II. Sovereignty

This comment focuses in large part on the ways in which the ad hoc tribunals removed power from sovereign states, thereby impinging on their sovereignty, and the mechanisms included in the Rome Statute that returned judicial power to sovereign states. Alan James expounded on the role sovereignty has played in international society in various arenas, providing a helpful framework for the discussion of sovereignty in international jurisprudence.3 James discusses jurisdictional and political sovereignty as two aspects making up sovereignty as it is often referred to, that is, “the extent to which a state is free to behave as it wishes.”4 Jurisdictional sovereignty is defined as the extent to which a state is legally free to conduct itself as it sees fit, and should be taken as the definition of sovereignty used in this comment.

In the context of international law, James states that “international law presupposes sovereignty.”5 That is, international law is built on the existence of sovereign states to which it may be applied. James also argues that constitutional independence, which is the cornerstone of a state’s sovereignty, is either possessed or not, rendering a state’s sovereignty absolute as such, and unitary as well.6 This is qualified by the assertion:

[I]t is always open to a sovereign state to pass over to another state or an international body the legal right to take decisions which are binding on the state concerned […] but the point is that the decision […] is the decision of the sovereign state.7

While this argument applies in the context of treaties, in this comment most saliently the Rome Statute whereby States Parties signed over jurisdiction, this argument does not withstand the context of the ad hoc tribunals, which were not created by decision of the sovereign states involved.

This comment expands on this point, highlighting the ways in which the ad hoc tribunals’ founding treaties took sovereignty away from states that did not sign over their criminal jurisdiction nor agree to actions in furtherance of the tribunals’ prosecutions and investigations. In making this argument, I am not assessing the validity of the ICTY Treaty or ICTR Treaty in their mission and goals, but rather, focusing on the specific mechanisms within them that acted to impinge on state sovereignty, and how the drafters of the Rome Treaty addressed the criticisms leveled at the ad hoc tribunals in an effort to legitimize international criminal prosecutions by allowing states to contribute in more ways than before.

III. Ad Hoc Tribunals and Their Limitations/Issues

The ICC was preceded by the ad hoc tribunals of the 1990s. These tribunals were courts of limited jurisdiction, and as such “could only investigate and prosecute crimes associated with those atrocities.”8 Because of the impracticality of creating a new tribunal for every atrocity violating international humanitarian law, it was clear that “a more permanent and equitable solution was required. This led to renewed calls for the creation of a permanent international criminal court.”9 In assessing how the drafters of the Rome Statute built on the lessons learned from the ad hoc tribunals, I first examine the history of these tribunals and their perceived limitations and criticisms.

A. Establishment of the International Criminal Tribunals for the former Yugoslavia and Rwanda

Beginning in 1991, the republics of the former Yugoslavia were embroiled in ethno-national conflict that quickly escalated into obvious violations of international humanitarian law.10 In February of 1993, the members of the U.N. Security Council reached an agreement on the need for a criminal tribunal to address the crimes occurring on the territory of modern-day Bosnia and Herzegovina.11 This resolution did not specify the authority or method on which this tribunal would be created, and the only prior precedents for international criminal tribunals—those created following World War II—were not created by an applicable source of authority to the Yugoslavia conflict.12 A treaty was not viewed as a plausible solution because of the longer timeline that that would require, as well as the issue of Serbia or Croatia being unlikely to ratify it, thereby not granting jurisdiction to prosecute Serbian and Croatian perpetrators.13 Chapter VII of the United Nations Charter proved to be the most likely avenue of authority, especially since members of the Security Council had already been using it freely to take actions in Iraq and in the former Yugoslavia.14 The ICTY was created in May of 1993 with the Security Council’s passing of Resolution 827.15

One year later, the brutal conflict in Rwanda between the Hutu and Tutsi ethnic groups culminated in human rights violations which once again prompted the desire to initiate international prosecution against the perpetrators.16 By 1994, “the Security Council’s authority to establish criminal tribunals had been exercised and generally accepted,” and Rwanda had requested action by the Security Council as well.17 In November of 1994, the Security Council passed Resolution 955, creating the ICTR.18

B. Limitations/Issues

Firstly, as the ICTY was the first tribunal experiment of its kind in the post-Cold War era, objections to the Security Council’s authority to create a tribunal were to be expected. Questions about the Security Council’s authority to create tribunals under Chapter VII came in the form of reservations from countries like Brazil and China about the appropriateness of such an action,19 and was even “challenged by one of the first defendants (Duško Tadić) convicted by the Yugoslavia Tribunal,” who argued that the Council, as a political body, was unable to create a judicial body, an argument that was rejected by the Tribunal’s Appeals Chamber.20 Tadić argued that:

[T]o be duly established by law, the International Tribunal should have been created either by treaty, the consensual act of nations, or by amendment of the Charter of the United Nations, not by resolution of the Security Council.21

Despite the Court’s rejection of this argument, it reflects a legitimate complaint with the establishment of the international tribunals and their infringement on state sovereignty, that is, that they were not created by the consent of the nations involved, but rather by the decision of the members of the Security Council, thereby overriding the will of the nations involved. Even in the case of Rwanda, which requested the Security Council to act to begin with, Rwanda ended up objecting to various aspects of the Rwanda Tribunal Statute, such as the temporal jurisdiction, the structure of the Tribunal, and the provision stating that the condemned be imprisoned outside of Rwanda, among other complaints.22 Rwanda’s objections to the Statute despite its initial plea reflect concerns about how the Tribunal impinged on its sovereignty not only in deciding how the Tribunal itself would function, but in disregarding its disagreement with the creation of the Tribunal itself. The continuation of the ICTR despite the origin country’s vote against its creation raises questions about the importance of state consent in establishing jurisdiction.

Another contentious aspect of the ad hoc tribunals lay in the concept of primacy. Article 9 of the ICTY Statute stated that the national courts and the ICTY had concurrent jurisdiction, but that the ICTY had primacy over the national courts and was able to “formally request national courts to defer to the competence of the International Tribunal”23 at any stage. The ad hoc tribunals’ primacy over national systems compromised “states’ sovereign prerogatives by requiring them to defer to an international tribunal, and, more generally, to cooperate with the international court and to obey its orders concerning such matters as the production of evidence and the arrest and detention of persons.”24 The use of the word “request,” however, depicts the national courts as having more choice in the decision to defer to the ICTY than they actually did.25 Contrary to this depiction, Article 9 outlined two situations, related to inadequate national prosecutions, in which the ne bis in idem principle does not apply and allows for the request of deferral to the ICTY, and a third situation which allowed “the Prosecutor to request deferral solely because the national proceedings [overlapped] in some way with an investigation or prosecution of the International Tribunal.”26 While the concept of primacy was justified by reasonable concerns such as forum shopping by the accused and difficulty of ensuring an impartial national prosecution,27 their breadth of discretion to invoke the primacy principle essentially allowed for ultimate supremacy over national courts, which removed their judicial powers and obligated them to actions which in turn raised issues of sovereignty.

The controversial nature of primacy was not left unaddressed prior to the creation of the ICTR, but despite such acknowledgments, the ICTR Statute nevertheless doubled down on the concept of primacy. After the resolution creating the ICTY was adopted, four permanent members of the U.N. Security Council quickly made statements that purported to curb the primacy principle set out in Article 9, highlighting the existence of an understanding amongst the Security Council of the sovereignty issues primacy could provoke by forcing states to concede previously held criminal jurisdiction.28 As mentioned, the ICTR Statute did not narrow the scope of primacy and offer states options such as state consent requirements, but rather accorded the ICTR “primacy over the national courts of all States,”29 which is stronger language than that present in the ICTY Statute.

Finally, the content of international criminal law as defined by the ICTY and ICTR Statutes is vague, especially in the case of the ICTY Statute,30 which left the task of lawmaking to the Tribunals’ judges, despite members of the Security Council stating that the “Tribunals would not and should not make new law.”31 The Tadić decisions from the ICTY are perhaps the most obvious example of judicial activism in this vein, with the Appeals Chamber holding that “Article 3 of the ICTY Statute incorporated the laws of war that apply to civil wars, even though there is no mention of the relevant provisions in the statute,”32 and outwardly stating that the “State-sovereignty-oriented approach [had] been supplanted by a human-being-oriented approach.”33 In justifying this, the Court stated:

Why protect civilians from belligerent violence, or ban rape, torture or the wanton destruction of hospitals, churches, museums or private property, as well as proscribe weapons causing unnecessary suffering when two sovereign States are engaged in war, and yet refrain from enacting the same bans or providing the same protection when armed violence has erupted ‘only’ within the territory of a sovereign State?

The declaration of state sovereignty no longer being the primary lens through which international law was viewed, and the concurrent expansion of international law by the judges sitting on the Tribunal benches, “represented a diminution of [State] sovereignty without their consent.”34

IV. The Rome Statute and New Mechanisms

In 1994, a tumultuous and active period in the human rights realm immediately preceding the Gulf War and characterized by the Bosnian and Rwandan conflicts, the U.N. General Assembly took on the draft statute of the International Law Commission as the basis for creating a permanent international criminal court.35 It convened an Ad Hoc Committee, which ended up diverging from many of the International Law Commission’s ideas, especially in relation to matters concerning the power states would have in the context of the court, as much of the draft statute mirrored the controversial qualities of the ad hoc tribunals, such as primacy and vague crime definitions.36

A. Establishment Mechanism

While the ICTY and ICTR treaties essentially subordinated the national courts to the tribunals, the ICC differs starkly in that it is multilateral, treaty-based, and has the status of an independent international organization separate from the United Nations.37 Unlike the ad hoc tribunals, the ICC was “created with the consent of those who are themselves subject to its jurisdiction.”38 Those states that ratify the Rome Statute, known as States Parties, accept the jurisdiction of the ICC over all crimes within its scope.39 Under Article 12, the Court has jurisdiction over nationals of ratifying States Parties and over crimes that occur on their territory, which was a compromise that moved away from the idea of universal jurisdiction that would have allowed crimes committed on the territory of even non-ratifying states to be subject to the Court’s jurisdiction.40 Jurisdiction will be discussed later in this comment, but it is mentioned here to highlight that compromises in the Court’s jurisdiction were necessary in order to ensure that enough states would ratify the Rome Statute so that the Court could be effective. Considerations such as this one demonstrate that, through opting for a treaty-based establishment of the Court, sacrifices had to be made to the Court’s scope in order to convince states that they would not be signing over too much of their sovereignty through ratifying the Rome Statute.

Ratify it they did, with the Rome Statute entering into force with the sixty requisite ratifications it needed on July 1, 2002.41 Despite the fear that states which did not often face internal strife would be the only ones to willingly sign over jurisdiction, the opposite occurred, with the move away from universal jurisdiction seeming to contribute to the pace of ratification.42 In fact, these unexpected ratifications “suggest that some States [ratified] the Statute precisely because they [viewed] the Court as a promising and realistic mechanism,”43 a perspective likely driven in part by the decision to allow states the very choice to participate in the ICC.

B. Admissibility

Even if a State Party has ratified the Rome Statute and thereby granted the ICC jurisdiction to prosecute the crimes laid out in the Statute, the admissibility criteria pose another barrier to the ICC taking on the case. The ICC will decline to prosecute a case where “the case is being investigated or prosecuted by a State, or has already been prosecuted, or because it is not of ‘sufficient gravity.’ ”44 This admissibility evaluation applies even in cases that result from a referral by the Security Council, which adds another layer of protection to states by making Security Council referrals subject to an independent evaluation.45 In addition to this, the concept of an independent prosecutor who had the authority to undertake a case proprio motu instead of giving the Security Council most of the power to control the prosecutorial agenda caused the admissibility test to become more rigorous and complex in the course of negotiations. The idea of an independent prosecutor with no checks was concerning to many, despite the many compelling arguments advanced against leaving the States Parties and Security Council, political bodies, with the authority to trigger the Court’s jurisdiction.46

Perhaps the most salient difference between the ad hoc tribunals and the ICC is that the ICC does not have primacy over national courts and cannot take priority over said courts in prosecuting cases. This is one of the tenants of the admissibility test in the ICC. Rather, the Rome Statute operates on the principle of complementarity, which serves to affirm “state sovereignty and especially the sovereign and primary right of states to exercise criminal jurisdiction.”47 This is because complementarity—“if in a case otherwise eligible for consideration by the ICC a bona fide examination of the alleged crime was undertaken and disposed of by a state […] the matter will not be admissible.”48—affirms the legitimacy and adequacy of domestic legal systems.

The outlines of complementarity began to emerge within the ad hoc tribunals, as the impracticality of prosecuting every single perpetrator, even at the lowest levels, became obvious. In certain cases, the ICTY and ICTR prosecutors “acted under the umbrella of their discretionary powers and entrusted national courts with the primary responsibility to act through a decision to defer to their jurisdiction.”49 Even though the tribunals still had primacy, the prosecutors acting under their discretion to transfer cases back to national courts ensured that only the most serious cases came before the ICTR and ICTY.50 While resembling the idea of complementarity in terms of the division of responsibilities and the participation of national courts, the ad hoc tribunals’ deferral to national courts was contingent upon the discretion of the prosecutors while the mechanism in the Rome Statute acts as a filtering system of admissibility that prioritizes national judiciaries prior to turning to the ICC.51

C. Jurisdiction and the Prosecutor

During the drafting of the Rome Statute, as many of the changes to the laws of war from the ad hoc tribunal precedents were incorporated, “states were concerned that the judges had gone too far in expanding the scope of international law.”52 As a result, Ford argues that “one way to view the Rome Statute is as an attempt by states to ensure that the content of international criminal law is determined first and foremost by states.”53

As opposed to the vagueness of the ICTY and ICTR Statutes’ definitions of crimes, the Rome Statute defined the crimes within the ICC’s jurisdiction in great detail, with the definition of crimes against humanity containing more than twenty sub-parts, and the definition of war crimes having more than fifty.54 In addition to these extremely detailed definitions, the imposition of a very strict principle of legality was also incorporated into the Rome Statute in Article 22 by states that were concerned with the ICTY’s tendency of engaging in reasoning-by-analogy.55 Specifically, the language of the Rome Statute states that the “definition of a crime shall be strictly construed and shall not be extended by analogy.”56 Ford states that this is a stricter than usual incorporation of the principle of legality,57 and indicates that there was a particular awareness and desire among the states to prohibit the Court from engaging in any behavior that was not explicitly approved by the states in the Statute.

There was also a vigorous discussion during the negotiations of the Rome Treaty surrounding the powers of the would-be prosecutor, with two primary viewpoints emerging. The caucus of like-minded States, as they came to be known, advocated for a proprio motu prosecutor, who would have the independent authority to undertake prosecutions “in the absence of a complaint from a State Party or referral by the Security Council.”58 These states believed that the Court would be unlikely to get much work if only States Parties and the Security Council could trigger its jurisdiction, and that only granting political bodies this triggering power was incompatible with judicial impartiality, which a prosecutor could provide.59 On the other hand, some States stood in stark opposition to this idea, fearful of what they termed a Doctor Strangelove prosecutor, who would be accountable to no one and have the ability to do, essentially, whatever they wanted.60 Both of these concerns are premised on the concern of sovereignty, with the former fearful of sovereignty impingement by other States Parties and the Security Council, and the latter concerned with the Prosecutor having full reign over the jurisdiction given to them by the ratifiers of the Statute. Ultimately, it was the like-minded states that won out, with Article 15 of the Rome Statute granting the Prosecutor proprio motu powers.61 This is one of the reasons the United States never became a State Party, as their sovereignty concerns took precedence over the desire for a Prosecutor independent of the ratifying states and the Security Council. Specifically, the concern of the United States is that the “prosecutor responds to no superior executive power and […] is answerable only to the ICC.”62

This was not a total loss for the states that opposed the bestowal of such authority on the Prosecutor, as the Prosecutor’s decision to engage in a proprio motu investigation is subject to the authorization of the Pre-Trial Chamber.63 The Chambers themselves have stated that this check on the Prosecutor’s power serves no other purpose than to prevent the Prosecutor from abusing their power.64 Additional sentiments have come from other judges of the ICC, who have expressed beliefs about Article 15 in the vein of its purpose primarily being to serve as a check on the Prosecutor and to prevent arbitrary decisions.65 In this way, the Rome Statute still provided for judicial oversight of the Prosecutor’s decisions, a move informed by the concerns of states regarding the Prosecutor acting arbitrarily and outside of their delineated authority.

V. Continuing Issues

The Rome Statute, then, clearly incorporated many considerations of the negotiating states that arose as a result of the ICTY and ICTR Statutes’ problematic encroachment on state sovereignty. In this way, these concessions were meant to lessen criticism of international criminal prosecutions and consequently lend credence to a permanent international criminal court. As I outline, this attempt at winning over public trust in an international judicial institution failed chiefly due to new problems arising from the mechanisms meant to allay the ones present in the ad hoc tribunals. Further, some of these mechanisms meant to prevent the ICC from overstepping into sovereign state powers have even prompted new complaints of sovereignty impingement, as well as accusations of an unfair focus on certain regions of the world.

A. Legitimacy Paradox: Darfur

The signatory-only jurisdiction of the Rome Statute was monumental in that it eradicated the numerous concerns that arose from the way in which the Security Council established the ad hoc tribunals. Despite this success, it created another problem, which I will describe as a legitimacy paradox. In order to operate, the ICC needs to maintain the relationships it has with the states that have ratified the Rome Statute and thereby given it jurisdiction, but “should the ICC prosecutor choose to investigate a country’s leader, he may in turn alienate the country’s very participation (and that of others) within the ICC’s jurisdiction.”66 However, if the Prosecutor does not investigate the leaders of problematic countries, that does not bode well for the reputation of the ICC, which has been perceived as overlooking the primary orchestrators of atrocities. In fact, Ljuboja states that “the ICC’s legitimacy is most undermined by the absence of prosecutions of state actors.”67

The Darfur situation exposed this paradox. The ICC issued its first warrant against a sitting head of state on March 9, 2009 with the warrant against Sudanese President Omar Al-Bashir on charges of war crimes and crimes against humanity.68 This move “enraged government supporters and alienated African and Arab ICC signatories that [believed] the ICC action [would] only increase tension in Sudan.”69 Specifically, the African Union stated that the ICC was jeopardizing an ongoing peace process.70 The African Union’s call for deferring the process initiated by the ICC was supported by Libya and Indonesia, and was at minimum implicitly endorsed by the United Kingdom and Russia.71 Given the Security Council’s underwhelming response to the African Union’s requests, the African Union reacted with a resolution stating that it:

DEEPLY REGRETS that the request by the African Union to the Security Council to defer the proceedings initiated against President Bashir of the Sudan in accordance with Article 16 of the Rome Statute of the ICC has neither been heard nor acted upon, and in this regard, REITERATES ITS REQUEST to the U.N. Security Council.72

They then clarified that they would not be cooperating in the arrest and surrender of Al-Bashir.73 Since then, Al-Bashir has traveled all over Africa and elsewhere, which constitutes an embarrassment for the ICC.74 In addition to this backlash, Sudan reacted to the warrant by expelling ten foreign aid agencies from its territory, removing sources of necessary sustenance to millions of people in Darfur.75

The African Union’s refusal to cooperate in the arrest and surrender of Al-Bashir is an indictment of how weak the ICC truly is.76 This refusal to cooperate further delegitimizes the ICC, because “the Court is one hundred percent dependent on effective criminal cooperation, on the support of states parties.”77 Judge Kaul states that this structural weakness was by design, as the decision to make the Court weak in its enforcement was a result of “the wish of the Court’s creators that states’ sovereignty should prevail.”78 This is a salient example of the game of whack-a-mole that was created by pivoting toward a state-sovereignty oriented approach to founding the ICC, as it created a whole host of problems regarding the ICC’s ability to enforce the actions it wishes to take. The result has been this legitimacy paradox, where the ICC’s hesitancy to undertake prosecutions against States Parties leaders makes the institution look weak and unwilling, and where any action that is taken by the ICC is met by the refusal of States Parties to cooperate, as well as widespread political backlash.

B. The Prosecutor, The Office’s Power, and Africa

The Prosecutor’s powers granted through the Rome Statute, as well as the behavior of the office, or lack thereof, has been a large driver of the criticism directed at the ICC. While the creation of the Prosecutor with proprio motu powers was a success for state sovereignty in that it provided the opportunity for a Prosecutor independent of the political institutions that had previously run the international show—that is, the Security Council and other powerful states—it came with its own issues.

To expound on the issues with the powers given to the Prosecutor, a look at the United States’ perspective is useful. The United States, standing as a world power that came into the Rome Statute negotiations with a concern that all of its active missions globally as the world’s policeman—which, ironically, prompts its own critiques of the United States’ impingement on other states’ sovereignty—would be a target of the ICC’s ire, took large issue with bestowing this power on the Prosecutor. Specifically, Ambassador Scheffer, in a speech about U.S. Policy on International Criminal Tribunals, emphasized that:

[T]he permanent court must not handcuff governments that take risks to promote peace and security and undertake humanitarian missions […] it should not be a political forum in which to challenge legitimate actions of responsible governments.79

As a side issue, the United States’ refusal to take part in the ICC process once again prompts discussion of one of the greatest impediments to the success of this institution, that is, lack of state cooperation as discussed in the context of the Darfur situation. As Ljuboja posits:

An institution with idealistic goals ambitions and humanistic goals can only be as triumphant as its subparts, and if some of the world’s most populous states, such as the United States, China, and India, choose to be recalcitrant, the ideal of justice remains […] an ideal.80

A further issue regarding the Prosecutor has been the behavior of the office, specifically, the perception that there has been an unfair amount of attention paid to the states on the African continent and not to the rest of the world. Until 2016, when the Prosecutor’s request to investigate the situation in Georgia was granted, all nine active situations were in Africa, and an overwhelming majority of the accused have been African.81 While the tide seems to have been turning with recent developments regarding the Court and the conflicts in the Middle East and Ukraine, it is too early to make an assessment.82 The point stands that for a large majority of the Court’s lifespan, Africa has been the sole focus of the Prosecutor, and this is not for a lack of conflict elsewhere. As laid out by Schabas, “for an institution with jurisdiction over 123 territories of which fewer than a third are in Africa, this is impossible to justify.”83

There is an argument to be made that a majority of these cases have been self-referrals. These referrals have been by Uganda in 2003, the Democratic Republic of the Congo in 2004, the Central African Republic in 2004, Mali in 2012,84 and Gabon in 2016.85 However, using the willingness of these states to utilize the benefit conferred by their ratification of the Rome Statute to argue that they have thrust the attention upon themselves is entirely unfair. The fact that other states are not engaging in the self-referral process “cannot in any way explain why the Prosecutor has tended to neglect the rest of the world.”86

This focus on Africa has continued the legitimacy crisis for the ICC through creating the perception that the Prosecutor has an unfair bias, which is exactly what the finalized agreement on the Prosecutor’s powers was meant to avoid. An institution that is viewed as having any sort of bias at all will struggle from a legitimacy problem as the ICC now does, and this is in conjunction with its weakness from its lack of enforcement mechanisms. The situation in Africa has led to a great amount of backlash and threats towards the ICC, for example, threats by States Parties to leave the Rome Statute, and initiatives to create a regional criminal tribunal.”87

VI. Conclusion

The ICC was the natural through-line of a human rights enforcement narrative that gained popularity and credence with the creation of the ad hoc tribunals. These tribunals, while widely viewed as successes, brought with them large questions of how much power such institutions should be allowed to have in the context of a world of nation-states that jealously guard their sovereignty. As a result, when it came time to negotiate the Rome Statute, many things were done differently in hopes of assuaging the critiques of the ad hoc tribunals, making states confident that ratification would not impede on their judicial powers, and thereby establishing a permanent international criminal court that would operate with the full support and cooperation of the states that created it through the Rome Statute.

However, as often is a case, solving one problem brought up many others for the ICC. The Court still struggles with the lack of participation not only from the world powers that never ratified the Rome Statute to begin with, but with a lack of participation from States Parties that have felt slighted by the Prosecutor’s behavior. There is a real concern of the ICC cannibalizing itself, as it is made up by the States Parties, but in the same vein can also be dismantled by the States Parties if they choose to leave, which is a threat that has been made by many states, especially in Africa.

The conclusion here may be that the existence of a supra-national court that does not step on the toes of nation-states is impossible in a world where sovereignty is so highly revered and protected. Even so, the ICC must be careful in its maneuvering chiefly because of how important it is that it keeps States Parties in its good graces so that they provide the requisite cooperation for it to operate as intended. While indicting heads of state may be a sacrifice that the ICC has to make, the Prosecutor must be careful in their maneuvering and selection of cases so as to operate the office in the most unbiased and balanced way possible.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   International Criminal Court, Understanding the International Criminal Court (Mar. 16, 2021), available online. ↩

2. 2.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 5, available online. ↩

3. 3.

   Alan James, The Practice of Sovereign Statehood in Contemporary International Society, 47 Pol. Stud. 457 (1999), paywall, doi. ↩

4. 4.

   Id. at 457. ↩

5. 5.

   Id. at 463. ↩

6. 6.

   Id. ↩

7. 7.

   Id. at 464. ↩

8. 8.

   Stuart Ford, The Impact of the Ad Hoc Tribunals on the International Criminal Court, in The Legacy of Ad Hoc Tribunals in International Criminal Law 307 (Milena Sterio & Michael Scharf eds., Mar. 14, 2019), paywall, archived, doi. ↩

9. 9.

   Id. at 311. ↩

10. 10.

    Michael J. Matheson & David Scheffer, The Creation of the Tribunals, 110 Am. J. Int’l L. 173 (Apr. 2016), paywall, doi. ↩

11. 11.

    Security Council Resolution 808, U.N. Doc. S/RES/808, Establishment of an international tribunal for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia (Feb. 22, 1993), available online. ↩

12. 12.

    Matheson & Scheffer, supra note 10, at 178. ↩

13. 13.

    Id. at 179. ↩

14. 14.

    Id. at 179–80. ↩

15. 15.

    Security Council Resolution 827, U.N. Doc. S/RES/827 (May 25, 1993), available online, archived. ↩

16. 16.

    Matheson & Scheffer, supra note 10, at 176. ↩

17. 17.

    Id. at 180–81. ↩

18. 18.

    Security Council Resolution 955, U.N. Doc. S/RES/955, On establishment of an International Tribunal for Rwanda and adoption of the Statute of the Tribunal (Nov. 8, 1994), available online. ↩

19. 19.

    Matheson & Scheffer, supra note 10, at 181. ↩

20. 20.

    Id. ↩

21. 21.

    The Prosecutor v. Duško Tadić, IT-94-1-A, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (ICTY AC, Oct. 2, 1995) [hereinafter Tadić], available online. ↩

22. 22.

    United Nations Security Council, S/PV.3453, The Situation Concerning Rwanda (Nov. 8, 1994), available online. ↩

23. 23.

    Updated Statute of the International Criminal Tribunal for the Former Yugoslavia, S.C. Res. 827, Art. 9 (adopted May 25, 1993, as last amended Jul. 7, 2009) [hereinafter ICTY Statute], available online. ↩

24. 24.

    Bartram Brown, Primacy or Complementarity: Reconciling the Jurisdiction of National Courts and International Criminal Tribunals, 23 Yale J. Int’l L. 383 (Jan. 1998), available online. ↩

25. 25.

    Id. at 396. ↩

26. 26.

    Id. at 397. ↩

27. 27.

    Id. ↩

28. 28.

    Id. at 399. ↩

29. 29.

    Statute of the International Tribunal for Rwanda, S.C. Res. 955, Art. 8(2) (Nov. 8, 1994) [hereinafter ICTR Statute], available online. ↩

30. 30.

    Allison Marston Danner, When Courts Make Law: How the International Criminal Tribunals Recast the Laws of War, 59 Vand. L. Rev. 1 (2019), available online. ↩

31. 31.

    Id. at 4. ↩

32. 32.

    Id. at 28–29. ↩

33. 33.

    Tadić, supra note 21. ↩

34. 34.

    Ford, supra note 8, at 318. ↩

35. 35.

    William A. Schabas, An Introduction to the International Criminal Court 11 (5th ed. Feb. 2017), paywall. ↩

36. 36.

    Id. at 17. ↩

37. 37.

    Stojanka Mirceva, Why the International Criminal Court is Different, Global Pol’y F. (Jan. 26, 2004), available online. ↩

38. 38.

    Schabas, supra note 35, at 47. ↩

39. 39.

    K.P. Prakash, International Criminal Court: A Review, 37 Econ. & Pol. Weekly 4113 (Oct. 5, 2002), paywall. ↩

40. 40.

    Schabas, supra note 35, at 52. ↩

41. 41.

    Id. at viii. ↩

42. 42.

    Id. at 52. ↩

43. 43.

    Id. ↩

44. 44.

    Id. at 169. ↩

45. 45.

    Id. ↩

46. 46.

    Id. at 172. ↩

47. 47.

    Hans-Peter Kaul, The International Criminal Court: Current Challenges and Perspectives, 6 Wash. U. Global Stud. L. Rev. 575 (Jan. 2007), available online. ↩

48. 48.

    Jonathan I. Charney, International Criminal Law and the Role of Domestic Courts, 95 Am. J. Int’l L. 120 (Jan. 2001), paywall, doi. ↩

49. 49.

    Mohamed M. El Zeidy, From Primacy to Complementarity and Backwards: (Re)-Visiting Rule 11 Bis of the Ad Hoc Tribunals, 57 ICLQ 403 (Apr. 2008), paywall. ↩

50. 50.

    Ford, supra note 8, at 321. ↩

51. 51.

    El Zeidy, supra note 49, at 408–09. ↩

52. 52.

    Ford, supra note 8, at 319. ↩

53. 53.

    Id. at 318. ↩

54. 54.

    Id. at 319. ↩

55. 55.

    Id. at 320. ↩

56. 56.

    Rome Statute, supra note 2. ↩

57. 57.

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58. 58.

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59. 59.

    Id. ↩

60. 60.

    Id. ↩

61. 61.

    Rome Statute, supra note 2. ↩

62. 62.

    Lana Ljuboja, Justice in an Uncooperative World: ICTY and ICTR Foreshadow ICC Ineffectiveness, 32 Hous. J. Int’l L. 767 (2010), paywall. ↩

63. 63.

    Schabas, supra note 35, at 158. ↩

64. 64.

    Id. ↩

65. 65.

    Id. ↩

66. 66.

    Ljuboja, supra note 62, at 785. ↩

67. 67.

    Id. ↩

68. 68.

    Id. ↩

69. 69.

    Id. ↩

70. 70.

    Schabas, supra note 35, at 167. ↩

71. 71.

    Id. ↩

72. 72.

    African Union, Assembly/AU/Dec.245(XIII) Rev.1, Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court (Jul. 3, 2009), available online. ↩

73. 73.

    Id. ↩

74. 74.

    Schabas, supra note 35, at 38. ↩

75. 75.

    Ljuboja, supra note 62. ↩

76. 76.

    Schabas, supra note 35, at 38. ↩

77. 77.

    Kaul, supra note 47, at 578. ↩

78. 78.

    Id. ↩

79. 79.

    Giovanni Conso, The Basic Reasons for U.S. Hostility to the ICC in Light of the Negotiating History of the Rome Statute, 3 J. Int’l Crim. Just. 314 (May 2005), paywall, doi. ↩

80. 80.

    Ljuboja, supra note 62, at 799. ↩

81. 81.

    Schabas, supra note 35, at 43–44. ↩

82. 82.

    Cassandra Vinograd & Matthew Mpoke Bigg, Few Sitting Leaders Have Faced I.C.C. War Crimes Charges, N.Y. Times, Nov. 21, 2024, available online. ↩

83. 83.

    Schabas, supra note 35. ↩

84. 84.

    Id. ↩

85. 85.

    Mark Kersten, Gabon Refers Itself to the ICC as Others Threaten to Withdraw, Just. in Conflict (Oct. 19, 2016), available online. ↩

86. 86.

    Schabas, supra note 35. ↩

87. 87.

    Id. ↩