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.

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[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