International Criminal Court: Policy, Status and Overview

The International Criminal Court (ICC) has been in operation since 2003 as the first permanent world court to prosecute individuals for war crimes, crimes against humanity, and genocide. It is a curious institution, occupying a nervous space between state sovereignty and individual responsibility. It claims independence from state parties but also relies on them for cooperation in its investigations, the execution of its arrest warrants and, ultimately, the enforcement of its decisions.

Its relationship with the US is a fascinating ongoing battle of values, between the insistence on sovereignty and the aspiration towards international justice. America's vehement oppression to the ICC is a surprising stance for the dominant democratic power, and the relationship has been the focal point for an energetic movement of NGOs around the world.

This is not a book which discusses these things. Harry P Milton has put together three essays by the American Congressional Research Service, and promised an overview of the status of the ICC. They deliver this and nothing more.

The first essay by Arieff, Margesson and Browne is a blow-by-blow account of the ICC in Sudan, which saw the court indict the first sitting head of state for genocide. The article is little more than a chronology of events. Perhaps this is just as well; the engagement between the ICC and the Sudan has been dramatically divisive, and there is some value to providing a dispassionate account to leave the reader to decide.

However, one cannot help but be left wanting. The fascinating story of the ICC's work in Uganda, the Democratic Republic of Congo and the Central African Republic receive little more than passing comment.

Elsea's two essays on the American position are slightly more compelling. The ICC is, for all its flaws, a monumental body in the fight against impunity and for international justice. It is well known that the Bush administration firmly opposed it.

Elsea provides a rather dispassionate overview of the objections held in the US to the ICC, but these objections are fascinating to consider in themselves and Elsea's account is interesting. The US has firmly rejected the ICC, noting the lack of prosecutorial accountability and the risk of politicised investigations by the Office of the Prosecutor. It argues that the jurisdiction of the ICC over 'crimes of aggression' positions the ICC to undermine the UN Security Council.

In 2002, these concerns culminated in American Service Members Protection Act (ASPA), which prohibits any US agency or entity of government from cooperating with the ICC. It goes as far as allowing the president to use 'all means necessary' to bring about the release of any American held by the court. The US has, in this regard, bound itself to the role of disgruntled backseat observer in its engagements with the ICC: it cannot vote in the Assembly of State Parties and cannot refer any cases to the court. One wonders if this position is sustainable. As Elsea asks in the third essay, is it in American interest to actively obstruct the ICC from becoming effective, or would it be more effective to take a more meaningful role with a view of influencing its policy? The former position may grow increasingly archaic and out of step.

Elsea, of course, does not betray any preferences. Her account, though thorough, is bland. However, the blandness of the book may speak to the position of the ICC itself. This is not to say that the ICC is bland; it is one of the most exciting things that has happened in international law in recent history. However, it is not difficult to see that it occupies an awkward position. The ICC is a cry for legal independence and on a plain of conflict and violence that, often, defies legal analysis. It is helpful to have an objective walkthrough of the story of the ICC. However, for such an interesting and dynamic subject, it is rather disappointing.

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