Return to Pragmatism: The International Criminal Court’s Place in the International Arena
The Law of Nationbuilding Seminar
beginning of the 21st century has seen a dramatic shift in the
international system. The traditional
principles and theories of international law have been considerably tested
under the weight of global terrorism, the rise of non-State actors, and the
progression of globalization. After the
devastation of the Crimean and U.S. Civil Wars, the international community
began to discuss and create enforceable rules of conduct with the
human rights law has developed and progressed in recent decades, skepticism has
grown regarding whether or not human rights can effectively be enforced. As Professor David Kennedy of
in-depth assessment of both the theoretical basis and practical application of
universal jurisdiction and the ICC are necessary. Turning first to universal jurisdiction, the
theoretical principle of universal jurisdiction has developed in direct opposition
to the traditional norms of international law. While universal jurisdiction is theoretically
powerful, it has been incredibly inept in practice. This failure of universal jurisdiction is
demonstrated by the example of Belgium’s 1993 universal jurisdiction statute
and the subsequent repeal of the statute in 2003
in response to overwhelming political pressure, namely from the United States. Shifting to the ICC, the creation and
jurisdiction of the ICC was developed in response to the practical dilemmas of
universal jurisdiction. As the Court
develops, it now faces its biggest challenge of legitimacy yet, the arrest
warrant for the current President of Sudan, Omar al-Bashir. Finally, the
Pragmatic Theory of International Criminal Law
Before beginning the discussion, it is important to address the necessary theoretical framework for assessing the best structure for effective humanitarian protection. The majority of articles on the subject of international criminal law, though well articulated and argued, tend to revert to dogmatic doctrines either arguing that internationalization is fundamentally good or fundamentally bad. This is especially true in the discussion of policy and the enforcement of human rights:
For one thing, the water is muddied by very general – and altogether unhelpful – arguments for embracing or rejecting international policy making wholesale; like the idea that internationalization is technically or historically inevitable, or that some problems simply are global and therefore require international policy solutions. Or, on the other side, the argument that humanitarianism requires national boundaries and a national welfare state to be successful.
It is this inflexible analysis that continually limits the discussion of international criminal law as a meaningful policy choice. International criminal law views itself as somewhat separate from the rest of the body of international law, as something morally legitimized. This attitude dismisses the need for succinct and well reasoned policy development that comes with other forms of law in the international arena; for example the law of contracts, trade, or tax. “The common idea that intervention is a periodic and exceptional activity encourages neglect of the policy-maker’s baseline engagement in the status quo ante.” It is this neglect and dismissive attitude towards the practical needs of international criminal law that has led to many of the shortcomings and significant critiques of human rights protection. These critiques range from the double standards for different perpetrators of abuses, the argument that Western powers are using international criminal prosecutions in an effort to re-colonize countries, or that human rights law’s lack of enforcement actually emboldens states to commit human rights abuses.
This begs the question, how should international criminal law be enforced? Instead of analyzing human rights enforcement and international criminal law through the moral lenses, it is important to address the very real outcomes of the adjudicatory structures of international criminal law. What are the outcomes of utilizing national courts through universal jurisdiction? What are the outcomes associated with acceptance into the International Criminal Court? What does either structure do for those who suffer these atrocities on the ground? Are government’s more concerned with prosecuting individuals that have committed crimes or proactively stopping violence currently taking place? These are complex questions that do not easily fit into any one theoretical mindset. Though complex, these are questions that must be answered. Utilizing the pragmatic approach, it is easy to notice that every criminal system requires a combination of both persuasion and enforcement to be effective. Further, there must be a fundamental partnership between both the political and judicial systems to be effective. It is through this mindset, the ability to foster working relationships between coercion and enforcement, politics and the judiciary, that effective adjudication can be defined. It is this pragmatic mindset that is the basis for the ICC and the foundation for its possible success in prosecuting international criminal law.
II. Universal Jurisdiction
A. Universal Jurisdiction vs. Traditional Norms of International Jurisdiction
jurisdiction has been a hotly contested concept in international law for
decades. There is a fundamental
difference between the theory of universal jurisdiction and the application of
it in practice. The theory of universal
jurisdiction holds that a State is entitled or even required to bring
proceedings in respect of certain serious crimes, irrespective of the location
of the crime, and irrespective of the nationality of the perpetrator or the
victim. Though the definition is quite broad, there
is a very narrow list of crimes that fall under universal jurisdiction’s
scheme; piracy, genocide, crimes against humanity, torture, slave trade, and
war crimes. Though no country argues that these crimes
should not be prosecuted, universal jurisdiction is controversial because of
its dismissal of State sovereignty, the hallmark of public international law. Universal jurisdiction allows States to
ignore the sovereignty of another State by investigating, arresting, and
possibly imprisoning individuals with no connection to the
Under the territorial principle, exclusive authority to adjudicate an issue is based on the territory of a State. The territorial principle posits that a State has complete and total control over any crime arising within the territory of that State. This is the basic and easiest form of jurisdiction to find because as the State is the core actor under international law, the State has complete control over its own territory. Thus, a foreign State has no jurisdiction in another State without express permission. Universal jurisdiction allows a State to exert jurisdiction over a crime that has no connection to its own territory. A State can accordingly enforce its own power over the events and actions occurring in another State. Critics of universal jurisdiction argue that this power jeopardizes the very foundation of international law. As former Secretary of State Henry Kissinger has pointed out, himself the subject of several warrants for arrest based on universal jurisdiction, “It is an important principle that those who commit war crimes or systematically violate human rights should be held accountable. But the consolidation of law, domestic peace, and representative government in a nation struggling to come to terms with a brutal past has a claim as well.” The ability for a State to reconcile violence or atrocities committed is wrestled away from the sovereign, and taken by another State which can severally limit some of the positive outcomes of reconciliation and adjudication programs. Universal jurisdiction completely undermines the sovereignty principle because a foreign State has jurisdiction without express permission of a sovereign and often times against the stated will of the sovereign State.
Turning to the second principle of jurisdiction, the undermining of sovereignty is the basis for resistance against universal jurisdiction under the nationality principle, also known as the active personality principle. The nationality principle stands for the proposition that a State can exert control over their own citizens, even when that citizen isn’t within the State of nationality, “Under this theory a state may exercise its sovereign power by prescribing conduct for its nationals, even where they are abroad.” Universal jurisdiction allows a State to indict, arrest, and prosecute a non-citizen for a crime committed against a victim who may or may not be citizen of the acting State. A State can exercise universal jurisdiction over an individual when neither the perpetrator nor victim are a national of that State. This is a fundamental shift in international law because a citizen could be held responsible for actions committed domestically by foreign courts and foreign laws. This takes away one of the key purposes of a State, the ability to uphold and enforce laws on their citizens.
third basis for jurisdiction under international law is the protective principle. The protective principle asserts that a State
has jurisdiction to the extent necessary to protect its fundamental and
legitimate interests. This principle is typically deemed the
“national security” principle and is utilized when States consider a
fundamental threat to their national security and in response preemptively
exerts sovereignty over a particular individual or claim. At first glance this principle seems quite
broad and similar to the theoretical underpinnings of universal jurisdiction;
however, there is one fundamental difference between the two concepts. Under the protective principle, a State must
demonstrate a pressing need or threat to their national security to trigger
jurisdiction. This is not the case under
universal jurisdiction. Universal jurisdiction can be triggered at
any time by a State without any fundamental connection to the
After analyzing the three traditional forms of jurisdiction under international law, it is easy to see why the concept of universal jurisdiction is so controversial. Without a clear basis in any established form of traditional jurisdiction, universal jurisdiction represents a fundamental break from traditional international criminal law. It is at this point, however, where universal jurisdiction fails to take the next step. Advocates of universal jurisdiction promote competing rights to jurisdiction, labeled a “wild west” scenario by critics, where whichever country holding the necessary power to adjudicate should adjudicate. This completely dismisses State’s very real need for the protection of sovereignty and allows for individual states to prosecute how they see fit. This leaves little room for legitimate discourse when the balance of power between States is so inequitable that outside observers do not see justice being served but instead see forced compulsion. Proponents of universal jurisdiction view the State system, utilizing universal jurisdiction, as the best structure to prosecute international crimes. In practice, however, this argument rings hollow.
B. Universal Jurisdiction in Practice: Divergence between Theory & Reality
As discussed earlier, the theoretical concept of
universal jurisdiction appears to be quite broad and seemingly powerful,
especially in relation to the traditional basis for jurisdiction under
international law. In practice, however,
this expansive power is severally limited as States lack either the ability or the
will to actively pursue perpetrators of human rights violations under the
principle of universal jurisdiction. States often limit themselves in one of two
ways: either phrasing their domestic universal jurisdiction legislation to lack
the ability to extradite the perpetrator or by phrasing the legislation to only
extend to either perpetrators or victims who are nationals of the
Both the co-operative limited universality principle and
the unilateral limited universality principle are focused on a narrow list of
specified international offenses. The
core difference between the two principles is who has the ability to exercise personal
jurisdiction over the perpetrator. The co-operative limited universality
principle requires a link with the
C. Belgium’s Universal Jurisdiction Experiment
The political consequences of
the ICJ did rule on the issue of immunity, it made two caveats to their
holding. First, it specifically stated
that immunity did not mean impunity, “immunity from jurisdiction enjoyed by
incumbent Ministers for Foreign Affairs does not mean that they enjoy impunity
in respect of any crimes they might have committed, irrespective of their
gravity.” Secondly, the ICJ specifically stated that it
was not ruling on the legality of universal jurisdiction under international
law. The Court was significantly split regarding
the issue of a State’s use of universal jurisdiction generally and so the court
specifically did not rule on that issue.
The ICJ’s decision nonetheless was a significant blow to
In early 2003, a group of Iraqi families initiated an
investigation against former United States President George H.W. Bush, former
Secretary of Defense Dick Chaney, and former chairman of the Joint Chiefs of
Staff Colin Powell, among others, for human rights violations in the 1991 Gulf
War. In response to the initiation of the claim,
III. International Criminal Court
A. Formation and Scope
The ICC came into being on July 1, 2002 when the Rome Statute of the International Criminal Court Treaty entered into force. As of today, 108 countries have joined and ratified the Rome Statute accepting the Court’s jurisdiction, another 40 countries have signed the treaty but have not yet ratified the treaty in domestic legislation, and a handful of countries including the United States, China, India, and Turkey, have not signed. The ICC was created in response to the growing sentiment in the international community that an intergovernmental organization was needed to prosecute severe violations of international human rights. In response to this sentiment, the ICC was created to prosecute a narrow number of crimes including genocide, crimes against humanity, war crimes and the crime of aggression. While the crime of aggression has no definition within the Rome Statute, the other crimes, “are narrowly defined and are given thresholds which imply that only crimes of a grave and systematic character fall within the jurisdiction of the Court.” Thus, the ICC is charged with a very limited yet vital role in its judicial power to prosecute breaches of international criminal law. The real conflict for the ICC, however, is between credibility on the one hand and effectiveness on the other. As Tom Ginsburg points out, “The ICC itself has a legal and political imperative to make its promises of prosecution credible, or risk irrelevance. These efforts point in the direction of a functionalist need for international criminal prosecutions. On the other hand, states…may sometimes need to make another type of credible promise, namely a promise not to prosecute.” This internal conflict of the ICC is the true test for legitimacy in the international arena.
B. Basis for Jurisdiction under the ICC
In the discussion on universal jurisdiction, the break from traditional norms of international jurisdiction is clear. In the case of the ICC, however, the Rome Statute was carefully drafted as not to upset these traditional norms while still creating a drastically new judicial body through the principle of complementarity. The complementarity principle serves as the core of the ICC’s legitimacy. Under this framework, the ICC’s jurisdiction is based on a State’s jurisdictional power; territorial and nationality jurisdiction. When States become parties to the ICC, their acceptance provides the ICC the power to claim jurisdiction through the State’s necessary power over their own territory and citizens. Within this framework, each State has the “first bite at the apple”, namely, Article 17 of the Rome Statute provides each State the ability to first either prosecute their nationals or prosecute foreign individuals who are carrying out atrocities within their own territory. The ICC gains jurisdiction over a case only if a State is unable or unwilling to prosecute an individual charged with a grave breach of international criminal law. Sufficient state enforcement can break down in several key areas; lack of judicial efficiency, deficient prosecutorial functions, or inability of the executive to enforce decisions. The ICC’s role is to step in when these factors occur to fill the vacuum when States are incapable of adequate adjudication. It is this structural procedure that provides the legitimacy and longevity of the ICC. State sovereignty is not nearly as upset under the ICC framework as it is under universal jurisdiction. States still serve as the central actor in the international arena; however, their power is structured by a meaningful international judiciary.
Many critics of the ICC argue that States should not be forced to prosecute individuals based on politically motivated manhunts and that the ICC serves as a ready forum for such prosecutions. A proper analysis of the ICC’s structure, however, proves otherwise. Under the ICC framework, the State is provided initial control over adjudication of the crime, and only if the State is unwilling or unable to reasonably prosecute the crime does the “sovereignty” transfer to the ICC for purposes of criminal litigation. The ICC’s true function is not to seize a State’s ability to adjudicate alleged perpetrators; the true function is to ensure that States act in good faith when they prosecute, “The real problem, however, will not be the International Criminal Court wanting to assume jurisdiction in inappropriate cases, but the wish of some governments to protect some people from a genuine and effective prosecution.” The Court determines the unwillingness or lack of good faith by examining, “whether there has been an intention to shield defendants, unjustified delays, biased proceedings, or a substantial collapse of a country’s judicial system.” The true role of the ICC is to serve as an independent body to verify the good faith effort of States to respect and enforce the human rights treaties they are a part of, even if that means prosecuting their own nationals.
C. ICC’s True Test of Legitimacy: The Arrest Warrant for Omar al-Bashir
As set out in the introduction, any genuine analysis of a
theoretical structure requires the relation between the theoretical framework
of the structure and that structure’s use in practice. With the overall goal of pragmatism in mind,
how effective is the ICC in practice?
Since its creation, the ICC has initiated several investigations
regarding human rights violations, “four of these [investigations] were based
upon voluntary referrals from states and one upon a referral from the UN
Security Council.” Though the cases of voluntary referrals are
important to an understanding of the ICC, those all deal with situations where
countries specifically referred the case to the ICC, and thus do not trigger
the critiques usually articulated against the Court. The focus of this Article is therefore on the
one referral by the UN Security Council regarding the humanitarian crisis in
The UN Security Council
adopted Resolution 1593 on March 31, 2005. Resolution 1593 referred the Darfur crisis to
the International Criminal Court to investigate the reported atrocities being
committed by the government of
There are three elements necessary for the ICC to effectively prosecute Omar al-Bashir and lay the necessary foundation for recognition as a legitimate judicial body. These three elements are; 1) producing effective trials and decisions that produce assent by the parties involved, 2) must maintain legitimate institutional independence, and 3) serve as a stabilizer for the international system. Beginning with the first element, the ICC has lacked respect because of its inability or unwillingness to initiate proceedings, “The perceived illegitimacy of any arrest warrant against Al Bashir cannot be separated from the ICC’s…failure to get trials underway. After more than half a billion dollars spent, not a single day of trial has yet been held.” Though the ICC has initiated several investigations, actual judicial proceedings have not taken place, severally limiting both the perceived and actual authority of the ICC. The ICC Prosecutor must focus on the development of judicial proceedings because it is the judicial process, not media statements and political grandstanding, which lay the foundation for legitimacy. Judicial proceedings need to start both against Omar al-Bashir and lower level leaders in the Sudanese government because it demonstrates to the international community that the ICC’s real goal is for lawful and valid adjudication. This adjudication needs to be viewed as unpartisan, and instead of only prosecuting the “face” of oppression, the President of Sudan, the ICC must carry out prosecutions against lower level perpetrators as well.
The second element, institutional independence, is vital
in any judicial structure, whether domestic or international. Institutional independence is central to the
ICC’s legitimacy because any effective strategy for the prosecution of human
rights violators requires both “carrots” and “sticks”, but the use of these
tools must not be through the ICC. Institutions like the United Nations,
Security Council, or the African Union are political institutions and thus utilize
political tools of persuasion and force to achieve their goals. These tools, however, cannot be the focal
point of the ICC’s strategy because the ICC must maintain its independence as a
judicial institution. In the
The third and final element is the ICC’s need to serve as
a stabilizing force in international law.
Critics of the ICC contend that giving it full prosecutorial powers may
actually intensify the human rights atrocities being committed.  This occurs because once the ICC initiates
proceedings, the ability for the parties involved to create amnesties are
severally limited. Thus, the ICC can be labeled as the
destabilizing force and popular opinion, even among the victims, can swing
against the ICC because it is viewed as the hindrance to peace. The current state of the arrest warrant for
Omar al-Bashir echoes the threat of destabilization. In response to the ICC arrest warrant, Omar
al-Bashir expelled eleven foreign aid groups because they were accused of
spying for the ICC. The expulsions have dire consequences for
millions of people in
looking at both universal jurisdiction and the ICC, it is clear that the
taking such an antagonistic role towards the ICC, particularly removing the
The ICC framework is the best structure for the promotion
of human rights enforcement from the United States perspective for three
reasons; 1) the ICC principle of complementarity protects state sovereignty and
traditional norms of customary international law, 2) the ICC’s independent
structure provides legitimacy in international criminal prosecutions, and 3) a
non-state sponsored judiciary can pragmatically withstand the political
pressures that states cannot. The core
critique of the ICC by the
The second chief critique, specifically waged at the role
of the independent prosecutor of the ICC, is that many of the cases will be
politically motivated and lack international legitimacy. This assumption, however, is inaccurate when
analyzing the structure and role of the independent prosecutor. The prosecutor is elected by the Assembly of
State Parties, which is an organ of the ICC made up of representatives of the
parties to the statute. The prosecutor is charged with maintaining
independence and every potential investigation requires a “reasonable basis”
determination by the prosecutor which must then be approved by the Pre-Trial
Chamber. These safeguards ensure that the prosecutor
maintains independence and provides a particular amount of legitimacy that is
not present under State initiated investigations and proceedings. Further, the overwhelming support for the
Court, evidenced by its current 108 state-members, demonstrates the recognized
legitimacy of the Court and its mandate to prosecute human rights violations. While concrete results have not been attained
in the form of convictions, the pressure and international support towards the
Court demonstrates the Court’s persuasive influence and presents the
The third basis for support of the ICC is proven by the
case examples discussed earlier. As the
Belgium example identifies, a single State’s attempts at prosecuting human
rights violations suffers from perceived illegitimacy, but more importantly, individual
State action can be practical suicide in the face of international opposition.
is no doubting the modern trend towards globalization and internationalization
in many fields, including criminal law.
This movement, however, must recognize that while internationalization
moves forward, States are still the defining element of the international legal
system. It is because of the State’s
role in international law that the ICC serves as the most pragmatic and
realistic approach for international criminal adjudication. By coupling both the effectiveness of
national judiciaries and the legitimacy of an internationally recognized and
accepted judiciary, alleged perpetrators can effectively be prosecuted. The ICC protects the traditional notions of
State centered jurisdiction, but provides States that are unwilling or unable
to prosecute a legitimate tribunal for prosecution. This system compels both the State itself and
the broader international community to recognize human rights violations for
what they are, crimes that must be prosecuted.
1. Aljazeera, Arab Leaders Snub al-Bashir Arrest Warrant, http://english.aljazeera.net/news/middleeast/2009/03/2009330175846714662.html (last visited Apr. 13, 2009).
2. Anne-Marie Slaughter, Defining the Limits, in UNIVERSAL JURISDICTION: NATIONAL COURTS AND THE PROSECUTION OF SERIOUS CRIMES UNDER INTERNATIONAL 168, 170 (Stephen Macedo ed., 2006).
Arrest Warrant of 11 April 2000 (DRC v.
5. Cherif Bassiouni, The History of Universal Jurisdiction and its Place in International Law, UNIVERSAL JURISDICTION: NATIONAL COURTS AND THE PROSECUTION OF SERIOUS CRIMES UNDER INTERNATIONAL 39, 40 (Stephen Macedo ed., 2006).
6. Christopher Gosnell, Editorial Comment, The Request for An Arrest Warrant in Al Bashir: Idealistic Posturing or Calculated Plan, 6 J. Int’l Crim. Just. 841, 846 (November 2008).
7. CNN, International Court Issues Arrest Warrant for Sudanese President, http://www.cnn.com/2009/WORLD/africa/03/04/sudan.president.darfur.charges/index.html (last visited Apr. 1, 2009).
8. DAVID KENNEDY, THE DARK SIDES OF VIRTUE: REASSESSING INTERNATIONAL HUMANITARIANISM 35 (Princeton 2005).
9. Diane F. Orentlicher, The Future of Universal Jurisdiction, in UNIVERSAL JURISDICTION: NATIONAL COURTS AND THE PROSECUTION OF SERIOUS CRIMES UNDER INTERNATIONAL 214, 219 (Stephen Macedo ed., Penn Press 2006).
10. Financial Times, League Rejects Warrant for Bashir, http://www.ft.com/cms/s/0/099275d2-1d5b-11de-9eb3-00144feabdc0.html?nclick_check=1 (last visited March 31, 2009).
11. Hearing on the Nomination of Hillary Rodham
12. Henry Kissinger, The Pitfalls of Universal Jurisdiction: Risking Judicial Tyranny, Foreign Affairs, Jul./Aug. 2001 at 86.
13. International Criminal Court section on State Parties to the Rome Statute available at http://www.icc-cpi.int/Menus/ASP/states+parties/ (last visited March 17, 2009).
14. INTERNATIONAL HUMAN RIGHTS PROBLEMS OF LAW, POLICY, AND PRACTICE 951 (S. James Anaya, Hurst Hannum, Richard b. Lillich, & Dinah L. Shelton eds., 4th ed. 2006) [hereinafter INTERNATIONAL HUMAN RIGHTS].
15. KRISTINA MISKOWIAK, THE INTERNATIONAL CRIMINAL COURT: CONSENT, COMPLEMENTARITY, AND COOPERATION 16 (DJOF Publishing 2000).
17. LUC REYDAMS, UNIVERSAL JURISDICTION: INTERNATIONAL AND MUNICIPAL LEGAL PERSPECTIVES 38 (2003).
18. Menno Kamminga, Lessons Learned from the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offenses, 23 Hum. Rts. Q. 940 (2001).
19. PHILLIPE SANDS, FROM
Release, Security Council, Security Council Refers Situation in
of Grave Breaches of the International
Sievert, A New Perspective on the
International Criminal Court: Why the Right Should Embrace the ICC and How
25. Serious Violations of International Humanitarian Law, Moniteur Belge (Aug. 5, 2003) (Belge).
26. STEPHEN MCCAFFREY, UNDERSTANDING INTERNATIONAL LAW, 182 (LexisNexis 2006).
27. Steven Ratner, Editorial Comment, Belgium’s War Crimes Statute: A Postmortem, 97 Am. J. Int’l L. 888 (2003).
28. THE RECKONING (Skylight Pictures 2009).
29. Tom Ginsburg, The Clash of Commitments at the International Criminal Court, 9 Chi. J. Int’l L. 499, 500 (2009).
30. WILLIAM A. SCHABAS, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL COURT, 67
 Ron Sievert, A New Perspective on the International Criminal Court: Why the Right
Should Embrace the ICC and How
 DAVID KENNEDY, THE DARK SIDES OF VIRTUE: REASSESSING INTERNATIONAL HUMANITARIANISM 35 (Princeton 2005).
 SANDS, supra note 4, at 188.
 Menno Kamminga, Lessons Learned from the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offenses, 23 Hum. Rts. Q. 940 (2001).
 Sievert, supra note 1, at 79.
 Kamminga, supra note 8, at 940.
 Steven Ratner, Editorial Comment, Belgium’s War Crimes Statute: A Postmortem, 97 Am. J. Int’l L. 888 (2003).
 Punishment of Grave Breaches of the
 Serious Violations of International Humanitarian Law, Moniteur Belge (Aug. 5, 2003) (Belge).
 INTERNATIONAL HUMAN RIGHTS PROBLEMS OF LAW, POLICY, AND PRACTICE 951 (S. James Anaya, Hurst Hannum, Richard b. Lillich, & Dinah L. Shelton eds., 4th ed. 2006) [hereinafter INTERNATIONAL HUMAN RIGHTS].
 Financial Times, League Rejects Warrant for Bashir, http://www.ft.com/cms/s/0/099275d2-1d5b-11de-9eb3-00144feabdc0.html?nclick_check=1 (last visited March 31, 2009).
 KENNEDY, supra note 5, at 112.
 Kamminga, supra note 8, at 940.
 Cherif Bassiouni, The History of Universal Jurisdiction and its Place in International Law, in UNIVERSAL JURISDICTION: NATIONAL COURTS AND THE PROSECUTION OF SERIOUS CRIMES UNDER INTERNATIONAL 39, 40 (Stephen Macedo ed., 2006).
 Henry Kissinger, The Pitfalls of Universal Jurisdiction: Risking Judicial Tyranny, Foreign Affairs, Jul./Aug. 2001 at 86.
 Bassiouni, supra note 27, at 42.
 STEPHEN MCCAFFREY, UNDERSTANDING INTERNATIONAL LAW, 182 (LexisNexis 2006).
 Kissinger, supra note 33, at 86.
 Anne-Marie Slaughter, Defining the Limits, in UNIVERSAL JURISDICTION: NATIONAL COURTS AND THE PROSECUTION OF SERIOUS CRIMES UNDER INTERNATIONAL 168, 170 (Stephen Macedo ed., 2006).
 LUC REYDAMS, UNIVERSAL JURISDICTION: INTERNATIONAL AND MUNICIPAL LEGAL PERSPECTIVES 38 (2003).
 INTERNATIONAL HUMAN RIGHTS, supra note 17, at 950-951.
 Ratner, supra note 14, at 889.
 Arrest Warrant of 11 April 2000 (DRC v.
 Ratner, supra note 14, at 890-891.
 INTERNATIONAL HUMAN RIGHTS, supra note 17, at 951.
 Ratner, supra note 14, at 891.
 International Criminal Court section on State Parties to the Rome Statute available at http://www.icc-cpi.int/Menus/ASP/states+parties/ (last visited March 17, 2009).
 KRISTINA MISKOWIAK, THE INTERNATIONAL CRIMINAL COURT: CONSENT, COMPLEMENTARITY, AND COOPERATION 16 (DJOF Publishing 2000).
 Tom Ginsburg, The Clash of Commitments at the International Criminal Court, 9 Chi. J. Int’l L. 499, 500 (2009).
 Sievert, supra note 1, at 119.
WILLIAM A. SCHABAS, AN
THE INTERNATIONAL CRIMINAL COURT,
67 (2d ed.
 Diane F. Orentlicher, The Future of Universal Jurisdiction, in UNIVERSAL JURISDICTION: NATIONAL COURTS AND THE PROSECUTION OF SERIOUS CRIMES UNDER INTERNATIONAL 214, 219 (Stephen Macedo ed., Penn Press 2006).
 SANDS, supra note 4, at 75.
 MISKOWIAK, supra note 82, at 50.
 Sievert, supra note 1, at 88.
 INTERNATIONAL HUMAN RIGHTS, supra note 17, at 938.
Press Release, Security Council,
Security Council Refers Situation in
 CNN, International Court Issues Arrest Warrant for Sudanese President, http://www.cnn.com/2009/WORLD/africa/03/04/sudan.president.darfur.charges/index.html (last visited Apr. 1, 2009).
 Aljazeera, Arab Leaders Snub al-Bashir Arrest Warrant, http://english.aljazeera.net/news/middleeast/2009/03/2009330175846714662.html (last visited Apr. 13, 2009).
 Christopher Gosnell, Editorial Comment, The Request for An Arrest Warrant in Al Bashir: Idealistic Posturing or Calculated Plan, 6 J. Int’l Crim. Just. 841, 846 (November 2008).
 Gosnell, supra note 102, at 847.
 Ginsburg, supra note 85, at 510.
 Gosnell, supra note 102, at 850.
 Ginsburg, supra note 85, at 507.
 THE RECKONING (Skylight Pictures 2009).
 Ginsburg, supra note 102, at 508.
 Laura M. Olson,
 Olson, supra note 118, at 7-8.
on the Nomination of Hillary Rodham Clinton, of
 Sievert, supra note 1, at 113.
 MISKOWIAK, supra note 82, at 47.
 International Criminal Court section on State Parties to the Rome Statute, supra note 81.
 Ratner, supra note 14, at 888.
 Security Council Press Release, supra note 97.
 Olson, supra note 118, at 16.