States Parties, Non-states Parties, and the Idea of International Community

• Publication year: 2019
• Citation: Vol. 47 No. 3

STATES PARTIES, NON-STATES PARTIES, AND THE IDEA OF INTERNATIONAL COMMUNITY

Saira Mohamed^*

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The title of this conference, The International Criminal Court and the Community of Nations, invokes the notion of an international community, while the organization of sessions structures our discussions today in part around the categories of states parties to the Rome Statute, on the one hand, and non-party states, on the other. Accordingly, I have chosen to draw attention in my remarks to these groupings—international community, states parties, and non-states parties. Specifically, I will focus on how the institution-alization of international criminal law through the establishment of the International Criminal Court (ICC), and the consequent division of the world into states parties and non-states parties to the Rome Statute, may undermine the notion that the international community as a whole condemns mass atrocity crimes.

I will begin with the idea of international community, and its connection to the field of international criminal law, and then I will turn to the division of the field into parties and non-parties, or supporters and opponents, of the ICC.

Lawyers and scholars of international law and international relations have struggled to construct a uniform understanding of the concept of an "international community." The concept is heavily used in cases, in treaties, and in scholarly writing, often without much explanation, as if its meaning is self-evident.

By international community, I mean a conception of international community distinct from a mere collection of states, or even a collection of states bound together by shared rules established in pursuit of some common interest. Rather, international community can be understood as a collection of states and other actors that constitutes a community because of a set of shared values.

The history of the international community and the history of international criminal law are closely intertwined, as Nuremberg is often identified as a moment when international community was born. As Christian Tomuschat writes, with the Nuremberg trial, as well as the creation of the United Nations, "[a]ll of a sudden . . . it appeared that there was a common moral ground acknowledged by all states that demanded respect and could eventually be

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enforced through common institutions."¹ It is that sense of international community—a community built around shared values, a common ground of morality—that underlies the notion that an international community was born with the Nuremberg tribunal. Moreover, it was that sense of international community that allowed for the Nuremberg tribunal to exist.

What were those shared values at the heart of the project of international criminal law? Rule of law; a conviction that no one, no matter how powerful, is above the law; a shared intolerance for the crimes of the cruelty and magnitude of those that had taken...