by Benjamin N. Schiff. New York: Cambridge University Press, 2008. 320pp. Hardback. $85.00/£48.00. ISBN: 9780521873123. Paperback. $25.99/£18.99. ISBN: 9780521694728. eBook format. $21.00. ISBN: 9780511402128.
Reviewed by Denise DeGarmo, Department of Political Science, Southern Illinois University Edwardsville. Email: ddegarm [at] siue.edu.
In his book, BUILDING THE INTERNATIONAL CRIMINAL COURT, Benjamin Schiff provides one of the most detailed studies of the International Criminal Court written to date. Schiff not only traces the development of the Court, he further examines the interplay between historical context, legal norms and state compromises that have created the multiple challenges the Court faces today.
The book consists of an introduction and eight chapters. In the introduction, Schiff sets the stage for his analysis. Rather than mere description, Schiff employs the use of international relations and international organization theories in his analysis of the International Criminal Court. Specifically, he combines neorealist, neoliberalist and constructivist lenses to examine different aspects of the court and its workings. Schiff uses constructivism to shed light on the development of consensus upon which the Court is based. Realism is used to explain a state’s compulsion to protect its sovereignty and seek advantage, while liberal institutionalism is used to analyze how the International Criminal Court embodies states’ cooperative efforts to improve the “absolute welfare” of states. The remaining chapters explore the historical contexts in which the court emerged, the contributions of the ad hoc tribunals for Rwanda and former Yugoslavia to the construction of the International Criminal Court, and the challenges the Court faces as it moves forward in the twenty-first century.
It took several decades for the idea of a permanent international criminal court to find its way onto the agenda of the international community. The United Nations recognized the need for the establishment of international rule of law and the International Criminal Court following the Nuremberg and Tokyo Tribunals in 1948. In the early part of the 1950s, the General Assembly of the United Nations requested that the International Law Commission draft statutes to establish a permanent international criminal court. However, Cold War tensions between the east and west made the construction of such a court politically infeasible.
The idea of an international criminal court reemerged in 1989 when the Prime Minister of Trinidad and Tobago proposed the creation of an international court to deal with the illegal drug trade. While a draft statute for such a court was being negotiated, ad hoc tribunals were established to try war crimes in Rwanda and the former Yugoslavia. These ad hoc courts further highlighted the need for an international court system. [*156]
The General Assembly of the United Nations convened a conference in Rome in June of 1997 with the aim of finalizing a treaty for the creation of an international court. In 1998, the Rome Statute for the International Criminal Court was opened for signature. The Statute was adopted overwhelmingly. One hundred and twenty states voted for the treaty; seven states voted against the treaty, and twenty-one states abstained. The countries that voted against the Statute were China, Iraq, Israel, Libya, Qatar, Yemen and the United States. The Rome Statute became a binding treaty in April 2002. The Statute legally came into force in July 2002, and the Court can only prosecute crimes that occurred after this date. As of January 2009, there are 108 members of the International Criminal Court. Forty states have signed but not ratified the treaty, and in 2002, the United States and Israel “unsigned” the Rome Statute. This action was taken as neither state has any intentions of becoming parties to the treaty nor do they admit having legal obligations arising from their earlier signature.
The International Criminal Court consists of three “organs.” There is the Presidency and Chambers, the Office of the Prosecutor, and the Registry. Within the Rome Statute one can find the procedures upon which the Court functions. The Court can investigate cases, issue warrants, and take suspects into custody. Furthermore, it can carry out trials and protect victims and witnesses of crimes that fall under the Court’s jurisdiction. The legislative organ of the International Criminal Court is the Assembly of State Parties to the Treaty. The Assembly is charged with the election and removal of the Court’s judges and prosecutors. They must also approve the budget for the Court as well as adopt the International Criminal Court’s Rules of Procedure and Evidence.
The purpose of the International Criminal Court is to prosecute the perpetrators of war crimes, crimes against humanity and/or genocide. Not only does the court act to punish perpetrators of the aforementioned actions, it serves as a deterrent for those who might consider implementing these types of behaviors in the future. The Court can exercise jurisdiction only in cases where: 1) the accused is a national of a state that is party to the treaty; 2) the alleged crime took place within a state that is a party to the treaty; and/or, 3) the alleged crime is referred to the Court by the United Nations Security Council. Furthermore, the Court can only exercise its jurisdiction when the state court is unwilling or unable to investigate and prosecute such crimes. At this time, the International Criminal Court has launched investigations into Uganda, the Democratic Republic of the Congo, the Central African Republic and Darfur.
The success of the Court rests upon its ability to deter criminal acts or influence states to enforce international human rights. If the Court fails in this regard, then it may be deemed useless by both perpetrators and victims alike. Furthermore, the international nature of the court makes it less likely to achieve success. First there is a lack of legislative structure associated with the court. Secondly, the court imposes upon the sovereignty of states. If states are not willing to cede their sovereignty to the court, there is little the court can do given that it also lacks tools for [*157] implementation of rulings. Furthermore, the international criminal court is subjected to outside influences, bias and poor administration. Schiff also draws attention to the fact that many of the challenges the court faces arise because the International Criminal Court is a treaty-based organization that encompasses a broad and diverse membership with a wide mandate. The challenges include: 1) Judicial-Political challenges; 2) Structural-Administrative dilemmas; 3) the Broad Mandate Dilemma; 4) Civil- and Common-Law Heritage; and, 5) Peace versus Justice Dilemma.
While the literature has many examinations of the sources, structure and implications of the Rome Statute, the International Criminal Court has not been extensively analyzed because of its relatively short lifespan. Of the examinations of the Court that have been conducted, BUILDING THE INTERNATIONAL CRIMINAL COURT is the most insightful, comprehensive and conscientious study of the International Criminal Court to date. Schiff blends history, jurisprudence and political science to provide a clear analysis of this relatively new international organization. The use of international relations and international organization theories is an added bonus and further legitimizes the analysis within the field of International Relations.
The clear and precise language used in this book makes it a perfect text for undergraduate and graduate courses in international law and human rights. The book provides the framework against which future studies of the Court will be conducted. BUILDING THE INTERNATIONAL CRIMINAL COURT will remain an important historical and political document for years to come. The book is an invaluable tool for scholars and practitioners of international law.
© Copyright 2009 by the author, Denise DeGarmo.