Benjamin N. Schiff. Building the International Criminal Court. Cambridge: Cambridge University Press, 2008. xiii + 304 pp. $85.00 (cloth), ISBN 978-0-521-87312-3; $25.99 (paper), ISBN 978-0-521-69472-8.

Reviewed by Karen Costa (Graduate Institute of International and Development Studies, University of Geneva)
Published on H-Human-Rights (April, 2009)
Commissioned by Rebecca K. Root (Ramapo College of New Jersey)

The ICC and the Fight against Impunity

In this innovative and multidisciplinary book, Benjamin N. Schiff provides a detailed account of the origin of the International Criminal Court, its raison d’être, the difficulties faced by the court, and how it has so far dealt with them. He skillfully examines the historical context that led to the court’s creation, legal provisions and compromises found in the Rome Statute, and the political factors affecting the court’s operations. In addition, the book combines analysis of the vast literature on the subject together with international relations theory and first-hand information obtained in interviews conducted by the author during his one-year research stay in the Netherlands.

The first chapter recalls the path leading to the establishment of the ICC. The chapter assembles the historical episodes and international legal instruments which have brought individual criminal responsibility for international crimes into focus. It also indicates the difficulties of accommodating different justice paradigms--such as (old) retributive and (new) restorative justice. This is especially difficult in the context of transitional justice, when often fragile states respond to the legacy of serious international crimes. The author celebrates the historical achievement the establishment of the ICC amounts to, while pointing out inevitable dilemmas the court will face when implementing its ambitious statute. 

An outline of the contribution provided by the two ad hoc tribunals for the former Federal Republic of Yugoslavia and Rwanda is presented in chapter 2. Although critics perceive both ad hoc institutions as late responses by an international community that was unwilling to take effective and timely action to prevent or halt atrocities, there is little dispute as to their enormous contributions to the development of international criminal justice. Furthermore, both tribunals have taught the ICC many lessons from their own successes and failures. The ICC's attention to gender crimes, oversight mechanisms and earlier outreach strategies, reconciling common and civil law systems, and balancing retributive and restorative justice reflects these lessons.

Chapter 3 provides a detailed account of the preparation of the Rome Statute. The author uses elements of different international relations theories (namely constructivist, realist, and neoliberal institutionalist theories) to frame states’ support for or resistance to creating and joining the ICC. Furthermore, the author recalls the most relevant topics dealt with during the preparatory sessions leading to the adoption of the Rome Statute. Schiff provides an instructive overview of the controversial issues of jurisdiction, admissibility criteria, UN Security Council intervention, victims’ concerns, and the range of crimes covered by the statute. Two main points stand out. First, compromises were the price paid for the long-delayed establishment of a permanent international criminal court. Second, although states agreed to create an international tribunal to deal with certain international crimes, national sovereignty concerns permeated the debate and were finally accommodated under the complementarity principle.

Major challenges in the setting-up phase of the ICC are covered in chapter 4. Internal disputes have affected different court organs and are reflected in the role and limits the statute imposes on them. Outside the court, donor pressure has started to be noticed, signaling that patience and generosity are in short supply.

Chapter 5 illustrates the close relationship between the ICC and NGOs. NGOs’ crucial input included active participation during the preparation of the Rome Statute to argue for the inclusion of gender crimes and for enhanced protection and participation of victims and witnesses, as well as campaigning for its ratification and the adoption of implementing legislation by states' parties. Furthermore, ICC field operations have largely benefited from community-based NGOs. The relationship is not without disputes, however. As a permanent judicial and independent institution, ICC operations are confined to the provisions of the Rome Statute, whereas NGO agendas sometimes conflict with court’s actions, especially in matters related to peace and justice.

The relationship between the court and states is covered in chapter 6, which groups states as either supporters or opponents. Schiff provides a detailed analysis of the U.S. opposition to the court. He argues that whereas supporters are motivated by the shared ideal of fighting impunity worldwide, opponents base their position primarily on sovereignty concerns.  

The final chapter assesses the four sets of cases currently under scrutiny by the court, namely those pertaining to Uganda, Democratic Republic of Congo, Central African Republic, and Sudan. It provides the reader with lively accounts of the first decisive steps taken by the court, steps that will significantly shape its future. The self-referrals of the three first situations by national governments are cautiously evaluated, since they might amount to a potential instrumentalization of the court by actors pursuing their own political agendas. All the cases provide evidence of the considerable difficulties the court faces (lengthy investigations, choices about the subjects to investigate and the range of charges to be brought, etc.), that have the potential to "make or break" it. Nevertheless, despite all the challenges detailed, the book provides an optimistic view of the role of the ICC in the international criminal justice system.

Those interested in international organizations in general will find this book very useful, since it covers one of the most ambitious international organizations from its early days. All the major challenges faced by international organizations are dealt with, among them the questions of efficiency, good management, and efficacy. Moreover, particular challenges faced by the ICC as an institution aiming to provide judicial response to serious international crimes are reviewed, especially the lack of states’ cooperation. Equally, those who are interested in the day-to-day activities of the court will find invaluable insider insights here. 

One topic that deserved further examination is the relationship between the court and the UN system as a whole. Although insightful accounts of the role played by the Security Council are provided, the impact ICC action might have on broader UN activities, especially humanitarian operations, is not covered closely. The unfortunate recent developments in Sudan, in which President Omar al-Bashir has responded to the issuing of an arrest warrant against him by the ICC by ejecting humanitarian NGOs working as UN implementing partners, demonstrate the need to address this real challenge.

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Citation: Karen Costa. Review of Schiff, Benjamin N., Building the International Criminal Court. H-Human-Rights, H-Net Reviews. April, 2009.
URL: http://www.h-net.org/reviews/showrev.php?id=23772

This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License.