Can the International Criminal Court be an effective forum in promoting international justice?

On the 18^th of July 1998, the Rome Statute establishing the International Criminal Court was signed. The conference at Rome completed the creation of a court with jurisdiction over the most heinous crimes; namely genocide, crimes against humanity, war crimes and aggression.[1] The purpose of this essay is firstly to analyse the workings of this novel institution, and secondly determine whether it can be an effective forum in promoting international justice. Some of the obstacles that might prevent the Court achieving this goal will be scrutinized, as will some of its advantages in achieving such a praiseworthy objective. In analysing the workings of the Court, particular regard will be given to examining whether its use as a deterrent and the Statute’s feature of complementarity can act as means of promoting international justice.

The establishment of an International Criminal Court to deal with gross violators of human rights can be seen as part of the trend that the historian Eric Hobsbawm identified as ‘the Imperialism of Human Rights.’ It has been suggested that the ICC is evidence of a spreading consensus that extreme human rights violations are a matter for the international community as a whole to take punitive measures on the perpetrators of the violations. Chris Brown makes the case that the international human rights regime has grown up in the decades following from the horrors of the Shoah[2] - it is almost as if a great shadow was cast over the world with the ascendancy of totalitarian regimes in Europe, and the international community later sought to prevent the world from regressing into comparable darkness through the promotion of an international human rights regime in the form of various institutions and documents such as the United Nations, or the European Convention of Human Rights and Fundamental Freedoms. While the aims of these associations may be laudable, it is apparent that they have rarely been achieved – a cursory glance through the bloodstained history of the latter half of the 20^th Century from the time when Auschwitz, Birkenau and Dachau shut their gates right through to our own era with its own atrocities such as the terrible crimes of Joseph Kony’s Lord’s Resistance Army in Uganda[3] or civilians being deliberately targeted during the conflict in Chechnya, will show that international justice has often remained an elusive goal of such bodies. It is to be hoped that the ICC, through its pursuit and punishment of wrongdoers, can curtail these sorts of injustices.

In a 1997 article in which he called for the setting up of an international criminal court, M. Cherif Bassiouni (who in 1998 served as the Chairman of the Drafting Committee of the Diplomatic Conference on the establishment of an International Criminal Court) observed that with the absence of such a court, not only have many atrocities gone unpunished, but each of the ad hoc tribunals and investigations that have been created has suffered from the competing interests of politics or the influence of a changed geopolitical situation.[4] Of course until we see the results of some of the cases brought before the ICC any assessment of whether or not atrocities will still go unpunished or whether it will be subject to political and geopolitical influences is purely speculative.

An international criminal court was repeatedly proposed throughout the 20^th Century but calls for its founding came to nothing thanks to the bipolar world order of the era. With the ending of the Cold War stalemate there also came about the ending of the systematic usage of the veto by either of the superpowers in the UN Security Council. The way was now open for the establishment of such a court.[5]

The first time in the modern era that individuals were held to be responsible for crimes committed in the name of the state was before the Nuremberg and Tokyo trials. The world had to wait until almost fifty years for the same legal principle to be resurrected again, with the passing of UN Security Council Resolution 827 (1993) which applied Chapter VII of the UN Charter, which created the ad hoc International Criminal Tribunal for the Former Yugoslavia, which is based at The Hague in The Netherlands. This tribunal was created to judge precise facts and appeals, and is transient in nature, scheduled to disappear at the end of its mission. It has material competences to judge on crimes against humanity, genocide, and war crimes. A similar tribunal was established by the Security Council Resolution 995 (1994) to try those responsible for the same categories of crimes committed in Rwanda in the mid-1990s, which sits at Arusha in Tanzania.

Undoubtedly the workings of the two ad hoc tribunals influenced the Statute of Rome. The International Criminal Court has competences for the same crimes as the ad hoc courts, which are defined in Articles 6 to 8 of the Statute, while it may also try individuals for the crime of aggression, but only once the States party to the Statute have reached an agreement on its definition. Its structures are broadly similar to the ICTY and the ICTR. In accordance with the legal principle of non-retroactivity[6], the Court can only judge on crimes committed after the 1^st of July 2002 when it came into force thanks to the ratification of it by at least 60 States Parties. Cases are initiated by the Security Council, Prosecutor or a State Party, while there are also limits on who can actually stand accused before the court – firstly, the court can only judge natural persons – it cannot judge legal persons such as corporations. Secondly, the accused must either have the nationality of, or the crimes must have been perpetrated in, a State Party to the Statute of Rome.[7] One point worth noting about this feature of the Court is that it means that certain crimes, which may be of equal magnitude to those that come before it, can totally escape the legal competences of the Court.

One criticism of the workings of the Court focuses on the role of the prosecutor – it is claimed that the ICC will lead to political prosecution. It is this fear of selective prosecution that has led the United States’ government to be so steadfastly opposed to it. This fear is justified, its proponents say, because any State has the power to refer an issue for investigation to the Prosecutor and also the Prosecutor has the power to commence an investigation ex proprio motu. They also lament the lack of a UN Security Council veto over the discretion of the Prosecutor.[8] Said in another way, due to the fact that the ICC is an instrument that Washington can’t control sufficiently to keep it from prosecuting American government and military officials, this is the reason for their aversion to the new court.[9]

In a 2001 article in which he argues against the universal jurisdiction, Henry Kissinger raises the concern about politically motivated prosecutions in claiming that when discretion on what crimes are subject to universal jurisdiction and whom to prosecute is left to national prosecutors, the scope for arbitrariness is wide indeed. He gloomily notes, in reference to the 1998 British detention of former Chilean President Augusto Pinochet as the result of an extradition request by a Spanish judge seeking to try Pinochet for crimes committed against Spaniards on Chilean soil, that while

“So far, universal jurisdiction has involved the prosecution of one fashionably reviled man of the right while scores of East European communist leaders - not to speak of Caribbean, Middle Eastern, or African leaders who inflicted their own full measures of torture and suffering -- have not had to face similar prosecutions.”[10]

While Kissinger and others of the same view feel that politically-motivated prosecutions would hinder the goal of international justice, there is another strand of opinion that holds that there are enough safeguards in the Statute of Rome to prevent such political prosecutions. As Vesselin Popovski writes,[11]

“The experience of the ad hoc tribunals indicates that states are reluctant to exercise political influence over the court. There is no evidence to suggest that the ICC will be more vulnerable to political pressure than the ICTY or domestic courts; on the contrary, the mere fact that the ICC prosecution office and judges will consist of lawyers from dozens of different countries is an additional guarantee of independence. The risk that any malign political interference

will be exposed will be much higher when the prosecutors and judges are highly professional and independent representatives from all over the world.”

Antonio Cassese writes ‘the Prosecutor may bar any initiative of states which may prove politically motivated and contrary to the interests of justice’.[12] To further combat the risk of politically-motivated prosecutions, the Statute provides that the approval of three judges sitting in a pre-trial chamber be obtained before an arrest warrant can be issued or proceedings initiated.[13]

Evidently there are enough safeguards in place to prevent political prosecutions taking place. Thus far the presence of such safeguards has not been enough to convince the Court’s detractors (who include China, Russia, Israel and India – not just the United States) to ratify the Statute – perhaps if they see that the protections are effective in the future workings of the Court they may be convinced to sign up to the Statute, thereby giving the court more universal acceptance and thus more legitimacy.

One of the main arguments in favour of establishing the Court was that it could deter the commission of war crimes or genocide.[14] However, there is a counterview that the decision to commit those crimes punishable by the ICC is not a rational one to begin with, so the existence of a Court will do nothing to prevent the actions of irrational actors. On the other hand, the commission of genocide does involve mass government planning, so there is some degree of rationality involved however odious that rationality may be. Former Justice of the South African Constitutional Court, Justice Richard Goldstone believes that the Court would without doubt act as a deterrent to would-be perpetrators:

“If some would-be war criminals believe that they are likely to be arrested and brought

before the ICC they might well think twice before becoming outlaws. Already it has

become more difficult for war criminals to travel abroad. International arrest warrants

await them at some international airports. I cannot believe that, at least in some cases,

this does not act as a deterrent.”[15]

While Cassesse believes that some of the elements of the substantive law of the Rome Statute are retrograde (i.e. the maintaining of a distinction between crimes committed in external and internal conflicts and also no prohibitions on modern weapons that cause superfluous injury or unnecessary suffering or are inherently indiscriminate), he believes its triumphs lie in the advances it has made in procedural international law, most notably by adopting the principle of ‘complementarity,’ whereby the ICC won’t intervene unless the national courts have showed that they are either unwilling or unable to prosecute. He praises this for three reasons: firstly, national courts are often the ones best suited to trying issues in the places where both the evidence and the culprit can be found. Secondly, national courts will often have a duty under international law to prosecute these crimes anyway thanks to their convention obligations. Thirdly, were the principle of complementarity to be absent, there would be a danger that the ICC would be flooded with a barrage of minor criminal cases which would create backlogs and halt its work on the more serious crimes.[16] Having the feature of complementarity also shields the Court somewhat from accusations that it is a further encroachment on state sovereignty – by its nature, it will only encroach sovereignty should the sovereign nation show that it cannot or will not fulfil its international law obligations.

It is to be hoped that the ICC will be able to prevent future atrocities and thereby spread international justice more effectively than other institutions that have gone before it. Its permanent nature gives it an obvious advantage over the Nuremberg, Tokyo and ad hoc tribunals for Yugoslavia and Rwanda, in that it has a far wider jurisdiction. Thanks to its universal jurisdiction, it doesn’t stand to be accused of meting out “victor’s justice” as was the case at Nuremberg and Tokyo. Writing in The Irish Times about what is in his opinion the woeful record of the United Nations has in preventing atrocities, David Adams writes:

“Having two of the principal signatories of the UN Charter as China and the Soviet Union seems perverse now - it was a bit like inviting Dr Harold Shipman to help draw up a code of practice for care of the elderly.”[17]

At least the International Criminal Court Statute doesn’t face the same legitimacy problems as the UN might, in that it was established in a context of widespread consensus, with 120 States voting to adopt the Rome Statute on 17^th July 1998 in a display of “profound and in some ways mysterious enthusiasm”[18] for a Court sharing the philosophy of the international human rights movement.

In his appeal for the establishment of a permanent international criminal court, M. Cherif Bassiouni noted that

“The weak processes of international criminal justice following World War I not only failed to deter the military leaders who initiated World War II, but enhanced their cynicism. During a 1939 speech, Hitler reportedly stated in connection with his plans to "cleanse" (his early euphemism for exterminate) Jews, Gypsies, and others from the Third Reich: "Who after all is today speaking about the destruction of the Armenians?"”[19]

Bassiouni opined that Hitler’s words reflect a view that is still held by many today – that in international relations, the rule of might overshadows the rule of law. He goes on to paraphrase the dictator, when he asks

“Who now remembers Biafra, Bangladesh, Cambodia, Uganda, Burundi, Liberia, and other genocides and mass murder?”[20]

A true measure of the ICC’s success would be if such a viewpoint could be reversed – in other words if it becomes clear to all potential perpetrators of crimes within the ICC’s remit that the rule of law overshadows the rule of might, that their crimes will not be forgotten – rather they are liable to answer for them and be punished if necessary.

---

[1] Weakes, R. (2005) International Debate Education Association - International Criminal Court http://www.idebate.org/debatabase/topic_details.php?topic ID=146 [accessed 29 Nov 2005]

[2] Chris Brown (2001) ‘Human Rights’ in Baylis J. and Smith S, eds., The Globalization of World Politics, 2^nd ed, Oxford: OUP, 599.

[3] The Economist newspaper reports that the Ugandan Civil War provides a test case for the International Criminal Court.

(2005) ‘Hunting Uganda’s child-killers’, The Economist, 7 May 2005, Vol. 375, Issue 8425

[4]Cherif Bassiouni, M. (1997) ‘From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court’, Harvard Human Rights Journal [online], 10(11). Available: http://web.lexis-nexis.com/professional/ [accessed 29 Nov 2005]

[5] Roche, C. (2003) L’essentiel du Droit International Public et du Droit des Relations Internationales, 2^nd ed. Paris: Gualino Editeur. 114.

[6] There is a presumption that statutes are not intended to penalize conduct that was lawful when it occurred, that legislation should only operate on matters taking place after its enactment.

Oxford Dictionary of Law (2002), 5^th ed., Oxford: Oxford University Press.

[7] Roche, 82.

[8] Weakes, ibid.

[9] Blum, W. (2002) Rogue State: A Guide to the World’s Only Superpower, 2^nd ed., London: Zed Books. 77.

[10] Kissinger, H. (2001) ‘The Pitfalls of Universal Jurisdiction: Risking Judicial Tyranny’, Foreign Affairs [online], July / August 2001. Available: http:www.icai-online.org [accessed 27 Nov 2005] 5.

[11] Popovski, V. (2000) International Criminal Court: A necessary step towards global justice, Security Dialogue [online edition] 31, 4, 411 Available: http://www.swetwise.com [accessed: 25 Nov 2005]

[12] Cassese, A. ‘Statute of the International Criminal Court: Some Preliminary Reflections’,

European Journal of International Law, vol. 10, no. 1, 1999, pp. 144–171, on

p. 162.

[13] Weakes, R. (2005)

[14] See, for instance, Letter from The Association of The Bar of the City of New York to President George W. Bush calling for an end to US Opposition to the ICC, available: http://www.iccnow.org/documents/statements/others/NYCBarLetterofsprt10Apr02.pdf

[15] Goldstone, R. lecture was delivered in Abuja, Nigeria on February 14, 2005 and jointly sponsored by the John D. and Catherine T. MacArthur Foundation, the Nigerian Federal Ministry of Justice, and Nigeria’s National Human Rights Commission. Available: http://www.iccnow.org/documents/statements/others/GoldstoneAbuja_14Feb05.pdf [accessed: 30 Nov 2005]

[16] Ibid, Cassesse, A. (1999)

[17] Adams, D. (2005) ‘Woeful record of the UN’, The Irish Times [online], 10 June 2005, available: http://www.ireland.com/newspaper/opinion/2005/0610/3429860429OP10ADAMS.html [accessed: 29 Nov 2005].

[18] Schabas, W.A. (2004) An Introduction to the International Criminal Court, 2^nd ed., Cambridge: Cambridge University Press. X.

[19] Cherif Bassiouni, M. (1997) ‘From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court’, Harvard Human Rights Journal [online], 10(11). Available: http://web.lexis-nexis.com/professional/ [accessed 29 Nov 2005]

[20] Ibid, Cherif Bassiouni, M. (1997).

Photo: Akbar Simonse
Map: Narek781

Suggested Solutions to Limerick's Bus Problems

Limerick Post

In my opinion the Limerick City Bus Service has problems.  In the following

 paragraphs I will outline what I believe some of these problems are, and I will give

 my suggestions on how to overcome them and improve the service.  I see no reason

 (apart from the obvious one, lack of funds) why Limerick can't improve it's bus

 service to the extent that it is a model of good public transport for other towns and

 cities in this country to copy.

From my experience the only people that take the bus in Limerick are those that have

 to, i.e. the elderly, students, people that can't drive and people that can't afford cars.

 Given the choice between taking the bus and driving, most people in this city opt for

 the former it seems. If taking the bus means half-hour waits only for a dangerously

 overcrowded bus to pull up and reasonably refuse to take on any more passengers,

 coupled with really long walks from the bus stop to wherever it is you wanted to go

 (There is some statistic that everywhere in Paris is within 500m of a metro station. 

I doubt the same could be said for Limerick regarding bus stops - if people

have really long walks after their bus journey, often in the wind, the wet, the rain, they

 will be discouraged from using the bus)....Bus Eireann have to get their act together

 so that people will choose the bus rather than the car. If they can convince more

 people that they are offering a good service, they will increase their revenue and then

 be able to invest in improving their service even further. I've a couple of suggestions

 of how they could improve their service:

1. Schedule the busses for every 10 minutes on the busiest routes, every 20 minutes

 on all other routes. People willl only choose the bus over the car if they know their

 bus will be at their stop when they want it, or at least if they know they won't have to

 wait all that long. This would involve buying more buses and hiring more drivers –

 good for employment then.

2. Establish a night service. Sure the taxi-drivers will be up in arms, but isn't

 competition good for the consumer? This could be run to some of the areas most in

 demand at night time but maybe only every 40 minutes.

3. If they feel that double-decker buses are too awkward what with bridges and that,

 why not invest in those single-storey buses twice as long as normal buses with the

 accordion type thing in the middle?

4. Give the public more incentives to use the bus. For example, in the town in France I

 lived in for a while, Besançon, nearly everyone that used the buses had weekly,

 monthly or yearly bus passes. This was made by making the bus passes much cheaper

 than buying single tickets - for instance my student monthly bus pass there was €21

 whereas if I bought single tickets (each one costing a euro) I would have spent well

 over €50 on the bus per month. The bus passes were available in every newsagent,

 and also in the universities and schools. The bus company also had a shop in the

 centre of town to buy

them. Encouraging the majority of people to have travelpasses is also good because it

 speeds up the time it takes to get onto the bus - there is no waiting for change, all you

 have to do is flash your ID.

5. The town also had a great idea to show car-users what life on public transport is

 like. If you brought your car into a mechanic in Besançon, the bus company allows

 you to travel for free on the bus for the duration of your car being out of action.

6. Perhaps put park and ride facilities on the outskirts of the city, i.e. at Coonagh,

 Patrickswell, Annacotty etc. Make the use of these facilities much cheaper than city

 centre parking. Hopefully this would free up traffic so buses would run on time and

 make restore the public's faith that the bus would be on schedule.

7. The design of the current buses needs to be changed. There's too much seating on

 them for a start - it's fine when there are hardly any passengers on them but positively

 dangerous at 5 o'clock in the evening when passengers are squashed up against the

 front windshield. Remove some of the seating and replace it with areas to lean, bars

 to hold onto, and fold up seats.

8. Put 2 doors in the buses - one for going in at the front, one for going out towards

 the back/middle. Much time is wasted when everyone that wants to get off the bus

 has to be let off the door before the people waiting can get on.

9. At every bus stop put maps of Limerick showing all the routes highlighted in

 different colours. Don't have every route necessarily going through town - have more

 routes using orbital roads along the lines of the UL-Raheen via Childers Road route.

10. Widen the Childers Road.

11. Publicity campaigns informing the people of great changes made and the ease of

 taking the bus.

12. More bus shelters.

13. Get property developers of ever expanding suburbs in places like

Annacotty and Raheen contribute towards the extension of bus routes into their

 estates. We can't have everyone relying on the car, the roads just can't accommodate

 them all for a start.

14. Many of the less-used bus routes stop at 6 o'clock. I believe they should stop at 7

 or 8 at the earliest, as this will give people who work until then to catch a bus home.

 Perhaps one of the reasons why some bus routes are so underused is because they are

 so infrequent.

15. It would be good if city buses left from outside the bus and train station too.
Perhaps they could leave from where the taxi rank is, and the existing taxi rank could

 be moved to within the train station car park. At the moment there aren't even signs

 in the train station directing visitors about where the city bus stops are located.

16. Run loads of extra buses on big match days in Thomond Park and the Gaelic

 Grounds, especially from park and ride facilities. Perhaps include free use of public

 transport for the day of the match in the price of the match ticket.

To conclude, I believe that the solution of Limerick's bus problems (and, indeed,

 traffic problems) is to convince people that have the choice about whether to drive or

 not that the bus is a better option. I believe this could be achieved through

 implementing the measures I have outlined above.

Photo: Wendy