky Road to Legitimacy<\/span><\/strong><\/p>\n

\u201c<\/span>The<\/span> <\/span>world<\/span> <\/span>no<\/span> <\/span>longer<\/span> <\/span>has<\/span> <\/span>a<\/span> <\/span>choice<\/span> <\/span>between<\/span> <\/span>force<\/span> <\/span>and<\/span> <\/span>law.<\/span> <\/span>If<\/span> <\/span>civilization<\/span> <\/span>is<\/span> <\/span>to<\/span> <\/span>survive,<\/span> <\/span>it<\/span> <\/span>must<\/span> choose the rule of law.\u201d <\/span>Dwight D. Eisenhower (qtd. in Ferencz 288)<\/span><\/em><\/p>\n

Introduction<\/span><\/p>\n

The remarkable ascent of international criminal law over the past two decades has had, and continues to have, a profound impact on the laws of war, humanitarian and human rights laws,<\/span> <\/span>and<\/span> <\/span>existing<\/span> <\/span>international<\/span> <\/span>institutions<\/span> <\/span>like<\/span> <\/span>the<\/span> <\/span>United<\/span> <\/span>Nations<\/span> <\/span>(UN).<\/span> <\/span>The<\/span> <\/span>global<\/span> <\/span>community took a giant step towards holding the perpetrators of the most serious international crimes accountable to the rule of law by adopting the <\/span>Rome Statue of the International Criminal Court<\/span> <\/span>on July 17, 1998.<\/span><\/p>\n

Bringing the violators of these serious crimes to justice, however, has proven to be easier said than done. The International Criminal Court (ICC) has encountered numerous practical and conceptual obstacles in its efforts to become an impartial and effective instrument of justice. Some commentators like Brett Schafer and Steven Groves believe the ICC is so deeply flawed that it even violates international law in addition to threatening state sovereignty (1).<\/span><\/p>\n

The paper seeks to review the history, structure and effectiveness of the ICC, including<\/span> <\/span>its recent agreement on a definition for the Crime of Aggression. I will specifically examine <\/span>practical<\/span> <\/span>objections<\/span> <\/span>to<\/span> <\/span>the<\/span> <\/span>ICC,<\/span> <\/span>its<\/span> <\/span>conceptual<\/span> <\/span>challenges,<\/span> <\/span>its<\/span> <\/span>evolving<\/span> <\/span>role<\/span> <\/span>in<\/span> <\/span>matters<\/span> <\/span>of<\/span> <\/span>peace<\/span>and justice, and how it is challenging the traditional role of the UN Security Council (UNSC). The ICC\u2019s jurisdictional reach will be examined in detail as well as its procedural safeguards. Finally, I\u2019ll<\/span> <\/span>review<\/span> <\/span>some ways the<\/span> <\/span>United<\/span> <\/span>States can<\/span> <\/span>effectively<\/span> <\/span>cooperate with<\/span> <\/span>the ICC<\/span> <\/span>as<\/span> <\/span>a<\/span> <\/span>non- party partner while simultaneously advancing its foreign policy and national security interests and resisting the trend in international law towards pooled sovereignty and global governance.<\/span><\/p>\n<\/div>\n<\/div>\n

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The views and opinions expressed in this paper are completely my own and do not represent the views or<\/span> <\/span>opinions of the<\/span> <\/span>Department<\/span> <\/span>of Defense<\/span> <\/span>(DoD), the<\/span> <\/span>Department<\/span> <\/span>of the Navy (DON) or any of the Armed Forces.<\/span><\/p>\n

Section<\/span> <\/span>One<\/span> <\/span>\u2013<\/span> <\/span>History,<\/span> <\/span>Structure<\/span> <\/span>and<\/span> <\/span>Mandate<\/span> <\/span>of the<\/span> <\/span>ICC<\/span><\/strong><\/p>\n

Background<\/span><\/strong>.<\/span> <\/span>The United States has supported bringing human rights violators to justice for many decades. After World War I, the Allies charged Kaiser Wilhelm II of Germany in the Versailles Treaty with \u201ca supreme offense against international morality and the sanctity of treaties,\u201d a first in holding a head of state accountable for his actions (Feinstein & Lindberg 23). The Nuremberg and Far East tribunals affirmed \u201cindividual culpability for crimes against peace\u201d following World War II by indicting several senior officials in a multinational setting (Fletcher 235).<\/span> <\/span>The UN General Assembly subsequently charged the International Law Commission<\/span> <\/span>(ILC) in 1948 with drafting a statute for an international criminal court (Murphy 4).<\/span><\/p>\n

In 1974, the UN General Assembly finally defined and codified aggression in G.A. 3314 as \u201cthe use of armed force by a state against the sovereignty, territorial integrity or political independence<\/span> <\/span>of another state, or<\/span> <\/span>in any<\/span> <\/span>other<\/span> <\/span>manner<\/span> <\/span>inconsistent with the Charter<\/span> <\/span>of the<\/span> <\/span>United Nations\u201d (Fletcher 238). This definition includes a non-exhaustive list of aggressive acts and <\/span>allows<\/span> <\/span>the<\/span> <\/span>UNSC<\/span> <\/span>to<\/span> <\/span>determine<\/span> <\/span>if<\/span> <\/span>an<\/span> <\/span>act<\/span> <\/span>does<\/span> <\/span>not<\/span> <\/span>have<\/span> <\/span>\u201csufficient<\/span> <\/span>gravity\u201d<\/span> <\/span>to<\/span> <\/span>meet<\/span> <\/span>the<\/span> <\/span>definition <\/span>(United<\/span> <\/span>Nations<\/span> <\/span>G.A.).<\/span> <\/span>This<\/span> <\/span>definition,<\/span> <\/span>although<\/span> <\/span>deemed<\/span> <\/span>\u201ctoo<\/span> <\/span>political<\/span> <\/span>and legally<\/span> <\/span>imprecise\u201d for the<\/span> <\/span>ILC,<\/span> <\/span>would<\/span> <\/span>become<\/span> <\/span>the<\/span> <\/span>foundation<\/span> <\/span>for<\/span> <\/span>the<\/span> <\/span>ICC<\/span> <\/span>definition<\/span> <\/span>of<\/span> <\/span>the<\/span> <\/span>crime<\/span> <\/span>of<\/span> <\/span>aggression<\/span> <\/span>(Fletcher 239 and \u201cRC\/Res.6\u201d).<\/span><\/p>\n<\/div>\n<\/div>\n

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Following<\/span> <\/span>a<\/span> <\/span>request<\/span> <\/span>from Trinidad<\/span> <\/span>and<\/span> <\/span>Tobago<\/span> <\/span>to consider<\/span> <\/span>an<\/span> <\/span>international criminal<\/span> <\/span>court for drug trafficking issues, the General Assembly convened a diplomatic conference in 1994 to draft<\/span> <\/span>the<\/span> <\/span>treaty<\/span> <\/span>that was finally<\/span> <\/span>adopted<\/span> <\/span>on July<\/span> <\/span>17, 1998 (Dunoff,<\/span> <\/span>Ratner, &<\/span> <\/span>Wippman 658). The <\/span>Rome Statute of the International Criminal Court<\/span>, hereinafter referred to as \u201cStatute,\u201d became law with 60 ratifications on July 1, 2002 and is now joined by 111 states (ICC \u201cAbout\u201d). The<\/span> <\/span>ICC negotiations were very contentious as states sparred over jurisdictional consent, the independence of the prosecutor, the role of the UNSC, and complementy issues (Dunoff, Ratner, & Wippman 658-9). <\/span><\/p>\n

The chief U.S. negotiator, David J. Scheffer, acknowledged: <\/span>\u201cIn Rome, we indicated our willingness to be flexible \u2026 Unfortunately, a small group of countries, meeting behind closed doors in the final days of the Rome conference, produced a seriously flawed take-it-or-leave-it text, one that provides a recipe for the politicization of the court and risks deterring responsible international action to promote peace and security\u201d (1998).<\/span><\/p>\n

The United States\u2019 opposition to the ICC would only intensify, with President Clinton signing the treaty on December 31, 2000, but noting its \u201csignificant flaws\u201d<\/span> <\/span>and recommending his predecessor not submit the treaty to the senate for advice and consent until the flaws were addressed (Feinstein & Lindberg 148). The Bush Administration effectively \u201cunsigned\u201d the Rome Statute on May 6, 2002, and enacted the American Service-Member\u2019s Protection Act (ASPA), nicknamed the \u201cHague Invasion Act,\u201d which authorizes the U.S. to use \u201call means <\/span>necessary\u201d<\/span> <\/span>to<\/span> <\/span>liberate<\/span> <\/span>U.S.<\/span> <\/span>citizens<\/span> <\/span>or<\/span> <\/span>officials<\/span> <\/span>from<\/span> <\/span>the<\/span> <\/span>Court\u2019s<\/span> <\/span>jurisdiction<\/span> <\/span>if<\/span> <\/span>necessary <\/span>(Feinstein & Lindberg 51).<\/span> <\/span>The U.S. also signed over 100 bilateral Article 98 agreeements with other nations, mainly to protect U.S. military and other government officials from being transferred into ICC custody while serving or travelling overseas (Scheffer & Cox 1001).<\/span><\/p>\n<\/div>\n<\/div>\n

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Although the U.S. has reassessed its hostility to the Court, taking part in the June 2010 ICC Review Conference in Kampala, Uganda, and removing some military financing and education training restrictions from ASPA that were costing some Latin American nations millions of dollars in military aid (Feinstein & Lindberg 51-53), the government remains concerned with the ICC\u2019s many<\/span> <\/span>perceived flaws (Rapp).<\/span> <\/span>Much of this skepticism has to do with the Court\u2019s independence and broad level of authority and jurisdiction inherent in its structure.<\/span><\/p>\n

ICC Structure<\/span><\/strong>.<\/span> <\/span>The ICC is an independent organization and permanent court of last resort that has the power to exercise jurisdiction over persons for the crime of genocide, crimes against humanity, war crimes, and the crime of aggression, and is designed to be \u201ccomplementary to national criminal jurisdiction\u201d (\u201cRome\u201d 3). As noted by Dr. Ray Murphy, the Court is structured into four divisions (9), each having the following functions:<\/span><\/p>\n

The <\/span>Presidency <\/span>handles day-to-day administration and is comprised of three judges elected by<\/span> <\/span>their peers (9). The <\/span>Judiciary <\/span>of 18 judges is elected by<\/span> <\/span>the Assembly<\/span> <\/span>of States Parties (ASP) and divided into the Pre-Trial, Trial and Appeals Divisions (10-11). The <\/span>Office of the<\/span> Prosecutor<\/span>, currently Luis Moreno-Ocampo (Argentina), receives referrals and information on crimes and investigates and\/or prosecutes accordingly (12-14). The <\/span>Registry <\/span>handles all non- judicial aspects of the Court and maintains communications with the state parties (14).<\/span><\/p>\n<\/div>\n<\/div>\n

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ICC Jurisdiction<\/span><\/strong>.<\/span> <\/span>The Court has jurisdiction over crimes committed after July 1, 2002 (\u201cRome\u201d 10). Article 12 stipulates that the Court may exercise jurisdiction \u201cif one or more of the<\/span> <\/span>following States are Parties to this Statute<\/span> <\/span>or have accepted the jurisdiction of the Court:<\/span> <\/span>(a) The State on the territory<\/span> <\/span>of which the conduct in question occurred, or \u2026 (b) The State of which the person accused of the crime is a national\u201d (\u201cRome\u201d 11). Nonparty states can accept jurisdiction by filing a declaration (Rome\u201d 11). Article 15 stipulates that cases may be brought before the court by other state parties, the UN Security Council, or through the Prosecutor\u2019s own initiative, <\/span>proprio motu, <\/span>with prior authorization from the Pre-Trial Division (\u201cRome\u201d 12).<\/span><\/p>\n<\/div>\n

Article 16 gives the UNSC a 12-month renewable deferral of an investigation or prosecution by passing a resolution under Chapter VII of the UN Charter (\u201cRome\u201d 12). The Court may rule a case inadmissible under Article 17 if \u201cthe case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is <\/span>unwilling <\/span>or <\/span>unable<\/span> <\/span>genuinely to carry out the investigation or prosecution\u201d among other reasons (\u201cRome\u201d 13).<\/span><\/p>\n

Notably, the \u201ccrime of aggression is applicable only to those ICC state parties that have ratified or otherwise accepted the amendment to the Rome Statute on aggression\u201d adopted on June 11, 2010 (Schaefer 7). State parties may also opt out of crime of aggression (COA) jurisdiction by not ratifying the amendment or filing a declaration of non-acceptance with the Registrar (Schaefer 7). Nonparty states are without such protective language regarding the three core crimes, however, and states have found numerous other objections with the Court\u2019s<\/span> <\/span>structure and procedures, not the least of which is a perceived lack of accountability.<\/span><\/p>\n<\/div>\n<\/div>\n

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Section<\/span> <\/span>Two<\/span> <\/span>\u2013<\/span> <\/span>General<\/span> <\/span>Objections<\/span> <\/span>to<\/span> <\/span>the<\/span> <\/span>ICC<\/span><\/strong><\/p>\n<\/div>\n

No Checks and Balances<\/strong>.<\/span> <\/span>The ICC operates with extraordinary independence by allowing the prosecutor to avoid Security Council oversight prior to launching an investigation (Ochoa 12). According to Article 19, the ICC \u201cshall satisfy itself that it has jurisdiction in any case brought before it,\u201d thus determining its own jurisdiction (\u201cRome\u201d 14). This of course doesn\u2019t sit well<\/span> <\/span>with a country like the U.S. with clear legislative and executive checks on judicial power.<\/span><\/p>\n

Danger to National Sovereignty<\/span><\/strong>.<\/span> <\/span>Marc Grossman points out that national consent and Security Council mandate are necessary preconditions the ICC fails to employ to protect citizens of nonparty states (3). Schaefer and Groves add, \u201cArticle 34 of the Vienna Convention \u2026 unequivocably states: \u2018A treaty does not create either obligations or rights for a third state<\/span> <\/span>without its consent\u2019\u201d (13). But if the ICC prosecutes nonparty nationals, I think it does.<\/span><\/p>\n

Based on the Statute\u2019s commitment to complementarity, one would think the ICC would always respect sovereignty and consent, but if the Court determines that the state in question is unable or unwilling to prosecute \u201cbased on its own interpretation of the relevant international legal requirements, the court can proceed with the investigation\u201d (Schaefer & Groves 14).<\/span><\/p>\n

Political Manipulation<\/span><\/strong>. Politically motivated investigations would seem to be limited by the Statute\u2019s lack of jurisdiction over actions committed by nationals of nonparty states on the territory of nonparty states, but Prosecutor Ocampo recently opened investigations into alleged war crimes by Israel in Gaza and by U.S. troops (presumably) and the Taliban in Afghanistan (Lauria<\/span> <\/span>A10;<\/span> <\/span>Rotella<\/span> <\/span>1).<\/span> <\/span>In<\/span> <\/span>the<\/span> <\/span>case<\/span> <\/span>of<\/span> <\/span>Afghanistan,<\/span> <\/span>that<\/span> <\/span>state<\/span> <\/span>is<\/span> <\/span>party<\/span> <\/span>to<\/span> <\/span>the<\/span> <\/span>Statute but <\/span>Ocampo\u2019s actions do seem to confirm fears that the Court would overstep its bounds by investigating matters that U.S. courts are willing and able to handle.<\/span><\/p>\n<\/div>\n<\/div>\n

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In the case of Gaza, the Palestinian referral is complicated given the fact that Palestine is not a state and Israel is not party to the Statute (Rotella 1). Moreover, \u201cHamas has appropriated Gaza and doesn\u2019t recognize the Palestinian Authority\u201d (Rotella 2). If Palestine is recognized as a state by the ICC, the Court may find itself at the center of a political firestorm that will no doubt confirm accusations that the prosecutor\u2019s <\/span>proprio motu <\/span>is subject to political manipulation (Philp & Hider). Perhaps this a back-door mechanism for recognizing Palestinian statehood.<\/span><\/p>\n

Judicial Neutrality<\/span><\/strong>.<\/span> <\/span>While many ICC proponents point to Ocampo\u2019s distinction and fine judgment as a lawyer, Madeline Morris points out how many questionable calls were made by prosecutors of \u201cfine judgment\u201d in the International Criminal Tribunal for the former Yugoslavia (ICTY) regarding issues involving NATO military actions in Bosnia (34). For example, \u201cone stated purpose for indictment of \u2026 Croats \u2026 was to dispel Serbian suspicion that the ICTY was anti-Serb\u201d (Morris 34). If the ICC adopts similar logic, the facts may become secondary to impartiality, and law-abiding states could be frequently prosecuted (Morris 35).<\/span><\/p>\n

Vulnerability of Military Personnel<\/span><\/strong>. Kurt Mills and Anthony Lott explain, \u201cBecause of significant power asymmetries, the United States is much more likely to find itself in a situation where some of its nationals might be accused of war crimes\u201d (506). The vulnerability of U.S. personnel is not restricted to armed conflicts, but includes the many humanitarian and UN missions<\/span> <\/span>supported<\/span> <\/span>by<\/span> <\/span>U.S.<\/span> <\/span>personnel<\/span> <\/span>as<\/span> <\/span>well.<\/span> <\/span>Aggressive<\/span> <\/span>prosecution<\/span> <\/span>would<\/span> <\/span>undoubtedly<\/span> <\/span>deter <\/span>U.S.<\/span> <\/span>participation<\/span> <\/span>in<\/span> <\/span>future<\/span> <\/span>humanitarian <\/span>efforts.<\/span><\/p>\n<\/div>\n<\/div>\n

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Inferiority to Local Institutions<\/strong>. <\/span>\u201cIt is at the domestic level that permanent solutions to impunity must be found,\u201d according to Marieke Wierda, director of the International Center for Transitional Justice (ICTJ), despite the challenges faced by many domestic criminal justice systems (1-2). John B. Bellinger III, a legal advisor to former Secretary of State Rice adds, \u201cLocal institutions are the preferred avenue for dispensing justice.\u201d The ICC\u2019s commitment to complementarity ought to put accountability in the hands of local judiciaries whenever possible. Stephen Rapp, the current U.S. Ambassador-at-Large for War Crimes Issues affirms, \u201cIt\u2019s better to have a court close to the people, as we had in Sierra Leone or \u2026 Cambodia \u2026 rather than<\/span> <\/span>send those cases thousands of miles away to The Hague.\u201d<\/span><\/p>\n<\/div>\n

Domestic courts can also handle more cases than the ICC which \u201chas only begun two trials and hasn\u2019t concluded them\u201d (Rapp & Koh). By providing financial, legal, and technical resources the ICC could perhaps strengthen capacity at the domestic level to \u201cinspire local ownership of results\u201d and some local ownership of the process, as was the case in Yugoslavia, Rwanda, Sierra Leone, Cambodia and even Iraq (Bellinger).<\/span>.<\/span> <\/span>Bellinger echoes the old adage of \u201cjustice delayed is justice denied,\u201d and recommends that we focus on the<\/span> <\/span>efficiency<\/span> <\/span>of international courts and tribunals rather<\/span> <\/span>than<\/span> <\/span>their purpose. A current example is Thomas Lubanga Dyilo of the Democratic Republic of the Congo (DROC), on trial for conscripting child soldiers, who was transferred to the ICC on March 17, 2006, and has had his trial put on hold twice, once in 2008, and most recently on July 8, 2010, due<\/span> <\/span>to<\/span> <\/span>procedural<\/span> <\/span>issues<\/span> <\/span>between<\/span> <\/span>the<\/span> <\/span>Trial<\/span> <\/span>Chamber<\/span> <\/span>and<\/span> <\/span>Office<\/span> <\/span>of<\/span> <\/span>the<\/span> <\/span>Prosecutor<\/span> <\/span>(ICC<\/span> <\/span>Weekly <\/span>Update #42). This is a rather excessive length of detention with nothing to show for it, and it certainly begs the question of institutional competence.<\/span><\/p>\n<\/div>\n<\/div>\n

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Ineffectiveness<\/span><\/strong>.<\/span> <\/span>Perhaps the biggest disappointment in the Court\u2019s short history has been its overall performance. The ICC has issued 12 arrest warrants, but only secured four of these individuals into its custody, and no trial has gone full cycle (Feinstein and Lindberg 62).<\/span> <\/span>If the ICC cannot capitalize on \u201clow-hanging fruit\u201d referred by state parties and the Security Council, how can it expect to handle more challenging cases (Schaefer & Groves 15)?<\/span> <\/span>Ambassador Rapp quoted an ICC prosecutor as saying, \u201cHow do you land on Mars when you haven\u2019t proven you can land on the moon?\u201d<\/span><\/p>\n

The<\/span> <\/span>ICC<\/span> <\/span>will<\/span> <\/span>need<\/span> <\/span>to<\/span> <\/span>land<\/span> <\/span>the<\/span> <\/span>plane<\/span> <\/span>somewhere and<\/span> <\/span>sometime<\/span> <\/span>soon,<\/span> <\/span>or<\/span> <\/span>risk<\/span> <\/span>its<\/span> <\/span>credibility. In addition to these general objections, the Court is faced with deeper, conceptual challenges as well. The next section of the paper will summarize these challenges.<\/span><\/p>\n

Section<\/span> <\/span>Three<\/span> <\/span>\u2013<\/span> <\/span>Conceptual Challenges<\/span> <\/span>to the<\/span> <\/span>Court<\/span><\/strong><\/p>\n

Legitimacy<\/strong>.<\/span> <\/span>Critics of<\/span> <\/span>international law like<\/span> <\/span>John Bolton point out that because<\/span> <\/span>international law lacks a constitutional framework, it cannot effectively bind \u201cglobal citizens\u201d in unanimous consent (D’Amato & Abbassi 24). Marion Smith adds, \u201cMere ink on paper cannot imply constitutional legitimacy, nor can the participation of some democratic countries confer democratic accountability upon the ICC\u201d (6).Thus, for ICC critics the conceptual foundation of the Court\u2019s legitimacy \u201crest on unacceptable premises\u201d without an enforcement mechanism and some measure of democratic, sovereign accountability (D’Amato & Abbassi 28).<\/span><\/p>\n<\/div>\n<\/div>\n

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Consent<\/span><\/strong>.<\/span> <\/span>At the heart of the legitimacy question, is the question of consent. The ICC is the first institution to \u201cdetermine the legal obligations of states and their individual citizens and to criminally punish those individual citizens\u201d (Schaefer & Groves 4), perhaps violating their existing rights under the Vienna Convention Law of Treaties in the process (Morris 26). How<\/span> <\/span>can punishment be just if consent to jurisdiction was never provided?<\/span><\/p>\n<\/div>\n

Relevance<\/span><\/strong>.<\/span> <\/span>Could<\/span> <\/span>the ICC<\/span> <\/span>effectively<\/span> <\/span>administer<\/span> <\/span>indictments<\/span> <\/span>against Hugo Chavez or<\/span> <\/span>Mahmoud Ahmadeinejad? How about Barack Obama or Vladimir Putin? Stephen Rademaker opines, \u201cGiving the ICC jurisdiction over aggression would probably<\/span> <\/span>prove fatal to the court. Exercising such jurisdiction would almost immediately entangle it in international controversies that defy judicial resolution, quickly discrediting the institution.\u201d Such an exercise of jurisdiction would surely undermine the Court\u2019s \u201cindependence and legitimacy\u201d (Kaye). Yet, if the ICC sticks to indicting leaders of war-torn African nations, the Court risks harming its own perception of judicial impartiality. I guess you have to learn to ride a bike before you get to drive a car.<\/span><\/p>\n

Maintaining Neutrality and Impartiality<\/span><\/strong>. When the ICC issued an indictment and arrest warrant for Sudanese president Omar Hassan Ahmad al-Bashir in the middle of tenuous peace negotiations, it back-fired, resulting in the<\/span> <\/span>immediate<\/span> <\/span>expulsion of<\/span> <\/span>\u201cat least 10 foreign aid groups that provide food, water, medical care and other assistance to more than a million displaced people in the western Darfur region,\u201d <\/span>creating a humanitarian disaster and causing many to question the timing of the ICC\u2019s actions and its lack of concern for victims <\/span>(McCrummen & Lynch).<\/span><\/p>\n

Vinjamuri adds, \u201cthe government of Sudan views the ICC as a court that supports rebel <\/span>action<\/span> <\/span>\u2026<\/span> <\/span>the<\/span> <\/span>perception<\/span> <\/span>that<\/span> <\/span>international<\/span> <\/span>justice<\/span> <\/span>is<\/span> <\/span>neither<\/span> <\/span>neutral<\/span> <\/span>nor<\/span> <\/span>legitimate<\/span> <\/span>is<\/span> <\/span>exacerbated <\/span>by the ICC\u2019s interventions in ongoing conflict\u201d (204). Therein lies the problem of sending the judiciary in prematurely to address what military forces have failed to resolve. This is a <\/span>prerequisite <\/span>for the judiciary having any effective role in the first place. In cases like Sudan, peace and justice may be adversarial objectives until the military dust has settled.<\/span><\/p>\n<\/div>\n<\/div>\n

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Criminal Law as a Substitute for Self-Help<\/span><\/strong>. Can an international criminal court truly deter the most serious crimes of international concern by substituting judicial measures for self-help? Elizabeth Rubin declares, <\/span>\u201cThe Hague has become a symbol of both the promise of international law and its stunning shortcomings. We have reached a point in world affairs at which we learn about genocide even as it unfolds, and yet it is practically a given that the international community will not use military intervention to stop it\u201d (1).<\/span><\/p>\n

Realpolitik <\/span><\/em>national interests may be more important than altruistic aspirations when it comes to choosing legal alternatives over military intervention in certain situations. Kenneth Anderson claims that as an ICTY observer with Human Rights Watch in the 1990\u2019s, \u201cSome NATO officials \u2026 were candid with me about just how much they saw the ICTY as a way of avoiding military intervention\u201d (334).<\/span><\/p>\n

But Anderson admits that <\/span>post hoc <\/span>justice doesn\u2019t work unless the situation on the battlefield has settled (335). In fact, he goes on to make several poignant observations and ask some tough questions. Noting that \u201cjustice is universal, but the right to administer it is not,\u201d he asks, \u201cCan this be morally right? You didn\u2019t intervene \u2013 but you still have the right to conduct a trial? On what moral basis, pray? Your prudence or your cowardice?\u201d (338, 340).<\/span><\/p>\n<\/div>\n<\/div>\n

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The ICC of course relies upon the cooperation of states to enforce its edicts. It can\u2019t intervene<\/span> <\/span>militarily, and<\/span> <\/span>therein lays<\/span> <\/span>the<\/span> <\/span>conceptual<\/span> <\/span>challenge. Which<\/span> <\/span>states will<\/span> <\/span>take<\/span> <\/span>the<\/span> <\/span>morally just actions to stop today what cries out for judicial administration tomorrow? Who will have faith in the promise to prosecute the bad guys <\/span>someday <\/span>\u2026 in the future \u2026 if everything works out? Perhaps the <\/span>more time <\/span>mantra is just that, a mantra, and not really an effective solution.<\/span><\/p>\n<\/div>\n

Moreover, Anderson maintains that international criminal law as a cure-all and substitute for self-help undermines military reciprocity by deterring proportional, lawful reprisals that help \u201cratchet down\u201d the \u201ccycle of escalation\u201d (342). The combination of the ascent of international criminal law and erosion of reciprocity has also created \u201cstrong disincentives to capture suspects,\u201d leading to \u201ctargeted killing via \u2026 robotic\u201d Predator drones (346). Targeted killings may in fact be cheaper and \u201cless messy than the problems of detention,\u201d Anderson (346).<\/span><\/p>\n

The laws of war were mainly designed for groups, but their consistent interpretation may rest on shakier ground with the rising emphasis on individual criminal liability. This may not affect the rank-and-file members of a military<\/span> <\/span>unit, but the high level commanders cannot ignore it. Those with advanced electronic weaponry at their disposal may opt for high-tech justice over judicial remedies, not exactly an endorsement of the rule of law.<\/span><\/p>\n

Peace v. Justice<\/span><\/strong>. In matters of peace and justice, the role of the ICC as a harbinger of peace and deterrent to criminal activity leaves much to be desired. Vinjamuri observes that in Uganda, the ICC failed to bring the Lord\u2019s Resistance Army (LRA) to the negotiating table and argues there<\/span> <\/span>is \u201cno sustained support for the claim that justice is necessary for peace\u201d (205). Anderson adds, \u201cNuremberg was a lovely hood ornament on the ungainly vehicle that liberated Western Europe, <\/span>but it was no substitute for D-Day\u201d (335).<\/span><\/p>\n<\/div>\n<\/div>\n

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Of course, the ICC cannot authorize military intervention to restore peace and stability. That is up the UN Security Council, but other options are available besides military force. For example, Rubin suggests \u201creconciliation and compensation [as] better justice than prosecution and punishment.\u201d Marc Grossman suggests \u201cconditional amnesty\u201d and truth commissions as a means for national reconciliation (4). Vinjamuri notes that amnesties of some sort helped secure negotiated peace settlements in Mozambique, El Salvador, Chile, Argentina and South Africa, making justice the \u201chandmaiden of peace and not its usher\u201d (206). But the ICC asserts that \u201camnesties can no longer be freely handed out to perpetrators\u201d (Tolbert and Wierda 3).<\/span><\/p>\n<\/div>\n

By exclusively embracing the \u201chard\u201d options, the ICC positions itself antagonistically against legitimate options for peace and reconciliation. By inserting itself into conflicts prematurely, the ICC may provoke a backlash against victims and civilian populations. The ICC doesn\u2019t merely challenge \u201csoft\u201d options for keeping the peace, it also challenges the traditional authority of the UN Security Council to maintain or restore it.<\/span><\/p>\n

Section<\/span> <\/span>Four<\/span> <\/span>\u2013<\/span> <\/span>Challenges to<\/span> <\/span>the<\/span> <\/span>UN<\/span> <\/span>Security<\/span> <\/span>Council<\/span><\/strong><\/p>\n

Is the ICC really a new form of collective security, or could it simply<\/span> <\/span>be a way to reform the rigid, inflexible institution of the United Nations itself? Article 24 of the UN Charter gives the Security Council \u201c<\/span>primary responsibility <\/span>for the maintenance of international peace and security,\u201d<\/span> <\/span>while<\/span> <\/span>Article<\/span> <\/span>39 says, \u201cthe Security<\/span> <\/span>Council shall determine<\/span> <\/span>the<\/span> <\/span>existence<\/span> <\/span>of<\/span> <\/span>any<\/span> <\/span>threat to the peace, breach of the peace, or <\/span>act of aggression <\/span>and shall make recommendations, or decide what measures shall be taken \u2026 to maintain or restore international peace and security\u201d <\/span>(\u201cCharter\u201d).<\/span><\/p>\n<\/div>\n<\/div>\n

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Regarding<\/span> <\/span>contentious discussions within the ASP over allowing the UNSC to veto COA investigations, Robert Schaeffer contended, \u201cThe P5 are<\/span> <\/span>so adamant because their entire<\/span> <\/span>primacy position is at stake. A veto would mean that in practice the P5 and their allies would enjoy immunity (427). At Kampala, the UNSC retained their red-light renewable deferral under Chapter<\/span> <\/span>VII<\/span> <\/span>of<\/span> <\/span>the<\/span> <\/span>UN<\/span> <\/span>Charter,<\/span> <\/span>though cases could arise<\/span> <\/span>where<\/span> <\/span>passing<\/span> <\/span>a<\/span> <\/span>resolution would not<\/span> <\/span>be automatic (Schaefer 6). If no resolution is passed, the prosecutor retains control and jurisdiction.<\/span><\/p>\n<\/div>\n

Interestingly, Anderson sees the ICC and its adoption of a definition for the COA specifically \u201cas a mechanism for achieving reform of the Security Council over the long haul by gradually hiving off parts of its mandate and authority\u201d (355). Is it wise to move political decisions into a judicial forum at the expense of the older, reform-resistant UNSC? Given that UNSC<\/span> <\/span>members<\/span> <\/span>China, Russia<\/span> <\/span>and<\/span> <\/span>the<\/span> <\/span>U.S.<\/span> <\/span>have<\/span> <\/span>not<\/span> <\/span>ratified the<\/span> <\/span>Rome<\/span> <\/span>Statute,<\/span> <\/span>I<\/span> <\/span>have<\/span> <\/span>my<\/span> <\/span>doubts about the practical feasibility of such a bold move. While good arguments exist to reform the UNSC, this mechanism would remove the only measure of judicial oversight the ICC has and create<\/span> <\/span>more<\/span> <\/span>problems<\/span> <\/span>than<\/span> <\/span>it<\/span> <\/span>solves. Another<\/span> <\/span>highly<\/span> <\/span>debated<\/span> <\/span>area<\/span> <\/span>of<\/span> <\/span>the<\/span> <\/span>ICC\u2019s<\/span> <\/span>scope<\/span> <\/span>of operations is its jurisdictional authority.<\/span><\/p>\n

Section<\/span> <\/span>5<\/span> <\/span>\u2013<\/span> <\/span>Jurisdictional <\/span>Issues<\/span><\/strong><\/p>\n

Delegated Jurisdiction<\/span><\/strong>. <\/span>Pursuant to Article 12, state parties consent to ICC jurisdiction on a territorial basis while non-state parties may be subject to jurisdiction based on a UNSC referral<\/span> <\/span>or Prosecutor investigation (ICC \u201cRome\u201d). Some believe this is a lawful exercise of universal jurisdiction. However, Morris points out that \u201cconsent to the universal jurisdiction of <\/span>states<\/span> <\/span>should not be considered equivalent to consent to the delegation of universal jurisdiction to an <\/span>international court<\/span>\u201d (29).<\/span><\/p>\n<\/div>\n<\/div>\n

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This is important as states may<\/span> <\/span>want to retain the ability<\/span> <\/span>to bargain and compromise on certain<\/span> <\/span>issues<\/span> <\/span>for<\/span> <\/span>political<\/span> <\/span>reasons<\/span> <\/span>or<\/span> <\/span>matters<\/span> <\/span>of<\/span> <\/span>national<\/span> <\/span>security.<\/span> <\/span>Morris<\/span> <\/span>explains<\/span> <\/span>that<\/span> <\/span>tribunals like the ICTY and ICTY, as well as the Genocide and Apartheid Conventions respectively, all established jurisdiction based on state consent (41-43).<\/span><\/p>\n<\/div>\n

Territorial Jurisdiction<\/span><\/strong>.<\/span> <\/span>Article 12 allows a state party to delegate its territorial jurisdiction over nonparty nationals to the ICC for the crime of genocide, crimes of humanity and war crimes committed on the territory of a state that consents to ICC jurisdiction (\u201cRome\u201d). As previously noted, nonparty<\/span> <\/span>states are not subject to COA jurisdiction.<\/span> <\/span>Morris notes that delegated territorial jurisdiction is prone to abuse for political reasons, and prosecuting states still require the consent of<\/span> <\/span>the<\/span> <\/span>defendant\u2019s<\/span> <\/span>state<\/span> <\/span>of<\/span> <\/span>nationality<\/span> <\/span>as<\/span> <\/span>it<\/span> <\/span>was<\/span> <\/span>required<\/span> <\/span>in<\/span> <\/span>the<\/span> <\/span>Tokyo<\/span> <\/span>and<\/span> <\/span>Nuremberg<\/span> <\/span>tribunals<\/span><\/p>\n

(45). Moreover, the ICTY and ICTR tribunals functioned within the state where the crimes occurred per UNSC authorization (Morris 45).<\/span><\/p>\n

Universal Jurisdiction<\/span><\/strong>. Some may argue that the crimes covered by the Rome Statute are so heinous and reprehensible that universal jurisdiction is warranted, perhaps even required under <\/span>jus cogens <\/span>norms. Regardless, Morris argues, \u201c<\/span>jus cogens <\/span>norms and <\/span>erga omnes <\/span>obligations do not include a requirement that prevention and punishment occur through the mechanism of an international court\u201d (57).<\/span><\/p>\n

Exercising jurisdiction over nationals of nonparty states is also not supported by \u201cextensive and virtually uniform\u201d state practice mentioned in the International Court of Justice\u2019s <\/span>Continental Shelf <\/span>case as a requirement for the formation of new rules of customary law (Morris <\/span>58).<\/span> <\/span>Ademola<\/span> <\/span>Abass<\/span> <\/span>observes<\/span> <\/span>that<\/span> <\/span>in<\/span> <\/span>the<\/span> <\/span>ICTY<\/span> <\/span>trial<\/span> <\/span>of<\/span> <\/span>Dusko<\/span> <\/span>Tadic<\/span>,<\/span> <\/span>jurisdiction<\/span> <\/span>was<\/span> <\/span>based<\/span> <\/span>on t<\/span>he \u201cserious nature of the crime\u201d and the fact that Tadic had \u201clived in Germany for several months,\u201d not on universal jurisdiction (364).<\/span><\/p>\n<\/div>\n<\/div>\n

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State practice regarding universal jurisdiction stipulates that the \u201casserting state must<\/span> <\/span>have received and declined an extradition request\u201d in order for such jurisdiction to be exercised (Abass 357). Even then, Abass explains, the receiving state merely has the <\/span>option<\/span>, not the <\/span>obligation <\/span>to prosecute (366). France, Spain, Germany and Belgium have all recently demonstrated reluctance to exercise universal jurisdiction unless the person was their own national and physically present on their own territory (Abass 366). Universal crimes need not be prosecuted through universal jurisdiction. To ascribe such unlimited, automatic jurisdiction to<\/span> <\/span>the ICC is to erroneously ignore state practice and customary international law.<\/span><\/p>\n

Section<\/span> <\/span>Six<\/span> <\/span>\u2013<\/span> <\/span>Prosecuting<\/span> <\/span>the<\/span> <\/span>Crime<\/span> <\/span>of <\/span>Aggression<\/span><\/strong><\/p>\n

Pursuing Clarity<\/span><\/strong>. When the Review Conference of the Rome Statute defined the crime of aggression (COA)<\/span> <\/span>in Kampala in June<\/span> <\/span>2010, it delayed activation of<\/span> <\/span>jurisdiction until \u201ca<\/span> <\/span>decision is taken by two-thirds of the State Parties to activate the jurisdiction at any time after 1 January 2017,\u201d<\/span> <\/span>and \u201cat least 30 State<\/span> <\/span>Parties<\/span> <\/span>have<\/span> <\/span>ratified or<\/span> <\/span>accepted<\/span> <\/span>the<\/span> <\/span>amendments\u201d<\/span> <\/span>(Coalition for<\/span> <\/span>the ICC). Neither the two-thirds vote by<\/span> <\/span>the ASP nor the 30 ratifications should be taken for granted that they<\/span> <\/span>will happen as planned in 2017. There<\/span> <\/span>is still much<\/span> <\/span>to debate. Although the ASP agreed on the verbiage, \u201cthere was considerable dispute about its meaning\u201d (Schaefer 4).<\/span><\/p>\n

Certainly the codification of this <\/span>jus ad bellum <\/span>offense has the potential for deterring unlawful and illegitimate acts of warfare that violate the principles of the UN Charter. As the International Military Tribunal stated: \u201cCrimes are committed by men, not by abstract entities, <\/span>and<\/span> <\/span>only<\/span> <\/span>by<\/span> <\/span>punishing<\/span> <\/span>individuals<\/span> <\/span>who<\/span> <\/span>commit<\/span> <\/span>such<\/span> <\/span>crimes<\/span> <\/span>can<\/span> <\/span>the<\/span> <\/span>provisions<\/span> <\/span>of<\/span> <\/span>international <\/span>law be enforced\u201d (qtd. in Fletcher 236).<\/span> <\/span>Is the Statute clear enough to avoid violation of the principle of <\/span>nullem crimen nulla poena sine lege <\/span>(there is no crime, nor punishment, without a law) in order to prosecute the most serious international crimes committed by men?<\/span><\/p>\n<\/div>\n<\/div>\n

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Thankfully, the U.S. was able to push the Review Conference to adopt an understanding to the COA amendment which established a threshold of \u201cmanifest violation of the [UN] Charter\u201d with \u201ccharacter, gravity and scale\u201d collectively necessary to \u201csatisfy the manifest standard\u201d (RC\/Res.6). But even this clarification may be too vague. Oscar Solera asks, \u201cWhat constitutes the difference between a violation of the Charter and a \u201cmanifested\u201d violation?\u201d (808). What do \u2018character,\u2019 \u2018gravity,\u2019 and \u2018scale\u2019 mean? Since the definition only mentions<\/span> <\/span>states, how will it address aggressive acts by non-state actors or terrorists? What if the UNSC<\/span> <\/span>and ICC disagree on an act\u2019s gravity and scale? <\/span>Who gets the last word?<\/span><\/p>\n

Unanswered Questions<\/span><\/strong>.<\/span> <\/span>I would assert that these questions raise legitimate concerns about the ICC\u2019s ability to render just decisions and operate effectively. Other questions involve the ICC\u2019s fairly undefined role as a partner to the Security Council. Kari Fletcher posits, \u201cICC dependence on the Security Council could give the Security Council a quasi-judicial role; a role it was not meant to take\u201d (251). Such is the overly-legalized state of affairs in international relations today.<\/span><\/p>\n

The last word has major implications. Does a Security Council determination on aggression trump an ICC determination? If the ICC has the last word, the UN Charter may be considered \u201crewritten.\u201d I imagine the P5 would not take that lying down. On the other hand, a UNSC determination on aggression prior to trial could jeopardize the presumption of innocence.<\/span><\/p>\n<\/div>\n<\/div>\n

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Section<\/span> <\/span>Seven<\/span> <\/span>\u2013<\/span> <\/span>Constructive<\/span> Cooperation<\/span><\/strong><\/p>\n<\/div>\n

Despite<\/span> <\/span>all of<\/span> <\/span>its shortcomings, the ICC may yet have<\/span> <\/span>some positive<\/span> <\/span>attributes. The<\/span> <\/span>Court is probably<\/span> <\/span>not going away anytime soon. The U.S. has several practical ways that it can support the ICC as a nonparty partner, bolster its effectiveness, and further its own national interests.<\/span><\/p>\n

The ICC does have its supporters. Robert Johansen lauds the Court\u2019s cost-effective deterrence capabilities (3). Feinstein and Lindberg credit the Court with bringing the LRA back to<\/span> <\/span>peace<\/span> <\/span>negotiations<\/span> <\/span>in<\/span> <\/span>Uganda<\/span> <\/span>(74).<\/span> <\/span>Most<\/span> <\/span>notably,<\/span> <\/span>David<\/span> <\/span>Scheffer<\/span> <\/span>has<\/span> <\/span>significantly<\/span> <\/span>changed<\/span> <\/span>his tune since his skeptical days as President Clinton\u2019s Ambassador for War Crimes, praising the Court\u2019s preconditions to jurisdiction while acknowledging nonparty nationals could be \u201carrested and transferred to the Hague\u201d if governments are unable or unwilling to prosecute (Scheffer & Cox 1000). Nice.<\/span><\/p>\n

Feinstein and Lindberg offer several practical ways to support the Court and build its judicial capacity including:<\/span> <\/span>re-signing the Statute; supporting UNSC referrals; contributing to the Trust Fund for Victims; providing technical support, intelligence sharing and investigative expertise; and appointing liaisons with ICC investigators (104-124). More conservative commentators<\/span> <\/span>like<\/span> <\/span>Brett<\/span> <\/span>Schaefer<\/span> <\/span>prefer<\/span> <\/span>maintaining<\/span> <\/span>Article<\/span> <\/span>98\u2019s,<\/span> <\/span>refusing<\/span> <\/span>treaty<\/span> <\/span>ratification,<\/span> <\/span>and pressing ICC states to resolve differences over the COA, delaying its implementation beyond 2017 if necessary (10-12).<\/span><\/p>\n

Conclusion<\/span><\/strong><\/p>\n

\u201cThere<\/span> <\/span>is<\/span> <\/span>a<\/span> <\/span>moral<\/span> <\/span>imperative<\/span> <\/span>to<\/span> <\/span>seek<\/span> <\/span>justice,<\/span> <\/span>but<\/span> <\/span>there<\/span> <\/span>is<\/span> <\/span>no<\/span> <\/span>moral<\/span> <\/span>imperative<\/span> <\/span>to<\/span> <\/span>globalize<\/span> <\/span>its<\/span> pursuit.\u201d<\/span> <\/span>Marion Smith (8)<\/span><\/p>\n<\/div>\n<\/div>\n

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I began my research with Feinstein and Lindberg\u2019s book, a positive review of the ICC, and, hopefully, an open mind. I concluded my research 30+ scholarly articles later far more skeptical of the institution. My two main concerns are the Court\u2019s subpar performance over its first eight years and its potential to entangle itself in highly politicized scenarios that may ultimately lead to its demise.<\/span><\/p>\n<\/div>\n

The Court needs to bring a trial full cycle and put someone like Lubanga Dyilo behind bars for good. <\/span>{* Editor\u2019s Note: The ICC did find him guilty in March of 2012, and sentenced him to 14 years in prison in July 2012. However, Dyilo\u2019s attorney appealed the conviction in<\/span> <\/span>December<\/span> <\/span>2012.<\/span> <\/span>Jeff<\/span> <\/span>D<\/span> <\/span>*<\/span>}<\/span><\/strong> <\/span>It<\/span> <\/span>needs<\/span> <\/span>stronger international<\/span> <\/span>cooperation<\/span> <\/span>that<\/span> <\/span>results<\/span><\/p>\n

in more arrests and successful transfers to the Court\u2019s custody. It needs to stay out of Israel and Afghanistan where it\u2019s in over its head and the risks are too high. Without more legal, technical, financial, and diplomatic support from the United States in particular and its own state parties, it will be<\/span> <\/span>an uphill battle<\/span> <\/span>for<\/span> <\/span>the<\/span> <\/span>Court<\/span> <\/span>to succeed. I<\/span> <\/span>hope<\/span> <\/span>the Court does succeed. Nevertheless, the Court\u2019s significant conceptual and practical challenges cannot be easily dismissed.<\/span><\/p>\n

I find the ICC\u2019s lack of accountability, questionable reach of jurisdiction, problems with projecting judicial neutrality, propensity for the politicization of investigations, and its lack of an enforcement mechanism to be genuine obstacles to its future success no matter how many resources are thrown its way. In some cases, Darfur for example, the Court may actualize destabilize international conflicts by prematurely putting justice ahead of peace. This is not the only occasion where the ICC has been its own worst enemy.<\/span><\/p>\n

In adopting a definition on the COA, the Court has basically made it possible for<\/span> <\/span>everyone <\/span>to opt out \u2013 state parties and non-party states alike. Will state parties self-refer when t<\/span>heir<\/span> <\/span>nationals<\/span> <\/span>commit<\/span> <\/span>a<\/span> <\/span>COA<\/span> <\/span>on<\/span> <\/span>their<\/span> <\/span>own<\/span> <\/span>territory?<\/span> <\/span>In<\/span> <\/span>an<\/span> <\/span>effort<\/span> <\/span>to<\/span> <\/span>obtain<\/span> <\/span>universal<\/span> <\/span>acceptance <\/span>regardless of the cost, the ICC has allowed a de facto \u201creservation\u201d with opt out provisions that completely defang the object and purpose of including the COA in the first place.<\/span><\/p>\n<\/div>\n<\/div>\n

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The ICC\u2019s future is uncertain in my<\/span> <\/span>opinion. The next seven years will make or break the Court. My position is one of caution and guarded optimism. If the Court does not generate some success soon, U.S. resources would be better spent on enhancing domestic judicial systems around the world to prosecute mankind\u2019s most serious crimes. According to the principle of complementarity, this is one of the chief goals of the Statute anyway, and that\u2019s the last word.
\n<\/span>
\nWorks<\/span> <\/span>Cited<\/span><\/strong><\/div>\n<\/div>\n
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Abass, A. (2006). The International Criminal Court and Universal Jurisdiction. <\/span>International<\/span> Criminal Law Review , 6 <\/span>(3), 349-385. Web. 10 Jul 2010. Academic Search Premier. Retrieved at Norwich University Library.<\/span><\/p>\n

Andersen, K. (2009). The Rise of International Criminal Law: Intended and Unintended Consequences. <\/span>European Journal of International Law , 20 <\/span>(2), 331-358. Web.10 Jul 2010. ProQuest. Retrieved from Norwich University Library.<\/span><\/p>\n

Bellinger, J. B. (2008, November 14). <\/span>U.S. Perspectives on International Criminal Justice.<\/span> <\/span>Retrieved August 16, 2010, from U.S. Department of State: <\/span>http:\/\/2001-<\/span><\/a> <\/span>2009.state.gov\/s\/l\/rls\/111859.htm<\/span><\/p>\n

Coalition<\/span> <\/span>for<\/span> <\/span>the International<\/span> <\/span>Criminal<\/span> <\/span>Court.<\/span> <\/span>(2010,<\/span> <\/span>June). <\/span>Delivering<\/span> <\/span>on<\/span> <\/span>the<\/span> <\/span>Promise<\/span> <\/span>of<\/span> <\/span>a<\/span> <\/span>Fair,<\/span> Effective and Independent Court. <\/span>Retrieved August 17, 2010, from Coalition for the International Criminal Court: The Crime of Aggression: <\/span>http:\/\/www.iccnow.org\/?mod=aggression<\/span><\/a><\/p>\n

D’Amato, A., & Abbassi, J. (2006). <\/span>International Law Today: A Handbook. <\/span>St. Paul, MN, USA: <\/span>Thomson\/West.<\/span><\/p>\n

Dunoff, J. L., Ratner, S. R., &<\/span> <\/span>Wippman, D. (2006). <\/span>International Law: Norms, Actors, Process:<\/span> A Problem-Oriented Approach <\/span>(2nd ed.). New York, NY, USA: Aspen Publishers, Inc.<\/span><\/p>\n

Feinstein, L., & Lindberg, T. (2009). <\/span>Means to an End: U.S. Interest in the International<\/span> Criminal Court. <\/span>Washington, D.C.: Brookings Institution Press.<\/span><\/p>\n

Ferencz, B. B. (2009). Ending Impunity for the Crime of Aggression. <\/span>Case Western Reserve<\/span> Journal of International Law , 41 <\/span>(2\/3), 281-290. Web. 10 Jul 2010. Academic Search <\/span>Premier. Retrieved at Norwich University Library.<\/span><\/p>\n<\/div>\n<\/div>\n

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Fletcher, K. M. (2010). Defining the Crime of Aggression: Is There An Answer to the International Criminal Court’s Dilemma? <\/span>Air Force Law Review , 65<\/span>, 229-262. Web. 10 Jul 2010. Academic Search Premier. Retrieved at Norwich University Library.<\/span><\/p>\n<\/div>\n

Grossman, M. (2002, May 6). <\/span>American Foreign Policy and the International Criminal Court.<\/span> <\/span>Retrieved August 16, 2010, from The American NGO Coalition for the International Criminal Court: <\/span>http:\/\/www.amicc.org\/docs\/Grossman_5_6_02.pdf<\/span><\/a><\/p>\n

International Criminal Court. (2010). <\/span>About the Court. <\/span>Retrieved August 15, 2010, from The International Criminal Court: <\/span>http:\/\/www.icc-cpi.int\/Menus\/ICC\/About+the+Court\/<\/span><\/a><\/p>\n

International<\/span> <\/span>Criminal<\/span> <\/span>Court.<\/span> <\/span>(2010,<\/span> <\/span>July<\/span> <\/span>19).<\/span> <\/span>ICC<\/span> <\/span>Weekly<\/span> <\/span>Update<\/span> <\/span>#42.<\/span> <\/span>Retrieved<\/span> <\/span>August<\/span> <\/span>16, <\/span>2010,<\/span> <\/span>from<\/span> <\/span>The<\/span> <\/span>International<\/span> <\/span>Criminal<\/span> <\/span>Court:<\/span> <\/span>http:\/\/www.icc- cpi.int\/NR\/rdonlyres\/1FF12DC0-83F4-46DA-AB06- B4A75041EC29\/282368\/ED42ENG.pdf<\/span><\/p>\n

International Criminal Court. (2010, June 11). <\/span>Resolution RC\/Res.6. <\/span>Retrieved August 15, 2010, <\/span>from<\/span> <\/span>The<\/span> <\/span>International<\/span> <\/span>Criminal<\/span> <\/span>Court:<\/span> <\/span>http:\/\/www.icc- cpi.int\/iccdocs\/asp_docs\/Resolutions\/RC-Res.6-ENG.pdf<\/span><\/p>\n

International Criminal Court. (2010). <\/span>Structure of the Court. <\/span>Retrieved August 15, 2010, from <\/span>The<\/span> <\/span>International<\/span> <\/span>Criminal<\/span> <\/span>Court:<\/span> <\/span>http:\/\/www.icc- cpi.int\/Menus\/ICC\/Structure+of+the+Court\/<\/span><\/p>\n

International Criminal Court. (1998, July 17). <\/span>The Rome Statute. <\/span>Retrieved August 15, 2010, from<\/span> <\/span>The<\/span> <\/span>International<\/span> <\/span>Criminal<\/span> <\/span>Court:<\/span> <\/span>http:\/\/www.icc-cpi.int\/NR\/rdonlyres\/EA9AEFF7-<\/span><\/a> <\/span>5752-4F84-BE94-0A655EB30E16\/0\/Rome_Statute_English.pdf<\/span><\/p>\n

Johansen,<\/span> <\/span>R.<\/span> <\/span>C.<\/span> <\/span>(2001).<\/span> <\/span>U.S.<\/span> <\/span>Opposition<\/span> <\/span>to<\/span> <\/span>the<\/span> <\/span>International<\/span> <\/span>Criminal<\/span> <\/span>Court:<\/span> <\/span>Unfounded<\/span> <\/span>Fears. <\/span>The Joan<\/span> <\/span>B. Kroc Institute<\/span> <\/span>for<\/span> <\/span>International<\/span> <\/span>Peace<\/span> <\/span>Studies,<\/span> <\/span>University of<\/span> <\/span>Notre Dame<\/span> <\/span>(7), <\/span>Web.<\/span> <\/span>10<\/span> <\/span>Jul<\/span> <\/span>2010.<\/span> <\/span>Columbia<\/span> <\/span>International<\/span> <\/span>Affairs<\/span> <\/span>Online.<\/span> <\/span>Retrieved<\/span> <\/span>from<\/span> <\/span>Norwich<\/span> <\/span>University Library.<\/span><\/p>\n<\/div>\n<\/div>\n

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Kaye,<\/span> <\/span>D.<\/span> <\/span>(2010,<\/span> <\/span>June<\/span> <\/span>1).<\/span> <\/span>Should<\/span> <\/span>Aggression<\/span> <\/span>Be<\/span> <\/span>Punished?;<\/span> <\/span>It’s<\/span> <\/span>Too<\/span> <\/span>Risky<\/span> <\/span>To<\/span> <\/span>Ask<\/span> <\/span>the International<\/span> <\/span>Criminal<\/span> <\/span>Court<\/span> <\/span>To<\/span> <\/span>Take<\/span> <\/span>On This<\/span> <\/span>Additional<\/span> <\/span>Jurisdiction.<\/span> <\/span>Los<\/span> <\/span>Angeles <\/span>Times<\/span>,<\/span> <\/span>p. A13.<\/span> <\/span>Web. 10<\/span> <\/span>Jul 2010. ProQuest.<\/span> <\/span>Retrieved from<\/span> <\/span>Norwich University<\/span> <\/span>Library.<\/span><\/p>\n

Lauria, J. (2009, September 10). <\/span>Court Orders Probe of Afghan Attacks. <\/span>Retrieved August 16, <\/span>2010,<\/span> <\/span>from<\/span> <\/span>The<\/span> <\/span>wall<\/span> <\/span>Street<\/span> <\/span>Journal: http:\/\/online.wsj.com\/article\/NA_WSJ_PUB:SB125253962307797635.html<\/span><\/p>\n

McCrummen, S., &<\/span> <\/span>Lynch, C. (2009, March 5).<\/span> <\/span>Sudan Ousts<\/span> <\/span>Aid<\/span> <\/span>Groups After Court<\/span> <\/span>Pursues<\/span> <\/span>President.<\/span> <\/span>Retrieved<\/span> <\/span>August<\/span> <\/span>16,<\/span> <\/span>2010,<\/span> <\/span>from<\/span> <\/span>The<\/span> <\/span>Washington<\/span> <\/span>Post: <\/span>http:\/\/www.washingtonpost.com\/wp-<\/span><\/a> dyn\/content\/article\/2009\/03\/04\/AR2009030400870.html<\/span><\/p>\n

Mills, K., & Lott, A. (2007). From Rome to Darfur: Norms and Interests in US Policy Toward the International Criminal Court. <\/span>Journal of Human Rights , 6 <\/span>(4), 497-521. Web. 10 Jul 2010. Academic Search Premier. Retrieved at Norwich University Library.<\/span><\/p>\n

Morris, M. (2001). High Crimes and Misconceptions: The ICC and Non-Party States. <\/span>Law and<\/span> Contemporary Problems , 64 <\/span>(1), 13-66. Web. 16 Aug 2010. Academic Search Premier. Retrieved at Norwich University Library.<\/span><\/p>\n

Murphy, D. R. (2004, November). <\/span>International Criminal Accountability and the International<\/span> Criminal Court. <\/span>Retrieved July 10, 2010, from CIAO Case Studies.<\/span><\/p>\n

Ochoa,<\/span> <\/span>J.<\/span> <\/span>C.<\/span> <\/span>(2007).<\/span> <\/span>The<\/span> <\/span>Settlement<\/span> <\/span>of<\/span> <\/span>Disputes<\/span> <\/span>Concerning<\/span> <\/span>States<\/span> <\/span>Arising<\/span> <\/span>From<\/span> <\/span>the<\/span> <\/span>Application of<\/span> <\/span>the<\/span> <\/span>Statute<\/span> <\/span>of<\/span> <\/span>the<\/span> <\/span>International<\/span> <\/span>Criminal<\/span> <\/span>Court:<\/span> <\/span>Balancing<\/span> <\/span>Sovereignty<\/span> <\/span>and<\/span> <\/span>the<\/span> <\/span>Need <\/span>for an Effective and Independent ICC. <\/span>International Criminal Law Review , 7 <\/span>(1), 1-43. Web. 10 Jul 2010. Academic Search Premier. Retrieved at Norwich University Library.<\/span><\/p>\n<\/div>\n<\/div>\n

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Philip, C., & Hider, J. (2009, February 2). <\/span>Prosecutor Looks at Ways to Put Israeli Officers on<\/span> Trial for Gaza ‘War Crimes’. <\/span>Retrieved August 16, 2010, from The Sunday Times: <\/span>http:\/\/www.timesonline.co.uk\/tol\/news\/world\/middle_east\/article5636069.ece<\/span><\/a><\/p>\n

Rademaker,<\/span> <\/span>S.<\/span> <\/span>G.<\/span> <\/span>(2010,<\/span> <\/span>April<\/span> <\/span>2).<\/span> <\/span>International<\/span> <\/span>Criminal<\/span> <\/span>Court<\/span> <\/span>Doesn’t<\/span> <\/span>Need<\/span> <\/span>power<\/span> <\/span>Over<\/span> <\/span>‘Aggression’.<\/span> <\/span>Retrieved<\/span> <\/span>August<\/span> <\/span>16,<\/span> <\/span>2010,<\/span> <\/span>from<\/span> <\/span>The<\/span> <\/span>Washington<\/span> <\/span>Post: <\/span>http:\/\/www.washingtonpost.com\/wp-<\/span><\/a> dyn\/content\/article\/2010\/04\/01\/AR2010040102802.html<\/span><\/p>\n

Rapp, S. J., & Koh, H. H. (2010, June 15). <\/span>U.S. Engagement With The International Criminal<\/span> Court and The Outcome Of The Recently Concluded Review Conference. <\/span>Retrieved August 15, 2010, from U.S. Department of State: <\/span>http:\/\/www.state.gov\/s\/wci\/us_releases\/remarks\/143178.htm<\/span><\/a><\/p>\n

Rotella, S. (2009, February 5). <\/span>International Criminal Court to Consider Gaza Investigation.<\/span> <\/span>Retrieved August 16, 2010, from Los Angeles Times: <\/span>http:\/\/articles.latimes.com\/2009\/feb\/05\/world\/fg-court-palestinians5<\/span><\/a><\/p>\n

Rubin, E. (2006, April 2). <\/span>If Not Peace, Then Justice. <\/span>Retrieved August 4, 2010, from The New York Times: <\/span>http:\/\/www.nytimes.com\/2006\/04\/02\/magazine\/02darfur.html<\/span><\/a><\/p>\n

Schaefer, B. D. (2010, August 9). <\/span>The Kampala Aftermath: The U.S. Should Remain Wary of the<\/span> ICC. <\/span>Retrieved August 15, 2010, from The Heritage Foundation, Backgrounder, #2448: <\/span>http:\/\/www.heritage.org\/Research\/Reports\/2010\/08\/The-Kampala-Aftermath-The-US-<\/span><\/a> Should-Remain-Wary-of-the-ICC<\/span><\/p>\n<\/div>\n<\/div>\n

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Smith, M. (2010, February 18). <\/span>An Inconvenient Founding: America’s Principles Applied to the<\/span> ICC.<\/span> <\/span>Retrieved<\/span> <\/span>July<\/span> <\/span>10,<\/span> <\/span>2010,<\/span> <\/span>from<\/span> <\/span>The<\/span> <\/span>Heritage<\/span> <\/span>Foundation,<\/span> <\/span>Backgrounder<\/span> <\/span>#2370: <\/span>http:\/\/www.heritage.org\/Research\/Reports\/2010\/02\/An-Inconvenient-Founding-<\/span><\/a> <\/span>Americas-Principles-Applied-to-the-ICC#_ftnref28<\/span><\/p>\n

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Vinjamuri, L. (2010). Deterrance, Democracy, and the Pursuit of Justice. <\/span>Ethics & International<\/span> Affairs , 24 <\/span>(2), 191-211. Web. 24 Jul 2010. Academic Search Premier. Retrieved at Norwich University Library.<\/span><\/p>\n

Wierda, M. (2010, May). <\/span>ICTJ Briefing | Stocktaking: Complementarity. <\/span>Retrieved August 16, 2010, from International Center for Transitional Justice: <\/span>http:\/\/www.ictj.org\/static\/Publications\/ICTJ_RSRC-Complementarity_bp2010.pdf<\/span><\/a><\/p>\n

Wierda, M., & Tolbert, D. (2010, May). <\/span>ICTJ Briefing | Stocktaking: Peace and Justice.<\/span> <\/span>Retrieved August 16, 2010, from International Center for Transitional Justice: <\/span>http:\/\/www.ictj.org\/static\/Publications\/ICTJ_RSRC-PeaceandJustice_bp2010.pdf<\/span><\/a><\/p>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

\u201cThe world no longer has a choice between force and law. If civilization is to survive, it must choose the rule of law.\u201d Dwight D. Eisenhower (qtd. in Ferencz 288)<\/p>\n

Introduction<\/p>\n

The remarkable ascent of international criminal law over the past two decades has had, and continues to have, a profound impact on the laws of war, humanitarian and human rights laws, and existing international institutions like the United Nations (UN). The global community took a giant step towards holding the perpetrators of the most serious international crimes accountable to the rule of law by adopting the Rome Statue of the International Criminal Court on July 17, 1998. <\/p>\n

Bringing the violators of these serious crimes to justice, however, has proven to be easier said than done. The International Criminal Court (ICC) has encountered numerous practical and conceptual obstacles in its efforts to become an impartial and effective instrument of justice. Some commentators like Brett Schafer and Steven Groves believe the ICC is so deeply flawed that it even violates international law in addition to threatening state sovereignty (1). <\/p>\n

The paper seeks to review the history, structure and effectiveness of the ICC, including its recent agreement on a definition for the Crime of Aggression. I will specifically examine practical objections to the ICC, its conceptual challenges, its evolving role in matters of peace and justice, and how it is challenging the traditional role of the UN Security Council (UNSC). <\/p>\n

The ICC\u2019s jurisdictional reach will be examined in detail as well as its procedural safeguards. Finally, I\u2019ll review some ways the United States can effectively cooperate with the ICC as a non-party partner while simultaneously advancing its foreign policy and national security interests and resisting the trend in international law towards pooled sovereignty and global governance. <\/p>\n

The views and opinions expressed in this paper are completely my own and do not represent the views or opinions of the Department of Defense (DoD), the Department of the Navy (DON) or any of the Armed Forces.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"advanced_seo_description":"","jetpack_seo_html_title":"","jetpack_seo_noindex":false,"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"enabled":false},"version":2}},"categories":[5,173,229],"tags":[317,309,316,277,289,185,287,276,297,310,296,299,304,301,313,280,38,271,284,278,293,300,295,270,292,174,252,291,205,315,312,279,305,306,283,226,302,288,281,308,290,307,303,285,314,66,273,282,62,274,318,311,294,298,257,51,223,286,275],"class_list":["post-244","post","type-post","status-publish","format-standard","hentry","category-international-relations","category-intl-law","category-paid-content","tag-accountability","tag-act-of-aggression","tag-automatic-jurisdiction","tag-bilateral-article-98-agreeements","tag-checks-and-balances","tag-consent","tag-crime-of-aggression","tag-david-j-scheffer","tag-delayed-justice","tag-delegated-jurisdiction","tag-domestic-courts","tag-droc","tag-drones","tag-due-process","tag-erga-omnes","tag-flaws","tag-human-rights","tag-icc","tag-icc-jurisdiction","tag-icc-review-conference","tag-icty","tag-impartiality","tag-international-center-for-transitional-justice","tag-international-criminal-court","tag-international-criminal-tribunal-for-the-former-yugoslavia","tag-international-law","tag-israel","tag-judicial-neutrality","tag-jurisdiction","tag-jus-ad-bellum","tag-jus-cogens-norms","tag-kampala","tag-kenneth-anderson","tag-laws-of-war","tag-luis-moreno-ocampo","tag-national-sovereignty","tag-nato","tag-nonparty-states","tag-nuremberg-tribunal","tag-p5","tag-palestine","tag-peace-vs-justice","tag-post-hoc-justice","tag-proprio-motu","tag-prosecuting-the-crime-of-aggression","tag-reciprocity","tag-rome-statue-of-the-international-criminal-court","tag-rome-statute","tag-self-help","tag-state-sovereignty","tag-tadic","tag-territorial-jurisdiction","tag-the-hague","tag-thomas-lubanga-dyilo","tag-un-security-council","tag-united-nations","tag-universal-jurisdiction","tag-unwilling-or-unable","tag-versailles-treaty"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p31a0x-3W","jetpack_likes_enabled":true,"_links":{"self":[{"href":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/wp-json\/wp\/v2\/posts\/244","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/wp-json\/wp\/v2\/comments?post=244"}],"version-history":[{"count":14,"href":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/wp-json\/wp\/v2\/posts\/244\/revisions"}],"predecessor-version":[{"id":937,"href":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/wp-json\/wp\/v2\/posts\/244\/revisions\/937"}],"wp:attachment":[{"href":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/wp-json\/wp\/v2\/media?parent=244"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/wp-json\/wp\/v2\/categories?post=244"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/kapoktreediplomacy.com\/hp_wordpress\/wp-json\/wp\/v2\/tags?post=244"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}