The New International Criminal Court: An Uneasy Revolution
reprinted in part in Mark Janis & John Noyes, International Law, Cases and Commentary 418 (3d-6th eds. 2006-20)
95 Pages Posted: 18 Mar 2020 Last revised: 15 Sep 2020
Date Written: 2000
This Article, the principal author of which attended the Rome Diplomatic Conference establishing the International Criminal Court (ICC), explains the establishment of the Court from an historic and geopolitical perspective, and provides one of the first major analyses of the ICC Statute ever published. It explores the main structural features of the ICC, the scope of the Court’s jurisdiction, the state cooperation regime, the difficulties involved in codifying the crime of aggression, and the U.S. negotiating position before and during the Conference. Appended to the Article are 15 uniquely helpful diagrams which set out the complex jurisdiction and operation of the Statute. The Article highlights the “revolutionary” feature of the Statute, including its attempt to circumvent the Security Council, the jurisdictional regime, and the doctrine of complementarity embedded in the Statute. The Article notes that the Rome Conference represented a constitutional moment in international law and that the revolutionary features of the Statute introduce important changes in the international legal order. At the same time, we recognize that the “Rome Revolution” was in no sense an easy one and that the United States resisted it mightily during the Statute’s negotiation. We conclude that the establishment of the ICC as the last great international institution of the Twentieth Century, opened a “window to the future.” Although this future is, as yet, it represents the hope of the states and NGOs who came to Rome that one day the ICC might offer justice to those who suffer from the scourge of war crimes or atrocities that shock the conscience of humankind.
Keywords: International Criminal Court, Constitutional Moment, war crimes, crimes against humanity, international courts and tribunals, security council, United States foreign policy, aggression, united nations, diplomatic negotiations
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