The legal consequences of the new international criminal court with regard to its recognition, its jurisdiction, and its likely future. personal analysis regarding to current situation in africa and elsewhere.
A. Hagos Woldu
March 29 2010
If "all politics is local," organizations at the grassroots level need to be supported robustly and more focus must be placed on local answers that build upon the strengths of those located in the midst of conflict. Unfortunately, as Appleby notes: If the Catholic vision of peace, as articulated over the last forty years, emphasizes human rights, development, solidarity, and world order, it has placed far less emphasis on culturally resonant conflict resolution and transformation at the local and regional levels. Thus, challenges remain, especially in the coordination of activities and the empowerment of local agents of change. However, the prognosis for the future is hopeful as the Church continues to reassess its mission in the context of a 21st century world. In an increasingly pluralistic world, it must continue to develop cross-denomination and inter-religious relationships with those who share its vision of a positive peace. It must also form alliances with those who have no faith commitment. While making and building peace in war and conflict worn out areas will always be difficult, the church continues to improve its capacity to serve a positive role in conflict transformation.
At the end of World War II a large of the world was confronted with the dramatic evidence about the cruelty the civilian population had experienced. Since the dramatic images of the bombing of the Hiroshima and the hopeless faces of the victims of the Nazi regime in the concentration camps are in the mind of many generations of human beings. Not surprisingly, the hope that these events would never occur again captured their imagination and led to two major developments in international law- (RANTER S. ABRAMS G., 1997, p.152).
On the one hand, the Nuremberg judgment established for the first times that “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced” (International Military Tribunal, Judgment reprinted in American Journal of International Law, 172, 1947, pp.220-221). This opened the way to the principle of individual criminal responsibility and the development of international criminal law. On the other hand, the dramatic dimension of these events led to the conviction that the way states treated their citizen should be no more a matter of reserved dominion but a subject of international protection, thus contributing to the diffusion of International Human Rights Law. Soon after the Second World War, states decided to combine their efforts in order to maintain international peace and security, to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character as well as to promote and encourage respect for human rights and fundamental freedoms (United Nations Charter, Art. 1, 3).
The establishment of the United Nations seemed to usher in an era in which states, intergovernmental, and non-governmental organizations would play an effective role in promoting peace and protecting human rights all over the world. The effort for a better world is the characteristic of the post-World War II eras. However, these hopes were soon to be disappointed. The Cold War that followed this initial period of co-operation paralyzed international efforts toward peace and justice and for long time rendered some of the UN Charter provisions ineffective (BUERGENTHAL, T., 1997, pp.703-723). Whereas since World War Two the number of international conflicts actually declined –also for the equilibrium of terror which characterized the Cold War and risk for an international conflict to lead to the Third World War- the number of internal conflicts increase (BASSIOUNI, M.C., 1997, pp.17-21).
In some cases, internal confrontation arose between different ethnic groups coexisting in the same state. In other cases, government authoritarians perpetrated repression against their own citizens. Regardless of the specific nature of the conflict, its effect has been as harmful as those generated by international conflicts, involving war crimes and gross human rights violations as torture, crimes against humanity, and genocide. In Argentina about 9,000 persons disappeared or were kidnapped and tortured under the period of military rule (HUNTINGTON S. P., 1991, p.26). Similar case we have, is what about the lost 94 innocent Irob tribes including three priests from their home since May1998-2000 during Eritrean Invasion period? Who took care of these forgotten people? Where is International Justice? ...so on. For example, in Chile, during the period of 1973-1990 an estimated 30,000 people were assassinated and thousands of others were imprisoned for political reasons.
In the 1970s, in Cambodia, 2 million people were killed during the rule of Chamber Rouge. In South Africa, the enforcement of apartheid by a minority of whites on a majority black population, gave rise to the forcible removal of over 3 million people and the detention of another 73,000 under security or state of emergency laws. One major characteristic of these internal conflicts has long referred to the lack of accountability. It has been estimated that out of more than 200 conflicts of internal character occurred after WW2, only one quarter has had some kind of legal redress, while the remaining three quarters have had none. Why was impunity allowed to persist despite the national and international obligations to prevent and punish these acts? The inquiry concerning accountability and the absence of accountability –i.e. impunity- has a twofold dimension, and thus deserves a differentiated answer.
On the one hand the question relates to the entity that has the primary responsibility towards accountability: the state. On the other, it concerns the international community and its role in securing international justice. As far as the national dimension of accountability is concerned, States have long been the only actors to decide whether or not repressing past violations. Why did these countries so rarely choose to establish accountability, to prosecute and punish those responsible?
A first answer has to do with the specificity of the transitional context. After periods of mass violence, as those caused by civil wars or by tyrannical regimes’ victimization, the question of justice assures peculiar characteristics and cannot be addressed, as it would be in ordinary times. Transitions towards democratic regimes often leave behind them huge numbers of perpetrators and victims. Moreover, the same institutions of the State could be heavily damaged, and new governments could not be strong enough to implement measures of accountability (MORRIS M., 1997, p.59). In such a situation establishing accountability has its advantages but has to face also many constraints. Although the decision of dealing or not with the past depends on the new government of the country, this is often faced with emerging obligations deriving from the international law.
1. JURDICTION: THE SEVEN-YEAR ITCH
A great area of great controversy is the jurisdiction of the ICC. The debates over its powers of investigation and complimentary role to national court systems fuelled a problematic fire that lasted throughout the Rome Conference. In fact the largest political power involved, the United Nations, in the Rome proceedings pronounced that their government would not be able to co-operate with a court that can prosecute its nationals (BROWN B., 1999, p.858). The jurisdiction of the court proved to be one of the major topics for debate for the drafters of the Rome Statute. That was precisely because even like-minded countries are very unwilling to surrender their sovereignty to an outside entity. Consequently it made consensus very difficult to achieve.
As arguing Kaul Hans-Peter, “looking back, it becomes even that this was the most important, politically most difficult and therefore most contentious question of the negotiations as a whole –the question of questions of the Court project, so to speak. The jurisdiction and scope of the future Court remained highly controversial right up to the end of the Rome Conference, and were decided, literally, on the last day at the last minute” (KAUL, Hans-Peter, 1998, p.64).
As a direct effect of the last minute effort to achieve a consensus, the adopted resolutions with regard to jurisdiction, fell short to what was originally hoped. Another area of jurisdiction that resented controversy during proceedings was the debate over which illegal activities should fall under the jurisdiction of the ICC as core crimes. Eventually, due to political reluctance to broaden the scope of the court only four main crimes were considered as core crimes to fall under its jurisdiction.
Despite a number of states willing to expand the scope of crimes under the jurisdiction of the court, it was limited to genocide, war crimes, crimes against humanity, and aggression. Several international crimes that encourage political destabilization are excluded from its mandate; consequently the ICC lacks substantial international competence. Crimes that were that were traditionally “reflected in international law” or “proposed at various stages in the work of the International Law Commission” have been excluded. For example, “the Rome Statute does not impose individual criminal responsibility for: the threat of aggression…. intervention colonial domination; the recruitment, use, financing, or training of mercenaries, international terrorism, or the illicit traffic in narcotic drugs” (KAUL, Hans-Peter, 1998, p.64).
One does not have to look very hard to discover the reasons for the exclusion of such tradition-supported areas of international co-operation. Once again, a few important states that, it seems, were not in favour of the establishment of the ICC, felt it necessary to inhibit its ability in case of its eventual succession into international law. There is however a clause allowing the opportunity to propose amendments following a seven year period from the Statute’s entry into force (KAUL, Hans-Peter, 1998, p.64). Once again the seven-year itch becomes evident.
The specific definitions allotted to each crime also proved somewhat difficult, especially for the crime of aggression. The delegates of the Rome Conference failed to agree on how it should be defined. In fact a Preparatory Working Groups is still debating it, more than a year after the Rome Conference. The crime of genocide and war crime, on the other hand, were adequately defined. Due to their long-standing tradition in international law, the definitions already existed and it was simply a matter of adopting them into the Stature of the ICC. For instance the crime of genocide under the Article 6 of the Rome Stature was adopted from the United Nations Genocide Convention of 1948 (ROSBAND, C., and TRIFFTER, O., 2000, p. 9):
“Genocide means any of the following acts meaning to destroy, in whole or kill in part a national, ethnical, racial or religious group, as such, Killing members of the groups, Causing serious bodily or mental harm to members of the group, Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, Imposing measures intended to prevent births within the group, Forcibly transferring children of the group to another group”.
Under Article 7, of the Rome Statute a crime against humanity consists of the following: “…. When committed as part of a widespread or systematic attack direct against any civilian population, with knowledge of the attack:
Murder, Extermination, Enslavement, Deportation or forcible transfer of population, Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, Torture, Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity, Persecution against any identifiable group or collectively on political, racial, national ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court, Enforced disappearance of persons, The crime of apartheid, Other inhumane acts of a similar intentionally causing great suffering, or serious injury to body or to mental or physical health” (ROSBAND, C. and TRIFFTER, O., 2000, pp.9-11).
By far, Article 7 on Crimes Against Humanity is the most up to date and groundbreaking work done by the Rome Statute. The inclusion of sexual offences and enforced disappearances of persons displays the positive effects of the NGO coalition on the drafting of the Statute. Neither of these topics has been adequately dealt with previously in any type of international legal forum. Although rape has been included in other tribunals, there has never been such a wide extension of the inclusion of sexual aggression. The drafters of the ICC, in this respect have succeeded in breaking real vital ground in the furthering of international victimlogy. War crimes are defined under Article 8 of the Rome Statute in a very lengthy and inclusive list of crimes. However it does state in paragraph 1 that: “The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy as part of a large scale commission of such crimes” (ROSBAND C. and TRIFFTER O., 2000, p.11).
This suggests a contradiction in the mandate of the court. Given that the Court is to deal with responsibility of individuals in armed conflict, but stipulates, in the case of war crimes, that it will only be interested if the crime is committed as part of a wide spread plan or policy. This suggests that the court is not willing to deal with individual cases. How then will the court deal with the fabricators of the plan as opposed to the soldiers who carry it out? It seems to be an important loophole that needs to be closed. There is some suggestion that this loophole exists to avoid the “swamping” of the court by cases arising from ‘sundry countries’ (KAUL, Hans-Peter, 1998, p.64).
Given the concern that the first few years of the court’s existence there will be a lack of cases for it to proceed over, this seems like a weak arguments. The problematic nature of defining the jurisdiction and legal aspects of the court is understandably difficult. The Rome Statute, although inadequate in some areas and ground breaking in others, is the result of compromise. It is important to keep that in mind, especially given the reluctance of some states to commit to a comprehensive international judicial power. It will also be important to examine the progress made in this area after the seven-year review period and possibly then propose meaningful amendments to full in the gaps left in the Statute.
2. INTERNATIOANAL-CRIMINAL-COURT, NATIONAL-JURISDICTION-AND SOVEREIGNTY
The relationship between the International Criminal Court and the national judicial systems is defined as complementary. That is to say that the ICC has to operate under the principle of reciprocity that dictates that it only intervenes into a case that national systems are unwilling or inability to bindle. It will not replace national system of justice, but in fact pressure them to resolve their own cases more effectively. Inability basically refers to a situation of partial or entire collapse of the national justice system. It also refers to the inability to collect evidence or investigate cases due to whatever reason. Unwillingness on the other hand will require a more in depth analysis. One of three conditions must exist before the ICC can intervene into a national case on the basis of unwillingness:
Whether the national proceedings/decision was made to shield the person from the criminal responsibility for crimes within the Court’s jurisdiction. Whether there has been an unjustified delay in the proceedings that is inconsistent with intent to bring the person to justice. Whether the proceedings were not or are not being conducted independently or impartially and were or are being conducted in a manner, which is inconsistent with intent to bring the person to justice. (BRADY H., 2000, p.6).
If the national court executes their responsibility in investigating a criminal act, under the jurisdiction of the ICC, it will avoid any intrusion of the Court. By virtue of the principle of reciprocity, the ICC is only permitted to take over an investigation if the national court fulfils one of the fore mentioned criteria. However, this may provoke a need for reform in national justice systems. States that are practicing sub ICC standard of criminal justice may become the targeted by the ICC. This could have an enormous effect on judicial systems and rights of both the victim and the offender in national proceedings. Many countries will need to reassess their justice policies in order to abide by the Rome Statute. Consequently, States will need to train officials and investigators of rights guaranteed to victims, witnesses and suspects in order to avoid conflicts of practices. States are bound to cooperate with the ICC and consequently must abide by the ICC standards (See Art. 86 of The Rome Statute). Rights given to witness victims and suspects under the Rome Statute and those under national legal systems may differ significantly.
The Rome Statute will have a profound effect on the national justice systems of those countries that don’t already abide by high standards. Obviously it would be far for the cases that may be applicable for them to develop a two-tiered system of investigation for the cases that may be applicable to the jurisdiction of the ICC. Furthermore if states neglect their obligations to operate under these standards, they may experience legal ramifications. This imposition of the Rome Statute on international court systems will however benefit the victim, witness, suspect and society in obliging security and investigations forces to act in an internationally excepted manner.
3. INTERNATIONAL CRIMINAL COURT
Before the Rome Statute (bill or Decree) was formalized in July 1998, it was clear that the U.S support was going to be minimal. American opposition was clearly expressed in a letter written by the U.S Senator Jesse Helms to the Secretary of State Madeleine Albright, where he stated: “Recent reports indicated that the United States now seems willing to accept a ‘compromise’ in which the power to grant jurisdiction would be taken out of the jurisdiction of the Security Council. Under this scenario, an American citizen could very well come under jurisdiction of a UN Criminal Court, even over the express objection of the United States Government. (…). A treaty establishing such a court without a clear United States veto … will be dead-on-arrival at the Senate Foreign Relations Committee” (Wedgwood Ruth, 2001, p.15). Among other factors that can be considered as the main reasons of American opposition are: constitutional issues, crimes within the jurisdiction, and the fear of the politicization of the Court.
The resistance of the U.S government seemed to revolve around the concern that U.S troops could be investigated and prosecuted based on frivolous and politically motivated attacks on behalf of countries like Cuba, Libya, or Iraq. On this point Ruth Wedgwood argued that, “with America’s forward military posture in the world, Washington wants a guarantee that its soldiers, sailors, airmen, and marines will not be subject to the International Criminal Court jurisdiction unless and until the U.S decides to join the Court as full treaty party” (Wedgwood Ruth, 2001, p.4). To prevent U.S citizen to be prosecuted by the Court, delegates adopted a number of safeguards to prevent such attacks. Above all the principle of reciprocity would prevent this type of abuse. However, the United States was not satisfied. It insisted that United Nations Security Council should have a right of veto over any case that comes in front of the court. Upon further analysis, one can discover why the United States is so opposed to accept jurisdiction of any court powerful enough to enforce its mandate. The U.S is also hesitant because of its extensive history of military intervention, and its post Vietnam policy of minimal losses.
The other concern is with the extensive use of military force and intervention. Scharf explores one example of this concern: “On August 20, 1998, the United States launched an air strike against the Al-Shiffa pharmaceutical plant in Sudan, which U.S officials claimed was a chemical weapons facility operated by Osama Bin Laden, the terrorist behind the bombing of the U.S embassies in Tanzania and Kenya a month earlier. It was subsequently disclosed that the Al-Shiffa plant in fact produced legitimate pharmaceutical products including anti-malaria drugs under a United Nations contract specifically approved by the United States and that Osama Bin Laden had no financial or other connection to the plant. Arguing that the bombing of a civilian pharmaceutical plant constituted a war crime, the president of Sudan called for the international prosecutions of U.S officials behind the air strike” (Brown, 1999, p. 869).
If the International Criminal Court were in practice at the time of the bombing, the U.S officials responsible for the attack could have possibly indicted. This would be a significant indictment considering the President, Secretary of Defense and Military Commanders theoretically could have been brought before the court.
The U.S opposition of to the International Criminal Court could seriously undermine the courts ability to protect innocent victims. The very purpose of the court is to overcome impunity and to provide a permanent international forum for the condemnation of gross human rights violations. If the U.S succeeds in destabilizing the court, these types of crimes will go, once again unpunished. Consequently, if the U.S chooses not to accept jurisdiction of the International Criminal Court, it will give other nations no other choice than to question the relevance of a court that has limited jurisdiction, excluding the largest military actor in the world.
Obviously, American support for the International Criminal Court would be perfect. The major losers in this situation will be the victims of human rights violations. They are the ones who will suffer directly if America persists with their agenda of interference. The court could be stronger today if the United States had offered its unconditional support, but that is not the case. Now the international community must ensure that its hard work is no wasted, and that the International Criminal Court is established in the interest of gross human rights violations. Never again should masses of people suffer needlessly. Never again should victims be ignored. Never again should gross human rights be met with impunity.
The Irob tiny tribes are one of such victims and since May, 1998 to today, June, 2009, for 11 years, the people are suffering and became sandwich among many political powers. The lost are lost and I never heard in the world political or social history the people disappeared from their home without any accusation or appearing to court. Where are the Irob people abducted in 1998-1999 from the Irob woreda leaving their children’s (orphans)?
What Irob, as Ethiopians, we need from International Court of Justice (ICJ) is only JUST ARBITRATION OF THE BOARDER WITH ERITREA and this we ask and wish for all other colonial wounded African societies and nations as well. Thanks to our Government we are saved from mistaken court and discriminations.
4. What are the Sources of International Law?
There are two different approach to the sources of International Law: while one refers to the external sources, (external to society), the other concerns internal sources (within society). The first one includes some high metaphysical stand of conduct and it is subdivided into two further external sources: ideological and theological principles (religion); naturalist view, according to which the human beings by nature are born with duties.
Karl Marx criticised these external sources for having imposed religion in the name of divine law. In contrast with this external approach, the internal sources represent the positivist’s view, according to which people make the rules based on custom and practice in society: the law as a product of society where people want to govern themselves. But this view leaves room to legitimising immoral behaviour: the imposition of the dominant class leaves abuses be practiced in the name of customary law; there was a time in which the practice of slavery was considered being a proper and legal conduct.
Article 38 of the Statute of the International Court of Justice provides the actual sources of International Law: International conventions, International custom, the general principles of law recognized by civilized nations and Judicial decisions and the teachings of the most highly qualified publicists of the various nations. If the parties agree, the Court may decide ex aequo et bono. The expression international conventions covers not only bilateral and multilateral treaties and formal conventions, but also all other international agreements, even of an informal nature, provided that they establish rules expressly recognized by the States parties to the dispute. Manifest acceptance or recognition by a State of a convention is necessary before the convention can be applied to that State.
The 1969 Vienna Convention on the Law of Treaties defined a treaty as an agreement by two or more States established or sick to establish a relationship between them governed by International law. Treaties, generally, are supposed to have perpetual duration and not to have unilateral termination unless is written that a party can redraw from it. Although Article 38 of the Statute of the ICJ does not provide for a hierarchy among sources, the priority of position given to treaties reflects the understanding of states and of international lawyers. Codification is the systematization of rules of international law in fields where there already has been extensive state practice and precedents, and doctrine.
By 1985 a substantial part of customary international law had been codified in multilateral conventions prepared by the International Law Commission, approved by the General Assembly and adopted by international conferences. Treaty rule may be accepted as customary law when declaratory of pre-existing custom and therefore be binding on states not parties to the treaty in question. A custom is the evidence of practice overtime: a rule of international law became a custom if it is practiced.
In 1950 the International Law Commission proposed the “Hudson formula” by which four elements need to be present to establish custom:
Concordant practice by a considerable number of States with reference to a type of a situation following with the domain of International Relations; The continuation of repetition of practice over a considerable period of time; There should be an understanding that practice is required by, or consistent with, prevailing International Law; General acquiescence in the practice of the other states. There are several ways to find that a rule is practiced: when judges and lawyer refer to published materials (journals…); statements by the government, by the parliament through international meeting; Court decisions which refer to such custom; State laws; scholar writings; judgments on the other Courts; treaties.
The Court's decisions show that a State which relies on an alleged international custom practised by States must, generally speaking, demonstrate to the Court's satisfaction that this custom has become so established as to be legally binding on the other party. The most important general principles of law derive both from municipal law and from the international community. As an independent source, principles of national law did not need any separate proof of being received into international law. However, some jurists state that national law principles need to receive the imprimatur of State consent through custom or treaty in order to become international law.
The category of principles derived from the international community includes also the principle of pacta sunt servanda, non-intervention, territorial integrity, self-defence, universalistic values associated with traditional natural law doctrine. Judicial decisions and the teachings of publicists merely constitute a "subsidiary means for the determination of rules of law". The application of a judicial decision is made subject to the provisions of Article 59 of the ICJ Statute, which stipulates that a “decision of the Court has no binding force except between the parties and in respect of that particular case”. The relegation of judicial decisions to a “subsidiary status” reflects the reluctance of states to accord to the International Court of Justice a law-making role. The practice of the ICJ has generally been to refer to doctrine and teachings only in very general terms. Paragraph 2 of Article 38 of the Statute provides that paragraph 1 of that Article “shall not prejudice the power of the Court to decide a case ex aequo et bono".
According to ex aequo et bono, the ICJ has the power to decide, to legislate, to abrogate or modify existing legal rights when the legal situation seems in conflict with the justice in the case. The Article 38 of the ICJ Statute is not a complete statement of the source of international law. For instance, the paragraph does not mention such principles as those of equity and justice, to which the Court is always entitled to have recourse. Equity is a part of any modern system of administration of justice because id designed to correct the insufficiencies and rigidities of the existing civic and common law.
Article 38 of the ICJ Statute does not mention also unilateral acts of international law, nor does it make reference to the decisions and resolutions of international organs, which very often contribute to the development of international law. Although the UN General Assembly is not a legislative body, its resolutions, diplomatic actions and symbolic declarations have sometimes acquired legal significance. When these resolutions are accepted and put into practice by a sufficient number of States then they are referred as law. To encourage the development of international law and the codification of custom into law, the Assembly established in 1949 the International Law Commission as its principal instrument for making the necessary studies and recommendations.
By doing so, this article indirectly argues that the Ethiopian and Eritrean boundary is occupied by two closely related people and any solution to end the currently widespread stalemate and resolve the border disagreement needs to be done with the participation and consultation of the local people. Any solution that will be obligatory on the local people is likely to face resistance, undermining the sustainability of the peace that could be achieved. Any solution to the end the currently prevailing stalemate and the overall Ethiopian and Eritrean border conflict should be carried out in consultation with the local people who are living along the disputed border since their existences as indigenous people.
The contribution of the local (indigenous) people in any forthcoming solutions to address the currently prevailing stalemate and the border controversy in general promotes the possibility of sustainable peace. On the other hand, laxity to the local people and reliance at the level of colonial treaty that was outcome of African scramble by Western World, undermines the sustainability of any peace that could possibly be achieved. Once the current stalemate on the border is resolved, the two countries need to undertake a series of negotiations to address other sources of the conflict that caused the war as well as to take steps towards normalizations of relations, which the people along the border are desperately waiting for.
Individuals discover their “inner conflicts” by listening to their own “voice of internal criticism.” Most children develop in an environment of criticism and quickly become aware of what behaviour they should or shouldn’t perform in order to receive parental acceptance. Acceptance by parents is a crucial issue in personal development. Once a child becomes an adult, he/she frequently finds himself carrying on a similar practice of interior criticism. He/she continues to create internal conflict for himself/herself.(personal view of the of the Author of this article as parents and children’s or Gov. and people, - 2003.)
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