The Politics of Constructing the International Criminal Court.

• Author: Ji, Yuan
• Position: Book review

The Politics of Constructing the International Criminal Court, by Michael J. Struett

Publisher: Palgrave Macmillan

Price: $79.95

Reviewed by: Yuan Ji

On January 26, 2009, the International Criminal Court (ICC) commenced the trial of Thomas Lubanga, a Congolese militia leader whose followers have been accused of gross human rights violations including rape, ethnic massacre, torture, and conscription of child soldiers. This was a noteworthy day in the history of international criminal justice, as the Lubanga trial was the first trial held at the ICC since the Court came into existence almost seven years ago. This year is also significant because the Rome Statute grants the ICC jurisdiction over aggression, a term to be defined no earlier than seven years after the Statute goes into effect, and July 2009 will mark the Statute's seven-year anniversary. In this context, the recent publication of Michael Struett's The Politics of Constructing the International Criminal Court comes as a timely analysis of and tribute to the Rome Statute, whose ratification on July 1, 2002 activated the ICC's existence in international law and global governance.

The most interesting question that the book seeks to answer is this: why were so many nation-states willing to reduce their own sovereignties by granting significant authority to a strong, independent international tribunal? In answering this question, Struett places unique emphasis on the discourse by various non-governmental organization (NGO) advocates during the ratification process. Struett makes a valuable contribution to existing scholarship in the field (1) by explaining the discursive role that NGOs can play in forming international policy consensus between sovereign nations, and by highlighting the results of the NGOs' dialogue. While this focus on NGOs is a unique contribution to existing analyses of the ICC, the broad membership of the NGO community makes it difficult to account in detail the motives, roles, and actions of specific nongovernmental entities that were involved in the ICC negotiations. Understanding the reasons behind individual NGOs' involvements at different phases of the ICC construction is important and informative, since there can be significant disparities in their interests and sources of financial support. Even though Struett may not wish to focus on these reasons, their absence is a potential weakness of Struett's work. Additionally, Struett's narrative pays particular attention to the United States' involvement throughout the negotiation process which, as this review will discuss later, is not an entirely unjustified bias.

The ICC is the first international tribunal vested with permanent authority to try criminal cases against individual perpetrators of genocide, war crimes, and crimes against humanity. In that context, the formation of the ICC may mark the end of a history in which individuals responsible for the most heinous crimes of mass violence could act with impunity and without fear of legal consequences. Struett's book offers an insightful analysis of the key features of the ICC, the events leading up to its ratification, and the strategies of pro-ICC organizations that proved effective during negotiations. Struett's central claim is that NGOs played a crucial role in developing the Rome Statute and in securing enough signatures to effect its ratification less than four years after the Statute first opened for signatures. His account outlines how NGOs used rational arguments and common-ground norms effectively to persuade an international audience.

Struett acknowledges the notion of state sovereignty as the key reason why earlier discussions of establishing an international criminal tribunal failed to lead to a permanent court like the ICC. In the late 1940s and early 1950s, NGOs presented arguments advocating the establishment of an international criminal court; although these arguments were considered by the United Nations General Assembly's Sixth Committee in the late 1950s, at the time they were not fruitful. This raises a possible critique of Struett's central thesis: if NGOs did play a pivotal role in the establishment of the ICC in the 1990s, why were they not able to accomplish the same goal four decades earlier? Struett anticipates this question and responds by pointing to the polarized political...