Table Of ContentThe Politics
of Constructing
the International
Criminal Court
NGOs, Discourse, and Agency
Michael J. Struett
The Politics of Constructing the
International Criminal Court
The Politics of Constructing the
International Criminal Court
NGOs, Discourse, and Agency
Michael J.Struett
THEPOLITICSOFCONSTRUCTINGTHEINTERNATIONALCRIMINALCOURT
Copyright © Michael J.Struett,2008.
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Library ofCongress Cataloging-in-Publication Data
Struett,Michael J.
The politics ofconstructing the international criminal court:NGOs,discourse,
and agency/by Michael J.Struett.
p.cm.
Includes bibliographical references and index.
1.International Criminal Court––History.2.Non-governmental
organizations––Political activity.3.Human rights advocacy.I.Title.
KZ6311.S77 2008
345’.01––dc22
2007045683
A catalogue record for this book is available from the British Library.
Design by Macmillan India Ltd.
First edition:May 2008
For
Ekaterina,
Sebastian,Alexandra,and Samantha
Table of Contents
List ofFigures ix
List ofTables xi
Acknowledgments xiii
List ofAbbreviations xv
1 The Meaning ofthe International Criminal Court 1
2 Norm Contestation in World Politics:Civil Society,
States,and Discourse 13
3 Discursive Limits:The Failure to Establish an
International Criminal Court;1946–1954 49
4 Context:An Opening for an International Criminal
Court;1989–1994 67
5 Negotiations:NGOs Shape the Terms ofthe ICC
Debate;1995–1998 83
6 Building the Rome Statute:1998 109
7 Principled Discourse and the Drive for Ratification:
1998–2002 131
8 The Legitimacy ofthe International Criminal Court 151
Postscript:Construction Continues 179
Notes 183
Bibliography 201
Index 213
Figures
7.1 State signatories to the ICC by July 17,1999 135
7.2 State signatories to the ICC by December 31,2000 136
7.3 States ratifying the ICC by December 31,2000 138
7.4 States ratifying the ICC by April 11,2002 138
7.5 States ratifying the ICC by July 17,2007 139
Tables
5.1 Selected NGO and expert papers circulated during the
ICC negotiations 87
5.2 Timeline ofthe ICC negotiations 88
Acknowledgments
When I first proposed this project,in 2000,I found it necessary to reassure skep-
tics that even ifthe International Criminal Court (ICC) never came into being,it
would still be important to tell the political story of how the Rome Statute was
negotiated and why states ultimately chose not to ratify it in sufficient numbers to
bring it into being.Today,the ICC still has many detractors,and there are a wide
range of views on the extent to which the establishment of the ICC has funda-
mentally changed world politics.But there can be little doubt that the ICC is an
institutional force that now plays an important role on the world stage. I am
thankful that I have had the opportunity to think and write about the political
forces that led to this development.
So many gracious people have contributed to the completion ofthis project,in
ways that range from the small to the very large,that it is simply impossible to
name them all.I want to thank many ofyou by name,but I am grateful to many
more ofyou than I can list here.
First,I want to thank the community of experts and activists in the fields of
international humanitarian law and human rights law,many ofwhom I have now
had the pleasure to meet in person,and many more ofwhom I know only through
their written remarks and speeches.It really is a unique sort of personality and
talent that dedicates so much hard work to the development of institutions of
international justice.Everyone who is involved in this community knows of the
unique camaraderie that binds it together.Among this group I can name only a
few ofthe many who have been so generous with their assistance.I want to thank
Benjamin Ferencz for his personal encouragement and for being an example to so
many scholars and activists who follow in his footsteps.I am grateful to everyone
who agreed to be interviewed for this project;everyone I spoke with was generous
with their time and as forthcoming as their professional commitments allowed.In
general,these people are named below in the text,but especially I want to thank
Adrian Bos,who was a gracious host in addition to being tremendously informa-
tive; and Herman von Hebel, who, in addition to taking time out of his own
schedule,also was enormously helpful in helping to put me in touch with many
ofhis colleagues.Finally,I want to thank my dear friend Heather Hamilton,who
listened and responded to many of the ideas presented here during the first ICC
Assembly ofState Parties meeting in September 2002.
I thank Timothy Canova for the invitation to present some ofthis work at an
excellent conference at Chapman Law School.An earlier version of part of the
argument in Chapter 8 was first published in 2005 in Chapman Law Review.I also
thank Anne Heiber at Peace Review,where a preliminary version of part of the
argument in Chapter 1 was published.We thank both publications for permission
to reproduce that work in the present volume.
Funding for this research came primarily from the Institute on Global Conflict
and Cooperation, based at the University of California, San Diego. Additional
xiv ACKNOWLEDGMENTS
support was received from the William Podlich Fellowship Award and the
Department ofPolitical Science and School ofSocial Sciences at the University of
California, Irvine. The School of Public and International Affairs at North
Carolina State University provided funds to aid in the preparation of the final
manuscript.I also want to thank my graduate research assistants,Andrei Iovu,
Justin Moody,and Tanisha Gill,for their work editing several chapters and prepa-
ring the manuscript for publication.
Parts ofthis work have been presented to others and critiqued in a wide vari-
ety of places from formal conferences to simple discussions of ideas over meals
and beverages,much to the benefit of the final product.In particular I want to
briefly thank Wouter Woerner, Ige Dekker, Diane Amann, Antonio Franceshet,
Mervyn Frost, Eric Leonard, Molly Cochran, Ned Lebow, Dorie Solinger, Pat
Morgan, Bernie Grofman, Claire Cutler, Mark Petracca, Monica Nalepa, Marek
Kaminski,Anne Clunan,Cara Robertson,Gretchen Helmke,Barry O’Neil,Terry
Bowers,David Scheffer,Greg Fox,Leila Sadat,Khoi Ta,Diane Orentlicher,Sean
Butler,Steve Roach,Brent Steele,Jaque Amoureux,and Juan Guzman.Nicholas
Onuf took the time to respond with formal written comments to an earlier
version ofmy argument many years ago.
I cannot fail to mention some of my colleagues and friends,who have been a
tremendous source of intellectual stimulation and personal support.Again,at the
risk of naming some but not everyone, I want to thank Brian Adams, Molly
Patterson,Ryane Straus,Sharon Lean,Celine Jacquemin,Michael Jensen,Michael
Latner, Bruce Hemmer, Leah Fraser, David Harrison, Alix Van Sickle, Catherine
Corrigal-Brown,Natalie Masuoka,Madeline Baer,Brian Fisher,Fabrice Paracuellos,
Andy Drummond,Susan Kupperstein,Lara Nettlefield,Bill Boettcher,Mike Cobb,
Charlie Coe,Richard Clerkin,Steve Greene,Erik Faleski,and Steve Weldon.I espe-
cially want to thank Alison Renteln and Etel Solingen,who both saw potential in this
project when it was still little more than a formative idea.I am grateful to Alison
Brysk, Wayne Sandholtz, and Joseph DiMento for their numerous readings of
versions of this project. Each provided ideas and insights that have significantly
influenced the final text.I am especially fortunate to have had the opportunity to
work under the supervision ofCecelia Lynch.Last,I want to thank the late Ernst
B.Haas,who first encouraged me to continue thinking for myself.
I have the support ofa tremendously wonderful extended family in California,
Chile,and elsewhere,without whom I could not have succeeded in this endeavor.
I especially want to thank my aunt and uncle Janice and Jim Southworth,who
have done so much over the years,not least ofwhich was donating the laptop on
which much of this book was initially written.I want to thank my parents,John
and Judy Struett.Finally,I want to thank my wife,Ekaterina,whose support and
understanding made this book possible.This is dedicated to her and our children,
Sebastian,Alexandra,and Samantha.
