I. Justification for the International Criminal Court (ICC)
The nineteenth and twentieth centuries saw a vast expansion in the areas of international law, especially the laws of war and human rights. At the same time, the Twentieth Century was the bloodiest century of record because the laws of war were not appropriately enforced. The major failings of international law were timely response, equal application and the problems of “victor’s peace” (Shalom, ¶1). Simply put, violators went unpunished.
Recent history has had questionable success when the international community ‘assists’ with ad hoc tribunals (Bertodano, ¶8). The International Criminal Court (ICC) is an attempt to rectify the problem by establishing the first permanent, treaty-based, international criminal court. The ICC will be able to independently guarantee the human rights laid out in the Universal Declaration of Human Rights (1948). In sum, the purpose of the ICC is to promote the rule of law, guarantee human rights and ensure that the gravest international crimes are punished in a timely fashion, regardless of the violator (Bertodano, ¶10).
II. History of war crimes and crimes against humanity adjudication
The ICC is the fulfillment and culmination of the principles established at the Nuremburg Trials. At the trial, US Justice Robert Jackson said that “crimes are committed by people, not abstract entities” (Ku, 161) and therefore individuals are subjects of International Law (IL) and not just objects. This established the principle of personal responsibility. In addition, the Axis criminals were ultimately charged with 1) initiating a war of aggression 2) violation of neutrality and 3) crimes against humanity which included civilians, commerce, and genocide (King, 339). The crimes of genocide and against ‘humanity’ became an area of emphasis in international law. The definitions evolved from relatively simple concepts of murdering civilians to more complicated issues of apartheid and the use of rape as an instrument of war. Simultaneously, the crime of aggression was less defined and, therefore, more divisive.
III. Background and the Creation of the ICC
From the time of Nuremberg, the international community has sought to hold human rights violators and war criminals responsible. The creation of ad hoc war crimes tribunals was used to punish violators from Yugoslavia (ICTY), Rwanda (ICTR), and Cambodia. While these were somewhat successful, the issue was timeliness (Mundis, 142). The ICTY was created by UN Resolution 827 (May of 1993) in response to 1991 war crimes allegations. That is a delay of two years. On the other hand, the Cambodia War Crimes Tribunal has just begun proceedings this year –thirty years after the atrocities (McGirk, ¶1). The ICC should alleviate this delay of justice since the world community need not wait for the creation of a special or ad hoc tribunal (Akhavan, 31). Too often such tribunals have been delayed by various nation-states for ulterior reasons, such as the US government’s use of human rights “to support its own international ambitions” (Stewart, 230). The ICC offers justice less entangled with politics and victims would have a more immediate access to a permanent court. US detractors claim it is an issue of national sovereignty but the real issue is the America ability to micromanage the world affairs by ignoring crimes committed by allies, against areas outside of US concern, or against the US itself. The US, for example, has systematically ignored and often blocked UN investigations of crimes allegedly perpetrated by Indonesia (Nevins, 630), Israel (Cohen, 77), and Russia (Trenin, 1). The US has also ignored humanitarian crises that were outside of traditional American areas of interest. The Yugoslavian and Rwandan genocides occurred almost simultaneously, yet the US was slower to act in Africa than Europe (Fixdal and Smith, 300-301). The US has acted either inconsistently towards other violators and, when accused by other nation-states of being a violator, the US has ignored international opinion such as in Nicaragua v. United States (Malone, 20 and Slomanson, 464).
The ICC came into being on 11 April 2002 after sixty nation-states (now around 100) ratified The Rome Statute. From 1 July 2002 onward, any acts of genocide, war crimes, or crimes against humanity committed after this date can be tried by the Court.
It all began in 1992, when the International Law Commission started work on the idea of an international court (Scheffer, ¶1). This led to an ad hoc UN committee in 1995 to continue the work, and in 1998 the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court issued the Rome Statute of the International Criminal Court. It was the culmination of nearly eighty years of work though some could argue started in 1922 with the now defunct Permanent Court of International Justice (1920). In 1998, the ICC was finally brought to fruition by the vote of 120 to 7 (Leigh, 124).
Even after adoption, further negotiations were needed to be held in order to establish the specific parameters of the new court. Diplomats put a time limit on wary nation-states. All the negotiating nation-states were required to sign the initial treaty before December 2000 in order to participate in the next round of negotiations. Not signing would have meant that while that nation would still be subject to the ICC, but it would not have a role in the decision-making. It was for this reason that the US initially signed the treaty.
IV. Current composition and member states
The ICC has 100 signatories, known as the Assembly of State Parties. These member-states are predominantly European as well as North and South American. There is also a significant cluster of southern African states. In addition to the geographic clusters, it is interesting to note that most of the members states are liberal democracies and a significant number are former British colonies. Inversely, the non-members are predominantly North African and Asian. This overlaps predominantly Muslims parts of the world as well as areas of historically totalitarian governments. In fact Japan, India and the US are the only non-signatories to have a history of democratic elections (perhaps maybe Turkey and recently Ukraine).
A significant number of member-states are also members of other regime institutions, such as NATO, EU, OSCE, WTO, CARIBCOM, NAFTA and the British Commonwealth. Inversely, again, the non-members are more likely to be members of weak organizations such as the Arab League and Commonwealth of Independent States or have a history of isolationism. Another interesting, but hard to interpret, demographic fact is that Europe, Mexico and Nigeria are the only member-states with significant population density [comparison of ICC map (http://en.wikipedia.org/wiki/International_criminal_court) with Columbia University’s world population map (http://sedac.ciesin.columbia.edu/gpw/)%5D. Japan, China, Southeast Asia, Indian Subcontinent, The Caucuses, and Middle East all have greater concentrations of population which does not usually mix well with respect for human rights.
Almost all US allies voted for the ICC. It is not surprising that Canada, South Africa, Australia, Europe), but what might be surprising is the company that US kept in choosing not to ratify the Rome Statute. From the 1995 study of the Strategic Command (Essentials of Post-Cold War Deterrence) to President Bush’s 2003 State of the Union Address, the US has identified Iraq, Iran, Libya, Nicaragua, Cuba and North Korea as “rogue states” (Chomsky ¶27, 28 & 34). The US State Department lists Belarus, Burma, Cambodia, China, Cote d’Ivoire, Cuba, Iran, Nepal, North Korea, Russia, Syria, Sudan, Uganda, Venezuela, and Zimbabwe as of the worst violators of human rights. The US also more carefully pointed out violations by Azerbaijan, Burundi, Democratic Republic of Congo, Egypt, Ethiopia, Indonesia, Kazakhstan, The Kyrgyz Republic, Lebanon, Liberia, Pakistan, and Uzbekistan. These six rogue nations, fifteen major human rights offenders, twelve minor violators, and the USA account for almost half of the hold-outs to the ICC. Other non-signers include Syria, Israel, Morocco, Saudi Arabia, Yemen, Angola, Turkey, and India who are all facing serious accusations of violating human rights. In fact, almost every country that has not signed the ICC treaty (except Japan) currently has significant human rights accusations against them.
Why did we join these questionable other nation-states in not signing the Rome Statute? At nearly every signing of a Congressional Bill, the every President states something similar to the following: “There’s no such thing as a perfect bill” (Bush, ¶22). And yet, the President signs the bill. Instead of negotiating with representatives from 50 parts of the same country, diplomats working on the Rome Statute negotiated with representatives from 127 countries. One hundred and twenty of those representatives (95%) then approved the treaty. In announcing US withdrawal from the treaty process, the US called the ICC a “flawed statute” (Grossman, ¶13). Why sign ‘flawed’ bills and not ‘flawed’ treaties? If there is no such thing as a perfect bill, is it responsible to believe that a perfect treaty is possible?
V. The Structure of the ICC
The International Criminal Court is composed of “four organs,”including the Presidency, the Chambers, the Prosecutor and the Registry (http://www.icc-cpi.int/organs.html). The Chambers, which is the formal name of the court, is divided into three parts: Pre-Trial, Trial and Appellate (http://www.icc-cpi.int/organs/chambers.html). The Registry is the adminstrative section of the organization (http://www.icc-cpi.int/organs/registry.html). The Presidency is comprised of the President, First Vice-President, and Second Vice-President who are elected from the eighteen judges of the court to administrate the ICC organization and coordinate the processing of cases with the Prosecutor (http://www.icc-cpi.int/organs/presidency.html). There are four methods in which a cases may be referred to the ICC: 1) a member nation-state of the Assembly of States Parties refers the case; 2) a country that has chosen to accept the ICC’s jurisdiction refers the case; 3) the UN Security Council refers the case (subject to veto from the permanent five members); or 4) a three-judge panel authorizes a case initiated by the ICC Prosecutor (http://www.icc-cpi.int/organs/otp.html).
A case is a formal complaint that a person or state has committed ‘massive and substantive’ human rights violations or war crimes. One of the controverial crimes is the undefined “crime of aggression.” The ICC treaty can, and is expected to be, amended to include definitions and other crimes, but no amendments can be made to the Rome Statute for seven years after establishment (2009). By choice, the ICC has decided not to exercise jurisdiction over the crime of agression until the crime has been further defined.
The most important and controversial ‘organ’ of the ICC is the Office of the Chief Prosecutor of the ICC. The Prosecutor receives complaints of violations, decides which cases to pursue and can initiate independent investigations with the assent of two ICC judges (http://www.icc-cpi.int/organs/otp.html).
After being elected unanimously as Chief Prosecutor in 2003, Argentinian Luis Moreno Ocampo, has investigate complaints against the Democratic Republic of Congo, civil war in Uganda, and the genocide in Darfur (http://www.icc-cpi.int/otp/otp_bio.html). The Central African Republic and Coit D’Ivoie have also both refered themselves to the ICC, but the Chief Prosecutor has not yet decided whether to open an investigation into this matter. He also has not made a decision whether to investigate a 2004 compaint by Georgia accusing Abkhazia of ethnic cleansing. More recently, in 2005, both Burundi and Columbia were referred to the ICC by the Unted Nations Secretary General who said parties within those countries were using child soldiers or committing war crimes against children (http://www.icc-cpi.int/cases.html).
After the US and Allied invasion of Iraq (2003), the Chief Prosecutor also received hundreds of submissions of war crimes allegations. Moreno-Ocampo organized these complaints into two sets: those that argued the invasion itself was an illegal war and those that cited specific incidents. In early 2006, the Chief Prosecutor concluded that he did not have authority to consider the complaint about the legality of the invasion and that he did not have sufficient evidence for proceeding with an investigation of specific alledged war crimes. In addition, Moreno-Ocampo pointed out that the alleged war crimes probably did not meet the threshold demanded by the Rome Statutue to trigger an ICC investigation. (http://www.icc-cpi.int/library/organs/otp/OTP_letter_to_senders_re_Iraq_9_February_2006.pdf)
VI. US Membership
Originally, The United States was interested in the creation of an international criminal court. One of the chief US participants in the discussions, David J. Scheffer, said, “A permanent court would be more cost‑effective and ensure uniformity in the evolution of case law. It would also serve as a more effective deterrent than the uncertain prospect of costly new ad hoc tribunals.” He also cited US President Bill Clinton’s public support for a permanent international court on six separate occasions prior to the Rome Conference (Scheffer, ¶5). The problem was that the US had a very different idea about the jurisdiction of the proposed court than many other states. The US wanted to exclude international drug trafficking, international terrorism and either exclude or limit the definition of the crime of aggression. The US succeeded in negotiating the stance that any person accused of aggression must be one “who is in a position of control or capable of directing the political or military action of a State” (Scheffer, ¶8).
It is this definition of aggression and the powers of the prosecutor that were the primary American objections. The US did not want the prosecutor to be able to initiate cases with out outside referral, specifically from the Security Council. This is one of the main objections that the US has with the ICC. The US believes that its veto-power on the Security Council protects US sovereignty. With independent initiation of cases, Scheffer was afraid the US would be vulnerable because “The US has special responsibilities and special exposure to political controversy of our [US] actions” (Scheffer, ¶1).
The US did successfully argue a number of positions that were accepted into the ICC treaty. Article 7 states that ‘crimes against humanity’ means any one of a number of listed acts “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” (Article 7 of the Rome Statute). The US also insisted on a “high threshold” which means the violations must be multiple, massive, systematic “pursuant to or in furtherance of a state or organizational policy to commit such an attack” (Ibid). In the Preparatory Committee the US had also introduced the definitions for most of the particular crimes against humanity, which, following much negotiation in Rome, were set forth in Article 7 (Scheffer, ¶16 ):
• Deportation or forcible transfer of population
• Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law
• Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
• Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court
• Enforced disappearance of persons
• The crime of apartheid
• Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
Key US contributions to the ICC also included adding crimes against women to the list of crimes, the funding of the court through the ICC’s Assembly of State not the UN (unless the case is referred by UN), the protection of national security information, and a high threshold for the court’s jurisdiction over war crimes (the argument being that isolated crimes by individual soldiers should not automatically trigger the ‘massive machinery’ of the ICC). US also supported defining crimes against humanity as including crimes committed during “an internal armed conflict and crimes occurring outside any armed conflict (such as an internal wave of massacres)” (Scheffer, 18 & 19¶).
Regardless of the volume of American input, US membership was stymied by issues of jurisdiction and sovereignty. The US wanted the ICC to “defer to national jurisdictions;” specifically, that as stated in Article 17 and 19 of the Rome Statute, the ICC is complimentary nature and does not replace domestic courts. Still, with all these negotiations, the verdict was still out as to whether the US would sign and/or ratify the treaty.
In the end, US President Bill Clinton signed the treaty, but recommended that his successor, George W. Bush, not submit the treaty to the Senate for ratification (a recommendation with which Bush concurred). In his statement while initially signing the ICC treaty, President Clinton stated:
In signing, however, we are not abandoning our concerns about significant flaws in the treaty. In particular, we are concerned that when the court comes into existence, it will not only exercise authority over personnel of states that have ratified the treaty, but also claim jurisdiction over personnel of states that have not. . . .
Court jurisdiction over U.S. personnel should come only with U.S. ratification of the treaty. The United States should have the chance to observe and assess the functioning of the Court, over time, before choosing to become subject to its jurisdiction. Given these concerns, I will not, and do not recommend that my successor submit the Treaty to the Senate for advice and consent until our fundamental concerns are satisfied. (Associated Press)
As mentioned earlier, one of the two main issues that doomed US ratification is the issue of aggression. When the crime of aggression was reinserted into treaty without a definition and without the linkage to a prior UN Security Council determination, the US balked at submitting the treaty for ratification (Scheffer, ¶36). More recently, the Bush Administration has continued these arguments of the Clinton Administration. Specifically, the Bush Administration believes that the ICC “undermines the role of the United Nations Security Council in maintaining international peace and security, creates a prosecutorial system that is an unchecked power and asserts jurisdiction over citizens of states that have not ratified the treaty, thus threatening US sovereignty” (Grossman). Unfortunately, though, the UN does not do a complete job of maintaining peace. The French government used their position on the Security Council to squash investigations into the Rwandan genocide (Dellaire, 861 and Stanton, 212). Similarly, UN soldiers (with more loyalty to their nation-state than the UN) failed to report the early complaints of genocide in Yugoslavia (Gutman and Rieff, 363). In any case, the fact that the crime of aggression was reintroduced into the text of the treaty was the first nail in the coffin.
The US also argued that “A fundamental principle of international treaty law is that only states that are party to a treaty should be bound by its terms” (Scheffer, ¶25). The US believed that there should be an “opt‑out” clause to the Rome Statute. It was originally proposed by the International Law Commission in 1994 and the US proposed it be reincorporated into the ICC treaty for crimes against humanity and war crimes. The US accepted universal jurisdiction for genocide (but of course, it had already accepted such jurisdiction in the CPPCG). It was the position of the US that war crimes and crimes against humanity had to be referred to the ICC through the UN Security Council or by treaty-states and not universal jurisdiction (Scheffer, ¶31-34). The US also insisted that the state of nationality of an accused violator of human rights or war crimes must agree to ICC jurisdiction. The failure to adopt the US position against universal jurisdiction was the second nail in the coffin.
Bush administration officials have further argued that nullifying the U.S. signature to the treaty means the United States will not be bound by the ICC’s jurisdiction or have to follow any of its orders. The US also refuses to recognize the ICC’s jurisdiction over US nationals in an ICC-treaty state. This position seems to contradict not only Customary International Law but also US Chief Justice John Marshall’s decision in which he said, “The jurisdiction of the nation within its own territory is necessarily exclusive and absolute” (Leigh, 128). If an American commits a crime within an ICC-treaty state, it is the exclusive choice of that nation-state to determine the jurisdiction, not the US. One the other hand, Col. Daniel Smith points out that, even as only signatorie, the United States could pre-empt ICC jurisdiction by investigating any charges against U.S. citizens (Smith, ¶9). Of course, it becomes more confusing if the US investigates, concludes there is no wrongdoing, and then the ICC begins its own proceedings. This complication of dual legal systems, however, is no different than the overlapping of Federal and State jurisdictions. It also lends itself to creating an intrgrated system between International Law and Municiple Law.
Still another angle of the sovereignty-universality debate is the notion of sovereign immunity. According the ICC website, “Anyone who commits any of the crimes under the Statute after this date [July 1, 2002] will be liable for prosecution by the Court” (http://www.icc-cpi.int/about.html). From the American government’s point of view, this is unfortunate because the US believes this language of the Rome Statue is inherently flawed. The US believes that the ICC will undermine American sovereignty immunity. This belief, as well as other objections already mention, is explained by Stephen J. Hadley, US Deputy National Security Advisor:
The U.S. has a number of serious objections to the International Criminal Court. Among them are the lack of adequate checks and balances on the powers of the ICC prosecutor and judges, and the lack of any effective mechanism to prevent the politicized prosecution of U.S. citizens…Despite these objections, the ICC has now come into being, with many of America’s closest allies as strong supporters. All the USA asks is that its decision – and U.S. sovereignty – be respected. (http://usinfo.state.gov/dhr/Archive_Index/tribunal_threat.html)
This rhetoric of demanding respect for US sovereignty is ironic because, at the same time international law has been evolving, the Federal government has been inversely losing the right to sovereign immunity. In 1946 the Federal Tort Claims Act allowed limited suits against the United States and, on February 22, 2006, the United States Supreme Court extended that to include even the Postal Service (Dolan v. Postal Service, 2006). If the US government is no longer afraid of or protected from lawsuits from the 285 million Americans, by what logic would it make sense to be afraid of and necessitate protection from the 192 other countries in the world?
A final component of sovereignty-universality is bindingness. Is the ICC mandatory binding law on all nation-states? The US believes it is not. The United States argues that the ICC is binding only on ratifying nations. However, the fault with this perspective is that the legal concept of opinio juris et necessitates creates binding international law regardless of whether states are parties to the treaty. In fact, while the US cites Article 34-38 of the Vienna Convention of the Laws of Treaties, the same treaty recognizes that some treaties are binding regardless under the concepts of jus cogens (Article 53 of the VCLT)(Slomanson, 365).
The ICC and its supporters believe the ICC is universally binding. They believe that Customary International Law has established human rights protection as erga omnes (an obligation which every nation-state has). As of November 2005, 100 of the 192 nation-states of the world have ratified the Rome Statute. This majority has declared the ICC to be opinio juris et necessitatis and binding on all nation-states, whether parties to the agreement or not. Given the majority, declaration of universality, the structured organization of the ICC, as well as the establishment and existence of the ICC, the ICC is universally legally binding per the requirements set forth by Oxford International Law Professor Ian Brownlie (Slomanson, 14).
As a result, the US has made two strategic moves to protect its interests concerning the ICC. In 2002, the U.S. Congress passed the American Servicemembers’ Protection Act (2002) which contained a number of provisions, including prohibitions on the US providing military aid to countries which had ratified the treaty establishing the court (exceptions granted), and permitting the President to authorize military force to free any U.S. military personnel held by the court. [It is also called the “The Hague Invasion Act” by ICC proponents and is a clear violation of the UN Treaty Article 2.4, The Declaration on Principles of IL concerning Friendly Relations in Accordance with the Charter of the UN (1970) and Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations (1987)] In addition, the U.S. has also signed several “Bilateral Immunity Agreements” or “Article 98 agreements” with other countries (International Helsinki Federation for Human Rights, ¶1 & 3). These treaties prohibit the surrender of current or former government officials, military personnel, U.S. employees (including non-national contractors) and nationals to the ICC. The hypocrisy seems to be the rejection of universal international jurisdiction at the same time that the US has extended universal US jurisdiction [Filártiga v. Peña-Irala, (2d Cir. 1980), and most recently in Kadic v. Karadzic (2d Cir. 1995) and Ungar v. PLO (1st Cir. 2004)]. Furthermore, the bilateral treaties themselves have questionable legality (HRW, 3). If a nation-state has ratified the Rome Statute and a bilateral treaty with the US, the issue becomes which treaty has more bindingness. If an American is indicted by the ICC court and is in the custody or jurisdiction of an ICC-signing state, then that state must turn the American over to the ICC. The ICC has jus cogens and therefore stronger bindingness on the state in question (Bassiouni, 58). Simply put, as Slomanson points out, “a treaty is void if it is in conflict with a peremptory norm of IL” (Slomanson, 364).
International Law has evolved into a complex system of customary international laws that govern conflict (rules of war) and protect basic human rights. Violations of these international norms are called crimes against humanity and/or warcrimes. Beginning in the 1990s, most nation-states agreed it was time to establish a permanent court to adjudicate violators. US negotiator David Scheffer agreed that said, “A permanent court would be more cost‑effective and ensure uniformity in the evolution of case law. It would also serve as a more effective deterrent than the uncertain prospect of costly new ad hoc tribunals.” One-hundred and sixty nation-states outlined the idea of a world court in the 1998 Rome Statute. One-hundred and twenty of those nations signed the treaty and a hundred have since ratified the agreement. The ICC is an expression of international law. Regardless of President Bill Clinton’s recommendation and President George W. Bush’s decision not to ratify, the treaty still exists. The self-perpetuating momentum which international law has created indicates that there are and there will be limits to nation-state sovereignty. There are also significant institutional mechanisms to prevent abuse. The United States has willingly entered into military (NATO) and monetary (Breton Woods) regimes that involve cooperation and integration. It is inconsistent for the US not to be part of a legal regime. There is no such ‘thing’ as a perfect bill or a perfect treaty. The United States must take an active role and position of leadership in the International Criminal Court.
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