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cerned lawyers can agree."10

Complementarity and Diminished Sovereignty

Proponents of the ICC also argue that the court is

meant to complement, not replace, national criminal justice

systems.  The court theoretically would take action only

when national courts fail to fulfill their legal responsi-

bilities.  In fact, the preamble to the ICC draft statute

states that the court "is intended to be complementary to

national criminal justice systems in cases where such trial

procedures may not be available or may be ineffective."  The

determination of a domestic system's "ineffectiveness,"

however, is one of the areas where the rationale for the ICC

breaks down.  If the ICC cannot readily supersede national

courts, a state that wants to avoid having its soldiers

prosecuted for war crimes by the ICC need only organize a

national trial or pass a law that makes it virtually certain

that they will be acquitted.11  If states can get away with

that, however, the whole point of the ICC is defeated; that

is, war crimes will continue to go unpunished.  On the other

hand, if the ICC gets to invalidate national trials by

deciding what constitutes an "effective" or "ineffective"

trial, the international court will exercise a kind of

judicial review power over national criminal justice sys-

tems.  In other words, the ICC will have de facto supreme

judicial oversight.

The ICC will also become an unavoidable participant in

the national legal process.  Indeed, because it will set

precedents regarding what it considers "effective" and

"ineffective" domestic criminal trials, the ICC will indi-

rectly force states to adopt those precedents or risk having

cases called up before the international court.  That con-

stitutes an unprecedented change in the sources of national

lawmaking, one that diminishes the traditional notion of

state sovereignty.

But the prospect of diminished sovereignty does not

worry many advocates of the ICC.  Legal scholar Sandra

Jamison, for example, argues that the United States and

other nations must be prepared to cede some of their tradi-

tional sovereignty in pursuit of a potent international

criminal court.  "The absolute doctrine that a state is

supreme in its own authority, and need not take into account

the affairs of other nations," she says, "is no longer tena-