Document Type

Article

Publication Date

April 1999

Journal or Book Title

UCLA Journal of International Law and Foreign Affairs

Volume

4

Issue

1

Abstract

At an address at Carleton University in 1995 Secretary General of the United Nations Boutros Boutros-Ghali declared the need for a “renaissance of international law” as nations face the new challenges of the post-Cold War world. According to Ghali, it is only through international law that the world can “secure a basis for cooperation” and “a lasting foundation for peace.”1 Aspirations for the realization of this lofty rhetoric have centered on the creation of a permanent international criminal court (PICC). The sentiment for a PICC emanates from dissatisfaction with the prevailing practice of international criminal law. Supporters of the court argue that individuals are not being held sufficiently accountable for the most serious crimes against the international community (genocide, war crimes, and crimes against humanity). The use of international tribunals in the 20th century has been ad hoc and temporary, while the present practice of extradite-or-prosecute does not function effectively when nations experience bottlenecks in the prosecution of suspected criminals (i.e., because the suspect is a former head of state, because of civil war, because nations refuse to extradite suspects, or because the requisite judicial institutions are missing). Under such conditions, there is lacking an effective deterrent against criminal acts in the global community because individuals are not being held systematically accountable for their transgressions. A PICC, according to supporters, would provide an ongoing deterrent and thus consolidate a global order based on the respect of international law. To the extent that a PICC became the central player in the prosecution and adjudication of international crime, there would indeed be a major qualitative change in the practice of international criminal law, which has heretofore been principally enforced through sovereign nations. A permanent court has been proposed by the U.N. International Law Commission in a 1994 draft statute. The statute continues to be negotiated until a June 1998 target date during which it is expected that a majority of nations (led by the U.S.) will sign a formal treaty creating a PICC. This article is an analysis of the proposed PICC. In it we explore both the institutional weaknesses and strengths of the proposed Court, as well as the sea of political realities within which the Court must navigate, and which ultimately will determine its effectiveness. Finally, we analyze the impact (i.e., advantages and disadvantages) of the Court on the U.S. national interest. As an agent which has the capacity to play a preponderant role in making the PICC either effective or ineffective, U.S. support (or the lack of) will be crucial in determining the influence of the Court. Through this analysis we hope to shed light on the potential impact which the PICC will have on the enforcement of international criminal law.

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