International Crimes, Peace, and Human Rights: The Role of the
International Criminal Court. Edited by Dinah Shelton. Ardsley, NY: Transnational Publishers, 2000. 370 pp.
Few international organizations have generated the degree and depth of controversy that the International Criminal Court (ICC) has over the past few years. After an extremely long gestation period—a permanent court was proposed immediately after World War II—the statute of the Court was finally ratified under the consensus of the majority of United Nations member states in 2001. Yet, no sooner had ratification occurred than the United States withdrew its support for the Court. Of primary concern for the Bush administration was whether deployed U.S. soldiers and their leaders could be held accountable by the ICC regime. In light of the recent U.S-led war against Iraq and the subsequent legal actions taken by private citizens against U.S. military leaders in Belgian courts, this concern is arguably less misplaced than pundits originally deemed. Attention has returned to the ICC and its projected role in the international arena. A timely text for consideration is Dinah Shelton’s collection of essays.
Shelton’s volume is broken into four parts, with three to seven essays in each part. Part I, “Precedents and Their Lessons,” examines how the experiences of Nuremberg following World War II, and the more recent International Criminal Tribunals in Rwanda and Yugoslavia, have shaped the ICC. Part II, “A Merger of International Criminal Law, Humanitarian Law, and Human Rights Law?” explores a variety of concerns, including an Asian perspective and a woman’s issues perspective. It also looks at possible implementation issues and how different types of law, including human rights law and international humanitarian law, relate to the ICC. As such, the volume draws upon a number of differing (albeit all legal) perspectives, all of which are sympathetic to the establishment and operation of the ICC. No one offers or defends the second Bush administration’s position that U.S. membership in the ICC is not in the best interests of the U.S. The general treatment of law suggests a coherence between international law and human rights law that is often evasive in the real world. But it does at least show the complexity of the issues that lay before the future operations of the ICC.
Essays in Part III, “International Public Policy and the ICC: Accountability, Deterrence, and Redress,” consider the “internal concerns” of the ICC, including forms of amnesty, penalties, and reparations. Part IV, “Problems of Jurisdiction and Effectiveness,” explores how the ICC fits into the international setting, with attention devoted to the ICC and United States, sovereignty rights of non-parties, and some misconceptions about the ICC.
Shelton’s collection covers topics that have generated a good deal of controversy as well as several that are relatively free of dispute. However, its focus is on what lawyers think about the court and its issues—all but one contributor are lawyers and law professors. Speaking as a law student, such an orientation does not always provide the most balanced approach to considering a problem, its aspects, and solutions. Clearly the purpose that the ICC serves is the good of the international community and its peoples. Accordingly, it would have been helpful to draw upon other professionals and people from non-legal fields to provide a diversity of views and a more balanced treatment of the ICC. This would make the volume more accessible to the general reader, rather than the relatively narrow audience of law professors and select practitioners the volume addresses.
Perhaps the most interesting and readable essay is the lead one by former Nuremberg prosecutor, Benjamin Ferencz. Drawing upon his own personal experience of pursuing and prosecuting the Einsatzgruppen case (these were the extermination squads that followed German troops and slaughtered civilian Jews and Gypsies). He argues that the best way to prevent war crimes is to prevent war. In the absence of prevention, Ferencz argues for the ICC on the basis of lessons learned from Nuremberg. That tribunal led to better respect for human rights, as the result of both the recognition of the crime of genocide itself, and fear of punishment for engaging in it. It also led to the drafting of the Universal Declaration of Human Rights and to the transformation of certain crimes—namely those against humanity and aggressive war criminal acts—into positive law. Ferencz rejects criticism that such law violates ex post facto principles—punishing people for illegal acts not known to be illegal. Who does not know that it was illegal to murder several million innocent people, including women and children, because of their color, age, race, or religion? What was done in the International Military Tribunal and reinforced in twelve subsequent trials is the basis for the ICC: to hold individuals responsible for their criminal acts. And without a doubt, that is argument enough for an international criminal court.
John D. Becker, University of Denver.