lets look at a little bit of the proccess to create the ICC. Here is a snippit from
The New Diplomacy
By David Davenport http://www.policyreview.org/dec02/davenport.html
It is instructive to note how the International Criminal Court would have been different had the new diplomacy not hijacked the process in Rome and had the approach developed by the International Law Commission prevailed. For one thing, the jurisdiction of the court would have been more clearly defined and carefully delimited. There would have been no independent prosecutor deciding on his or her own initiative which cases to pursue. Instead, jurisdiction would have been based on state consent or U.N. Security Council approval. The crime of aggression, left open-ended and undefined in the Rome Statute, would have been tied to a finding of aggression by the Security Council. And there certainly would have been more time and opportunity under the traditional approach to iron out difficult issues and reach consensus. Significantly, the court proposed by the ilc doubtless would have enjoyed the support of the United States and other powers, affording greatly enhanced resources, power, and reputation.
As in the Ottawa Process, however, single-minded ngos, supported by like-minded nations such as Canada, most of the European Union, and some African states, were determined to have a different kind of court. An independent prosecutor and relative freedom from what many viewed as the outmoded U.N. Security Council were their articles of faith. The ngos and like-minded states also sought wide latitude for an ?Assembly of States Parties? to oversee the court, allowing it to expand crimes or add new ones by a two-thirds vote. Inclusion of the crime of aggression, not well defined by customary international law, became a further point of contention between those who favored the ilc model court and the practitioners of the new diplomacy.
A study of those who led the icc new diplomacy reveals remarkable parallels with the Ottawa Process. Once again, a thousand nongovernmental organizations came together under a master ngo, the Coalition for the International Criminal Court (cicc). As in Ottawa, the ngos were central players, involved in setting the agenda, drafting documents, and lobbying delegates. Indeed, there were frequent private meetings between the ngo and like-minded states? leadership throughout the process. Each viewed the other as indispensable to the success of the new diplomacy.
The tools of the new diplomacy became more sharply honed in the icc process. Speed was again a key, as the leaders sought to leave the five-week Rome conference with an approved treaty and then undertook to complete the ratification process in record time. Self-imposed deadlines, almost unheard of in the slow, deliberate world of customary international law, limit the opportunities for dissent and compromise.
In Rome, the haste was such that drafts were not reviewed by appropriate committees and the final proposal was not distributed until the early morning hours of the final day. Unable to agree upon a definition for the crime of aggression, the conference decided to include it anyway and complete the definition later.
A second tactic of the new diplomacy in Rome was bundling the key elements of the court into a package that became a take-it-or-leave-it proposal, not subject in the end to further compromise. Although the rhetoric of the new diplomacy favors ?open? and ?transparent? processes, the chairman held drafts very close to the vest. Late in the day, he presented ?the package,? as it became known, from which the ngo and like-minded leadership would not move. One diplomat complained that the U.N. charge to find wide agreement could well have been reached, but instead there was only ?the package.? Additionally, the Rome Statute provided no possibility of a nation signing ?with reservations,? reflected in the Vienna Convention on the Law of Treaties as a standard part of international treaties, which reinforced the yes-or-no stance of the new diplomacy?s leadership. As with the element of time deadlines, such a nonnegotiable approach is most out of character with the thorough, consensus-based processes of international law.
A third tool in the new diplomacy kit replaces the consensus-based approach of customary international law with a straight vote of nations. Indeed, the bar for approval of the Rome Statute was set remarkably low, with the court to be approved upon ratification of only 60 nations out of 189 in the United Nations. For a court that purports to have worldwide jurisdiction, even over citizens of countries that do not sign the treaty, this is a narrow base of approval. Further, such a process takes no account of geographic representation, population base, or strategic considerations, but simply relies upon a one-nation-one-vote approach. The International Criminal Court went into effect on July 1 with fewer than half the nations of the world ratifying it, representing considerably less than half the population of the world. Strategic powers including not only the United States, but China, India, Japan, and Russia were all absent, while the total ratification number was padded with small states that traditionally play little part in international affairs.
Yet another tactic of the new diplomacy is a willingness to take issues outside of the normal international decision-making forum and create a new process. The ad hoc criminal tribunals for Rwanda and the former Yugoslavia, for example, were both created under the auspices of the United Nations and its Security Council, but the practitioners of the new diplomacy do not favor the Security Council because it can be controlled by some of the more powerful nations of the world. That such power has been established for years as a result of international political realities does not trouble the leaders of the new diplomacy, who dismiss it as anachronistic. But rather than tackling it head-on and attempting to change the process through the United Nations, they design independent processes that circumvent the U.N. charter. This follows the land mines precedent, which moved the debate out of the U.N. arms control processes and into a forum controlled by advocates of a total ban.
All these tools are topped off by the use of a vocabulary and marketing techniques that are somewhat novel in the world of international law. The various efforts of the new diplomacy are characterized by the terms ?participation,? ?empowerment,? ?people-centered,? and ?consensus.? Indeed, new diplomacy drafts are circulated as ?consensus documents.? The goals are communicated in the language not of international law or organizations but of human rights. By contrast, the approach of the traditional diplomacy is said to be anachronistic, and the United States is variously deemed arrogant, aloof, or Neanderthal.
The most powerful tool of the new diplomacy is replacing the leadership of the U.S. and other world powers with that of nongovernmental organizations and smaller states. The United States, for example, had been a key supporter of every international criminal tribunal created and had backed the processes that developed the International Law Commission draft. But when it became clear in Rome that the U.S. could not support some of the major shifts away from the ilc concepts of the court, the U.S. was left behind. There is much talk about the American refusal to support the International Criminal Court as part of its unfortunate isolationist stance or unilateralist preferences, but the fact is that proponents of the new diplomacy knew they were pursuing a treaty that was out of step with all prior concepts of the court and one that the U.S. could not support. ngos not fully supportive of the concepts of the court were essentially cut out of the process. As one observer asked, ?Who elected these ngos anyway?? The new diplomacy rhetoric of ?soft power? and ?collaboration? masks major power plays and dramatic shifts in the process.
It is surprising that the United States could again be caught flat-footed by the new diplomacy, but American diplomats seemed unprepared for the fasttrack process in Rome. Despite decades of support for international criminal courts, the U.S. was left out of key strategy sessions. When it was clear that proponents of the court were not going to accept compromises fundamental to the United States, American diplomats themselves called for a vote, only to end up on the losing end of a lopsided outcome.
Of course, much remained to be done in developing the court, even after Rome, and the Clinton administration seemed uncertain of its course. Despite voting ?no? in Rome, President Clinton ultimately signed the treaty on the last possible day and in his final month in office. This ambivalence reflects underlying American support for the concept of an international criminal court but deep reservations about the structure of the court as it was developed in Rome. Signing the treaty also reflected the Clinton view that the U.S. should remain engaged in the ongoing processes of the court, perhaps in an effort to help shape them, rather than remain on the outside.
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The ICC sort of sounds like a load of BS that was trying to be shoved down our throat. It should have been left to the International Law Commission instead of being hijacked by the non government organizations.
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