International Criminal Court Politics Of The Unlike-Minded Nations
by Sarvesh Singh and Saurabh Mishra*
Cite as : (2004) PL WebJour 8
The best chance humankind has ever had to end the culture of impunity is within our grasp. We must not let it fall.1
Even with the growth of an impressive body of international law, the world community has been almost helpless in the face of the failure of national criminal law systems to punish the perpetrators of atrocities and those behind them. In the past fifty years alone, more than 86 million civilians have died in over 250 conflicts. Since the Nuremberg2 and Tokyo Tribunals,3 many of the worst criminals responsible for genocide, mass executions of political opponents, pogroms, ethnic cleansing and systematic rape went unpunished not because of a lack of national and international norms criminalising such acts, but because there has not been a reliable system for enforcing these laws and due to the inability or unwillingness of national courts to act. There was no substantial progress in prosecuting violators of human rights and humanitarian law despite reports of massive violations in the Philippines, Cambodia, Indonesia, Sri Lanka and East Timor among others.
It is for this reason that the international community has been working towards the creation of a permanent international criminal court for over fifty years.4 The establishment of international war crimes tribunals in Nuremberg and Tokyo after World War II led many to hope that a permanent institution might soon be created. Unfortunately, the divisions of the Cold War frustrated the efforts to create a permanent court, and the project only regained momentum after the fall of the Berlin Wall. The horrors of conflict in Bosnia-Herzegovina and Rwanda led to renewed calls for an international criminal court from the public, media and non-governmental organizations.
The establishment of the International Criminal Tribunals for the Former Yugoslavia (ICTY)5 and for Rwanda (ICTR)6 by the Security Council in 1993 and 1994 was certainly a step in the right direction. However, they were only a milestone and not the final destination on the path to effectively preventing and punishing genocide, war crimes and crimes against humanity because of their limitations.7
That destination, in a limited sense, was reached when on 17-7-1998, the international community adopted a treaty known as the Statute of the International Criminal Court8 (hereinafter referred to as the Rome Statute or the Statute) creating the worlds first independent and permanent International Criminal Court (hereinafter also referred to as the ICC or the Court). However, the journey was and is not without obstacles. The opposition of the US, in particular, and others such as China, India, Pakistan, Indonesia, Turkey, Russia, Israel, Egypt, Iran, etc. to the present format of the ICC is endangering the vibrant functioning of the Court. These countries are referred to by the authors as the unlike-minded nations. This nomenclature is used to show that while on most of the other issues these countries are the bitterest of adversaries of each others, they have found a common issue to oppose in the form of the ICC. This paper tries to explain some of the politics behind the opposition to the Court. The paper gives a brief overview about the ICC after explaining the need for such court at the international level. It then deals with the opposition to the Court and exposes the inherent hypocrisy of the United States in opposing the ICC.
The need for an international criminal court
The following are some of the compelling reasons for establishing a criminal court at the international level:
To achieve justice for all
An international criminal court has been called the missing link in the international legal system. The ICC could potentially act as a standard-setting institution in the areas of due process and fair trial rights at both the international and national levels. Initially, the ICCs interpretation of human rights provisions and standards could clarify existing ambiguities in the law and shed light on future developments, just as the ICJ has done in the area of public international law. Many nations may seek to reform their domestic legal procedures in order to comport with an internationally accepted ICC. Second, the ICC is likely to receive broader international support than temporary courts because all UN members voluntarily contribute their ideas to the betterment of the system. Although the ad hoc tribunal serves as a model for the specific situation it was designed, it may not necessarily provide legal standards for the international community. As a result of the culmination of almost 100 years of world history and international legal precedent, the ICC could possibly serve as an international representative for justice.9
To afford an enforcement mechanism and redress
The legitimacy of international criminal law will continue to be in jeopardy unless an enforcement mechanism exists. Although the concept of individual accountability for human rights and humanitarian law abuses is a well-established principle, there is not a permanent mechanism to enforce international criminal law. When national courts were reluctant to try international criminals, impunity resulted. The creation of the ICC is seen as a logical step in the development of the international legal order which will add strength to existing international criminal standards.10
The ICC also reflects the need to provide an important measure of relief to victims, their families and affected communities for egregious atrocities committed against them. Affording redress by holding individual perpetrators accountable can have two significant effects. First, it removes the stigma victims may feel if the criminals were to continue to belong to their social ranks after committing the crime. Second, it allows victims to begin the reconciliation process. The Rome Statutes commitment towards victim relief is demonstrated by its efforts to create a Victims and Witnesses Unit.11
To counter the failure of national systems
Although it is optimal for each nation State to bring to justice its own perpetrators, history reveals that some governments may be unwilling to call their own citizens to accountability for various reasons. This may be due to policy reasons, lack of the necessary legal system or law to comply, collapse of national institutions, lack of the political will or reluctance to turn over individuals who hold high positions of political or military authority. A permanent international court could potentially eliminate these national shortcomings by providing a consistent, predictable forum for justice.12
To remedy the limitations of ad hoc tribunals
Temporary tribunals cannot substitute for a permanent international court because of political and legal reasons.13 Initially, marshalling the necessary political will and resources required to create ad hoc tribunals is difficult. The inability to secure stable financing and the lag time involved in setting up the procedural and physical structure of the court delays and prevents swift justice. Moreover, crucial evidence can deteriorate or be destroyed; perpetrators can escape; and witnesses can relocate or be intimidated. Investigation becomes increasingly expensive. This is referred to as tribunal fatigue. Second, the establishment of tribunals by decision of the UN Security Council, rather than by treaty, potentially allows ad hoc tribunals to be accused of political bias and suspicion concerning their judicial independence. Whereas Council Resolutions can be revoked or amended, multilateral treaty-created powers bring finality to the issue with a wide or universal acceptance.14 Third, the ad hoc tribunals are limited in their territorial and temporal jurisdiction.15 They, furthermore, do not cover the full range of war crimes established under international law. Fourth, reliance on temporary courts results in a system of international criminal enforcement that appears to provide for selective justice. Questions arise as to why tribunals were created in one situation, but not in another equally compelling situation. Fifth, it is being assumed that the Security Council will always have the political will or logistical capacity to respond in the future. Finally, ad hoc tribunals do not provide the desired level of consistency in the interpretation and application of international law as their statutes are tailored to meet the demands of the specific situation that brought them into existence. Overall, a permanent ICC potentially ensures equal justice consistently applied throughout the international community.
The need to end impunity
A person stands a better chance of being tried and judged for killing one human being than for killing 100,000.16 The most compelling reason for establishing the ICC has been to end impunity. Despite the precedents set at Nuremberg and Tokyo, and the two recent ad hoc International Criminal Tribunals for the former Yugoslavia and for Rwanda, most perpetrators of gross human rights abuses and violations of international humanitarian law are not punished by national or international bodies. Justice is not served when international criminals are capable of escaping judgment. The presence of impunity not only encourages the recurrence of abuses, but also strips human rights and humanitarian law of their deterrent effect. The judgment of the Nuremberg Tribunal stated 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 establishing the principle of individual criminal accountability for all who commit such acts as a cornerstone of international criminal law. According to the Draft Code of Crimes against the Peace and Security of Mankind, competed in 1996 by the International Law Commission at the request of the General Assembly, this principle applies equally and without exception to any individual throughout the governmental hierarchy or military chain of command. The Statute of the ICC recognizes this principle under Articles 27 and 28.
To deter future war criminals
This point is a corollary of the earlier point. It is reasonable to conclude from the above that most perpetrators of such atrocities have believed that their crimes would go unpunished. Effective deterrence is a primary objective of establishing the ICC. Once it is clear that the international community will no longer tolerate such monstrous acts without assigning responsibility and meting out appropriate punishment, to heads of States and commanding officers as well as to the lowliest soldiers in the field or militia recruits, it is hoped that those who would incite a genocide; embark on a campaign of ethnic cleansing, murder, rape and brutalize civilians caught in an armed conflict; or use children for barbarous medical experiments will no longer find willing helpers.
To help end conflicts
In situations such as those involving ethnic conflict, violence begets further violence one slaughter is the cause of the next. The guarantee that at least some perpetrators of war crimes or genocide may be brought to justice acts as a deterrent and enhances the possibility of bringing a conflict to an end.
Overview of the ICC
The ICC is a permanent tribunal that will investigate and try individuals for the most serious international crimes genocide, crimes against humanity, and war crimes. Genocide is any one of a number of acts aimed at the destruction of all or part of certain groups of people. It is this intent that distinguishes genocide from other crimes against humanity.17 Crimes against humanity are distinguished from ordinary crimes in three ways. Firstly, the acts constituting said crimes such as murder, must have been committed as part of a widespread or systematic attack. Secondly, they must be knowingly directed against a civilian population and thirdly, they must have been committed pursuant to a State or organizational policy.18 War crimes are, as the name suggests, crimes committed during armed conflict including acts such as torture, sexual violence, pillage, employing poisonous weapons and intentionally starving civilians.19 The Statute establishes the Courts jurisdiction over serious war crimes, whether committed in internal or international conflicts.20
The ICC will prosecute only individuals and not States. The Court will only act in cases where States are unwilling or unable to do so known as the principle of complementarity. This gives States the primary responsibility and duty to prosecute the most serious international crimes, while allowing the ICC to step in only as a last resort if the States fail to implement their duty that is, only if the national system is unwilling or unable to do so.21 Bona fide efforts to discover the truth and to hold accountable those responsible for any acts of genocide, crimes against humanity, or war crimes will bar the ICC from proceeding.
The ICC will be based in the Hague, the Netherlands. It will have jurisdiction over crimes committed in the territories of ratifying States and over crimes committed anywhere by nationals of ratifying States.22 The Statute does not provide for any immunities and the ICC can try any individual responsible for such crimes, regardless of his or her civilian or military status or official position.23 States that do not ratify the treaty can choose to accept the Courts jurisdiction in particular cases.
There are three ways that cases can be brought to the International Criminal Court.24Both, a State that has joined the treaty and the Security Council of the United Nations can refer a situation to the Court for investigation. In addition, the ICC Prosecutor can start an investigation based on information that she or he receives from victims, non-governmental organizations, or any other reliable source. The ICC will rely on State cooperation in its investigation and prosecution of cases. All State parties, and the States that have accepted the Courts jurisdiction must cooperate with the Courts investigations and prosecutions.25 The ICC will not have its own police force and will work side by side with national authorities.
The ICC Statute contains numerous provisions to ensure that its procedures are carried out in accordance with recognized international standards of justice and guarantees of due process and fair trial. It contains a detailed list of the rights that any accused person shall enjoy, including the presumption of innocence, the right to counsel, to present evidence, the right to remain silent26 and the right to have charges proved beyond a reasonable doubt.27 These rights are protected not only in trial and appeal procedures but also during investigations.
Further, the Judges must meet criteria of professional competence, integrity and experience in relevant areas of law and must be elected by a two-third majority of State parties to the Statute.28 The Statute also has provisions allowing for disqualification of Judges in conflict of interest situations and procedures for removal from office in exceptional cases of serious misconduct.29
Moreover, the Statute contains many checks and balances to screen out frivolous proceedings. For example, allegations must be assessed by the Prosecutor to determine whether there is a reasonable basis to proceed.30 The Prosecutor cannot initiate an investigation without review and approval from a Pre-Trial Chamber of three Judges.31 The suspect and interested States have the right to challenge investigation and to challenge the jurisdiction of the ICC over the matter. A person convicted by the trial court or the Prosecutor has the opportunity to appeal based on grounds of procedural error, error of fact, or error of law to the Appeals Chamber.32
Death penalty is excluded under the Statute and the maximum penalty provided is imprisonment of 30 years. The Statute, under Article 75, mandates that the Court establish principles relating to reparations, which include compensation, restitution and rehabilitation.
Opposition to the Court
Though, the ICC is favoured by a substantial number of countries, the sailing has not been as smooth, to say the least. The negotiations were marked by considerable differences in opinion with regard to the actual form of the future International Criminal Court. These centred above all on the issues of jurisdiction and scope of the future court, in particular their relation to national criminal jurisdiction and to the Security Council of the United Nations, as well as the precise nature of the obligations to cooperate with the Court. The discussions increasingly became a struggle between primarily sovereign-minded countries advocating a restrictive approach and the group of some 60 so-called like-minded countries in favour of the Courts establishment. Despite all the national nuances, there were thus essentially two opposing approaches represented at the Rome Conference:
Some countries which, while paying lip-service to the project, advocated an initially weaker, symbolic court whose involvement ought to depend on permission granted on a case-by-case basis by the countries concerned or the UN Security Council. Other tactics included the suggestion to create a permanent ad hoc criminal court dependent ultimately on the Security Council or an endless succession of proposals with built-in security devices, as it were, to exempt as far as possible their own nationals from the jurisdiction of the Court. Similarly, there were numerous proposals aiming to make the obligation to cooperate with the future court largely a matter falling to the discretion of each individual country. These were the countries that feared that their nationals would be liable to be prosecuted by the ICC, as once in a while their citizens, including heads of States, ministers, soldiers or others, were guilty of the crimes within the purview of the Court.
In contrast, the like-minded countries in favour of the Court pursued the goal of an effective, functional, independent and thus credible international criminal court capable of exercising, on the basis of both clear and binding rules regarding its competence and the principle of complementarity. A regime of clear obligations to cooperate with the Court was sought for such cases.33
Moreover, the opposition to the Court continues unabated. A substantial amount of criticism of the ICC came, surprisingly for many, from the United States, who are proud to proclaim themselves as upholders of democracy and freedom. For one, the former US Secretary of State Henry Kissinger perceives danger in allowing international legal norms to interfere with political actions by national governments. He warns that efforts to deter genocide and other crimes against humanity by creating an international criminal court run the risk of becoming a tyranny of judges or a dictatorship of the virtuous. He refers to inquisitions and even witchhunts.34 Other scholars identify several features of the ICC Statute that raise American concerns.35 However, although these concerns may have political bearing, if any, the provisions of the Statute are widely within the scope of existing international law.36
The reason for the US opposition is simple. All the temporary tribunals that the United States has supported were limited to investigating others; they could not hold US citizens accountable. Expecting that the ICC would not be allowed to take any action until after a UN Security Council decision had referred a case to the Court, US officials at first also supported the proposed permanent court. Within the Security Council, Washington could use its veto power to prevent any investigation of itself or its friends. The United States wanted a court in which the Prosecutor could never bring charges against anyone from the United States, although the United States could, through a Security Council decision, bring charges against others. This position so flagrantly violated principles of equal justice that eventually the rest of the world rejected the US position in order to establish a court with independent authority.
The reasons for the United States persistent refusal to accept the jurisdiction of an impartial court over the conduct of its own law-abiding citizens, and not wanting international laws against war crimes and genocide, with which it agrees, being applied to itself are given below.37 These reasons and justifications have been rebutted by a number of scholars and they have strongly supported the establishment of the ICC and the need for US support.38
First, US officials fear that the mere existence of an independent court might limit US uses of military power. To have a court ready to investigate US officials for war crimes or crimes against humanity might inhibit officials from sending forces into combat and using aerial bombardment that might kill many civilians. Yet the law governing international military conduct is not changed by the establishment of the proposed court and the content of the Statute does not justify US fears.39 If US military actions are legal, it has nothing to fear from the Court.
Second, US leaders fear that an international prosecutor might bring politically motivated charges against US officials. The concern about politically motivated prosecutions of US (or other) nationals is understandable, but the Statute contains the following four important safeguards to address this concern.
- ? The Courts jurisdiction is limited to the most serious international crimes, like genocide and crimes against humanity, and their commission must have been authorized by the State for the prosecution to proceed. The United States was closely involved in defining the relevant crimes and in establishing high thresholds to limit the Courts role.
- ? The ICC is a court of only last resort. Under the principle of complementarity, the Court will not be allowed to act when national judicial systems are available and willing to prosecute suspects. If a State carries out its obligation to investigate a suspected crime, even if it decides there is no reason to prosecute a suspect, the ICC cannot intercede.
- ? The only exception allowing independent court action is when a State intentionally tries to avoid its international obligation by shielding a criminal from responsibility, as has been the case in Serbia. Because the ICC is not designed to supplant effective national judicial systems such as US military and civilian courts, it is extremely unlikely that US nationals would ever come before the ICC.40
- ? The Prosecutor will be accountable to oversight by a panel of Judges who will ensure that investigation by the prosecutor is warranted.
- ? Safeguards exist in the procedures for electing Judges, who are to be highly respected justices of impeccable credentials, and for selecting the Prosecutor, as well as for his or her removal if the Prosecutor engages in politically motivated investigations.
These four safeguards should ensure that the United States would not be subjected to unwarranted charges.41
Third, the United States claims that the Courts Prosecutor has too much independence to launch investigations, because he or she could do so without a Security Council decision. But if the draft treaty had stipulated instead that the Prosecutor could act only with a Security Council referral, then the Council role would surely have politicized the Court, treating permanent members like kings, and putting them, as well as all those they would shield with their veto, outside the law. Again, this would be such an extreme violation of fair legal practice that France and Britain, although permanent members enjoying the veto power, both parted company from the United States on this question.
Fourth, the United States now actively opposes the Court, even as a non-party to the treaty, claiming that it will exercise unjustified jurisdiction over US nationals by binding non-parties. Even if the United States does not ratify the treaty, the argument goes that the US citizens could be accused of a crime. The overreaching argument, frequently voiced by Senator Jesse Helms and other congressional critics, is a gross mischaracterization of the Court. No new laws for human conduct are created by the Court Statute; existing laws will simply be better enforced. Of course the Statute permits the Court to exercise jurisdiction over the nationals of non-parties where they have committed serious crimes, but there is nothing novel in this. The core crimes in the Statute are crimes of universal jurisdiction that is, they are so universally condemned that every nation in the world now has a duty to exercise jurisdiction over suspects even without the proposed court and without the consent of the accuseds own national government.
All nations are already obligated to prosecute or extradite for prosecution anyone who commits genocide or crimes against humanity. And the United States already participates in many treaties that permit US citizens to be held accountable for criminal actions in foreign jurisdictions without special permission for prosecutions, including the treaty banning genocide, the Geneva conventions on war crimes and the long-standing international laws against piracy and slave trade. In short, the treaty does not impose any obligation on non-parties that they are not already bound to fulfil, but is needed to enforce existing laws more effectively. In addition, the proposed court enhances protection for US nationals by ensuring rights of defence and other due process guarantees that cannot be ensured in every national prosecution around the world.
The continued US insistence that no person should be tried without the consent of his or her national government seems a self-defeating condition, which if established, would enable any world-class criminal to stay out of court. It is difficult to imagine the governments of Saddam Hussein or Slobodan Milosevic consenting to the prosecution of their own crimes.
Meanwhile, the US has been putting relentless pressure on States to sign bilateral agreements42 by which signatories commit themselves to never hand over a US national to the ICC. An estimated 49 States have signed these bilateral agreements. Most are particularly poor and vulnerable to US pressure. Incidentally, India too has signed such a bilateral agreement with the US.
Now the US Administration has ratcheted up the pressure by reminding States of the terms of the American Service-members Protection Act, 2002 (ASPA).43 According to ASPA, States that are parties to the ICC Treaty and have not signed an agreement with the US may have their military assistance suspended.44 But the Act itself provides exceptions for NATO members and major non-NATO allies. It also allows the President to issue waivers if in the national interest of the US.
In addition to concerns about the impact on the Court of signing agreements with the US exempting Americans from ICC jurisdiction, many States are concerned about the legality of signing the agreements themselves. In September 2002, the European Union issued guidelines in which it rejected the form of agreement the US is demanding as inconsistent with the ICC Treaty, the Rome Statute and set down a number of important conditions for States contemplating negotiating an agreement.45
According to a legal opinion46 from three international lawyers,47 such bilateral agreements are illegal.48 It is inconsistent with the object and purpose of the Rome Statute for a State party to enter into or apply a bilateral non-surrender agreement if the purpose or effect would be to provide impunity. Similar considerations apply to signatories of the Rome Statute that have not yet ratified, to the extent that a bilateral non-surrender agreement would frustrate the object and purpose of the Statute. Article 98(2) of the Statute does not permit a State party to enter into or apply an agreement that provides for the return of any person who cannot objectively be treated as sent by that State.49
Such measures and efforts can be quite prejudicial to the establishment and vibrant functioning of the ICC, to say the least. Arrogant unilateralism does not create world leaders nor does it encourage others to provide help in ones endeavours.50 What is at stake is the very legitimacy of the ICC. As the US is fully aware, a court that exempts the worlds superpower risks losing its legitimacy. That is the goal of certain extremists in Washington who seek to exercise the United States unprecedented military power without the inconvenient constraints of international law or at least international law interpreted by anyone other than themselves.51 The world, in general, and the American public, in particular, must realize the hypocrisy of the United States. The following words of Kenneth Roth are pertinent
No one pretends that it is easy to stand up to superpower pressure. The threats and arm-twisting can be intense. The temptation to accept unprincipled compromises is substantial. But the challenge of defeating impunity was also large. We stand today on the threshold of a new era in international law enforcement because so many nations of the world banded together in defense of principles. What would have been difficult for any single nation is a triumph for many nations that have acted together. Similar collective action is needed to defeat new challenges to the scope and legitimacy of the ICC. At a time when the US Government is the supplicant, when it is seeking global support for its military plans, the nations of the world should at the very least insist that military action by anyone be waged under independently enforceable human rights standards.52
The establishment of the International Criminal Court is a watershed moment for the progression of humankind and the universal acceptance of the rule of law. The potential impact of the ICC is enormous. By holding individuals personally accountable, the global community would be able to deal effectively with the perpetrators of the most serious crimes of concern to the international community. It would be crucial both to aid present victims and to deter future criminals. This in turn would help in the maintenance of international peace, as we have seen in Somalia, Bosnia, Rwanda, Haiti and elsewhere, the cycles of violence continue so long as the people involved feel that justice has not been served. Further, the ICC represents the sharpest expression of developments in international humanitarian law and human rights. It would have an impact on pushing for further institutionalization of these laws in the domestic legal and judicial systems of these countries, which would also have an impact in curbing the perpetuation of systems that violate human rights. The mere existence of the ICC would already configure heavily in human rights situation. It would facilitate the implementation of various conventions on human rights and international humanitarian laws in the region.
However, in spite of the euphoria surrounding certain positive political developments, it should not be ignored that the internationalization of criminal law, in particular, the creation of mechanisms of international criminal justice, will only meet its potential if the corresponding competences or even obligations to prosecute international crimes are internalized i.e. recognized and accepted by the prosecutors, the accused and the victims as materially valid and just law.53
Moreover, some issues about the Court remain unsettled and put a question mark over the efficacy of the Court. The authority and the effectiveness of the Court may be seriously compromised by the opposition and non-involvement of quite a few countries that matter, most importantly, the United States. It is imperative that the countries opposing the ICC realize that the gains to them by not signing the Treaty are very few in comparison to the benefit to the world in general. Those who have suffered horrible crimes have waited far too long to extend the rule of law to their assailants.
There is a potential danger that the Court might become a political tool used by the rich and powerful countries to compel the leaders of poor and weak nations to rally domestic public opinion around holier-than-thou propaganda. Then there is the issue of sufficient independence of the ICC to dispense justice in a reasonably fair and even-handed way. Noam Chomsky sums up well the concern raised about how power and influence comes into the equation
[The ICC] has the same flaw as all international institutions. In a world ruled by force, the rich and powerful do pretty much what they like. Its next to inconceivable that the ICC could try, even investigating, western criminals. Simply look what happened to the World Court and the Security Council when they tried to get the US to call off its terrorist war against Nicaragua. The same was true of Nuremberg. The people sentenced there were some of the worst gangsters in human history, no doubt, but the operational definition of war crime was war crime that they committed and we did not.54
Even with the clouds of reservations such as these hovering over it, the ICC offers advancement towards the long-held ideal of international justice. To conclude, the international community would do good to remember the following words of George Santayana Those who forget the lessons of the past are condemned to repeat their mistakes. Let us not repeat our mistakes.