An Independent and Effective International Criminal Court
by Fergus Watt, Executive Director, World Federalists of Canada

ABSTRACT

The creation (by international treaty) of a permanent International Criminal Court (ICC) strengthens the UN's capacity to maintain international peace and security. Whereas UN action often punishes an entire state for the crimes of a few, the ICC will hold individuals, including national political and military leaders, accountable for violations of some of the worst offenses under international law. The Court will act when national judicial bodies are unable or unwilling to do so.

The jurisdiction of the ICC will include the crime of genocide, crimes against humanity and war crimes. The Rome Statute for an ICC, which was opened for signature in July, 1998, also identifies aggression as a crime falling within the Court's jurisdiction, although, as the treaty makes clear, the Court will not exercise such jurisdiction until the crime of aggression has been adequately defined. A treaty review process is provided for this and other purposes.

The Rome Statute is a comprehensive legal undertaking, the result of a three year process of UN Preparatory negotiations, leading to the five-week diplomatic conference in Rome.

The Statute combines legal norms and procedures (rights of suspects and witnesses, rules of evidence, judicial procedures, etc.) from the world's main legal systems, primarily the common law and civil law traditions. Many important parts of the treaty are the result of difficult, contentious negotiation, including: (a) the crimes under ICC jurisdiction; (b) 'complementarity' i.e. relationship between the ICC and national courts; (c) the difficult prior conditions for initiating Court action in all cases except genocide; (d) the independence of the ICC Prosecutor; and (e) the relationship between the ICC and the UN Security Council. The latter two difficulties received considerable attention from the international coalition of citizen-based non-governmental organizations (NGOs) monitoring the development of an ICC. A Court limited by an ineffective Prosecutorial capacity, or (worse) under the control of the UN Security Council would have been seen as a retrograde step, i.e. worse than having no Court at all.

Thankfully, negotiations led to satisfactory outcomes on most (but not all) major contentious issues. An alliance of middle power governments (the 'Like-minded') and the NGO community was able to move world public opinion in favor of a strong Court, and marginalize the big powers which were either opposed to an effective ICC or favored a minimalist treaty.

TEXT OF ARTICLE

From June 15 to July 17, 1998 diplomats from over 150 states gathered in Rome, Italy for the final phase of negotiations to create a permanent International Criminal Court. A coalition of over 800 Non-governmental Organizations (NGOs) tracked the negotiations, lobbying intensively, and relaying information to their constituencies around the world.

Following some eleventh-hour drama during which amendments proposed by the United States and India were both defeated, a treaty text was adopted amid much celebration and emotion. At the signing ceremony the next day, UN Secretary-General Kofi Annan said that:

"By adopting this Statute, participants in the Conference have overcome many legal and political problems, which kept this question on the United Nations agenda almost throughout the Organization's history. . . . The establishment of the Court is a gift of hope to future generations, and a giant step forward in the march towards universal human rights and the rule of law. It is an achievement which, only a few years ago, nobody would have thought possible."

This paper offers a brief account of these negotiations, as well as analysis of the dynamics which shaped outcomes regarding some of the political issues of concern to the NGO community.

Completion of the Rome Statute for an International Criminal Court adds meaning and substance to the world's commemoration, in 1998 of the 50th anniversary of the Universal Declaration of Human Rights. The Court, which will be created once 60 governments have submitted their instruments of ratification, will give the world a powerful new tool to punish individuals who are guilty of committing genocide, war crimes, crimes against humanity.

Heading in to the Rome Diplomatic Conference there was much cause for concern regarding the outcome of these negotiations. Over 1,300 square brackets remained in a complex, 172-page draft of the Statute. Would the international community succeed in creating an ICC which is not subject to interference from political organs, like the UN Security Council? Would the crimes under the Court's jurisdiction be adequately defined? Would the Court's Prosecutor have the capacity and authority to act independently, in a manner which maintains the confidence of the world's states and people? Would the Court be empowered to effectively assert it's jurisdiction when these most serious crimes of concern to the international community are alleged to have occurred?

In principle, creation of a Criminal Court strengthens the UN's capacity to maintain international peace and security. Whereas UN action typically punishes an entire state for the crimes of a few, an ICC will hold individuals, including national political and military leaders, accountable for violations of some of the worst offenses under international law.

Rather than respond to acts of genocide occasionally and after the fact, creation of a permanent International Criminal Court will allow the UN's application of humanitarian law to become much more consistent and reliable. A permanent court will also allow for greater efficiency and cost-savings. And the existence of the Court will serve a preventive function by deterring other potential criminals.

In the aftermath of war, criminal prosecution of leading individuals can help defuse the animosities and mistrust among formerly warring communities. By individualizing guilt, entire groups are not held responsible for genocide or other humanitarian crimes, thus contributing to social and political healing and reconstruction.

Furthermore, the existence of an ICC will help erode the outdated notion that the world is little more than a collection of nation-states. It is an important step, conceptually and politically, from state-centered thinking to a framework in which the individual has rights and responsibilities under international law.

With all this going for it, there is little wonder that the negotiations to create a permanent ICC attracted the attention of a global NGO constituency. It was worldwide revulsion following reports of genocide and ethnic cleansing in Rwanda and Ex-Yugoslavia which led to the creation of the Ad Hoc Tribunals to try war criminals from those states. Popular interest in a permanent Criminal Court not only contributed to a positive outcome at the ICC negotiations. Continued citizen interest and involvement will be essential to the establishment and operation of the Court.

Whereas the Ad Hoc Tribunals are mandated by resolution of the UN Security Council, the ICC is to be established by treaty. Nevertheless, the structure of a permanent Court draws heavily on the model established by the Tribunals.

The Court will consist of a Presidency, Trial and Appeals Chambers, and a Registry or secretariat. An independent Prosecutor will assume responsibility for investigation of complaints. Like the judges of the Court, the Prosecutor will be elected, by secret ballot, by an absolute majority of States parties to the Statute.

Eighteen Judges will be selected from a pool of nominees (each state being able to propose the names of two nominees). They will be selected for a nine-year non-renewable term on the basis of their criminal trial experience and knowledge of international law. In electing judges, states are asked to keep in mind the need to represent on the Court all the principal legal systems of the world. The Judges will elect from among their number a President, two Vice-Presidents and two alternate Vice-Presidents.

At the UN Preparatory Committee meetings the elaboration of numerous draft options on many fundamental issues revealed substantial political differences of view on the scope and purpose of the ICC. For example, some Arab states and other members of the Non-Aligned Movement, did not want an effective ICC. They were wary in particular of the capacity of an ICC to intrude upon their sovereign prerogatives, by asserting jurisdiction over crimes committed in the course of internal conflict, and therefore sought to water down the treaty at every turn. Additionally, some powerful states supported creation of an ICC, but wanted a minimal Court, a sort of permanent version of the Ad Hoc Tribunals which would be activated at the discretion of the UN Security Council.

However, the key to the success of the ICC negotiations was an alliance of middle power governments (the 'Like-minded') and the international coalition of citizen-based non-governmental organizations (NGOs). The Like-minded and NGOs were able to move world public opinion in favor of a strong Court, and marginalize the big powers which were opposed to the treaty. Although some unfortunate compromises made along the way, the views of the Like-minded prevailed in most instances.

The contours of debate over some of these broader political issues, and the manner in which they were resolved are summarized below.

(1) The Court's jurisdiction

The Statute for an International Criminal Court includes as crimes under the Court's jurisdiction: genocide, crimes against humanity, war crimes and aggression .

Aggression. Although aggression was among the crimes prosecuted at Nuremberg, its eventual inclusion in the jurisdiction of a permanent Court was thought unlikely. At the Rome conference, many states offered support in principle for inclusion of the crime of aggression. However, there were serious disagreements over its definition and the proper role of the Security Council in determining whether an act of aggression has been committed. (The crime of aggression under international law has never been adequately defined. A 1974 UN resolution comes closest to doing so, but is still far too vague and ambiguous.) As a compromise, the Statute provides that the Court will exercise jurisdiction over aggression once an amendment is adopted that resolves those outstanding issues.

The debate over whether to include aggression demonstrates the limits of the political will to develop a criminal jurisdiction within international law (and, conversely, the future potential for the Criminal Court system). The international community is not prepared at this juncture in history to establish a Court which could help deter acts of aggression and curtail war, but only the means to limit the worst excesses of war.

Some states argued for the inclusion within the Statute of other "treaty crimes," such as apartheid, drug trafficking, terrorism, and endangering the safety of UN personnel. However, a majority of states, not wanting to extend already-difficult negotiations, opposed inclusion of these crimes. As a compromise, a provision of the Rome Conference's Final Act calls specifically for an ICC Review Conference to "consider the crimes of terrorism and drug crimes with a view to arriving at an acceptable definition and their inclusion in the list of crimes within the jurisdiction of the Court."

Once the ICC is established and has proved its usefulness, amendments to the Statute may very well broaden the range of crimes within its jurisdiction.

Exercise of jurisdiction. One of the most Court-limiting compromises agreed in Rome is found in an article entitled "Pre-conditions to the exercise of jurisdiction." This concerns the extent of the Court's jurisdiction over non-state parties. The treaty provides that, absent Security Council referral, the Court can only take a case when either the territorial state or the state of the suspect's nationality has accepted the Court's jurisdiction. This compromise language is narrower than an initial proposal by Germany ("universal jurisdiction") which would have permitted the court to prosecute any suspect for any core crime, whether or not the suspect's state of nationality had accepted the court's jurisdiction. Germany had argued the case for universal jurisdiction on the grounds that the three core crimes are universally recognized (i.e. almost all states are party to the treaties prohibiting these crimes). A subsequent proposal, by South Korea, would have permitted the Court to exercise jurisdiction if one or more of the following four categories of states has accepted the Court's jurisdiction: the state of the suspect's nationality, the state where the crime was committed, the state of the victim's nationality or the state with custody over the suspect.

The South Korea language was widely supported up until the final two days of the Rome conference. The final compromise is more expansive than a U.S. proposal, which would have limited jurisdiction over non-state parties to cases where the state of nationality of the perpetrator has given consent. Nevertheless, some observers wonder what was gained in the bargain by Philippe Kirsch, the Canadian who Chaired the Committee of the Whole and brokered most agreements which found their way into the final version of the Statute. Most of the states opposed to the South Korea language proved ultimately to be among those who either abstained in the final vote or (like the U.S.) opposed. These are states which are not likely to participate in the treaty in its early years. The loss in particular of the Court's ability to prosecute when the custodial state is a party to the treaty is particularly regrettable. The territorial state and the state of the suspect's nationality will often be one and the same. All of this means that, in the Court's early years, many crimes may go untried. Until there is widespread support for the Court and participation in the treaty, the world will see an ICC whose jurisdiction is asserted occasionally and inconsistently.

(2) Relationship to Security Council.

The Statute allows the Security Council to refer for investigation by the Court Prosecutor situations which come to its attention. This is of course reasonable and was agreed without difficulty.

More controversial were the efforts of most permanent members of the UN Security Council (with the exception of the U.K., a late convert to the 'Like-minded') to secure agreement on provisions allowing the Council too much scope to influence the work of the Court. The U.S. and other permanent members wanted the ability to prevent the Court from commencing a prosecution "arising from a situation which is being dealt with by the Security Council as a threat to or breach of the peace, or an act of aggression under Chapter VII of the UN Charter, unless the Security Council otherwise decides." This would have limited the independence and impartiality of the Court by allowing permanent members of the Security Council, individually, the ability to shield their nationals from prosecution, simply by placing a situation on the Council's agenda. This would have led to a two-tier justice system and exacerbated the already inequitable power relationships at the UN.

Instead, a compromise, which was proposed by Singapore in 1997 and not substantially changed in Rome, allows the Security Council to defer an ICC investigation or prosecution for renewable 12-month periods. To do so would require more than just a motion by one member to place an item on the Council's agenda; the Council would need to take an affirmative decision (i.e. agreement by a three-fifths majority of Council members including all five permanent members). This will probably succeed in preventing permanent members from using their position on the UN Security Council to obstruct ICC investigations or prosecutions.

(3) Independent Prosecutor.

The evolution of negotiations on the powers of the ICC Prosecutor speaks most directly to the role of NGOs and the Like-minded in advancing conditions needed to ensure that the new Court would be independent and effective.

The draft of the ICC Statute which emerged in 1994 from the UN's International Law Commission (ILC) did not call for a 'Proprio Moto' Prosecutor, i.e. a Prosecutor able to initiate investigations or prosecutions on his/her own initiative. The ILC draft called for an ICC Prosecutor who would initiate investigations only after receiving a complaint from a State party to the ICC treaty or a referral from the Security Council.

However, experience at the UN Human Rights Commission and other fora offer ample evidence that states are reluctant to complain about violations of humanitarian law by other states. Similarly, the UN Security Council is often unable and/or unwilling to take action even when the evidence of atrocities is clearly documented. Many NGOs, as well as many delegations, argued that the Prosecutor should be empowered to independently initiate investigations and prosecutions, on the basis of information provided by individuals (e.g. citizens organizations, relatives of victims) as well as states. The call for an independent Prosecutor became one of the most prominent benchmarks for an effective ICC.

Opponents argued (unsuccessfully) that this proposal may give rise to a rogue Prosecutor; that he/she might initiate investigations or prosecutions for political or otherwise unfounded reasons; or that an independent Prosecutor would lead to a huge backlog of cases in a Court designed only to address the most serious crimes of concern to the international community.

The final treaty gives the Prosecutor the power to initiate proceedings on his/her own initiative (not having to depend on Security Council referrals or state complaints. This authority is checked by a requirement that the Prosecutor obtain approval by a pre-trial chamber of the Court at an early stage in the proceedings.

Thus, a long term partnership between civil society and the institution of the ICC Prosecutor is virtually built into the Rome Statute.

This is among the reasons why the ICC will continue to garner widespread support from NGOs and civil society. This is not only as it should be; indeed, continued NGO support will be essential if the Court is to succeed. In the immediate future, NGOs will need to maintain their support for the Court if the campaign for ratifications and entry into force is to prove successful.

The ICC Statute sustained some bruising and still retains many ambiguities following the difficult negotiations and compromises at the 1998 Rome diplomatic conference. Once the Court is established it will require that States Parties select determined and forward thinking judges and officers in order for the institution to succeed.

The idea of an international court which would provide a forum in which individuals could be held accountable for their crimes under international law represents a very significant evolutionary development for humanity. By strengthening the world's international criminal jurisdiction, the international community helps build the means to provide that the application of humanitarian norms becomes more a matter of law, order and due process, and less a matter of diplomacy.

The ICC heralds a historic step in civilizing human relations. It can, and should, succeed.

Fergus Watt is Executive Director of the World Federalists of Canada. WFC serves as administering agency for the Canadian Network for an International Criminal Court (CNICC, 207 - 145 Spruce St. Ottawa K1R 6P1 E-Mail: wfcnat@web.net), which includes over 150 organizations and individuals.

(posted Oct25.98)