Fall 1996 Human Rights Magazine

By Jelena Pejic

Exactly 50 years after the Nuremberg judgement, the international community is finally seriously considering the establishment of a permanent International Criminal Court. Given the atrocities that have been committed worldwide since the close of that trial, it seems strange that it has taken so long for states to recognize the need to create an ICC. On this point consensus, however fragile, does exist. The main unresolved issue is how independent and effective should such a court be ?

The idea of creating an international criminal court to try individuals responsible for serious crimes under international law is by no means new. It was first mentioned in the 1919 Paris Peace Treaty, whose signatories envisaged trying the German Emperor for "a supreme offense against morality and the sanctity of treaties". (He never stood trial.) Based on the precedent of the Nuremberg and Tokyo Tribunals, the 1948 Genocide Convention provided that the perpetrators of this crime against humanity would be tried before an international penal tribunal, if and when one were set up. Draft Statutes for an ICC were prepared in 1951 and 1953 by the International Law Commission (ILC), a U.N. expert body, only to be laid to rest because of the advent of the Cold War.

In 1989 Trinidad and Tobago revived the idea hoping that an international criminal court could help small nations in their perennial fight against international drug trafficking crimes. A decisive step forward was made with the establishment of the ad hoc international tribunals for the former Yugoslavia and Rwanda in 1993 and 1994. The events in both the former Yugoslavia and Rwanda obviously showed that national criminal justice systems may either be unwilling ( as in the former case) or unable (in the latter), to take action against individuals responsible for genocide, war crimes and crimes against humanity. The wide-scale killings and destruction, committed with impunity, painfully showed that the world does not have a mechanism to either deter heinous crimes or punish those responsible for them.

The Yugoslavia and Rwanda Tribunals, to be realistic, came into being because the five permanent members of the Security Council managed to agree on their establishment. This is not to say that such tribunals were not called for in the past (Cambodia) or, more importantly, that a similar ad hoc tribunal would be created in the future, should another crisis merit it. Political and logistical reasons could easily come in the way. That is why a permanent International Criminal Court is necessary.

International criminal law must be enforced if the perpetrators of the most serious crimes of concern to the international community are to be brought to justice. Justice, in turn, is vital to peace. It affords redress to individuals and, more broadly, offers hope for eventual reconciliation among national and other groups. Justice can be done and can be seen as being done only if a permanent International Criminal Court is independent and effective and if it adheres to the highest standards of due process and fair trial. An ICC, it is hoped, would not only enforce international criminal law, but also serve as a model for national criminal justice systems in the performance of this task.

Shortly after the establishment of the Yugoslavia and Rwanda tribunals, in 1994, the International Law Commission issued a final draft Statute for an ICC and recommended the convening of a diplomatic conference to complete work on and adopt the text. Its suggestions were, it seems, premature, for two years later it is still uncertain if and when such a conference will be held. Due to political differences among U.N. member states discussions on the draft Statute were first referred to an Ad Hoc Committee of the U.N. General Assembly that met twice in 1995. It , too, recommended that a diplomatic conference be called.

The compromise solution, eventually adopted, was that a preparatory committee be set up to further review the text, but also, for the first time, start negotiations on the statute's provisions. The Preparatory Committee met for three weeks in March-April 1996 and again in August. If there is sufficient progress, the date of a diplomatic conference might be set, when the General Assembly meets later in the fall of this year.

The preparatory committee debates have confirmed states' willingness to set up an International Criminal Court, as well as its basic structure. There is agreement that the court would be set up by a treaty, open to the voluntary participation of all interested states. With the demands of cost reduction in mind, the drafters suggested that the court be a permanent body, but one that would initially sit only when requested to hear a specific case.

The court would be composed of 18 judges, elected by secret ballot of the states parties to the Statute, for a non-renewable term of nine years. No two judges could be nationals of the same state. Apart from the Trial and Appeals Chambers, judicial functions would also be performed by the presidency, composed of the court's president and two vice-presidents.

The procuracy--a prosecutor and one or more deputies--would be responsible for the conduct of investigations and prosecutions, while the registry would be the principal administrative organ of the court. The procedure before the ICC will be specified in more detail in the court's rules, that would be adopted by the states parties once the statute comes into force. It is certain, however, that state cooperation and judicial assistance will be absolutely vital to the court's functioning, because it will have no law enforcement officials or capacity at its disposal.

Similar to the Yugoslavia Tribunal the ICC could not impose the death penalty; only life imprisonment, imprisonment for a specified number of years and fines are provided for. The statute also provides for the creation of an indictment chamber in cases where a trial cannot be held because of the deliberate absence of the accused. The procudure is modeled on the provisions of the Yugoslavia Tribunal Statute, under which public hearings were held at the Hague last June to reconfirm the indictments against the Bosnian Serb leaders.

One of the most important features of an ICC is that it is not intended to supplant or exclude the jurisdiction of national courts. On the contrary, it would come into operation only in cases where national trial procedures are "unavailable or ineffective" (principle of complementarity). The already mentioned failure of national courts in the former Yugoslavia and Rwanda is a case in point. However, determining the exact content and scope of complementarity has not proved to be easy. States' views differ widely on issues such as: when is a national jurisdiction deemed not available or ineffective, who is to make that assessment and what would the practical consequences be.

Whatever the specific outcome, it is fairly obvious that if an ICC is to serve its purpose it must not be relegated to a purely residual mechanism for dispensing justice. The court must be able to assume a case when national prosecution is not likely to occur or would be a sham, the determination of which, it is submitted, should be in the competence of the ICC itself.

There are several other contentious issues of crucial importance for the proposed court's operation, independence and effectiveness. The first is - what cases will the ICC be empowered to hear? Under the draft statute, the ICC would have jurisdiction over genocide, war crimes, crimes against humanity, aggression and a number of so-called treaty based crimes, including terrorism and drug trafficking. There is general agreement that the first three categories should be within the court's competence, as they constitute exceptionally serious offenses of concern to the international community as a whole. Genocide (provided for in the 1948 Genocide Convention), war crimes (provided for in the 1949 Geneva Conventions and the 1977 Additional Protocols thereto, as well as in the Hague Conventions of 1899 and 1907) and crimes against humanity (not yet comprehensively codified), are also crimes under customary international law. Their very gravity permits any state with custody of an offender to try him/or her, regardless of where the crime was committed and of the suspect's nationality (principle of universal jurisdiction). Given that, as opposed to war crimes, crimes against humanity have not been authoritatively defined in a treaty, one of the current debates in the negotations on the draft statute has centered on whether they should be linked to armed conflict or not. Referring to reality, human rights groups claim that crimes against humanity should be decoupled from armed conflict because widespread and systematic attacks against a civilian population, taking the form of murder, deportation, torture, disappearances etc., can and have been committed in peacetime. For similar reasons, human rights advocates believe that the court should have jurisdiction not only over war crimes committed in international armed conflict, but in internal armed strife as well.

Due to political differences, aggression and the so called treaty-based crimes are not likely to be included in the statute at this stage. Opposition to providing for aggression is primarily based on the fact that there is no legal definition of aggression for the purpose of establishing individual criminal responsibility. With respect to treaty-based crimes such as terrorism and drug trafficking, many states, including the U.S., claim that an ICC would not be equipped to adequately adjudicate them. They point to the sensitive nature of the information involved in, for example, terrorism investigations, their complexity and long duration. However, the inclusion of terrorism has been supported by a significant number of countries. The outcome of further discussions remains to be seen.

The second issue of concern from the standpoint of the ICC's effectiveness is the way in which the court would exercise its jurisdiction. As currently provided for, there would be two jurisdictional regimes. The court would have automatic ("inherent") jurisdiction over genocide whenever a state party to the statute is also a party to the Genocide Convention. For all other crimes, states would be free to pick and choose. Moreover, in every specific case the court could proceed only if consent to jurisdiction over that crime had been given by: a) the state in whose territory the crime occurred; b) the state with custody over the suspect, and c) the state which requested extradition of the suspect from the custodial state. It could thus happen that a state with custody of a person suspected of, for example, war crimes committed elsewhere, could not surrender him/her to the court, even if might want to, because of opposition from the territorial state and the state requesting extradition.

There are at least two substantive reasons for considering this jurisdictional scheme as troublesome. First, there is no essential difference in gravity between genocide, war crimes and crimes against humanity that merits separate jurisdictional regimes. Second, the proposed scheme does not incorporate the court into the already existing "extradite or try" system for repressing serious international crimes. Under this system a state with custody of the suspect--which will most often be the state where the crime was committed, but may also be another state--is obliged either to try the person or extradite him/her to a state willing to do so.

As illustrated above, the surrender of a suspect to the court by a custodial state could be effectively barred by the territorial and requesting state, thus not making surrender to the court part of the current "extradite or try system." As a result, human rights groups have recommended that the ICC's automatic or "inherent" jurisdiction be expanded to include not only genocide, but war crimes and crimes against humanity, in order to overcome the cumbersome and restrictive dual jurisdictional regime. It should be remembered that the ICC's inherent jurisdiction would be asserted only if and when a national criminal justice system is deemed unavailable or ineffective.

The fact that the court's prosecutor would not be authorized to independently decide, of his or her own accord, whether to bring a case before the court is the third cause of concern over the ICC's independence and effectiveness. As currently envisaged, and supported by many countries including the U.S., only states parties to the statute and the Security Council could request the prosecutor to open an investigation. He or she could not do so of his or her own motion. Given the almost complete absence of state-state complaints before international human rights treaty bodies, it is unlikely that states will feel more free to suggest proceedings against the nationals of other states. There might be too many political and diplomatic ramifications involved.

The Security Council, as an eminently political body, is even less likely to "trigger" the court's jurisdiction. In the view of human right groups it is therefore essential that the Prosecutor also be empowered to bring cases before the court. It is feared that, without that mandate, the ICC will not be effective in deterring and punishing the serious crimes within its proposed jurisdiction. In addition, the prosecutor of the Yugoslavia Tribunal, which covers similar cimes, has such a competence.

The degree of Security Council control over the court is the fourth issue that will greatly affect its independence and credibility. Under the draft statute, the court could not take up an individual case arising from a situation that the Security Council is dealing with as a threat to or a breach of the the peace or an act of aggression (under its Chapter VII powers), unless the Security Council otherwise determines. Thus, the Security Council would effectively be able to preclude proceedings before the court by characterizing a situation on its agenda as an item being considered under Chapter VII of the U.N. Charter.

Having in mind that such situations are precisely those in which crimes within the court's jurisdiction are likely to be committed, the Security Council could practically paralyze the court's activities. While a majority of states were against any linking of the court's operation to the Security Council, in the most recent debates, the Security Council's five permanent members particularly insisted on that provision.

In fact, the U.S. suggested that the court should be precluded from acting with respect to all situations on the Council's agenda - not just those under Chapter VII--while France proposed that the Security Council should serve as a filter for all complaints submitted to the court. The consequences for the court's independence and integrity if either of these propositions were accepted seems evident.

Finally, funding is an issue of concern to the operation and effectiveness of any international institution, particularly a new one. The draft statute does not address possible ways of the court's financing because, as the ILC explained in the commentary, states first have to reach a political consensus on whether a permanent international criminal court is necessary. Three models have so far been proposed in the debates: financing out of the regular U.N. budget, that the costs be borne by the states parties to the statute and a combination of the previous two. Human rights groups tend to favor the first option.

It may be concluded that much work still remains to be done in order to establish a permanent International Criminal Court. It is submitted that such a court is not only necessary, but long overdue, and that states should invest their best efforts to bring the current drafting phase to a speedy conclusion. However, if the ICC is to be a credible body for the enforcement of international criminal law it must be independent and effective and the Statute's provisions need to be tailored accordingly. The international community owes no less to past victims of grave international crimes and to those who might be the targets of such crimes in the future.

Jelena Pejic is Europe Program Coordinator at the Lawyers Committee for Human Rights, based in New York.

As published in Human Rights, Fall 1996, Vol. 23, No. 4, p.16-17.