(William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, March 2010, ISBN 978-0-19-956073-8, 1336 pp.)
Schabas’s Commentary to the Statute of the International Criminal Court (ICC or Court) is an excellent addition to that fine scholarly tradition established by the Oxford Commentaries on International Law. Written by a highly regarded and prolific author, William Schabas, who has been involved in the drafting negotiations of the Rome Statute and who has followed closely the work of the Court ever since, this book is an important and valuable addition to the existing literature on the Statute of the International Criminal Court. Other well-known and comprehensive works on this topic include the Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd ed., Otto Triffterer (ed.), Munich/Hart, Portland/Nomos, Baden Baden, 2008, xli+1954 pp. and The Rome Statute of the International Criminal Court: A Commentary, Cassese, Gaeta, and Jones (eds.), Oxford University Press, 2002, 2380 pp. Besides the general part, this book review will highlight for the reader the commentary to a limited number of articles.
The Statute of the ICC adopted at the Rome Conference on 17 July 1998 entered into force on 1 July 2002, after having been ratified by 60 States. At present 114 States are members to it. While the Court itself has been operational since mid-2003, the first case, that against Thomas Lubanga Dyilo (the Lubanga case) went to trial on 26 January 2009. The activity of the Court is based on the Rome Statute, a complex international treaty which combines rules and principles of public international law, international humanitarian law and criminal law, whose interpretation needs to be consistent with internationally recognized human rights standards. With its 128 Articles the ICC Statute is a rather detailed document, when compared with the statutes of other international or internationalized criminal courts and tribunals. The rationale behind this approach is twofold: first, it ensures respect for the principle of legality; and second, it provides the necessary guidance to the judges while at the same time restricting their possibility to ‘legislate’ from the bench.
The structure of the article-by-article analysis of the Statute given by Schabas is as follows: first the author makes some introductory comments, after which he introduces the drafting history of the article before analyzing its text. The commentary is accompanied by a short bibliography of relevant academic literature. This approach is quite straightforward and actually could provide a useful model for the current ambitious project undertaken by the ICRC to rewrite the commentaries to the 1949 Geneva Conventions and the Additional Protocols of 1977. The overview of the drafting history is followed by an analytical part. Wherever possible the author’s analysis of the text of the articles draws upon relevant case law from the Court and the related instruments such as the Elements of Crimes, the Rules of Procedure and Evidence and the Relationship Agreement with the United Nations (UN). Schabas also makes ample use of relevant case law from other international and national criminal tribunals. The key references to scholarly work on the topic dealt with at the end of the entry for each article are an added value to the book. Of course, such references can only provide a limited picture of the vast literature that exists on certain issues. It has been already been remarked that the fact that this book is written by a single author is helpful in terms of avoiding any duplication or inconsistencies. Single authorship might also be advantageous when thinking in terms of updating the work either through a second edition or as usual these days through preparing and updating the online version of the work.
This tome starts with a preface by the author, abbreviations, table of cases, table of instruments of the ICC and a table of international instruments. After a historical introduction, the book provides an article by article commentary to the 128 articles of the Rome Statute. The historical introduction gives an overview of the early developments and efforts to punish perpetrators of mass atrocities focusing mainly on the Treaty of Versailles of 1919 and the Nuremberg and the Tokyo tribunals. This introduction also provides a clear picture of the drafting efforts and work leading to the adoption of the Rome Statute in 1998, including the International Law Commission phase, the General Assembly phase, the Rome Conference, the Preparatory Commission and ending with the entry into force of the ICC Statute on 1 July 2002 (pp. 1-27). It certainly was a difficult road for international criminal justice from Versailles to Nuremberg and Rome.
Before starting with the commentary of the articles themselves, Schabas provides a thematic discussion of the preamble of the ICC Statute. His commentary of the preamble addresses several of the broad working principles that underpin the Rome Statute (pp.40-53). Those broad principles include the choice of the international community to prosecute serious crimes, giving victims a significant role in criminal proceedings before the Court, pursuing the objectives of peace and justice, ending impunity and creating a deterrent effect, affirming the duty of States to prosecute, emphasizing the advance in creating a permanent independent institution, affirming and upholding the purposes and principles of the Charter of the United Nations, emphasizing the complementarity of the ICC to the domestic jurisdictions of the States Parties, and last but not least, fulfilling the promise of international justice. As Schabas notes, the preamble was the last portion of the text to be adopted by the Committee of the Whole entrusted with putting together the ICC Statute (p. 39).
In the introductory comments regarding Article 1 of the ICC Statute Schabas remarks rather amusingly that in a sense that article might have well been omitted from the Rome Statute, as it adds little or nothing in terms of legal consequences (p. 57). In his view, the final sentence of the article, stating that the jurisdiction and functioning of the Court shall be governed by the provisions of this Statute, seems entirely redundant. It is difficult to disagree with his pointed remarks, although it should be said that sometimes even stating the obvious serves a purpose. Schabas’s Commentary of Article 2 deals extensively with the Relationship Agreement of 4 October 2004 between the ICC and the UN, which underlines the working relationship between them.
Obviously, the commentary on the articles on the subject-matter jurisdiction of the Court is rather important for practitioners working at the Court. While the crime of aggression is discussed as part of Article 5(2), the Kampala Review Conference of 31 May – 11 June 2010 has completed the subject-matter jurisdiction of the Court by adding the definition of that crime, although the Court has to wait until the relevant Resolution becomes operative. Another addition made during this Conference where the definition of the crime of aggression was adopted, which remain to be addressed in a future edition are the three additions to Article 8 of the ICC Statute covering war crimes. Surely, there was no certainty that the crime of aggression would be adopted at this conference.
The Commentary to Article 10 is also noteworthy for the purpose of this book review. This Article contains no title to suggest its content. It states that nothing in this part (Part 2, Jurisdiction, Admissibility and Applicable Law) shall be interpreted as limiting in any way existing or developing rules of international law for purposes other than this Statute. Its aim is to clarify that the adoption of the Rome Statute does not alter in any way the legal obligations of States under both customary and conventional international law. Another important function of this article is to guard against the potential ‘freezing effect’ the provisions of the Statute can have on the further development of international law. As Schabas notes, the text was initially intended to apply to the definition of crimes, and earlier proposals of that provision dealt only with war crimes (p. 267). The International Committee of the Red Cross had issued a statement calling the provision of ‘critical importance’, since in its view it was essential that ‘the Statute of the Court indicate that it in no way affects existing international humanitarian law nor impede its development. However, many international judicial bodies have referred to the Rome Statute. As Schabas states, in effect, Article 10 appears to be largely ignored by the very bodies to whom it is directed, namely specialized tribunals engaged in the interpretation of international law (p. 271).
The important issue of reparations for victims is discussed in Articles 75 (Reparations for Victims) and Article 79 (Trust Fund). With regard to the issue of reparations to victims Schabas states that the effectiveness of this novel regime remains unproven, and the conferral of such authority on the Court is very much a noble experiment. As he puts it in his introductory comments, only time will tell whether in fact the Court will be capable of honouring the promise of reparations that it has made to victims (p. 879). Noting beforehand that victim participation has proven to be a very costly dimension of the activity of the ICC, Schabas states that if, over time, it seems that the real ability of the Court to provide reparation to victims generates little in concrete results compared with the cost involved in the process, Article 75 and its consequences may have to be rethought (p.879). The power of the Court to issue reparation orders carries the potential of opening up in the future many complex problems at the interface of international criminal law and private law. The issue of whether there needs to be a separate hearing regarding reparations as is the case regarding sentencing remains open until the Court decides it one way or the other. Another interesting issue which still has to be answered is that of the relationship between reparations for victims and the Trust Fund. Schabas dwells upon this issue in his discussion of Article 79 (pp. 913-915). He refers to a ruling by Pre-Trial Chamber I stating that ‘the responsibility of the Trust Fund is first and foremost to ensure that sufficient funds are available in the eventuality of a Court reparation order pursuant to Article 75 of the Statute’. Since the Trust Fund consists essentially of contributions from States Parties along with modest sums given by individuals and considering the scale of crimes involved in certain situations under the scrutiny of the Court it is doubtful whether the financial means available can suffice. Other funds are those collected from the persons standing trial through fines or forfeiture, as provided under Article 79(2). As Schabas correctly notes, there is an awkward but presumably inadvertent redundancy in the double reference to an order by the Court in Article 79(2) which states that ‘The Court may order money and other property collected through fines or forfeiture to be transferred, by order of the Court, to the Trust Fund’. Both individual and collective reparations awards can be rendered under the ICC Statute and it remains to be seen how the Court will use the different forms and modalities of reparations depending on the situation and the case at hand.
The discussion of Article 120 on reservations is also quite interesting. Article 120 is the shortest provision of the Statute. It states explicitly that ‘no reservations may be made to this Statute’. In view of the practice of States of making reservations to the human rights treaties which trivialize the legal consequences of participating in the treaty regime, the drafters of the Statute opted for not allowing any reservations to it. However, a number of States have made declarations upon signing or ratifying the Statute. As Schabas states, to the extent such a declaration may imply exclusion or modification of the legal effects or certain provisions it will be deemed a reservation even if this is not the title it has been given (p. 1168). Such types of declarations are prohibited by Article 120. A number of such problematic declarations are discussed. The Court has still to deal with issues related to reservations. Probably the International Court of Justice (ICJ) might be a suitable forum for resolving such issues if and when they arise.
The ICC has still to provide an interpretation for many of the articles of its Statute, which are open to varying interpretations. And the Court has still to finish its first case. Through this book Schabas provides a comprehensive and detailed analysis of the articles of the Rome Statute. He combines an easily readable style with a complex analysis of the text of the article itself, the Elements of Crimes and the Rules of Procedure, relevant case law and opinions and writings of other scholars. Undoubtedly, this book (and other high-quality scholarly work) on the ICC Statute will be helpful to the practitioners at the Court in choosing the correct interpretation.
The enormous amount of work and effort a book of this nature requires would certainly make one think twice before indulging in such an initiative. The breadth and depth of discussion of the ICC Statute articles, including the references to other scholarly work, make this book a key reference for scholars and students of international criminal law. The ICC Commentary can also be very useful to every legal practitioner at the ICC in dealing with various issues arising in his or her daily work.
Thanks Gentian for the excellent post. Can you please shed light regarding the legal principle of making reservation to some of the provisions of the treaty. A reading o the Article 20 as you have pointed does not peremptorily exclude the possibility for countries to make reservations given the fact that the provision is couched in merely directive language-the use of may not- gives leeway to Contracting states to argue that it is merely dierectory and not obligatory. We are having a similar challenge at the WIPO level regarding the legality of excluding reservations from the draft treaty provisions under negotiation currently and am sure your insights into this aspect will greatly assist
thanks for the kind words. I’m afraid I cannot agree with you that the use of ‘may’ in Article 120 can be interpreted as allowing States to make reservations. It is because of Article 120 that States that have ratified the ICC Statute have called their statements ‘declarations’ or ‘interpretative declarations’. To the extent such declarations purport to modify the meaning to be given to the ICC provisions they should be declared null and void (especially if they conflict with the object and purpose of the ICC Statute – for the object and purpose test see among others the Reservations to the Genocide Convention case). It remains to be seen how disputes relating to such declarations will be solved, if that becomes an issue in the future. The International Law Commission is working on the issue of reservations to treaties (http://untreaty.un.org/ilc/guide/1_8.htm). Maybe you can find some guidance there re a particular issue. The ICC Statute is not the only international treaty that does not allow for reservations.