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by William A. Schabas

As the International Criminal Court ushers in a new era in the protection of human rights, William Schabas reviews the history of international criminal prosecution; the drafting of the Rome Statute of the International Criminal Court and the principles of its operation (including the scope of its jurisdiction and the procedural regime). This revised edition considers the court's start-up preparations, including election of judges and prosecutor. It also addresses the difficulties created by U.S. opposition, and analyzes the various measures taken by Washington to obstruct the Court. First Edition Hb (2001): 0-521-80457-4 First Edition Pb (2001): 0-521-01149-3
Download An Introduction to the International Criminal Court epub
ISBN: 0521830559
ISBN13: 978-0521830553
Category: Politics
Subcategory: Politics & Government
Author: William A. Schabas
Language: English
Publisher: Cambridge University Press; 2 edition (April 26, 2004)
Pages: 494 pages
ePUB size: 1174 kb
FB2 size: 1979 kb
Rating: 4.4
Votes: 949
Other Formats: txt rtf lit docx

For this reviewer, who is definitely not a legal expert, this book was read with the goal of understanding to what extent pre-emptive wars can be viewed as `legal', to discover the reasons why the United States chose to withdraw its participation in the International Criminal Court, and to gain basic knowledge on the tenets and origins of international law in order to find out if indeed the current conflict in Iraq could be viewed as a `war crime' or some other severe violation of international law. Before reading this book, this reviewer was very unknowledgeable about legal concepts and reasoning in the context of international law, and had the opinion that international legal agreements were very fragile and tenuous. This view did not really change after reading the book, but its perusal did offer a few surprises and was thought provoking to a large degree. Like most legal treatises, this book suffers from the typical `tyranny of the footnote' that accompanies legal or history books. This minor annoyance that causes the flow of the reading to be disrupted is perhaps compensated by the need for the reader to know that the sources are available and that they can be checked if necessary.

Readers who are not legal experts will no doubt think of the Nuremberg trials as being the best representative of what an international court can accomplish given the jurisdiction. Their biases in this regard are in fact true as is brought out many times in the book, particularly in the discussion on genocide and `crimes against humanity', which the Nuremberg trails were set up to deal with after the second world war. The word `genocide' apparently originated with Raphael Lewkin in 1944. Lewkin wanted to make sure that crimes against groups were prosecuted. It was later adopted in 1946 by the Nuremberg prosecutors and declared an `international crime' by the General Assembly of the United Nations. Genocide was to be distinguished from `crimes against humanity' since the latter was only to hold in the context of an international armed conflict. The author argues that the distinction is not really significant today, with `crimes against humanity' now referring to atrocities committed in wartime and in peacetime. However, genocide is to be distinguished from `crimes against humanity' and `war crimes' in that it must be committed with the `intent' of destroying a national, ethnic, racial, or religious group. It is this `special intent' the author argues, that makes genocide different from the other two crimes.

According to the author, the designation of an activity as a `war crime' began with the 1907 Hague Convention IV and was refined in the 1919 Commission on Responsibilities. From then on says the author, "there is little argument about the existence of war crimes under international law." The Nuremberg charter listed as a war crime the murder or ill treatment of prisoners of war, the killing of hostages, the wanton destruction of cities, villages, or towns, and devastation not justified by military necessity, among other activities. In reference to this, it would seem that the war in Iraq should be labeled as a war crime given that some of the activities to date in this war do satisfy these criteria. In addition, the fire bombing of Tokyo and Dresden, and the atomic bombing of Hiroshima and Nagasaki could be classified as war crimes according to the Nuremberg charter.

Of all the characteristics of the International Criminal Court, its jurisdiction is the most problematic. Its creators were very ambitious in their goals, for it was to have the most general scope and application of any international body to date. The author emphasizes that its creation rests on the voluntary participation of countries that decide to be subject to its jurisdiction. The ICC though has a narrower jurisdiction than the individual countries that participate in it. The drafters were careful to grant the individual countries the first crack at the prosecution of certain crimes. If the domestic justice system is `unwilling' or `unable' to prosecute then the ICC can take over. The author refers to this as `admissibility' in the book, which is to be distinguished from jurisdiction. Jurisdiction refers to the `situation' in which a crime has been committed, whereas `admissibility' refers to the proper identification of a `case' that can be taken up by the ICC. The jurisdiction of the ICC though can be prevented by the UN Security Council, this being called `deferral' by the author, and was put in so that the ICC would not be able to act effectively as no veto on issues brought to the Security Council.

When reading the book one is struck by the extreme fragility of international law and the difficulties needed to enforce it. The author describes the statutes of the Nuremberg, Tokyo, Yugoslavia, and Rwanda tribunals as being "very thin" when viewed in the context of criminal law. These tribunals allowed the judges much discretion, but the ICC under the Rome statute attempted to limit judicial discretion to a very large degree. The ICC was to draw on many sources of legal doctrine in order to define the general principles upon which it was to operate. As examples, the author quotes Romano-Germanic and Sharia forms of penal justice, reflecting of course the international character of the ICC, and the diversity of the states that elect to be under its jurisdiction.

In the opinion of this reviewer, the best feature of the International Criminal Court is its insistence on trying and punishing individuals, and not states, or other "abstract entities" like corporations (although corporate liability was debated considerably by the delegates according to the author). Commanders who order their subordinates to carry out war crimes or do not act to prevent them are particularly culpable. Without such an international legal body, disputes or grievances between states will be settled by the use of military power. The victor will have no one to answer to, regardless of the heinous acts it committed to win.
I have the first edition of this book (2001) and I would like to point out that the bulk of it consists of three appendices: the Rome Statute, Elements of Crimes and Rules of Procedure and Evidence. These three documents are public information and make up over half the book (218 pp.). The original content of the book is only 164 pp. which would be a much smaller book on its own. Of course the content is of good quality. Looking at the table of contents of the third edition, it seems the original content has really expanded with the development of the court. So make sure you get the edition that you order on amazon!
As you have seen people here already have reviewed this book. I'll be very brief and just say that if you are interested in ICC this is your book!!! I will just say about the quality of the book: it's paper quality is very good, its not short, it's a bit wider than average books and for that reason it's not very thick, so you can carry with you and don't feel unfomfortable. In every sense, a great book....
I have attended author's lectures at Strasbourg. This book is a nice historical introduction about the ICC. I guess after the court is established and the Judges settle down on their chairs and volumes of case laws come out in Report form -- till then this book is a must read for everyone interested in this field.