1

Primacy and the ICC: A Matter of Legal Hierarchy or Supra-National Pre-Eminence?

Introduction

In the absence of a judicial monopoly over international criminal law (ICL) or formalised

hierarchical relationships, complementarity was a way of both the having and eating of the

ICL cake. However the cake has proved unsatisfactory for some jurists in the [Groucho]

Marxian terms that it doesn’t taste very nice and that there isn’t enough of it. This piece,

examining the conflicts of jurisdiction and sovereignty will argue that the International

Criminal Court already has the legal powers to assert its primacy but that the extant

relationship in practice between domestic courts and the ICC represents the best compromise

in both legal and political terms. Exploring an alternative role for the ICC in ICL and positing

some necessary socio-political conditions for the establishment of genuine primacy by the

ICC this piece will demonstrate that such conditions would likely be so unsatisfactory

constitutionally and administratively and sufficiently damaging to the legal legitimacy and

standing of the ICC that primacy, and not the absence of it, would be more likely to

ultimately cause the ICC to fail.

Primacy and Complementarity1

‘The principle of complementarity respects the rights of states to ‘proscribe and

punish any... conduct they consider harmful to their weal2.’

Complementarity is, in the absence of a (politically unacceptable) formal legal hierarchy; the

compromise governing the balance of power between the ICC and national courts, intended

to create a shifting primacy, exercisable by either state or the ICC according to 1 Rome Statute of the International Criminal Court 1998, Article 1 2 Daniel Nsereko (2013) “The ICC and Complementarity in Principle” 26(2) Leiden Journal of International Law 427 – 447

p.428

2

circumstances. It is this practical fluidity rather than that complementarity is ‘vaguely

defined’3 which is one source of conflict. Another is concern that either national courts would

simply not prosecute or (for the United States in particular) that international justice would be

arbitrary or incompetent. The most significant arguments against complementarity framed by

supporters of the ICC are that as the residue of political arguments4 concerned with protection

of national interests, it is now the cuckoo in the nest of ICL giving states and national courts

primacy over the ICC5. Further, so the argument continues, this primacy is not merely a

matter of judicial pecking order but actively undermines the prosecution of ‘crimes against

the law of nations’6 creating not only a ‘competition of norms

7’ but, more seriously, a gap

where states will not but the ICC cannot prosecute. The reasons ascribed for states’ lack of

prosecutions in this area have typically been ascribed in varying degrees to ‘A lack of

resources8, evidence and, above all, political will’

9. Against these concerns must be set the

substantive law of the Rome Statute giving the ICC jurisdiction over both party and non-party

states as well as the passing into law by individual states10

of legislation based on Rome

Statute jus cogens crimes (the nature of which it is argued create a primacy of their own11

). It

is the case nevertheless that the pacific-sounding concept complementarity lies somewhat

oxymoronically at the heart of a serious conflict between states and the ICC.

3 Brown, B. (1998) “Primacy or Complementarity: Reconciling the Jurisdiction of National Courts and International

Criminal Tribunals” 23 Yale Journal of International Law 383 – 420, p.386 4 David J Scheffer (1998) “The United States and the International Criminal Court” 93 American Journal of International

Law 12 – 22, p.13 5 Johann D. van der Vyver (2000) “Personal and Territorial Jurisdiction of the International Criminal Court” 14(1) Emory

International Law Review 1 – 103, p.2 6 Op. Cit., n.2 7 Rosalyn Higgins (2006) “A Babel of Judicial Voices? Ruminations from the Bench” 55(4) International & Comparative

Law Quarterly 791 – 804, p.793 8 Jon Silverman (2012) “Ten Years, $900m, One Verdict: Does the ICC Cost too Much?” BBC News Website 14th March

2012 http://www.bbc.co.uk/news/magazine-17351946 [Accessed 10th December 2014] 9 Theodor Meron (1995) “International Criminalization of Internal Atrocities” 89 American Journal of International Law

554 – 577, P.556 10 International Criminal Court Act 2001 (c.17) in England and Wales 11 Frederic Megret (2001) “Epilogue to an Endless Debate: The International Criminal Court’s Third Party Jurisdiction and

the Looming Revolution of International Law” 12(2) European Journal of International Law 247 – 268, P.255

3

Complementarity is the first legal matter addressed by the Rome Statute12

. But rather in the

manner of the reading of telegrams at a best man’s speech this appears merely a device to get

the doctrine out of the way before more important matters can be addressed. Thereafter the

Statute gives the ICC full powers over all elements of jurisdiction. The Rome Statute allows

the court jurisdiction over any state (conditional for non-party states)13

; over

comprehensively defined crimes14

; committed at any future time15

; and at the instigation of

the ICC or the UNSC’s volition16

. Even the primacy of states to manage their own affairs is

highly subjective17

, although the ICC only obtains jurisdiction where a state is ‘unwilling or

unable genuinely to carry out the investigation or prosecution’18

. Article 17(3)19

clearly is

relevant to a breakdown of society to the extent that judicial function is a logistical or

practical impossibility, however, in respect of a state’s ‘unwillingness’, the various sub-

clauses of Article 17(2)20

grant the ICC a significant degree of discretion. Articles 17(2)(b)

and (c)21

can be interpreted as merely nothing more than requiring due process consistent

with basically-defined human rights. Article 17(2)(a)22

however is arguably far more

significant in terms of the balance of judicial primacy. In terms its essence is that if the ICC

(determining intent) deems a state to be acting in its own interests of those of one of its

citizens above the interests of international law the ICC obtains jurisdiction. In the context of

12 Op. Cit., n.1, Article 1 13 Ibid, Article 4 14 Ibid, Article 5 – 8 15 Ibid, Article 1 and 2 16 Ibid, Article 13(b) and (c) 17 Ibid, Article 17(1)(a) 18 Ibid, Article 17(1)(a) 19 Ibid, Article 17(3) 20 Ibid, Article 17(2) 21 Ibid, Articles 17(2)(b) and (c) 22 Ibid, Article 17(2)(a) “The proceedings were or are being undertaken or the national decision was made for the purpose of

shielding the person concerned from criminal responsibility...”

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Article 1723

the view that complementarity permits that the ICC ‘operates only when

[national courts] do not’24

cannot be reasonably sustained.

Although the United Nations Security Council (UNSC) has an unambiguous and absolute

executive veto over ICC investigations and prosecutions25

, states in this respect enjoy no

more power than as appellants, explicitly26

or subject to what amounts to a mandatory court

order27

subject to regular review as to compliance28

.

There is one further lacuna in Article 1729

. Although the ICC itself has alluded to ‘country-

specific measures’30

, in emphasising the ‘unwilling or unable’ aspects of Article 17 it is

easily overlooked that a state’s legitimacy to manage its own affairs of justice in this respect

concerns ‘investigation or prosecution’31

. Both words, but particularly prosecution, carry

explicitly western legal connotations whose meanings are clearly understood in that context.

The use of such terms and no others arguably carries a further implicit meaning suggesting

that not only must actions by states be sufficient in quality (‘credible’32

) but also that they

must be sufficient and recognisable in their nature which would seem to exclude or at least

disadvantage other processes of dealing with matters of justice adopted in other cultures33

. If

primacy of law and primacy of jurisdiction are established then primacy of process must be

intrinsic to the enforcement of the legal and jurisdictional primacy.

23 Ibid, Article 17 24 Mahnoush H Arsanjani (1998) 93 “The Rome Statute of the International Criminal Court” 93 American Journal of

International Law 22 – 43, p.25 25 Op. Cit., n.1, Article 16 26 Ibid, Article 82(1)(a) 27 Ibid, Article 18(2) 28 Ibid, Article 18(3) 29 Ibid, Article, Article 17 30 10th Report of the International Criminal Court (2014) A/69/321 18th September 2014, Para.65 http://www.icc-

cpi.int/iccdocs/presidency/ICC-Rep-UNGA-30-10-2014-Eng.pdf [Accessed 11th December 2014] 31 Op. Cit., n.1, Article 17 32 Op. Cit., n.3, p.424 33 United Nations Security Council 3453rd Meeting 8th November 1994 S/PV.3453, pg.5

http://www.un.org/en/ga/search/view_doc.asp?symbol=S/PV.3453 [Accessed 10th December 2014] (to which can be added

the imposition of western values in relation to sentencing; the disallowing of the death penalty in the ICTR leading to the

slightly absurd situation of Rwanda refusing to ratify the creation of the ICTR)

5

It is wholly realistic to argue that the ICC might be disinclined to ‘grant formal recognition to

[extant] structures of superiority’34

and fully exercise its legal powers but that is a different

matter from the ICC being denied such powers by a newly-created legal doctrine. Per ICJ

obiter almost any matter involving the UN will have a political background but this should

‘never inhibit the undertaking of an essentially judicial task’35

. The judgment in Tadic36

went

further, expressly stating that ‘political’ did not mean ‘non-justiciable’37

in respect of

international law.

Complementary: An Oblique Approach

‘The doctrines of "political questions" and "non-justiciable disputes" are remnants of

the reservations of "sovereignty", "national honour", etc. in very old arbitration

treaties.’38

These obiter refer obliquely to a notion of new legal order from which the well-established

legal principle of sovereignty39

(curiously conflated with more vaguely poetic concepts such

as ‘national honour’) have ‘receded’40

.

If the provisions of the Rome Statute do not provide sufficient resource for the primacy of the

ICC and other, formally hierarchical international legal orders proposed by some jurists41

are

34 Nico Krisch (2005) “International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal

Order” 16(3) European Journal of International Law 369 – 408, p.369 35 ICJ Reports 1962 p.1 – 181, p.155 “Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter)

Advisory Opinion of 20th July 1962” http://www.icj-cij.org/docket/files/49/5259.pdf [Accessed 13th December 2014] 36

Prosecutor v. Dusko Tadic a/k/a "Dule Case No. IT-94-1, Decision on the Defence Motion on Jurisdiction (Aug. 10, 1995)

Para.24 http://www.icty.org/x/cases/tadic/acdec/en/51002.htm [Accessed 13th December 2014] 37 Ibid., para.24 38 Ibid., para.24 39 Vienna Convention on the Law of Treaties 1969 Vienna 23rd May 1969, Preamble para.6

http://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf [Accessed 13th December 2014]: Anne Bodley

(1998 – 1999) “Weakening the Principle of Sovereignty in International Law: The International Criminal Tribunal for the

Former Yugoslavia” 31 New York University Journal of International Law and Politics 417 – 471, p.419 (‘Sovereignty is the

most extensive form of jurisdiction under international law’) 40 Op. Cit., n.35, para.24 41 HHJ Gilbert Guillaume (2000) The Proliferation of International Judicial Bodies : The Outlook for the International Legal

Order (Speech by His Excellency Judge Gilbert Guillaume, President of the International Court of Justice, to the Sixth

Committee of the General Assembly of the United Nations, 27 October 2000 http://www.icj-

cij.org/court/index.php?pr=85&pt=3&p1=1&p2=3&p3=1 [Accessed 18th December 2014]

6

politically untenable, the judgment in Tadic42

suggests an alternative approach to establishing

an order of primacy in ICL. It also suggests an unequivocal view that this is a necessary and

‘modern’ step forward.

CONCLUSION: CONFLICTS OF PRIMACY AND LEGITIMACY

The problem of ICL remains that it is universal in ambition but still very much

national in terms of participation, co-operation and application43

.

The underlying predicate of Christopher Stephen’s critique of current ICL is that nation states

are the barrier between a shared universal international justice and victims. Stated as such

then the ICC currently lacks a sufficient degree of primacy and will consequently fail,

relatively if not absolutely. Such a perspective does not however consider the prospect that

conditions necessary for the primacy of the ICC would more likely ensure the failure of the

ICC. Nor does it consider the doctrine of complementarity as not a matter of short-term and

self-interested political expediency preventing the ‘transition from international anarchy to

world order’44

but rather a necessary check and balance on the judiciary, and an essential

source of constitutional legitimacy without which the ICC would certainly fail. It is certainly

the case, as argued by both Stephen45

and Schwarzenberger46

, that international affairs are

dominated by a handful of superpowers. But is it legitimate or realistic to suppose that a new

international order would rise above base politics and ‘realiz[e] Utopia’47

rather than merely

replace short-term and naked self-interest with the inchoately-defined but unquestioning self-

42 Op. Cit., n.35, para.24 43 Christopher Stephen (2012) “International Law: Wielding the Sword of Universal Criminal Justice?” 61(1) International

& Comparative Law Quarterly 55 – 89, p.89 44 G Schwarzenberger (1947) “The Judgment of Nuremberg” 21 Tulane Law Review 329 – 362, p.339 45 Op. Cit., n.42, p.89 46 Op. Cit., n.43, p.339 47 Antonio Cassese (2012) Realizing Utopia: The Future of International Law Oxford, Oxford University Press

7

certainty of a ‘vibrant international value system’48

? In this context complementarity can be

viewed as merely ‘one organisational principle and not all of those that would be needed... to

speak of international criminal justice as a system’49

. Advocates of ICC primacy often couch

their arguments in tones of moral certainty that ascribes to the new international order a

virtue absent in the old order ‘entre gens de bonne compagnie’50

world of inter-state comity

while ignoring the potential perils of a modern entre gens de bonnes institutions. However,

and whatever the virtues of this value system in theory, ICL like any other legal system must

be founded in a practical context of legitimacy through accountability.

A logical intellectual conclusion of this internationalist view is the gradual supplanting of the

roles and functions of nation states51

with a ‘constitution of an international organisation’ and

an ‘autonomous community of a functional nature reali[sing] its respective functional goal’52

.

Certainly it envisages a significant shift in the balance of power between international bodies

and states and even the placing of law over any other method of dispute resolution53

. The

autonomy sought would be from states but in so doing would remove this ‘community’ both

from any form of external accountability and from any obviously recognisable demos. While

nation states, nominally at least, represent identifiable electorates, internationalism relies on

accountability to abstract, opaque values rather than to a demos. This lack of clarity can be

seen in the Rome Statute which refers to ‘all peoples’54

; ‘humanity’55

, ‘international

community’56

and even claims to act for the sake of ‘future generations’57

, although there is

48 Erika de Wet (2006) “The International Constitutional Order” 55(1) International and Comparative Law Quarterly 51 –

76, P.75 49 Jann K Kleffner (2008) Complementarity in the Rome Statute and National Criminal Jurisdictions Oxford, Oxford

University Press, p.349 50 Op. Cit., n.11, p.255 (Roughly a French version of the old boys’ network) 51 Op. Cit., n. 35, para.24 (‘[Sovereignty has] receded from the horizon of contemporary international law, except for the

occasional invocation of the "political question" argument’) 52 Op. Cit., n.47, p.53 53

Op. Cit., n.11, p.255 54 Op. Cit., n.1, Preamble para.1 55 Ibid., Preamble para.2 56 Ibid., Preamble para.4 57 Ibid., Preamble para.9

8

the argument that individuals participate in this internationalism in ICL either as the

‘beneficiaries of rights [or] the bearers of obligations’58

. Further, primacy in this sense might

be sustainable in narrow legal terms where national legal traditions are cast in the same

western manner, but it is not fanciful to suggest that a further corollary of ICC primacy would

be restrictions on recourse to local or distinct processes of justice such as the Gacaca courts in

Rwanda or the Truth and Reconciliation Commission in South Africa59

. More immediately

relevant to current conflicts is that Islamic scholars have recorded suspicion towards the ICC

in Islamic states because of the western-centric nature of ICC legal principles60

.

Primacy: A New International Order

Henceforth, all the arguments in favour of diplomacy over adjudication are precisely

those that a large part of the international community does not want to hear any more

when it comes to war crimes, crimes against humanity and genocide61

.

Those making the argument in favour of unalloyed primacy or greater powers assume that

internationalism is a good per se and that international institutions such as the ICC must

axiomatically represent not just good, but the best and only legitimate legal process. The

UNSC uniquely has the power of veto over the ICC62

but the UNSC is ambivalent as to the

rule of law in respect of itself63

. An unelected judiciary is a valuable bulwark against the

abuse of power and the nexus of checks and balances between the judiciary and the

legislative and executive should flow in both directions. However, an unelected judiciary in

58 Kate Parlett (2012) “The Individual and Structural Change in the International Legal System” 1(3) Cambridge Journal of

International and Comparative Law 60 – 80, p.60 59 Truth and Reconciliation Commission http://www.justice.gov.za/trc/report/index.htm [Accessed 18th December 2014] 60 Mohamed Elewa Badar (2011) “Islamic Law (Sharia) and the Jurisdiction of the International Criminal Court” 24(2)

Leiden Journal of International Law 411 – 433, P.412 61 Op. Cit., n.11, P.255 62 Op. Cit., n.1, Article 16 63 Jeremy M Farrall (2014) “Rule of Accountability or Rule of Law? Regulating the UN Security Council’s Accountability

Deficits” 19(3) Journal of Conflict & Security Law” 389 – 408, P.397 (‘the Security Council tends to consider the rule of

law as something to be promoted externally’)

9

the context of unelected and remote supra-national bodies is a less democratically robust

bulwark even if only in perception. Once such underpinnings of legitimacy are removed any

notions of a viable primacy become infinitely harder to sustain.

Addendum: A Different Role for the ICC

Complementarity was a solution necessitated by the absence of a formal hierarchical position

between the ICC and national courts. However the ICC retains a conventional court structure:

issuing warrants; investigating crimes; prosecuting and sentencing individuals. It is a

worthwhile digression to consider whether, had the court been given a different role,

complementarity might have been unnecessary and the ICC might have been better able to

shape and define ICL not necessarily from a position of primacy but from one of authoritative

legitimacy.

As a source of ICL the Rome Statute establishes itself, at least for the ICC, as the primary

source of law. Comparison may be drawn in this respect with the International Court of

Justice (ICJ). Article 38 of the statute of the ICJ64

states disparate sources of law which it

may apply but gives none precedence. The Rome Statute however states its sources of law in

a clear hierarchical structure with (‘In the first place’65

) the Statute given primacy and

national laws almost dismissively last (‘Failing that...’66

) and then only where domestic laws

are consistent with the Rome Statute’s primary and secondary67

sources of law. These are

significant conditionals in international law, often a world of magpie legality, plucking legal

precedents from myriad sources and sometimes lacking a coherence or continuity because of

64 Statute of the International Court of Justice 1945 http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0

[Accessed 10th December 2014] 65 Op. Cit., n.1, Article 21(1)(a) 66 Ibid., Article 21(1)(c) 67 Ibid., Article 21(1)(b) (“[A]pplicable treaties and the principles and rules of international law, including the established

principles of the international law of armed conflict”)

10

an absence of stare decisis68

. As a statement of constitutional effect the hierarchy of Article

2169

sets the ICC above all other courts enabling it both to realise its ‘functional goal’70

of

punishing ‘the most serious crimes’71

.

In respect of this functional goal The ICC has obtained only two convictions. While

investigations have been stalled or prevented by politics or matters outside the control of the

court, it is still the case that the ICC has a conviction rate of only 18% from completed

proceedings. While it might be ‘lamentable’72

that national courts so seldom exercise their

jurisdiction it cannot be argued that in exercising its own jurisdiction the ICC is noticeably

more effective in its judicial function. National courts (including courts martial73

) enforcing

pertinent domestic legislation74

have shown themselves able to convict war criminals75

, while

other, less formally legal processes have (despite criticism of acquittal rates broadly the same

as the conviction rate at the ICC76

) brought other, more immediate if not necessarily

comprehensive77

(or recognisably judicial in the western tradition) forms of justice after

conflict.

An alternative ICC configured wholly as an appellate and advisory court might have been a

more passive court restricted to defining, refining and interpreting ICL. However as such it

could conceivably have resolved inconsistencies in ICL although addressing perhaps only the

68 Article 59 Statute of the International Court of Justice 1945 http://www.icj-

cij.org/documents/index.php?p1=4&p2=2&p3=0 [Accessed 10th December 2014] 69 Op. Cit., n.1, Article 21 70 Op. Cit., n.47, P.53 71 Op. Cit., n.1, Preamble para.4 72 Op. Cit., n.2, p.428 73 R v Payne (2007) Unreported: Sentencing Hearing Transcript 30th April 2007

http://www.publications.parliament.uk/pa/ld200607/ldlwa/070327wa1.pdf [Accessed 12th December 2014] 74 War Crimes Act 1991 (c.13); England and Wales have since introduced the International Criminal Court Act 2001 which

incorporates legal obligations of assistance and cooperation with the ICC as well as defining domestic jurisdiction (Section

51 ICCA 2001) 75 R v Anthony Sawoniuk [2000] EWCA Crim 9 (Sawoniuk, a Nazi war criminal would have fallen outside the Article 11

Rome Statute jurisdiction ratione temporis of the ICC, arguably a demonstration of how domestic courts can better reach

beyond the jurisdiction of the ICC) 76 Jeevan Vasagar (2005) The Guardian 17th March 2005

http://www.theguardian.com/world/2005/mar/17/worlddispatch.rwanda [Accessed 12th December 2014] 77 Human Rights Watch (2004) Vol.16, No.10(A) “Struggling to Survive: Barriers to Justice for Rape Victims in Rwanda”

http://www.hrw.org/reports/2004/rwanda0904/rwanda0904.pdf [Accessed 12th December 2014]

11

‘lasting respect’ element of its resolution in respect of international law78

. However the

ineffectiveness of the ICC as a criminal court has, it has been argued, created a potentially

legitimacy-weakening disenchantment79

, and arguments about the ICC’s current lack of

primacy refer invariably to the international political realities of trimming and compromise of

which an alternatively configured ICC would represent merely another form.

Word Count: 2,500

78 Op. Cit., n.1, Preamble para.11 “Resolved to guarantee lasting respect for and the enforcement of international justice” 79 Mireille Delmas-Marty (2013) “The International Criminal Court Ten Years On” 11 Journal of Criminal Justice 553 –

561, P.554

12

BIBLIOGRAPHY

Primary Legal Sources

Statutes

International Criminal Court Act 2001 (c.17)

International Criminal Tribunal for Rwanda 2010

http://www.unictr.org/sites/unictr.org/files/legal-library/100131_Statute_en_fr_0.pdf

[Accessed 11th December 2014]

Rome Statute of the International Criminal Court 1998

Statute of the International Court of Justice 1945 http://www.icj-

cij.org/documents/index.php?p1=4&p2=2&p3=0 [Accessed 10th

December 2014]

Statute of the International Tribunal for the Former Yugoslavia (Adopted 25 May 1993 by

Resolution 827), (as amended 13 May 1998 by Resolution 1166), (As amended 30 November

2000 by Resolution 1329)

http://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf [Accessed 13th

December 2014]

Vienna Convention on the Law of Treaties 1969 Vienna 23rd

May 1969, Preamble para.6

http://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf [Accessed 13th

December 2014]

War Crimes Act 1991 (c.13)

Cases

Prosecutor v. Dusko Tadic a/k/a "Dule Case No. IT-94-1, Decision on the Defence Motion on

Jurisdiction (Aug. 10, 1995) Para.24 http://www.icty.org/x/cases/tadic/acdec/en/51002.htm

[Accessed 13th December 2014]

R v Payne (2007) Unreported: Sentencing Hearing Transcript 30th

April 2007

http://www.publications.parliament.uk/pa/ld200607/ldlwa/070327wa1.pdf [Accessed 12th

December 2014]

R v Anthony Sawoniuk [2000] EWCA Crim 9

13

Books

Antonio Cassese (2012) Realizing Utopia: The Future of International Law Oxford, Oxford

University Press

Jann K Kleffner (2008) Complementarity in the Rome Statute and National Criminal

Jurisdictions Oxford, Oxford University Press

Journal Articles

Mahnoush H Arsanjani (1998) 93 “The Rome Statute of the International Criminal Court” 93

American Journal of International Law 22 – 43

Mohamed Elewa Badar (2011) “Islamic Law (Sharia) and the Jurisdiction of the International

Criminal Court” 24(2) Leiden Journal of International Law 411 – 433

Anne Bodley (1998 – 1999) “Weakening the Principle of Sovereignty in International Law:

The International Criminal Tribunal for the Former Yugoslavia” 31 New York University

Journal of International Law and Politics 417 – 471

Brown, B. (1998) “Primacy or Complementarity: Reconciling the Jurisdiction of National

Courts and International Criminal Tribunals” 23 Yale Journal of International Law 383 – 420

Mireille Delmas-Marty (2013) “The International Criminal Court Ten Years On” 11 Journal

of Criminal Justice 553 – 561

Jeremy M Farrall (2014) “Rule of Accountability or Rule of Law? Regulating the UN

Security Council’s Accountability Deficits” 19(3) Journal of Conflict & Security Law” 389 –

408

Rosalyn Higgins (2006) “A Babel of Judicial Voices? Ruminations from the Bench” 55(4)

International & Comparative Law Quarterly 791 – 804

Nico Krisch (2005) “International Law in Times of Hegemony: Unequal Power and the

Shaping of the International Legal Order” 16(3) European Journal of International Law 369

– 408

Frederic Megret (2001) “Epilogue to an Endless Debate: The International Criminal Court’s

Third Party Jurisdiction and the Looming Revolution of International Law” 12(2) European

Journal of International Law 247 – 268

Theodor Meron (1995) “International Criminalization of Internal Atrocities” 89 American

Journal of International Law 554 – 577

Daniel Nsereko (2013) “The ICC and Complementarity in Principle” 26(2) Leiden Journal of

International Law 427 – 447

14

Kate Parlett (2012) “The Individual and Structural Change in the International Legal System”

1(3) Cambridge Journal of International and Comparative Law 60 – 80

David J Scheffer (1998) “The United States and the International Criminal Court” 93

American Journal of International Law 12 – 22

Christopher Stephen (2012) “International Law: Wielding the Sword of Universal Criminal

Justice?” 61(1) International & Comparative Law Quarterly 55 – 89

G Schwarzenberger (1947) “The Judgment of Nuremberg” 21 Tulane Law Review 329 – 362

Christopher Stephen (2012) “International Law: Wielding the Sword of Universal Criminal

Justice?” 61(1) International & Comparative Law Quarterly 55 – 89

Johann D. van der Vyver (2000) “Personal and Territorial Jurisdiction of the International

Criminal Court” 14(1) Emory International Law Review 1 – 103

Erika de Wet (2006) “The International Constitutional Order” 55(1) International and

Comparative Law Quarterly 51 – 76

Other Sources – Formal Bodies

ICJ Reports 1962 p.1 – 181, p.155 “Certain Expenses of the United Nations (Article 17,

paragraph 2 of the Charter) Advisory Opinion of 20th

July 1962” http://www.icj-

cij.org/docket/files/49/5259.pdf [Accessed 13th December 2014]

10th

Report of the International Criminal Court (2014) A/69/321 18th

September 2014

http://www.icc-cpi.int/iccdocs/presidency/ICC-Rep-UNGA-30-10-2014-Eng.pdf [Accessed

11th December 2014]

Truth and Reconciliation Commission http://www.justice.gov.za/trc/report/index.htm

[Accessed 18th December 2014]

United Nations Security Council 3453rd

Meeting 8th

November 1994 S/PV.3453, pg.5

http://www.un.org/en/ga/search/view_doc.asp?symbol=S/PV.3453 [Accessed 10th

December

2014]

United Nations Security Council UNSC Resolution 1503 S/RES/1503 (2003) 28th

August

2003 http://www.icty.org/x/file/Legal%20Library/Statute/statute_1503_2003_en.pdf

[Accessed 16th December 2014]

United Nations Security Council UNSC Resolution 1534 S/RES/1534 (2004) 26th

March

2004 http://www.icty.org/x/file/Legal%20Library/Statute/statute_1534_2004_en.pdf

[Accessed 16th December 2014]

15

Other Sources – NGOs & Media

HHJ Gilbert Guillaume (2000) The Proliferation of International Judicial Bodies : The

Outlook for the International Legal Order (Speech by His Excellency Judge Gilbert

Guillaume, President of the International Court of Justice, to the Sixth Committee of the

General Assembly of the United Nations, 27 October 2000 http://www.icj-

cij.org/court/index.php?pr=85&pt=3&p1=1&p2=3&p3=1 [Accessed 18th December 2014]

Human Rights Watch (2004) Vol.16, No.10(A) “Struggling to Survive: Barriers to Justice for

Rape Victims in Rwanda” http://www.hrw.org/reports/2004/rwanda0904/rwanda0904.pdf

[Accessed 12th December 2014]

Jon Silverman (2012) “Ten Years, $900m, One Verdict: Does the ICC Cost too Much?” BBC

News Website 14th

March 2012 http://www.bbc.co.uk/news/magazine-17351946 [Accessed

10th December 2014]

Jeevan Vasagar (2005) The Guardian 17th

March 2005

http://www.theguardian.com/world/2005/mar/17/worlddispatch.rwanda [Accessed 12th

December 2014]